Case BriefsHigh Courts

“Urgent need to get out of the preconditioned mind of the majority who unfortunately see Spas and Massage Centres as brothel houses.”

Madras High Court: The Bench of N. Anand Venkatesh, J. allowed a petition filed by a spa therapist against her illegal confinement and quashed cases filed against owners of massage and spa centres in Tamil Nadu.

The instant petition arises out of an FIR registered by respondent under Immoral Traffic (Prevention) Act, 1956, against the manager of Willows Spa citing petitioner – an Indonesian spa therapist working therein – as a victim of prostitution. Pursuant to a police raid at the said spa, petitioner along with four other spa therapists was taken into custody and confined in a government vigilance home for nearly 26 days without even being informed of the grounds of her confinement. Aggrieved thereby, she filed the present petition seeking compensation for violation of her personal liberty and loss of personal reputation.

The Court opined that banning of cross-gender massaging would not guarantee stoppage of illegal activity and urged to change pre-conceived notions about massage and spa centres. It observed that cross-gender massages is a worldwide phenomenon and held that the police had no legal right to prevent a health spa being operated by anyone even if therapy is done to persons of one sex by those belonging to the opposite sex.

It was noted that there was no proof of even a single incident of prostitution or activities of a prostitute in Willows Spa. No respectable inhabitant of the locality was called as a witness in the said case. The Indonesian Consulate was not informed about the incident and the same was in contravention of Office Memorandum No. 14051/14/2011-F.VI of the Ministry of Home Affairs.

The Court opined that the entire action of the police was illegal and a case of colourable exercise of power. If this power goes unchecked, spa centre or a massage parlour could be run only at the mercy of a police officer. For an extraneous consideration, the police can brand any spa as a brothel and even if a brothel is being run in the name of a spa, no action would be taken. Such a situation is neither good for the society nor the police force.

It was observed that every foreign national who comes to India should be treated like an ambassador of the concerned country as they carry with them their opinions and impressions about our country. Petitioner had come to India on a valid employment permit and an offered salary of $ 25,000 per year. She had hardly worked for three months when she suffered a horrific experience of being confined illegally in a government home for 26 days.

In view of the above, respondent’s FIR was quashed and petitioner was granted Rs 2,50,000 as compensation. [Kadek Dwi Ani Rasmini v. K. Natarajan, 2019 SCC OnLine Mad 23, decided on 02-01-2019]

Case BriefsHigh Courts

Karnataka High Court: A Single Judge Bench comprising of K.N. Phaneendra, J. allowed a petition wherein the bench stated that a customer encouraging the services of a prostitute cannot be held liable for any prosecution.

The petition was filed under Section 482 of CrPC in order to quash the entire proceeding in crime registered by the respondent under Section 370 of IPC and Sections 3, 4, 5 and 7 of the Immoral Traffic (Prevention) Act.

Taking into account the FIR and the respective evidences placed before the Court by the respondent, the only inference that could be drawn was that the petitioner was a ‘customer’ in the brothel house indulged committing prostitution with a lady which was corroborated by the raid conducted by the respondent.

The High Court referred to the case of Goenka Sajan Kumar v. State of A.P., 2014 SCC OnLine Hyd 1192 and a few others, wherein it was stated that, in order to be covered under the ambit of Sections 3, 4, 5 and 7 of the Immoral Traffic (Prevention) Act, 1956, it has to be established that:

  • The petitioner should have lived on the earnings of prostitution.
  • Maintained a brothel house or allowed his premises to be used for the same.
  • Procured, or induced a person for the sake of prostitution.

Further, the High Court concluded by stating its opinions that the customer does virtually encourage prostitution along with exploiting the victim for money, but due to the absence of any specific penal provision, the Court cannot make the petitioner liable for prosecution under the said offences. [Sarvan v. State of Karnataka,2018 SCC OnLine Kar 634, order dated 31-05-2018]

Case BriefsHigh Courts

Karnataka High Court: A criminal petition was filed under Section 482 CrPC to quash the proceedings in a criminal case filed under the Immoral Traffic (Prevention) Act, 1956, where a Single Judge Bench comprising of K.N. Phaneendra, J. held that the offences under ITP Act or under Section 370  IPC are not attracted as far as the customers in a brothel house are concerned.

The petitioners in the instant petition were customers in a brothel house found by the police during a raid. The petitioners were charged as accused in a criminal case for offences punishable under Sections 3, 4, 5 and 7 of the ITP Act. The High Court perused the entire charge-sheet papers and also referred to a few of the earlier decisions pronounced by it on the same or similar matter.

On perusal of the earlier decisions as well as various provisions of the ITP Act, the High Court was of the view that offences under the said sections were not attracted to the customers in a brothel house. It was observed that though the customers virtually encourage prostitution, but in the absence of any specific penal provision, they can not be said to be liable for prosecution for the above said offences. Accordingly, the petitions were allowed and all the proceedings pending against the petitioners in the said criminal case were quashed. [Chandru S v. State, Crl. Petition No. 5059 of 2017, order dated December 7, 2017]

Case BriefsHigh Courts

Karnataka High Court: While deciding a criminal petition filed under Section 482 of CrPC, a Single Judge Bench comprising of Aravind Kumar, J. allowed the petition and quashed the proceedings pending against the petitioner on the file of Civil Judge.

A case was registered against the petitioner for the offences punishable under Sections 3(2B), 5(1), 5(D) 4 and 7 of the Immoral Traffic (Prevention) Act, 1956. Learned counsel for the petitioner contended that the filing of charge-sheet and conducting of investigation was by a person who was not competent to do so under the ITP Act, and such the proceedings against the petitioner may be quashed.

The High Court perused the record and submissions made by the parties and found that the charge-sheet was filed by a Sub-Inspector of Police. However, as per the mandate of Section 13(2) of the said Act, a ‘Special Police Officer’ cannot be below the rank of Inspector of Police. The Court was of the view that where the investigation had been conducted, completed and concluded by an officer who was not competent to do so, such proceedings were liable to be quashed.

Accordingly, the petition was allowed, the proceedings pending against the petitioner were quashed, and he was acquitted of the offences punishable under the abovesaid sections. [Rajeev K. v. State of Karnataka, Criminal Petition No. 6124 of 2017, order dated 16.10.2017]