The Orissa High Court observed that the act of sexual intercourse for consideration is not illegal per se under the Immoral Trafficking (Prevention) Act,1956.

The court noted that soliciting or inducing or seducing for the purpose of prostitution is illegal but prostitution per se is not illegal. It said that the intent of legislation is only to ensure that women/girls are not illegally trafficked for the purpose of prostitution, and they are exploited.

This observation was made while quashing FIR under Sections 370(3) and 370A (2) IPC against two people who were found at a ‘Spa Center’. The court found that the accused were not trafficking women who were “into prostitution out of their own volition.”

The manager of a spa centre and another person were running a brothel under the guise of the said spa. They were allegedly procuring girls and using them for prostitution. After a police raid it was found that out of the eight young girls in the spa, seven of them were doing sexual activities with customers, two of them being the petitioners. The apprehended girls were foreigners from Thailand.

An FIR was registered against the petitioners under the Immoral Traffic (Prevention) Act, 1956 (the Act) on the accusation that the petitioners were availing services from a said Spa Centre.

However, the petitioners were aggrieved by the addition of aggravated/higher offences under Sections 370(3) and 370A (2) of the IPC and the petitioners argued that they were only customers of the spa where allegedly other accused persons were running a brothel.

A Single Bench of Justice Sibo Sankar Mishra observed, “Therefore, on the allegation no case or evidence is illuminating from record that they were indulging in trafficking the women who were allegedly sexually exploited. All the alleged victim girls were from Thailand, and they were adults. Nothing has come on record to suggest that they were sexually exploited; rather they were into prostitution out of their own volition.

Advocate Amit Prasad Bose represented the petitioners, while AGA B.K. Ragada appeared for the opposite party.

The Court observed that the allegation that the girls were trafficked and thereafter sexually exploited was only mentioned in the charge sheet, but there was no evidence collected and placed before the Court to prove the same.

The court explained the legislative intent behind the Act which was to ensure that women/girls were not illegally trafficked for prostitution or exploitation.

The Court remarked, “Though exception to the judicial trend of exonerating the customers under the Act, 1956 are limited, but on the strength of weak evidence the customer cannot be tried for under the provisions under Sections of Immoral Traffic (Prevention) Act, 1956. It is only when the customer performs his role of procuring the women for another, the offence under Section 370A IPC could be employed into action against the customer.

The Court stated that there was no evidence on record to prove that the petitioners were indulging in trafficking the women who were allegedly sexually exploited.

The Court stated that “taking the allegations at its face value no case is made out against the present petitioners insofar as the allegations of 370(3) or 370A (2) of IPC.

Subsequently, The Court held that in the absence of material that any of the women found were trafficked for sexual exploitation, the offence under Section 370A (2) of IPC would not be attracted against a customer. But the petitioners were to face trial under other charges against them.

Accordingly, the High Court partly allowed the application.

Cause Title: Bikash Kumar Jain & Anr. v. State of Odisha


Petitioners: Advocate Amit Prasad Bose

Opposite Party: AGA B.K. Ragada

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