The Madhya Pradesh High Court recently held that a woman involved in prostitution is herself a victim of human trafficking and therefore, she cannot be charged for the offence of trafficking under Section 370 of IPC.
"Legislative framework that criminalizes prostitution as exploitation, drives the practice underground and renders the already vulnerable sex worker more vulnerable to violence, exposure to HIV and deepens the lack of legal remedy to redress violence," the bench of Justice Rajendra Kumar Srivastava has held.
The court was hearing a revision petition moved by an alleged sex worker, who was arrested on spot for having been involved in prostitution activities with another co-accused, seeking discharge from the criminal proceedings.
While allowing her petition the court observed,
"Admittedly, accused/petitioner is a lady and she cannot be considered to be exploiting herself, so as to bring her within the ambit of Section 370. In fact, she is the person who would be considered as being exploited under Section 370 of IPC. "
The court observed that Section 370(1) of IPC provides that whoever, for the purpose of exploitation- recruits, transports, harbours, transfers, or receives, a person or persons, by - Using threats, or force or any other form of coercion, or by abduction, or by practising fraud, or deception, or by abuse of power, or by inducement including the giving or receiving of payments or benefits, in order to achieve the consent of any person having control over the person recruited, transported, harboured, transferred or received, commits the offence of trafficking.
The court clarified that the objective of the provision was to bring those persons to books who exploit other human beings and not to punish those who are the victims of such perpetrators.
The bench relied on the legislative intent while citing the clarification sought by the Parliament on the "problematic formulation" of Section 370 in the Verma Committee Report, whereby recommendations on laws related to rape, sexual harassment, trafficking, etc. were given.
It reiterated as under,
"This is to express our concern at the ambiguous manner in which the term "prostitution" has been used in Section 370 IPC of the Verma Committee Report. In this section, which deals with the offence of Trafficking of Persons, the term "exploitation" includes "prostitution" itself. This problematic formulation has now been incorporated into the recently passed Ordinance."
In case of sex workers, the court noted, they themselves are the exploited population and hence subjecting them to criminal prosecution under the IPC will make them more vulnerable. Such an interpretation the court reiterated,
"is a setback to sex workers who are fighting for legal and societal recognition of their fundamental rights to dignity and pursuit of a livelihood."
The court also relied on the observations made by the Gujarat High Court in Vinod @ Vijay Bhagubhai Patel v. State of Gujrat, (2017 SCC Online Guj 446, while dealing with the intention of the Verma Committee behind drafting of Section 370 of IPC and it held,
"the thrust of their intention behind recommending the amendment to Section 370 was to protect women and children from being trafficked. The Committee has not intended to bring within the ambit of the amended Section 370 sex workers who practice of their own volition. It is also clarified that the recast Section 370 ought not to be interpreted to permit law-enforcement agencies to harass sex workers who undertake activities of their own free will, and their clients."
In view of above, the court observed, "it is apparent that charge under Section 370 of IPC has been erroneously framed against the accused/petitioner since she is herself an exploited person as per Section 370 of IPC," and it discharged the Petitioner.
The court was then informed that the FIR was lodged under Section 370 and also under Sections, 3, 4, 5, 6 of Immoral Trafficking (Prevention) Act, 1956. However, the Trial Court had only framed charges under the IPC and did not consider the allegations under Immoral Traficking Act, 1956
On this issue the court said,
"prosecution is free to submit a petition before the trial Court in this regard and learned trial Court will consider and decide that petition in accordance with law."
Case No.: Crl. Rev. No. 789/2019
Quorum: Justice Rajendra Kumar Srivastava
Appearance: Advocate Satyam Agrawal (for Petitioner); Advocate Gulab Singh (for Respondent)
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