Case Against Brothel Operators, Customers Can't Be Quashed Merely Because Women Allegedly Exploited Have No Grievance: Kerala High Court

Justice Jobin Sebastian observed that the offences under the special enactment of Immoral Traffic (Prevention) Act, 1956 cannot be quashed:

“merely because the witnesses who were allegedly subjected to sexual exploitation have subsequently recanted from the prosecution version, it cannot, at this stage, be concluded that there is no possibility of a conviction or that the continuation of the proceedings would amount to an abuse of the process of law. The offences alleged in the present case are also not in the nature of private disputes. The allegations relate to activities sought to be regulated and prohibited under a special enactment enacted in the public interest. Consequently, the mere fact that the women who were allegedly subjected to sexual exploitation do not presently have any grievance against the accused cannot, by itself, constitute sufficient justification for quashing the proceedings.”

The petitioners before the Court were accused nos. 1 and 3 to 7 in a crime registered for the offences under Section 143 read with Section 3(5) BNS and Sections 4, 5, 6 and 7 of the Immoral Traffic (Prevention) Act.

The prosecution allegation was that the accused 1 to 3 recruited and harboured certain women in an Ayurvedic spa for sexual activities. The allegation against accused 4 to 7 was that they rendered assistance to the activities by recommending women, with the intention of earning money. It is further alleged that based on a tip-off, the police conducted a raid at the spa and accused 4 to 7 were found engaged in sexual intercourse with 4 women.

The petitioners came before the High Court seeking to quash the case against them and contended that the allegations in the FIR and Final Report do not attract the offences alleged. They further argued that the prosecution has failed to collect materials to establish that the women were recruited or threatened or force or that they were receiving any payments or benefits. There are no materials that established that assistance was rendered to running of the brothel, they submitted. Additionally, it was argued that one of the petitioners was not at the scene of occurrence and that the CCTV footages would prove the same. They also raised a ground that the procedure relating to search was no properly followed.

The petitioners further pointed out that the women, who were allegedly subjected to sexual exploitation, had recorded before the Magistrate that they do not support the prosecution case. They also stated that they did not engage in sex work but were working in various capacities in the spa and that they had no knowledge regarding the same. They also filed affidavits to the effect before the High Court. The petitioners, thus, said that in view of the afore stand, there is no possibility for successful prosecution.

The senior public prosecutor opposed the plea and submitted that there are sufficient materials collected during the investigation. It was also contended that there are independent witnesses and official witnesses who are supporting the prosecution case.

After hearing the parties, the Court was of the view that the correctness of the absence of one of the petitioners in the scene of the occurrence, as argued, can only be proved during trial. It added that merely because the women, who were allegedly subjected to sexual exploitation, have stated that they have no grievance, the case cannot be quashed.

It also observed that since this was not a case where prosecution is relying merely on the statements of the alleged victims but on other independent witnesses, the circumstances do not warrant quashing of the case.

Considering that accused 4 to 7 were only customers of the brothel, the Court opined that offences under Sections 4 and 6 of the Act won't sustain. Relying on the Division Bench's decision in Noushad v. State of Kerala, the Court said that offences under Sections 5 and 7 would lie against them. It thus quashed the offences under Sections 143 and 3(5) BNS and Sections 4 and 6 ITP Act against these accused.

The Court clarified that accused 1 and 3 would continue to face prosecution for all the offences alleged whereas accused 4 to 7 would have to have prosecution under Sections 5 and 7 ITP Act alone.

Thus, the Court allowed the plea in part.

Counsel for the petitioner: M. Madhubhen, Sujith C.D., Vibin V.

Counsel for the respondents: Megha K. Xavier - Senior Public Prosecutor, Krishnasankar D.