Case title: Bikash Kumar Jain vs State of Odisha
Case no.: CRLMC No. 3390 of 2023
Decided on: 09.02.2024
Quorum: Hon’ble Justice Sibo Shankar Mishra
FACTS OF THE CASE:
The present petition concerns the accused, who engaged in sexual activity with girls in the brothel. Following the investigation, the police filed the charge sheet. Aside from the offences under Sections 3,4,5,6, and 7 of the Immoral Traffic (Prevention) Act of 1956, the charge sheet includes two additional higher offences: Sections 370(3) and 370A (2) IPC. The petition in this court seeks to quash the FIR for offences under Sections 370(3) and 370A (2) of the IPC filed against the present petitioners under Section 482 of the CrPC.
LEGAL PROVISIONS:
Section 370 of the IPC deals with the offence of human trafficking. Section 370A (2) of the Act states that anyone who knowingly engages or has reason to believe that a person has been trafficked for sexual exploitation in any way shall be punished.
PETITIONERS CONTENTION:
The petitioners argue that the trial Court’s addition of the aforementioned two offences and taking cognizance for them is legally incorrect. The petitioners are not the Spa’s owners or managers; instead, they are customers. They knew nothing about the identity of the victim girls. The perusal of various witnesses’ statements under Section 161 Cr.P.C. on record also indicates that the petitioners are the customers. They played no role in running the Spa, and they are not the Spa’s owners.
RESPONDENTS CONTENTION:
The counsel for the State claims that the Court below correctly took cognizance of the offences under Sections 370(3) and 370A(2) of the IPC in addition to the others. The court has already determined that a prima facie case for an offence under Section 370A(2) of the IPC exists against the similarly situated accused. As a result, no interference is required in the current case.
COURT ANALYSIS AND JUDGEMENT:
The court held that, taking the allegations at face value, no case is made out against the present petitioners under IPC 370(3) or 370A (2). Because this court, in dealing with the current case, kept in mind the admitted position on the facts that the petitioners are customers of the Spa, where allegedly other accused persons ran a brothel. As a result, no case or evidence on record supports the allegation that they were trafficking the women who were allegedly sexually exploited.
The court ruled that the act of sexual intercourse for consideration is not illegal in and of itself under the Immoral Trafficking (Prevention) Act of 1956. However, the intent of legislation is to ensure that women and girls are not illegally trafficked for prostitution and exploited. Soliciting, inducing, or seducing for the purpose of prostitution is illegal, but prostitution itself is not. Though there are limited exceptions to the judicial trend of exonerating customers under the Act of 1956, the customer cannot be tried under the provisions of the Immoral Traffic (Prevention) Act of 1956 on the basis of weak evidence.
As a result, without the women being examined, the prosecution may be unable to prove the factum of women’s trafficking and sexual exploitation beyond a reasonable doubt. In the absence of any evidence on record, the trial Court erred in taking cognizance of offences under Sections 370(3) and 370A (2) of the IPC against the current petitioners. The petition has been allowed.
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Written by – Surya Venkata Sujith
