Alleged Victims’ Recantation Alone Not Enough To Quash Immoral Traffic Act Proceedings At Threshold: Kerala High Court

The Court observed that the absence of any present grievance by the women against the accused could not justify quashing the proceedings under the Immoral Traffic (Prevention) Act, 1956.

The Court was hearing a petition under Section 528 of the Bharatiya Nagarik Suraksha Sanhita, 2023, filed by several accused seeking to quash the final report and proceedings against them for offences under Section 143 read with Section 3(5) of the Bharatiya Nyaya Sanhita, 2023, and Sections 4, 5, 6 and 7 of the Immoral Traffic (Prevention) Act, 1956.

A Bench of Justice Jobin Sebastian observed: “… merely because the witnesses who were allegedly subjected to sexual exploitation have subsequently recanted from the prosecution version, it cannot, at this stage, be concluded that there is no possibility of a conviction or that the continuation of the proceedings would amount to an abuse of the process of law. The offences alleged in the present case are also not in the nature of private disputes. The allegations relate to activities sought to be regulated and prohibited under a special enactment enacted in the public interest.”

“Consequently, the mere fact that the women who were allegedly subjected to sexual exploitation do not presently have any grievance against the accused cannot, by itself, constitute sufficient justification for quashing the proceedings”, the Bench added.

Advocate M. Madhubhen appeared for the petitioners. Senior Public Prosecutor Megha K. Xavier appeared for the State authorities, while Advocate Krishnasankar D. appeared for the respondents.

Background

The prosecution alleged that three accused recruited and harboured women for sexual activities in an establishment operating under the guise of an Ayurvedic spa centre. It further alleged that four other accused assisted the activities and were found with women when the police conducted a raid after receiving information.

The petitioners contended that the investigation had not produced material showing that the women were recruited, transported, harboured or transferred by threats, force, abduction, fraud or abuse of power, or that any person having control over them had been induced by payment or other benefit.

The petitioners further questioned compliance with the procedure governing the search and contended that the first accused was elsewhere when the raid occurred. They argued that the prosecution had no reasonable prospect of success after the women disowned its allegations.

The Senior Public Prosecutor opposed the petition, submitting that independent and official witnesses, along with oral and documentary material, supported the prosecution case. The prosecution maintained that the women’s subsequent statements and affidavits could not justify terminating the proceedings at the threshold.

Court’s Observations

Quashing Jurisdiction Does Not Permit A Mini-Trial

The Court observed that its inherent jurisdiction under Section 528 BNSS, corresponding to Section 482 of the Code of Criminal Procedure, 1973, was extraordinary and had to be exercised sparingly to prevent abuse of process or secure the ends of justice.

It held that proceedings may be quashed where the allegations, even if accepted entirely, do not disclose an offence. The Court, however, could not meticulously assess the evidence or determine its probative value while deciding a quashing petition.

The Bench observed: “At the same time, while exercising jurisdiction under Section 528 of the BNSS, this Court is not expected to undertake a meticulous examination of the evidence, appreciate the probative value of the materials collected during the investigation, or conduct a mini-trial.”

The Court added that disputed factual questions requiring an assessment of evidence must be decided by the trial court after a full trial.

Materials Prima Facie Connected The Establishment With The Accused

The Court noted that oral and documentary material prima facie indicated that the building had been leased by two of the accused. A therapist’s statement also indicated that the spa centre was operated using a licence that he had handed over to them.

The Court clarified that whether this material ultimately established the accused’s guilt had to be decided at trial.

The Bench remarked: “This Court is conscious of the fact that whether the aforesaid materials would ultimately establish the guilt of the accused is a matter to be decided by the trial court on the basis of the evidence adduced.”

The Court also declined to determine the first accused’s contention that he was elsewhere when the raid occurred. It held that the reliability of the asserted alibi and supporting CCTV footage involved disputed facts that could not be conclusively examined under Section 528 BNSS.

Recantation Did Not Eliminate The Prosecution Case

The Court acknowledged that the women had given statements before the Magistrate denying that they had engaged in the sexual activities alleged by the prosecution. Their affidavits filed with the quashing petition also disowned the prosecution case and stated that they had no objection to the proceedings being terminated.

However, the Court held that these circumstances did not establish that the prosecution was bound to fail. The alleged offences did not concern a private dispute capable of being terminated merely because the women presently had no grievance against the accused.

The Court further observed that the prosecution did not depend exclusively on the testimony of the women. Statements of independent witnesses and the evidence of the police officer who conducted the raid, along with other official and independent witnesses, would remain available at trial.

The Court held: “On the contrary, a perusal of the records and other materials collected during the investigation indicates that statements of independent witnesses are also available in support of the prosecution case.”

The Court added that evidence given by official witnesses could be relied upon if it was convincing, reliable and capable of inspiring the court’s confidence. It therefore rejected, at that stage, the contention that nothing survived in the prosecution case after the women recanted.

Alleged Search Irregularity Required Evidence At Trial

The Court held that any non-compliance with the procedural requirements governing the search could not, by itself, justify the exercise of inherent jurisdiction.

According to the Court, whether a procedural violation had occurred and its legal consequences required consideration by the trial court on the evidence presented.

“Every irregularity in investigation or search does not automatically render the prosecution non est”, the Court observed.

Customers Could Not Be Prosecuted For Managing The Establishment

On examining the material separately against four of the accused, the Court found that they were prima facie only customers who had allegedly engaged in sexual activities at the establishment.

The Court held that there was insufficient material showing that they had participated in conducting or managing the alleged spa centre, recruited or harboured women, or otherwise assisted in its operation. It consequently found no sufficient basis to prosecute them under Section 143 read with Section 3(5) BNS or Sections 4 and 6 of the Immoral Traffic (Prevention) Act, 1956.

The Bench underscored: “There are no sufficient materials to indicate that they had any role in the conduct or management of the alleged spa centre, which was allegedly being used as a brothel, or that they had made any attempt to recruit or harbour the women in the said establishment.”

Customers Could Face Proceedings Under Sections 5 And 7

The Court separately examined whether the alleged customers could be proceeded against under Sections 5 and 7 of the Immoral Traffic (Prevention) Act, 1956.

It relied on the Division Bench ruling in Noushad v. State of Kerala (2026), which held that a customer who voluntarily enters a brothel and avails the services of a sex worker for consideration may be prosecuted under Section 5 of the Act.

Applying that ruling, the Court held that the four accused alleged to be customers were liable to face proceedings under Sections 5 and 7.

The Court found sufficient material to proceed against the first and third accused for the offences charged against them. It held that the applicability of the trafficking offence and the sufficiency of the supporting material had to be decided by the trial court after evidence was adduced.

The allegations and investigative material, the Court observed, were neither inherently absurd nor wholly deficient. The matter involved disputed factual questions that could not be determined through the Court’s extraordinary quashing jurisdiction.

Conclusion

The Court partly allowed the petition.

It directed the first and third accused to continue facing prosecution for all the offences charged against them. The Court quashed the proceedings against the fourth to seventh accused under Section 143 read with Section 3(5) BNS and Sections 4 and 6 of the Immoral Traffic (Prevention) Act, 1956.

The Court, however, directed that the fourth to seventh accused continue to face prosecution under Sections 5 and 7 of the Immoral Traffic (Prevention) Act, 1956.

Cause Title: Praveen Sodharan v. State of Kerala (Neutral Citation: 2026:KER:73015)

Appearances

Petitioners: Advocates M. Madhubhen, Sujith C.D. and Vibin V.

Respondents: Senior Public Prosecutor Megha K. Xavier; Advocate Krishnasankar D.

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