Mere Allegation Of Voluntarily Participating In Sexual Relations For Consideration Won’t Attract Sec.4 & 5 Of Immoral Traffic Act: Punjab & Haryana High Court

The High Court was considering a revision petition whereby the petitioners sought setting aside of the order passed by the Court of Judicial Magistrate First Class, in a case registered under Sections 3, 4 and 5 of Immoral Traffic (Prevention) Act, 1956 and Sections 384 and 120-B of the IPC.

The Single Bench of Justice Manisha Batra held, “A charge cannot be sustained merely because the investigating agency has mentioned a particular penal provision in the challan, when the facts alleged, even if taken at their face value, do not constitute the ingredients of that offence. In the present case, even if the subsequent prosecution version regarding Goldy is taken at its face value, it only alleges that she 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 prosecution has not attributed to her any role in living on the earnings of another woman’s prostitution, or procuring, inducing or taking another woman or girl for the purpose of prostitution. The charges under Sections 4 and 5 of the Act framed against petitioner No.2, therefore, cannot be sustained”

Advocate B. S. Baidwan represented the Petitioner while Senior Deputy Advocate General Ruchika Sabherwal represented the Respondent.

Factual Background

The FIR was originally registered on the basis of the statement made by the second petitioner alleging that on September 19, 2015, she was waiting for an auto to go to her husband when two young persons came on a red motorcycle and offered to drop her there. They took her to an empty house, where they allegedly forcibly took her inside, made her drink liquor, and forcibly established physical relations with her without her consent. It was alleged that after about half an hour, three more persons came there and they also established physical relations with her one after another without her consent. She raised an alarm, but one of them closed her mouth and threatened to kill her. She thereafter became unconscious.

She went to the police and requested action against Mandeep Singh and four other persons. During investigation, however, the police took a different view of the occurrence, that the second petitioner accompanied the accused persons to Banur and the physical relations were consensual. The investigation further alleged that the second petitioner, in connivance with her husband and others, had sought to put pressure upon the accused persons and extort money from their family members by getting a case under Section 376-D IPC registered against them. The petitioners had filed applications seeking discharge, but the same were dismissed by the Trial Court. Aggrieved thereby, the petitioners filed the petition before the High Court.

Reasoning

The Bench clarified that Section 4 of the Immoral Traffic Act is attracted where a person knowingly lives, wholly or in part, on the earnings of the prostitution of a woman or girl. Considering that there was no allegation in the present case that the second petitioner was receiving or appropriating the earnings of any other woman or girl or was acting as a tout or pimp on behalf of another prostitute, the Bench held that the basic requirement of Section 4 was absent.

The Bench further noted that Section 5 deals with procuring, inducing or taking a woman or girl for the sake of prostitution and requires an act directed towards another woman or girl, such as procuring, inducing, taking or causing or inducing her to carry on prostitution. The Bench found no such role attributed to the second petitioner as the prosecution case was confined to the allegation that she herself accompanied the other accused persons and allegedly participated in sexual relations for consideration. As per the Bench, the basic ingredients of Section 5 were not attracted against the petitioner.

“It is true that at the stage of framing of charge the Court is not required to undertake a detailed appreciation of evidence. However, the Court is required to see whether the allegations and the material collected during investigation disclose the basic ingredients of the offence sought to be charged”, it stated.

Dealing with the allegations raised against the first petitioner, the Bench noted that the prosecution had alleged that he, in connivance with co-accused including petitioner the second demanded Rs 4 lakh from the family members of co-accused for getting their names deleted from the rape case and he received some amount from the sister of co-accused Parvinder Singh and Rakesh Kumar. “Further, a perusal of the record reveals that it was in connivance with petitioner No. 2 and other co-accused that petitioner No. 1 had extorted money from the abovenamed persons. Hence, charge under Section 120-B IPC is sustainable qua petitioner No. 2”, it held.

The Bench thus quashed the charges against the first petitioner while maintaining the charge under Section 384 of the IPC framed against the first petitioner. “The charges under Section 120-B read with Section 384 of IPC against petitioner No.2, as framed by the learned trial Court, shall also remain unaffected by this order”, it directed.

Cause Title: Ajaib Singh and another v. State of Punjab and others (Neutral Citation: 2026:PHHC:126435)

Appearance

Petitioner: Advocate B. S. Baidwan

Respondent: Senior Deputy Advocate General Ruchika Sabherwal, Advocate A. P. Batra

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