Dismissing an anticipatory bail moved by a brothel owner, the Calcutta High Court has reiterated that sex workers exploited for commercial sex are victims and they should not be arrested in course of investigation under the Immoral Traffic (Prevention) Act, 1956 (the Act) unless materials on record suggest that they were involved as co-conspirators in the crime.
The matter came up before the division bench of the high court in an anticipatory bail filed by the owner of a health spa where women, including a minor girl were sexually exploited. The bench noted three serious irregularities in the proceedings of the aforementioned case when it was initially committed to the Chief Judge, City Sessions Court, Calcutta.
Firstly, it was noted that the Chief Judge granted an adjournment during the trail on the Public Prosecutor's request for issuing notice under Section 41A of the Code of Criminal Procedure to the Petitioner.
Section 41A prescribes that a notice must be given to a person against whom a reasonable complaint has been made, or credible information has been received, or a reasonable suspicion exists that he has committed a cognizable offence punishable with less than seven years, to appear before a police officer.
The court opined that the aforementioned adjournment should not have been granted since the facts of the case included a minor girl who had been sexually exploited and thus offences under Sections 3 & 4 of the Act were attracted, which entailed a punishment graver than that of seven years imprisonment.
The Court censured the Police officer, Public Prosecutor and the Judge for their apathetic approach towards the case. "Learned Judge who was in seisin of the anticipatory bail application of the brothel owner without application of mind whatsoever mechanically permitted adjournment to give effect to such illegal recourse to Section 41A of the Code of Criminal Procedure. Role of the Public Prosecutor in the present case is also not beyond reproach", the court said.
The Court also condemned of the act of police officer and the judge who tried to shift the onus on each other's shoulder stating that "Although the police officer and the Judge presently appear to be shifting the onus of initiation of such wholly unacceptable mode of investigation on each other's shoulder, it can be concluded without an iota of doubt that all the stakeholders in the administration of justice in the present case appear to have forgotten the stringent provisions of law enacted to counter exploitation of women for prostitution as an organised crime and had mechanically condescended to the wholly unacceptable course of issuance of notice under Section 41A of the Code of Criminal Procedure upon the brothel owner while the poor girls who were exploited in the same brothel were incarcerated as accused persons in jail."
Secondly it was noted that an unusually lenient approach had been adopted towards the owner of the said health spa i.e. the Petitioner. "The instant case is one of the most glaring example of misuse of police power in this regard. While the Investigating Officer sought it fit to arrest the vulnerable witnesses namely, the sex workers who were forced to carry on prostitution under the guise of health spa, he resorted to an unusually lenient approach towards the owner of the said health spa i.e. the petitioner herein who appears to be the kin-pin of the organized crime racket and issued notice under section 41A Cr.P.C. against him", the court slammed.
Lastly and most importantly, the bench of Justices Manojit Mandal and Joymalya Bagchi noted that the Investigating Officer in the instant case had wrongly arrested the vulnerable sex workers who were forced to carry on prostitution under the guise of a health spa. It held that "No sex worker exploited for commercial sex shall be arrayed as an accused in the course of the investigation/ prosecution of offences under the Immoral Traffic (Prevention) Act, 1956 until and unless cogent materials come on record that she was also involved as a co-conspirator in the crime".
Further, the Court also directed that "Investigating officers who are involved in investigating offences under the Immoral Traffic (Prevention) Act, 1956 and/or other cognate offences under the Indian Penal Code shall not arrest any sex worker in the course of the investigation. Instead, they should treat the sex workers as victims of crime and extend to them all ameliorative measures available under the law including witness protection programmes, grant of interim compensation and/or other rehabilitative measures and protective custody."
It was thus reaffirmed that in offences involving exploitation of women under Immoral Traffic (Prevention) Act, 1956 other similar offences under Sections 363, 366, 366-A, 366-B, 370, 370-A, 372, 373 of the Indian Penal Code, the sex workers who are exploited are not accused persons but the victims of crime.
Further, considering the above aspects and taking into account the gravity of the offence, the Court rejected the anticipatory bail application of the petitioner.
The Petitioner was represented by Advocates Souvik Mitter, Satadru Lahiri, Md. Zeeshan Uddin and Amrin Khatoon and the State by Addl. Advocate General Abhratosh Majumder and Advocate Rudradipta Nandy.
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