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Friday, January 30, 2015

whether the said noble aim can be achieved by merely making organisers of brothel house and pimps as offenders while leaving the customers of flesh trade scot free.


Crl.P.No.16593 of 2014


Mohammed Shaheed .petitioner  

State of Telangana rep. by PP. Respondent

Counsel for Appellant   : Sri Bethi Venkateshwarlu

Counsel for Respondent  : Public Prosecutor


>Head Note:

? Cases referred:

1. 2014 (2) ALD (Crl.) 264
2. 2013 (2) ALD (Crl.) 393

CRIMINAL PETITION No.16593 of 2014  
     The petitioner/Accused No.5 along with A.1 to A.4 and A.6 is accused
of committing offences under Sections 3, 4 and 5 of Immoral Traffic
(Prevention) Act, 1956 (for short the Act).  On the evening of 05.08.2014,
the Police of Banjara Hills P.S raided the residential Flat No.104 in Jubilee
Hills and found the said premises being used for prostitution. A.2 and A.4
were said to be the brothel house organizers, A.1 and A.3 were pimps whereas
A.5 and A.6 were the customers. The police registered crime and investigating
the matter.
2)      Now the petitioner/A.5 filed this petition under Section 482 Cr.P.C
seeking quashment of the proceedings in Crime No.864 of 2014 of Banjara
Hills P.S, Hyderabad.
3)      Learned counsel for petitioner would submit that none of the Sections 3,
4 and 5 or other sections of the Act describe a customer as offender and
therefore, the prosecution of the petitioner/ A.5 is abuse of process of law and
hence the proceedings against him may be quashed.
4)      Learned Public Prosecutor contended A5 is a co-accused and liable for
5)      I find force in the submission of petitioner. Section 3 of the Act deals
with punishment for keeping a brothel or allowing premises to be used as a
brothel. Section 4 of the Act deals with punishment for living on the earnings
of the prostitution. Whereas Section 5 of the Act deals with procuring,
inducing or taking persons for the sake of prostitution. Obviously, the
allegation against the petitioner/A.5 is not that of either running brothel
or procuring women for the purpose of prostitution or that he is living by
earning money on prostitution. He was booked along with other accused only
as a customer of the flesh trade. Therefore Sections 3 to 5 are not applicable
him. It is interesting to note that none of the other penal provisions in the
either describe him as an offender. Therefore, there is any amount of force in
the submission of learned counsel for petitioner that a customer to the flesh
trade cannot be treated as an offender under the Act. This aspect is no more
res integra and we are fortified by atleast two judgments of this High Court
viz., Goenka Sajan Kumar vs. The State of A.P.  and Z. Lourdiah Naidu  vs.
State of Andhra Pradesh . In these two cases, the petitioners were admittedly
the customers to a brothel house.  Consequently, the proceedings against them
were quashed holding that the provisions of the Act cannot be invoked for
prosecuting them.
6)      Having regard to the facts and above precedential jurisprudence on the
subject in issue, it is clear that the criminal proceedings against the
would amount to abuse of process of law.
7)      Before parting, I will be failing in my duty if I do not vent out my view
on the present enactment. Law or literature cannot have more a noble aim than
depicting evil of the society and suggesting the eradicative measures. That is
why the noble Telugu play-wright Gurajada Appa Rao penned
Kanya Sulkam exposing the obnoxious practice of parents marrying their
infant daughters to septuagenarians and octogenarians for money. Another
Telugu poet Sri Sri who advocated for the cause of oppressed and
downtrodden clamoured in his ballad Kavitha o Kavitha for various sections
of destitutes in society. One among them are prostitutes. Their plight and
agony in his own words is thus:
????? ???????? ????
??????????  ?????? ?????  
??????????? ???????  
????? ???? ???? ??????
(half opened eyes of her
screams of the dreaded pain
for pet-storming brutal coitus !)
Viewing in the above context, no doubt the Immoral Traffic (Prevention) Act,
1956 is a piece of legislation aimed at preventing trafficking of women.
However, the point is whether the said noble aim can be achieved by merely
making organisers of brothel house and pimps as offenders while leaving the
customers of flesh trade scot free. As the saying goes no single hand can
produce claps, vicious circle of immoral trafficking will not be completed
without active participation of the flesh customers. In my considered view, it
is unwise to say that a customer who lurks in day and night in search of hidden
avenues to quench his sexual lust is a hapless victim of a crime to place him
out of the reach of the tentacles of the law which is intended to eradicate the
pernicious practice of immoral trafficking of women. Such an unwarranted
sympathy on a criminal will not help achieve desired results though aimed at
high.  After all, the Court can only describe the law as it is but cannot
what it ought to be. Yet, through this judgment I appeal to the Legislature to
ponder over the possibility of bringing the flesh customers within the fold of
Immoral Traffic (Prevention) Act, 1956.
9)      In the result, this Criminal Petition is allowed quashing the proceedings
against petitioner/A.5 in Crime No.864 of 2014 of Banjara Hills P.S,
     As a sequel, Miscellaneous Petitions pending, if any, shall stand closed.
        The Registrar (Judicial) is directed to transmit a copy of this judgment
to the Union Law Minister for perusal.

Date: 21.01.2015

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