Allowed

Udhaya Kumar v. the State

Madras HC8 Jun 2022CRL OP/10334/2022

Case brief

AI extract

What is this about?

This court quashed the FIR and criminal charges against the petitioner for offences under the Immoral Traffic (Prevention) Act and IPC. Relying on Supreme Court precedent, the judgment held that mere presence at a raided establishment without evidence of coercion or involvement in running it does not attract penal liability.

What did the court decide?

Crime No.9 of 2021 is quashed insofar as it pertains to the petitioner arrayed as A-5.

Udhaya Kumar Vs the State — Quashing and FIR | Madras HC (2022)

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IN THE HIGH COURT OF JUDICATURE AT MADRAS

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DATED: 8/6/2022

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THE HONOURABLE MR.JUSTICE N. SATHISH KUMAR

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CRL. O.P. NO. 10334 OF 2022

Udhaya Kumar

... Petitioner

The State

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rep. By The Inspector of Police,

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Anti-Vice Squad – II Police Station,

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Chennai CCB.

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Jayaprakash

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Head Constable, (24815)

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Anti Vice Squad – II Police Station

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Chintadripet, Chennai. ... Respondents

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PRAYER :

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Criminal Original Petition filed under Section 482 of Cr.P.C., to call for the records and quash the FIR registered in AVS – II P.S. Crime No.9 of 2021 against the petitioner pending on the file of the respondent Police.

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This Criminal Original Petition has been filed to quash the FIR registered in Crime No.9 of 2021, pending on the file of the Anti Vice Squad - II Police Station, Chennai, for the offences punishable under Sections 3 (2) a, 4 (1), 5 (1) a & 5 (1) d of The Immoral Traffic (Prevention) Act, 1956 and 370 A (2) of the Indian Penal Code, 1860.

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https://hcservices.ecourts.gov.in/hcservices/

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petitioner and Mr.A.Gokulakrishnan, learned Additional Public Prosecutor for the respondents.

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The allegation against the petitioner is that when the police party headed by the Inspector of Police raided a massage centre, the petitioner was also present along with the sex workers and he was apprehended and arrayed as A.5.

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Learned counsel appearing for the petitioner submitted that even if the entire allegations are taken together, it would not attract any offence. He further submitted that doing sex work is not illegal and only running a brothel is illegal.

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Learned counsel appearing for the petitioner further submitted that the sex workers are engaged in prostitution on their own volition and not due to any inducement, force or coercion and, therefore, such acts are not liable for prosecution under Section 370 of the Indian Penal Code.

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Learned Additional Public Prosecutor submitted that under the pretext of massage centre, a brothel was run by A.1.

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The present petition is filed by A.5 and not by A.1. The very report and alteration report filed by the Police would indicate that the petitioner was present while sex workers were in the said massage centre. However, even a bare perusal of the FIR does not reveal the presence of the petitioner at the said place. Further, the petitioner is also not shown as an accused in the FIR. However, only in the alteration report, the petitioner is shown as A-5. Even if the entire report is taken at its face value, the said report does not show any offence committed by the petitioner, except for the alleged presence of the petitioner at the said place. Further, there is no material to show that the petitioner was involved in any sexual act at the said place and that the persons, who have been rescued from the said place have made any allegation against any of the individuals, much less the petitioner.

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In this backdrop, the decision of the Hon'ble Apex Court in BUDHADEV KARMASKAR Vs. THE STATE OF WEST BENGAL & ORS (2022 Live Law (SC) 525), assumes significance, wherein, the Hon'ble Apex Court has held that whenever any brothel is raided, sex workers should not be arrested or penalised or harassed or victimised and it is only the running of the brothel, which is unlawful.

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In the case on hand, merely because the petitioner was in the place, which is alleged by the respondents to be a brothel being run by some person, the petitioner cannot be fastened with any penal consequence and further, the act of the

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https://hcservices.ecourts.gov.in/hcservices/

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petitioner also cannot be said to be an act of pressurising the sex workers to commit acts, which they were not interested. From the aforesaid decision, any sex worker, being an adult and indulging in sexual act with his/her own consent, the police authorities should refrain from taking action against such individuals. From the facts, as is evident from the FIR and the alteration report, there is no whisper about any coercion on the sex workers to commit the act, more so from the petitioner. That being the case, the petitioner not being alleged to be a person coercing the sex worker to commit the sexual act, continuing the First Information Report against this petitioner is nothing but a futile exercise and would serve no purpose.

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For the reasons aforesaid, this Criminal Original Petition is allowed and Crime No.9 of 2021, pending on the file of the Inspector of Police, Anti-Vice Squad – II Police Station, insofar as the petitioner, who is arrayed as A-5 is quashed. Consequently, connected Crl.M.P.No.6140 of 2022 is closed.

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Sd/-

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Assistant Registrar(CS VII)

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//True Copy//

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Sub Assistant Registrar

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mvs.

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