The Punjab and Haryana High Court has observed that a woman accused of living on her own earnings from prostitution cannot be booked for illegal trafficking under Immoral Traffic (Prevention) Act 1956.

In doing so the court quashed charges framed against the woman under the Act who had originally lodged a gang-rape FIR but was subsequently made an accused during probe.

The woman was charged under Section 4 and 5 of the Act. For context, Section 4 of the Act states that any person over 18 years who knowingly lives, wholly or in part, on the earnings of the prostitution of a woman or girl shall be punishable with imprisonment for a term which may extend to 2 years, or with fine which may extend to Rs. 1000 or with both.

Section 5 punishes persons for procuring, inducing or taking a woman or girl for the sake of prostitution.

On the allegation under Section 4, Justice Manisha Batra said,

"The allegation against petitioner No. 2 is not that she was living on the earnings of prostitution of some other woman or girl. On the contrary, the prosecution case is that she herself allegedly participated in prostitution. There is no allegation in the present case that (petitioner no. 2) was receiving or appropriating the earnings of any other woman or girl or was acting as a tout or pimp on behalf of another prostitute. Thus, the basic requirement of Section 4 is absent and, hence, charge under this section cannot be sustained against her."

With respect to Section 5 the court said that it deals with procuring, inducing or taking a woman or girl for the sake of prostitution.

"The provision requires an act directed towards another woman or girl, such as procuring, inducing, taking or causing or inducing her to carry on prostitution. No such role has been attributed to (petitioner no. 2). The prosecution case is confined to the allegation that she herself accompanied the other accused persons and allegedly participated in sexual relations for consideration.

There is no allegation that she procured or induced any other woman or girl for prostitution, took any woman from one place to another for that purpose, or caused or induced any other woman or girl to carry on prostitution. Consequently, even the basic ingredients of Section 5 are not attracted against petitioner No.2"

The FIR originated from a statement by petitioner no.2 alleging that on 19.09.2015, she was forcibly taken by two men on a motorcycle to an empty house at Banur, where she was made to drink liquor and subjected to gang rape by multiple persons without her consent. FIR No.80 dated 20.09.2015 was accordingly registered under Sections 376-D and 342 IPC against Mandeep Singh and four unknown persons.

However, during investigation, police took a starkly different view, concluding that petitioner no. 2 had voluntarily accompanied the accused persons and that the sexual relations were consensual (for consideration), and that petitioner no. 2, in connivance with her husband Rakesh Kumar, Mandeep Kaur, Ajaib Singh (petitioner No.1) and Jagtar Singh, had orchestrated the rape allegation to extort money from the family members of the men involved.

The police relied on witness statements, video CDs, CCTV footage and call records, and alleged that Ajaib Singh had demanded ₹4 lakh from the mother of one accused, Parvinder Singh, receiving ₹1 lakh from his sister and ₹5,000 from Rakesh Kumar. Petitioner no. 2, originally the complainant, was herself arrayed as an accused, and challan was presented against her, Ajaib Singh and others under Sections 3, 4, 5 of the IT Act and Sections 384(extortion)/120-B(Criminal conspiracy) IPC.

Charges under Sections 120-B, 384 IPC and Sections 4, 5 IT Act were framed against petitioner no. 2, while Ajaib Singh faced a charge under Section 384 IPC alone. Their discharge applications were dismissed by the trial court, leading to the present revision.

Counsel for the petitioners argued that the police had improperly converted a gang-rape complaint into extortion charges against the very complainant, that there was insufficient material connecting Ajaib Singh to the alleged extortion, and that petitioner no. 2 could not be treated as an accused merely because the police changed its version of events.

The State and counsel for respondents No.2 and 3 argued that at the charge-framing stage, courts are not required to conduct a detailed appreciation of evidence, and that the material collected, including witness statements and electronic evidence, was sufficient to establish a prima facie case on all counts.

The Court reiterated that while detailed appreciation of evidence is not required at the charge-framing stage, "a charge cannot be sustained merely because the investigating agency has mentioned a particular penal provision in the challan, when the facts alleged, even if taken at their face value, do not constitute the ingredients of that offence."

On the extortion charge against Ajaib Singh, however, the Court found the prosecution had specifically alleged demand and receipt of money from family members of the accused in the underlying rape case, supported by statements and electronic evidence, matters requiring trial, not adjudication at this stage and held the allegation "prima facie discloses the ingredients of an offence under Section 384 IPC."

The Court also held that since petitioner No.1 acted in connivance with petitioner no.2 and other co-accused, the conspiracy charge under Section 120-B IPC remained sustainable as against petitioner no. 2 as well.

Partly allowing the revision petition, the Court quashed the charges under Sections 4 and 5 of the Immoral Traffic (Prevention) Act, 1956 framed against petitioner No.2, while maintaining the charge under Section 384 IPC against Ajaib Singh (petitioner No.1). The court further said that charges under Section 120-B read with Section 384 IPC against petitioner no. 2 shall also remain and directed the trial court to proceed with the case in accordance with law.

Case Title: Ajaib Singh and another v. State of Punjab and others

Mr. H. B. S. Baidwan, Advocate for the petitioners.

Ms. Ruchika Sabherwal, Sr. DAG, Punjab.

Mr. A. P. Batra, Advocate for respondents No. 2 and 3.

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