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2025 DIGILAW 322 (TS)

Kummari Jagadesh Prasad v. State of Telangana

2025-04-15

K.SUJANA

body2025
ORDER : 1. This Criminal Petition is filed under Section 528 of the Bharatiya Nagarik Suraksha Sanhita, 2023 (for short ‘the BNSS ’) by the petitioner/accused No.3, to quash the proceedings against him in Crime No.764 of 2024 on the file of Sanathnagar Police Station, Cyberabad, registered for the alleged offences punishable under Sections 143 , 144 of Bharatiya Nyaya Sanhita, 2023 (for short ‘the BNS) (previously, Sections 370 and 370 (A) of the Indian Penal Code, 1860 (for short ‘the IPC ’)) and Sections 3 to 5 of the Immoral Traffic (Prevention) Act (for short ‘the Act’). 2. The brief facts of the case are that on 05.10.2024, at about 19:00 hours, on receiving credible information about running of brothel house at 1st floor, Room No.101, H.No.7-12-1027, SRT 772, Kasivilla, Sanathnagar, the Police raided the said premises and noticed that with an intention to earn money in ease manner, accused No.1 procured the victim women for participating in illicit sexual intercourse with the customers by offering attractive amounts. It is stated that on 05.10.2024 accused Nos.2 and 3 went to the said premises to fulfill their sexual desires and found with the victim women in the closed bedroom at the said premises. As such, accused Nos.1 to 3 along with the victim women have been taken into custody and seized cash and mobile phones. Based on the complaint, a case was registered vide Crime No.764 of 2024 before the Sanathnagar Police, Cyberabad. 3. Heard Sri K.Hemanth Kumar, learned Counsel for the Petitioner and Sri Arun Kumar Doddla, learned Additional Public Prosecutor for respondent No.1-State. 4. Learned counsel for the petitioner submitted that since the petitioner/accused No.3 is a customer, the offences under Sections 143, 144 of the BNS and Sections 3 to 5 of the Act are not applicable. In this regard, he placed reliance on the judgments of this Court in the case of Sri Shafi v. State of Telangana, Crl. Pet. No. 15877 of 2024, Pendli Uday Kiran v. State of Telangana, Crl. Pet. No. 16397 of 2024, Yogesh K.B. v. State of Karnataka, Crl. Pet. No. 4189 of 2023 and prayed the Court to allow the Criminal Petition by quashing the proceedings against the petitioner/accused No.3. 5. Pet. No. 15877 of 2024, Pendli Uday Kiran v. State of Telangana, Crl. Pet. No. 16397 of 2024, Yogesh K.B. v. State of Karnataka, Crl. Pet. No. 4189 of 2023 and prayed the Court to allow the Criminal Petition by quashing the proceedings against the petitioner/accused No.3. 5. On the other hand, learned Assistant Public Prosecutor for respondent No.1-State opposed the submissions of the learned counsel for the petitioner stating that the presence of the petitioner was clearly found by the Police at the scene of offence and was taken into custody. He further submitted that according to the prosecution, this petitioner is also alleged for the offences punishable under Section 144 of the BNS (previously, Section 370 (A) of the IPC ) as the petitioner is found with the victim women in closed room at the said premises and placed reliance on the judgment of this Court in Thanna Bharagav Kumar v. State of Telangana , Crl. Pet. No. 5999 of 2022 . Therefore, he prayed the Court to dismiss the Criminal Petition. 6. In view of the rival submissions of both the parties, this Court has perused the material available on record. Learned counsel for the petitioner mainly relied on the judgment of this Court in case of Sri Shafi (Supra), wherein at paragraph Nos.11 and 12 it is held as under: “11. As seen from the entire case record, including the statement of the victim recorded under Section 161 of Cr.P.C., discloses that petitioner-accused No.2 is a customer and she clearly stated that due to poverty and other family backgrounds she joined brothel house and given her willingness to do sex with the customers and she collected money from the petitioner herein. Furthermore, there is no allegation in the FIR that the petitioner herein had knowledge and/or the reason to believe that the woman was trafficked for the purpose of prostitution. Therefore, the ingredients required to constitute the offence under Section 370(A)(2) of IPC is not made out against the petitioner. 12. In view of the above discussion and having considered the fact that the petitioner-accused No.2 had no knowledge that the woman was trafficked for the purpose of prostitution, this Court is of the considered view that the continuation of the proceedings againstpetitioner-accused No.2 amounts to abuse of process of law, therefore, the proceedings against the petitioner-accused No.2 are liable to be quashed.” (verbatim reproduced) 7. In case of Pendli Uday Kiran (Supra), this Court at paragraph No.7 it is held as under: “7. As per Section 370 of IPC , any person by using threat or force or any form of coercion or abduction or by practicing fraud or deception or by abusing of power or by inducing can only be termed as a ‘trafficked person’. In the present case, as seen from the entire case record, the victim stated that she was doing prostitution for the sake of money and she joined brothel house and given her willingness to do sex with customers.” (verbatim reproduced) 8. In order of the High Court of Karnataka in Yogesh K.B. (Supra) at paragraph Nos.8 to 10 held as under: “8. Section 13 of the Act, 1956, deals with the power of the Special Police Officer and advisory body and it specifies that for each area there shall be a Special Police Officer for dealing with offences under this Act in that area. 9. Section 13(2) of the Act, 1956, provides that the Special Police officer shall not be low the rank of an Inspector of Police. Therefore, the Sub Inspector of Police had no authority to investigate the offence under the Act. 10. Even otherwise, the petitioner has been implicated solely on the basis of the statement of accused No.2 in Crime No.12/2023, and in the absence of any corroborative material to substantiate that the petitioner-accused was carrying on prostitution, the registration of the FIR is impermissible and without any substance. Therefore, the continuation of the investigation will be an abuse of process of law.” (verbatim reproduced) 9. A plain reading of the above would abundantly make it clear that in the aforesaid judgments, neither the witnesses nor the sex workers admitted that they have been exploited sexually or of sexual abuse. As such, in the absence of statements of victim women to the fact they have been trafficked for the purpose of prostitution to indulge the petitioners in the act, the petitioner cannot be attributed for the alleged offences under the Act. 10. However, for better appreciation of the facts of the instant case, it is apt to refer Sections 143 and 144 of the BNS (previously, Sections 370 and 370 (A) of the IPC ), which reads as follows: “ 143. Trafficking of person. 10. However, for better appreciation of the facts of the instant case, it is apt to refer Sections 143 and 144 of the BNS (previously, Sections 370 and 370 (A) of the IPC ), which reads as follows: “ 143. Trafficking of person. —(1) Whoever, for the purpose of exploitation recruits, transports, harbours, transfers, or receives a person or persons, by— (a) using threats; or (b) using force, or any other form of coercion; or (c) by abduction; or (d) bypractising fraud, or deception; or (e) by abuse of power; or (f) 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. Explanation 1.—The expression “exploitation” shall include any act of physical exploitation or any form of sexual exploitation, slavery or practices similar to slavery, servitude, beggary or forced removal of organs. Explanation 2.—The consent of the victim is immaterial in determination of the offence of trafficking. (2) Whoever commits the offence of trafficking shall be punished with rigorous imprisonment for a term which shall not be less than seven years, but which may extend to ten years, and shall also be liable to fine. (3) Where the offence involves the trafficking of more than one person, it shall be punishable with rigorous imprisonment for a term which shall not be less than ten years but which may extend to imprisonment for life, and shall also be liable to fine. (4) Where the offence involves the trafficking of a child, it shall be punishable with rigorous imprisonment for a term which shall not be less than ten years, but which may extend to imprisonment for life, and shall also be liable to fine. (5) Where the offence involves the trafficking of more than one child, it shall be punishable with rigorous imprisonment for a term which shall not be less than fourteen years, but which may extend to imprisonment for life, and shall also be liable to fine. (6) If a person is convicted of the offence of trafficking of a child on more than one occasion, then such person shall be punished with imprisonment for life, which shall mean imprisonment for the remainder of that person’s natural life, and shall also be liable to fine. (6) If a person is convicted of the offence of trafficking of a child on more than one occasion, then such person shall be punished with imprisonment for life, which shall mean imprisonment for the remainder of that person’s natural life, and shall also be liable to fine. (7) When a public servant or a police officer is involved in the trafficking of any person then, such public servant or police officer shall be punished with imprisonment for life, which shall mean imprisonment for the remainder of that person’s natural life, and shall also be liable to fine. 144. Exploitation of a trafficked person .— (1) Whoever, knowingly or having reason to believe that a child has been trafficked, engages such child for sexual exploitation in any manner, shall be punished with rigorous imprisonment for a term which shall not be less than five years, but which may extend to ten years, and shall also be liable to fine. (2) Whoever, knowingly or having reason to believe that a person has been trafficked, engages such person for sexual exploitation in any manner, shall be punished with rigorous imprisonment for a term which shall not be less than three years, but which may extend to seven years, and shall also be liable to fine.” 11. In judgment of this Court in Thanna Bhargav Kumar (Supra) at paragraph Nos.11 and 13 held as under: “11. Thus, by the above provisions, it is clear that whoever knowingly or having reason to believe that a minor or a person has been trafficked, engages such minor or person for sexual exploitation, shall be punished. 13. In the case on hand, the acts committed by the petitioner-Accused No.4 as per the contents of charge sheet squarely fall within the ambit of Section 370-A (ii) IPC . Therefore, this Court is of the view that the proceedings for the said offence are liable to be continued. No other ground is urged or established by the petitioner basing on which the proceedings can be quashed. Therefore, this Court considers it desirable to allow this criminal petition in part.” (verbatim reproduced) 12. In judgment of this Court in Dasari Venkatappaiah v. The State of Telangana , Crl. Pet. No. 4751 of 2021 at paragraph Nos.7 to 9 held as under: “7. Section 370 (A)(2) of IPC deals with exploitation of a trafficked person. Therefore, this Court considers it desirable to allow this criminal petition in part.” (verbatim reproduced) 12. In judgment of this Court in Dasari Venkatappaiah v. The State of Telangana , Crl. Pet. No. 4751 of 2021 at paragraph Nos.7 to 9 held as under: “7. Section 370 (A)(2) of IPC deals with exploitation of a trafficked person. As per it, whoever, knowingly by or having person to believe that a person has been trafficked, engages such person for sexual exploitation in any manner, shall be punished with rigorous imprisonment for a term which shall not be less than three years, but which may extend to five years, and shall also be liable to fine. 8. As discussed above, the only allegation against the petitioner/A5 is that he has information from A1 and A4 with regard to availability of victims for the purpose of exploitation sexually, he went to Dolphin Hotel, and exploited the victim sexually. Thus, he is a customer. 9. In view of the above, this Court is prima facie of the opinion that the contents of the complaint as well as the remand report constitute the offence under Section 370(A)(2) of IPC and as discussed above, the offences under Sections 3 , 4 & 5 of Immoral Traffic (Prevention) Act , 1956 and Section 370 of IPC are liable to be quashed.” (verbatim reproduced) 13. In judgment of this Court in Gangasani Anil Reddy and another v. The State of Telangana , Crl. Pet. No. 7219 of 2016 , it is held as under: “In the case on hand, the petitioners, as per the prosecution version, went to the brothel house, paid money to A1 to have a sexual pleasure with the victims and had sexual intercourse. On going through the contents of the charge sheet, it is clear that the petitioners/A2 and A3 being the customers/pimps are aware of the fact that the victims were trafficked for sexual exploitation and they have exploited them by paying money. Therefore, there are ingredients to consider that the petitioners have committed the offence under Section 370 (A)(2) IPC and hence, the prosecution shall proceed to charge the petitioners for the offence under Section 370 (A)(2) IPC ” (verbatim reproduced) 14. In judgment of this Court in Chinthala Shiva Rao vs. State of Telangana , Crl. Pet. No. 10771 of 2023 , it is held as under: “13. In judgment of this Court in Chinthala Shiva Rao vs. State of Telangana , Crl. Pet. No. 10771 of 2023 , it is held as under: “13. This Court in Criminal Petition No.5803 of 2018 held that: “Though the learned senior counsel for the petitioner contended that the judgment of this Court in “S.Naveen Kumar @ Naveen v. State of Telangana” did not lay down the correct law, but on analysis of provisions under Section 370 A (2) of I.P.C., it is clear that the petitioner allegedly came to brothel house and found in a room along with Sex worker, but the purpose is only to participate in sexual intercourse (prostitution) with sex worker. Such person is said to have engaged in sexual exploitation and the said sex worker is trafficked person. Therefore, the petitioner is liable to be proceeded in trial for the offence punishable under Section 370 A (2) of I.P.C. Even on reanalysis of the provisions, I find no other interpretation to sub-section (2) to Section 370 A of I.P.C. to refer the matter to any larger bench for authoritative pronouncement.” 14. This Court is also in agreement with orders relied by the learned Assistant Public Prosecutor in considering that the petitioners-accused, who were alleged to be customers were not liable to be prosecuted for the offences under Sections 3, 4 and 5 of PITA as well as Section 370 of IPC , but were liable to be prosecuted for the offence under Section 370-A(2) of IPC . Hence, the charges against these petitioners for the offences under Sections 3, 4 and 5 of PITA as well as under Section 370 of IPC are hereby quashed. But, however, the charge for the offence under Section 370-A(2) of IPC shall be continued against the petitioners.” (verbatim reproduced) 15. Though trafficking is not specifically defined in the Act, the same is defined in the explanation 2 in Section 143 of the BNS (previously, Section 370 of the IPC ), the consent of the victim women is immaterial in determination of the offence of trafficking. When the consent is immaterial the voluntariness of victim women indulging in the said Act cannot be looked into. When the consent is immaterial the voluntariness of victim women indulging in the said Act cannot be looked into. Therefore, the observations of this Court in Sri Shafi (Supra), Pendli Uday Kiran (Supra) and Yogesh K.B. (Supra) about the absence of voluntariness of the victim women in their 161 statements, is not applicable to the present case to the extent of Section 144 of the BNS (previously, Section 370 (A) of IPC ). It is pertinent to note that when the Police raided the said premises, the petitioner/accused No.3 is found with the victim women in the closed bedroom at the said premises. Hence, since the facts in the instant case are differ from the facts in Yogesh K.B. (Supra) , the question of applicability of Section 13(2) of the Act does not arise. 16. In view of the above discussion as well as the law laid down by this Court in Thanna Bhargav Kumar (Supra), Dasari Venkatappaiah (Supra), Gangasani Anil Reddy and another (Supra) and Chinthala Shiva Rao (Supra), the proceedings against the petitioner/accused No.3 for the offences punishable under Section 144 of the BNS (previously, Section 370 (A) of the IPC ) are liable to be continued. 17. Insofar as applicability of Sections 3 to 5 of the Act and Section 143 of the BNS is concerned, it is apt to refer Sections 3 to 5 of the Act, which reads as under: “3. Punishment for keeping a brothel or allowing premises to be used as a brothel. (1) Any person who keeps or manages, or acts or assists in the keeping or management of, a brothel shall be punishable on first conviction with rigorous imprisonment for a term of not less than one year and not more than three years and also with fine which may extend to two thousand rupees and in the event of a second or subsequent conviction, with rigorous imprisonment for a term of not less than two years and not more than five years and also with fine which may extend to two thousand rupees. (2) Any person who-(a) being the tenant, lessee, occupier or person in charge of any premises, uses, or knowingly allows any other person to sue, such premises or any part thereof as a brothel, or (b) being the owner, lessor or landlord of any premises or the agent of such owner, lessor or landlord, lets the same or any part thereof with the knowledge that the same or any part thereof is intended to be used as a brothel, or is wilfully a party to the use of such premises or any part thereof as a brothel. Shall be punishable on first conviction with imprisonment for a term which may extend to two years and with fine which may extend to two thousand rupees and in the event of a second or subsequent conviction, with rigorous imprisonment for a term which may extend to five years and also with fine.(3) Notwithstanding anything contained in any other law for the time being in force, on conviction of any person referred to in clause (a) or clause (b) of sub-section (2) of any offence under that sub-section in respect of any premises or any part thereof, any lease or agreement under which such premises have been leased out or are held or occupied at the time of the commission of the offence, shall become void and inoperative with effect from the date of the said conviction. 4. Punishment for living on the earnings of prostitution. (1) Any person over the age of eighteen 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 two years, or with fine which may extend to one thousand rupees, or with both. (1) Any person over the age of eighteen 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 two years, or with fine which may extend to one thousand rupees, or with both. (2) Where any person is proved- (a) to be living with, or to be habitually in the company of, a prostitute; or (b) to have exercised control, direction or influence over the movements of a prostitute in such a manner as to show that such person is aiding, abetting or compelling her prostitution; or (c) to be acting as a tout or pimp on behalf of a prostitute, it shall be presumed, until the contrary is proved, that such person is knowingly living on the earnings of prostitution of another person within the meaning of sub-section (1):Provided that no such presumption shall be drawn in the case of a son or daughter of a prostitute, if the son or daughter is below the age of eighteen years. 5. Procuring, inducing or taking woman or girl for the sake of prostitution. (1) Any person who- (a) procures or attempts to procure a woman or girl, whether with or without her consent, for the purpose of prostitution; or (b) induces a woman or girl to go from any place, with the intent that she may for the purpose of prostitution become the inmate of, or frequent, a brothel; or (c) takes or attempts to take a woman or girl, or causes a woman or girl to be taken, from one place to another with a view to her carrying on, or being brought up to carry on prostitution; or (d) causes or induces a woman or girl to carry on prostitution;shall be punishable on first conviction with rigorous imprisonment for a term of not less than one year and not more than two years and also with fine which may extend to two thousand rupees. (2) In the event of a second or subsequent conviction of an offence under this section a person shall be punishable with rigorous imprisonment for a term of not less than two years and not more than five years and also with fine which may extend to two thousand rupees. (2) In the event of a second or subsequent conviction of an offence under this section a person shall be punishable with rigorous imprisonment for a term of not less than two years and not more than five years and also with fine which may extend to two thousand rupees. (3) An offence under this section shall be triable-(a) in the place from which a woman or girl is procured, induced to go, taken or caused to be taken or from which an attempt to procure or take such woman or girl is made; or(b) in the place to which she may have gone as a result of the inducement or to which she is taken or caused to be taken or an attempt to take her is made.” 18. In view of the aforesaid provision of law, since petitioner/accused No.3 is found at the scene of offence in the capacity of customer, petitioner/accused No.3 are not liable to be prosecuted for the offences under Sections 3 to 5 of the Act and Section 143 of the BNS (previously, Section 370 of IPC ). 19. Accordingly, the Criminal Petition is partly allowed. Consequently, the proceedings against the petitioner/accused No.3 in Crime No.764 of 2024 on the file of Sanathnagar Police Station, Cyberabad, for the offences punishable under Section 143 of the BNS (Previously, Section 370 of the IPC ) and Sections 3 to 5 of the Act, are hereby quashed. However, the proceedings against the petitioner/accused No.3 in Crime No.764 of 2024 on the file of Sanathnagar Police Station, Cyberabad, for the offences punishable under Section 144 of the BNS (previously, Section 370 (A) of the IPC ), shall be continued. Miscellaneous applications, if any pending, shall also stand closed.