हाई कोर्ट ने तय किया, महिला की स्वयं की वाणिज्यिक कार्यवाही पर इमरॉल ट्रैफ़िक एक्ट के तहत आईटी एक्ट की धारा 4‑5 लागू नहीं

Woman’s prostitution, by itself, no ground for charges under IT Act: High Court

Law against those living off another woman’s earnings, or procuring, inducing or taking her for prostitution, says Justice Manisha Batra

A woman cannot be charged under the provisions of the Immoral Traffic (Prevention) Act merely on the allegations of engaging in prostitution herself, the Punjab and Haryana High Court has held. The court clarified that Section 4 of the Act applied to a person who knowingly lives on the earnings of the prostitution of another woman or girl, while Section 5 deals with procuring, inducing or taking a woman or girl for the purpose of prostitution.

Justice Manisha Batra made the observation while partly allowing a revision petition filed against the order of Mohali Judicial Magistrate First Class, framing charges in a case arising from an FIR registered on September 20, 2015, at Banur police station.

The FIR was initially registered for gang-rape under Sections 376-D and 342 of the IPC on the basis of the statement of one of the two petitioners. The woman alleged that she was waiting for an auto to go to her husband at Baltana, Zirakpur, after reaching Sector 43, Chandigarh, around midnight, when two youngsters on a motorcycle offered to drop her. She alleged that they took her to an empty house at Banur, forcibly took her inside, made her drink liquor and established physical relations with her without her consent. She further alleged that three more persons arrived there and also established physical relations with her one after another without her consent.

During investigation, the police took a different view of the occurrence. According to the case subsequently set up in the challan, the woman had accompanied the accused persons to Banur and the physical relations were consensual.

The investigation further alleged that she, in connivance with her husband and others had sought to put pressure on the accused and extort money from their family by getting a case under Section 376-D IPC registered against them. She was consequently joined as an accused during investigation.

The High Court examined the charge under Section 4 of the IT Act first. Justice Batra noted that the provision applied where a person knowingly lived wholly or partly on the earnings of the prostitution of a woman or girl.

“The allegation against the petitioner is not that she was living on the earnings of prostitution of some other woman or girl,” Justice Batra observed. The Bench further noted that there was no allegation that she was receiving or appropriating the earnings of any other woman or girl or “acting as a tout or pimp on behalf of another prostitute”.

“Thus, the basic requirement of Section 4 is absent and, hence, charge under this section cannot be sustained against her,” the Court held. Justice Batra then examined Section 5 dealing with procuring, inducing or taking a woman or girl for the sake of prostitution.

“The provision requires an act directed towards another woman or girl,” it said. The court noted that no such role had been attributed to the petitioner. According to the prosecution case, she herself had allegedly accompanied the other accused persons and participated in sexual relations for consideration.

“There is no allegation that she procured or induced any other woman or girl for prostitution,” the court observed. It further held that there was no allegation that she had taken any woman from one place to another for that purpose or caused or induced any other woman or girl to carry on prostitution.

“Consequently, even the basic ingredients of Section 5 are not attracted against the petitioner,” the court held.

The High Court also explained the scope of scrutiny at the stage of framing charges. “It is true that at the stage of framing of charge the court is not required to undertake a detailed appreciation of evidence,” it said. At the same time, the court held that it was required to see whether the allegations and material collected during investigation disclosed the basic ingredients of the offence sought to be charged.

“A charge cannot be sustained merely because the investigating agency has mentioned a particular penal provision in the challan,” Justice Batra held, adding that the facts alleged, “even if taken at their face value”, must constitute the ingredients of that offence.

Applying the principle to the case, the court said that even if the subsequent prosecution version was taken at face value, it alleged only that petitioner had voluntarily accompanied the other accused persons and participated in sexual relations for consideration.

“Such allegation, by itself, does not make out an offence under Sections 4 or 5 of the IT Act,” the court held. It added that the prosecution had not attributed to her any role in living on the earnings of another woman’s prostitution or in procuring, inducing or taking another woman or girl for prostitution.

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