Case BriefsHigh Courts

Bombay High Court: Prithviraj K. Chavan, J., while addressing the present matter throws light on the aspect of indulging in prostitution and the purpose and object of the Immoral Traffic (Prevention) Act, 1956.

PROSTITUTION

Petitioners are victims of a crime registered by the Police under the Immoral Traffic (Prevention) Act, 1956, alleged to have been compelled to involve themselves in prostitution, their identity, therefore, needs to be concealed. Hence the petitioners are to be referred to as “victims (A), (B) and (C)”.

BACKGROUND

A police constable approached the office of Social Service Branch, Mumbai informing that he was informed by P.I. Mr Revle that a person by the name of Nijamuddin Khan, a pimp provides women for prostitution at a gues house in Malad.

On receiving the above-stated information, a trap was arranged and the raiding team left for the spot after which victim girls were arrested and taken into custody.

The victim girls were produced before the Metropolitan Magistrate. Intermediate custody of the girls was given to Navjeevan Mahila Vasti Griha, Deonar, Mumbai, and were allowed to contact their family members/parents.

In the report filed by the Probation officer, it was revealed that the victim girls belonged to the “Bediya” community.

BEDIYA COMMUNITY

A custom prevails in the community wherein a girl, after attaining puberty is sent for prostitution.

The parents of the victims were aware that the victims are engaged in prostitution, meaning thereby, the parents themselves are allowing to indulge in prostitution as a profession for their daughters’ and, therefore, the learned Magistrate observed that it would not be safe to hand over the custody of the victims to their mothers.

Since the victims were not safe with their parents as the parents have no objection for the victim girls to live their life as prostitutes, the victims were directed to be detained in the shelter home wherein the Counsellor would counsel the victims to restrain from prostitution.

Magistrate observed that the victim girls need to sent to their native place Kanpur.

Magistrate had passed a detaining order for a period of one year for the care, protection, shelter and vocational training in the subject of their liking, in the Navjeevan Mahila Vastigruha, Deonar, Mumbai or with any other institution, which has been challenged in the present petition.

ANALYSIS & DECISION

Bench observed that, there were no charges qua the victims that they were carrying prostitution in public.

The inquiry as contemplated under Section 17(2) of the said Act appeared to have been carried in a very casual manner.

Section 17(4) implies that an order under the said Section can only be passed subject to the provision of sub-section (5) of Section 17 of the said Act. Sub-section (5) contemplates that while discharging the function under sub-section (2), the Magistrate will have to summon a panel of 5 respectable persons, 3 of whom shall, wherever practicable, be women to assist him in that regard.

Purpose and Object of the Act is not to abolish the prostitution or the prostitute.

There is no provision under the law which makes prostitution per se a criminal offence or punishes a person because he indulges in prostitution.

What is punishable under the Act is sexual exploitation or abuse of person for commercial purpose and to earn the bread thereby, except where a person is carrying on prostitution in a public place as provided in Section 7 or when a person is found soliciting or seducing another person in view of Section 8 of the said Act.

BROTHEL

Bench added in regard to the present matter that there is nothing on record to show that the petitioners were seducing any person for the purpose of prostitution nor there is any material to show that they were running a brothel.

Magistrate has been swayed away while passing the impugned order by the fact that the petitioners belong to a particular caste.

Hence before passing the impugned order magistrate ought to have considered the willingness and consent of the victims before ordering their detention in the protective home.

Therefore, the same needs to be quashed.

“…victims being major, their fundamental rights to move from one place to another place or to reside at a place of their choice and choose their vocation has to be considered. They cannot be subjected to unnecessary detention contrary to their wish.”

The present matter is also not something where setting the victim free would cause some danger to society. It is nearly one year that the victims have been detained in the corrective home against their wish and, therefore, for the reasons stated herein, they need to be released. [Kajal Mukesh Singh v. State of Maharashtra, 2020 SCC OnLine Bom 954, decided on 24-09-2020]

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]