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2026 DIGILAW 77 (GUJ)

Husanali Kurbanali Vakil v. State Of Gujarat

2026-02-09

VIMAL K.VYAS

body2026
ORDER : VIMAL K.VYAS, J. 1. RULE returnable forthwith. Learned APP Mr.Manan Maheta waives service of notice of rule for and behalf of the respondent no.1 – State. 2. By way of preferring the present application under Section 528 of the Bharatiya Nagarik Suraksha Sanhita, 2023, the applicant-accused seeks to invoke the inherent powers of this Court, praying to quash and set-aside the First Information Report being C.R. No.I- 11201002240033 of 2024 registered with the C.I.D. Crime Police Station, Ahmedabad, dated 31.07.2024 and the Charge-sheet No.14 of 2025 dated 08.04.2025, which has been culminated into Criminal Case No.65969 of 2025, and subsequently committed to the Sessions Court, Ahmedabad as Sessions Case No.1262 of 2025 pending before the learned Sessions Judge, Ahmedabad, for the offences punishable under Sections 3, 4, 5, 7 and 9 of the Immoral Traffic (Prevention) Act, 1956. 3. It is the case of the prosecution that based on the secret input received by the CID crime that an international sex trafficking and prostitution racket is being operated from New Comfort Inn Hotel, where foreign nationals from Uganda are engaged in prostitution, a trap was laid and the premises of the New Comfort Inn Hotel situated at Ahmedabad was raided on 31.07.2024. During the raid, few women from Uganda were found involved in prostitution and the present applicant- accused No.2 was arrested along with them by the police. 4. Learned advocate Mr.Nimit Shukla appearing for the applicant has submitted that the applicant was only a customer and the main accused persons are the agents and the hotel staff, who are doing illegal activities and involved in prostitution. 5. Learned advocate Mr.Shukla has further submitted that the applicant being a customer, the issue is squarely covered by the decisions rendered by this Court in the cases of Bhaliya Sureshbhai Laljibhai vs. State of Gujarat and another [Criminal Misc. Application No.13987 of 2024, decided on 17.06.2025] and Vinod @ Vijay Bhagubhai Patel vs. State of Gujarat and another , reported in 2017 SCC Online Guj 446, wherein in an identical situation, this Court has quashed and set-aside the FIRs qua the applicants therein. Furthermore, in the case of Vishal Bhikhabhai Chavda vs. State of Gujarat and another [Criminal Misc. Application No.17728 of 2024, decided on 07.10.2025], this Court has quashed and set-aside the FIR qua the applicant therein. Furthermore, in the case of Vishal Bhikhabhai Chavda vs. State of Gujarat and another [Criminal Misc. Application No.17728 of 2024, decided on 07.10.2025], this Court has quashed and set-aside the FIR qua the applicant therein. Relying upon the aforesaid decisions, learned advocate Mr.Shukla has prayed to quash and set-aside the impugned FIR as well as all other consequential proceedings arising pursuant thereto. 6. Learned APP Mr.Manan Maheta appearing for the respondent – State could not dispute the fact that the applicant has been arraigned accused in the FIR as a customer, and in similar set of facts, this Court has earlier quashed the complaints filed against other accused persons. Therefore, while opposing the present application, he has submitted to pass appropriate orders. 7. Heard learned advocates appearing for the respective parties and perused the decision relied upon by the learned advocate appearing for the applicant. It is an undisputed fact that the applicant has been arraigned accused in the FIR as a customer, when the hotel was raided. Therefore, taking into consideration the fact that the applicant- accused was a customer at the time when the raid was carried out at the hotel, it appears that the issue is squarely covered by the decisions of this Court rendered in the cases of Bhaliya Sureshbhai Laljibhai (supra) and Vinod @ Vijay Bhagubhai Patel (supra), wherein in an identical situation, this Court has quashed and set-aside the FIRs qua the applicants therein. The relevant observations made by this Court in the case of Vinod @ Vijay Bhagubhai Patel (supra) read thus :- “[14] To put it in other words, whether a customer at a brothel is covered under Section 370 of the Indian Penal Code. [15] Answering the first question is not difficult because the issue is no longer res integra. This Court, in the case of Umedsinh P.Champavat v. State of Gujarat, 2006 2 GLH 736 , after placing reliance on an earlier decision of this very Court in the case of The State of Gujarat v. Bai Radha w/o Natwarlal Ramshankar and another, 9 GLR 278, held as under : "9. This Court, in the case of Umedsinh P.Champavat v. State of Gujarat, 2006 2 GLH 736 , after placing reliance on an earlier decision of this very Court in the case of The State of Gujarat v. Bai Radha w/o Natwarlal Ramshankar and another, 9 GLR 278, held as under : "9. Section 3 of the said Act provides punishment for keeping the brothel or allowing the premises to be used as brothel and on bare words of one of the co-accused, the petitioner could not have been prosecuted under this Act because as per the scheme of Section 3, it is obligatory on the part of the prosecution to show from evidence that the petitioner had kept brothel and he was responsible or liable for allowing a particular premises to be used as a brothel. When he was not there in the effective management of the hotel on the relevant date, no charge-sheet under Section 3 of the Act could have been filed against the present petitioner. 10. So far as as the offence punishable under Section 4 of the Act is concerned, it provides punishment for living on the earning of prostitution. Section says that any person over the age of 18 years who knowingly lives, wholly or in part, on the earnings of the prostitution ( of any other person) is said to have committed an offence under the Act. In view of the details given by the petitioner as to his business activities and involvement in hotel and resort business and other businesses like mining etc., it would not be proper for this Court to accept the say of ld. APP that there is prima facie evidence to show that the petitioner has committed offence punishable under Section 4 of the Act. 11. APP that there is prima facie evidence to show that the petitioner has committed offence punishable under Section 4 of the Act. 11. The petitioner has also been charged with the offence punishable under Section 5 of the Act which says that any person who - (a) procures or attempts to procure a person, whether with or without his consent for the purpose of prostitution, or (b) induces a person to go from any place with the intent that he/she may for the purpose of prostitution becomes the inmate of, or frequent, or a brothel, or (c) takes or attempts to take a person or causes a person to be taken, from one place to another with a view to his/her carrying-on, or being brought upto carry-on prostitution, or (d) causes or induces a person to carry on prostitution, shall be punishable under the Act. It has been submitted that the evidence which has been collected by the investigating agency in the form of Statements of the co-accused and the so- called prostitutes, at least rules out applicability of clause (b), (c) and (d) in toto. It is not even the case of the prosecution that the accused is said to have committed an offence under clause (b), (c) or (d). What is alleged is that the petitioner has procured or has attempted to procure a person for the purpose of prostitution. The question of Law which falls for consideration of the Hon'ble Court is as to whether a customer or a person who enjoys sex with a prostitution can be said to have procured a person for the purpose of prostitution. (ii) The word "procures" used in this section connotes that somebody other than the petitioner should procure the woman for him. Section 5(i)(a) of the Act can be invoked only against the procurer like the agent or a pimp and not against persons like the petitioner because there is no allegation or the case that the petitioner was a person involved in procuring a woman. On the contrary, the case of the prosecution is that somebody else was procuring a woman or a girl and certain hotels were being used by them doing booking of rooms. 12. Ld. counsel Mr. On the contrary, the case of the prosecution is that somebody else was procuring a woman or a girl and certain hotels were being used by them doing booking of rooms. 12. Ld. counsel Mr. Anandjiwala has drawn attention of this Court on the observations made by this Court in para-26 of the decision in the case of State of Gujarat v. Bai Radha, w/o Natvarlal Ramshankar & Another ( 9 GLR 261). It would be beneficial to quote the relevant para-26 which is as under:- "26. Sec.5(1)(a) provides that any person who procures or attempts to procure a woman or girl, whether with or without her consent, for the purpose of prostitution, that person shall be punished as provided therein. In this respect also Mr. Nanavati's contention was that accused No.3 can be said to have procured a woman such as Bai Kanta for the purposes of prostitution to Kishan and that, therefore, he can be held liable for the offence under Section5(1)(a) of the Act. The word "procure" is not defined under the Act,but we were referred to its dictionary meaning which says "To bring about by care or pains; also (more vaguely) to bring about, cause, effect, produce; to obtain by care or effort; to acquire; to obtain (women) for the gratification of lust; to prevail upon, induce, persuade (a person) to do something." Giving the normal meaning to the use of the word "procure" in clause (a) of sub-section (1) of Section 5, what is required is only that he must have obtained a woman or a girl for the purpose of prostitution for a particular individual." Mr. Anandjiwala has placed emphasis on words "obtain a woman or a girl for the purpose of prostitution for a particular individual" and it is argued that from these observations made, it is sufficiently clear that Section 5(i) (a) of the Act would not be attracted at all in the present case so far as the present petitioner is concerned. 13. The petitioner is also charged with the offence under Section 7 of the Act. Section 7 of the Act makes the prostitution in or in the vicinity of public places an offence. Firstly, the prostitution in itself is not an offence under the Act, save in the manner given in Sections 7 and 8. 13. The petitioner is also charged with the offence under Section 7 of the Act. Section 7 of the Act makes the prostitution in or in the vicinity of public places an offence. Firstly, the prostitution in itself is not an offence under the Act, save in the manner given in Sections 7 and 8. Firstly, the petitioner by any stretch of imagination cannot be charged with this offence under Section 7 of the Act because to attract the said section, the prosecution must prima facie show that the petitioner is carrying on prostitution. It is only when the first ingredient is satisfied then the question would be as to whether the prostitution is being carried out in or in the vicinity of public place. When Section 3 of the Act is not applicable, when Section 4 of the Act is not applicable to the present petitioner, there is no question of charging the accused with the offence punishable under Section 7 of the Act. When no formal raid was carried out at Hotel Taj Residency Umed and no part of the premises of the said hotel was found in actual use of such illegal activities, it would not be legal to continue the prosecution against the petitioner for using the public place for the activities of prostitution. 14. Section 9 of the said Act, on the face of it, is not applicable in the facts and circumstances of the present case. For attracting Section 9 of the Act, it has to be shown prima facie that the petitioner having position or authority over any person, i.e. a woman or girl causes or aids or abets the seduction for prostitution of that woman or girl. The question again, at the cost of repetition, is the petitioner's position or authority over any such woman or girl. There is not a thread of any evidence even to remotely suggest that the petitioner taking undue advantage of his position or authority over any woman or girl, caused or aided or abetted the seduction for prostitution of that woman or girl. 15. Undisputedly, powers of this Court under Section 482 of CrPC are very wide. It is true that the same should be used sparingly and in rare case, where it is apparent from record that the prosecution has no case. 15. Undisputedly, powers of this Court under Section 482 of CrPC are very wide. It is true that the same should be used sparingly and in rare case, where it is apparent from record that the prosecution has no case. The discretion for quashing the complaint or charge-sheet must be carefully used and the High Court must see that its decision in exercise of its power is based on sound principles. As per the settled legal position, as observed by the Apex Court, if FIR fails to disclose the commission of offence without anything being added or subtracted from recitals therein then the High Court would be absolutely justified in quashing the FIR or the chargesheet. In the present case, there is no legal evidence against the petitioner and, therefore, quashing of the FIR and the charge-sheet would be justified. The Court is also supposed to consider the nature of allegations made more particularly in the case which has been put forward against the petitioner accused. The Court is in agreement with the say of ld. counsel Mr.Anandjiwala that the ratio of the decision in the case of Bai Radha would help the petitioner and even on facts, it emerges that the prosecution instituted against the present petitioner is not even healthy one. Totally illegal implication in the offence is equal to a false implication and for such an act, the prosecuting officer/agency can be held liable for malicious prosecution. But this exercise has to be made by the person falsely implicated before the competent forum in accordance with law. The petitioner is entitled to do it." [16] In view of the above, I hold that the prosecution of the applicant herein for the offence under the Immoral Traffic (Prevention) Act is not maintainable. The applicant herein cannot be said to have procured a woman for the purposes of prostitution.” 8. This Court has taken into consideration the ratio laid down in the aforesaid cases as well as the fact that when the raid was carried out, the applicant-accused was caught as a customer from the Hotel, which was found running a brothel. This Court has also considered the undisputed fact that the applicant was not the broker or the staff member of the Hotel, but he was caught as a customer. This Court has also considered the undisputed fact that the applicant was not the broker or the staff member of the Hotel, but he was caught as a customer. Hence, in the considered opinion of this Court, the observations made by this Court in the case of Vinod @ Vijay Bhagubhai Patel (supra), more particularly, paragraphs-14 to 16, as referred to herein above, would squarely apply to the facts of the present case. In view of the aforesaid, the present application deserves consideration. 9. In the result, the present application is allowed. The First Information Report being C.R. No.I- 11201002240033 of 2024 registered with the C.I.D. Crime Police Station, Ahmedabad, dated 31.07.2024 and the Charge-sheet No.14 of 2025 dated 08.04.2025, which has been culminated into Criminal Case No.65969 of 2025, and subsequently committed to the Sessions Court, Ahmedabad as Sessions Case No.1262 of 2025 pending before the learned Sessions Judge, Ahmedabad, for the offences punishable under Sections 3, 4, 5, 7 and 9 of the Immoral Traffic (Prevention) Act, 1956, are hereby ordered to be quashed and set-aside. All consequential proceedings arising pursuant thereto are also quashed and set-aside qua the applicant – original accused No.2 only. 10. Rule made absolute. Direct service is permitted. 11. In view of the disposal of the main application, the Criminal Misc. Application (for stay) No.1 of 2026 would not survive and the same is disposed of accordingly.