Brothel Customer Can't Be Booked For Running Premises Or Procuring Women For Prostitution: Gujarat High Court
The Gujarat High Court has held that a customer at a brothel cannot be booked for running a brothel or procuring a person for prostitution under Immoral Traffic Act. In doing so the court quashed a 2010 FIR against a man under the Act, who was caught after a raid was conducted at a hotel allegedly being run as a brothel.The petitioner had approached the high court seeking quashing of an FIR...
The Gujarat High Court has held that a customer at a brothel cannot be booked for running a brothel or procuring a person for prostitution under Immoral Traffic Act.
In doing so the court quashed a 2010 FIR against a man under the Act, who was caught after a raid was conducted at a hotel allegedly being run as a brothel.
The petitioner had approached the high court seeking quashing of an FIR for offences punishable under Sections 3, 5, 7, and 9 of the Immoral Traffic (Prevention) Act and Section 188(Disobedience to order duly promulgated by public servant) of the Indian Penal Code.
It was alleged that in a raid at the hotel, certain "customers" were caught. It was further alleged that one Nitin @ Sonu Mehta in connivance with hotel owner Vimalbhai Modi had brought the girls from outside the state and were running a brothel and thus the FIR was lodged.
Justice PM Raval referred to various decisions and observed that undisputedly the applicant was caught during the raid on the spot and he was not the manager of the brothel but was caught as a customer during the raid, and therefore, the observations made by the coordinate bench in the cases would squarely apply to the facts of the present case.
"More particularly, Section 3 of the said Act, provides punishment for keeping a brothel or allowing premises to be used as a brothel, and thus no prosecution thereunder can be maintained against the present applicant being a customer. Section 5 of the said Act, relates to penalties for procuring or attempting to procure a person for the purpose of prostitution, and thus, these provisions are directed against a procurer such as an agent or pimp, and not against a customer, since the word 'procure' connotes obtaining a woman for the purpose of prostitution from a particular individual and not the act of the individual himself.
Section 7 of the said Act, relates to prostitution in or in the vicinity of public places. In view of the said section, prostitution in itself is not an offence under the Act save as in the manner given in Sections 7 and 8. Therefore, the applicant, by no stretch of imagination, can be charged with the offence under Section 7 of the Act, because to attract the said provisions, the prosecution must prima facie show that prostitution is being carried out," the court held.
The court said that only when the first ingredient is satisfied that the question would arise as to whether the prostitution is being carried out in or in the vicinity of a public place.
With respect to Section 9 the court said that it is not applicable in the facts and circumstances of the present case, since for attracting Section 9 it has to be shown prima facie that the applicant, having position or authority over any person (that is, a woman or a girl), causes or aids or abets the seduction for prostitution of that woman or girl.
"There is not an iota of evidence remotely suggesting that the applicant was taking undue advantage of his position or authority over the woman or girl, or caused or aided or abetted the seduction for prostitution of that woman or girl, more particularly when he was caught red-handed as a client while carrying out the raid," the court said.
The court quashed the FIR.
Case title: KAMLESH HUKAMCHAND VISHNOI v/s STATE OF GUJARAT & ANR
R/CRIMINAL MISC.APPLICATION (FOR QUASHING & SET ASIDE FIR/ORDER) NO. 7082 of 2018