SAJJAN KALIKANT ZHA vs STATE OF GUJARAT

R/CR.MA/11480/2026 (GJHC240368322026) JUDGMENT DATED:
24/08/2026
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL MISC.APPLICATION (FOR QUASHING & SET ASIDE
FIR/ORDER) NO. 11480 of 2026

FOR APPROVAL AND SIGNATURE:


HONOURABLE MRS. JUSTICE M. K. THAKKER

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Approved for Reporting Yes No
✔
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SAJJAN KALIKANT ZHA
Versus
STATE OF GUJARAT & ANR.
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Appearance:
MR PARTH B THUMMAR(13122) for the Applicant(s) No. 1
MR NIRAJ SHARMA, APP for the Respondent(s) No. 1
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CORAM: HONOURABLE MRS. JUSTICE M. K. THAKKER

Date : 24/08/2026

ORAL JUDGMENT
1. Rule. Learned APP waives service of notice for and on
behalf of the respondent – State.
2. The present application is filed for quashment of FIR
being no.11214042252200 of 2025 dated 20.12.2025
registered at Olpad Police Station, Surat Rural, for the offences
punishable under section 143(2), 143(3) and 61(2)(A) of the
BNS, 2023, and section 3, 4 and 5 of the Immoral Traffic
(Prevention) Act, 1956, charge-sheet (final report) No.075 of
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R/CR.MA/11480/2026 (GJHC240368322026) JUDGMENT DATED:
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2026 dated 28.02.2026, Criminal Case No.758 of 2026 pending
before the Ld. Principal Senior Civil Judge and Additional Chief
Judicial Magistrate, Olpad, Surat.
3. Heard learned advocate Mr. Thummar for the applicant
and learned APP Mr. Sharma for the State.
4. It is submitted by learned advocate Mr. Thummar that
applicant was implicated in the impugned FIR as accused no.8
and allegations are made against the present applicant that he
was the customer and was apprehended from the place of
offence. It is submitted that as per the statement of victims
recorded on 20.12.2025, on receiving the payment of
Rs.1,500/- per customer he was doing such activity. Learned
advocate Mr. Thummar relied upon the following decisions:
(i) In the case of Jojo Thomas Kannappilly v. State of
Gujarat rendered by this Court.
(ii) In the case of Bhaliya Sureshbhai Laljibhai v. State
of Gujarat & Anr. rendered by this Court.
(iii) In the case of Jigar Dushyantbhai Desai v. State of
Gujarat and Ors. reported in MANU/GJ/0217/2026
rendered by this Court.
(iv) In the case of Eimn Abdulamir Jassem Al-Allaf v. The
State of Maharashtra in Cri WP 564-2018(oth)
rendered by Hon'ble High Court of Judicature at
Bombay Bench at Aurangabad.
(v) In the case of Dinesh Tiwari v. State of U.P. and Ors.
reported in MANU/UP/0405/2024 rendered by
Hon'ble High Court of Allahabad (Lucknow Bench)
(vi) In the case of Vishnu P.V v. State of Kerala and Ors.
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R/CR.MA/11480/2026 (GJHC240368322026) JUDGMENT DATED:
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reported in MANU/KE/0423/2026 rendered by
Hon'ble High Court of Kerala at Ernakulam.
(vii) In the case of Rishi Pal v. The State of Madhya
Pradesh reported in MANU/MP/5004/2024 rendered
by Hon'ble High Court of Madhya Pradesh (Indore
Bench)
(viii) In the case of Boggavarapu Surya and Ors. v. The
State of Andhra Pradesh reported in
MANU/AP/1512/2022 rendered by Hon'ble High
Court of Andhra Pradesh at Amaravati
(ix) In the case of Sunil Kumar Singha and Ors. v. State
of Meghalaya and Ors. rendered by Hon'ble High
Court of Meghalaya at Shillong.
5. It is submitted that the charge which is lodged against
the present applicant for the offence punishable under
Sections 3, 4 and 5 of the Immoral Traffic Act, and Section 370
of the IPC, which would now be Section 143 of BNS, would not
be applicable to the customer, and in that background, the
prosecution itself is defective, and resultantly, the same is
required to be quashed.
6. Learned APP Mr. Sharma appearing for the State has
submitted that investigation has concluded, charge-sheet is
filed, wherein material has been collected against the present
applicant, who was present at the place of offence and the role
is attributed of customer. It is submitted that when the
applicant was present at the brothel itself, at this stage, no
interference is required, more particularly in view of the fact
that applicant is having two antecedents, which is of different
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R/CR.MA/11480/2026 (GJHC240368322026) JUDGMENT DATED:
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nature. Submitting the same, it is prayed not to exercise the
power under Section 528 of the BNS.
7. This Court has referred the decisions which are relied by
learned advocate for the applicant and relevant observation is
reproduced hereinbelow:
Jojo Thomas (Supra):
11. "After going through the contents of complaint, it appears
that uncontroverted allegations are made in the complaint. If
accepted the same in toto, the commission of offence under the
provisions of Immoral Traffic Act is not made out. Even if the
allegations made in the complaint are taken at its face value and
accepted in its entirety, did not constitute any offence or make out
the case alleged one."
Bhaliya Sureshbhai (Supra):
"4. Learned advocate Mr. Pande appearing for the applicant
submitted that the applicant was a customer and, therefore, the
issue is squarely covered. He relied upon the decision of this Court
in the case of Vinod @ Vijay Bhagubhai Patel v. State of
Gujarat and another, reported in 2017 SCC OnLine Guj 446
wherein the Court has observed in paragraph 14 to 16 as under :-
“14. To put it in other words, whether a customer at a brothel
is covered under Section 370 of the Indian Penal Code.
15. Answering the first question is not difficult because the
issue is no longer res integra. This Court, in the case of
Umedsinh P.Champavat v. State of Gujarat, (2006)2 GLH 736,
after placing reliance on an earlier decision of this very Court
in the case of The State of Gujarat v. Bai Radha w/o Natwarlal
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R/CR.MA/11480/2026 (GJHC240368322026) JUDGMENT DATED:
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Ramshankar and another, 9 GLR 278, held as under :
“9. Section 3 of the said Act provides punishment for
keeping the brothel or allowing the premises to be used as
brothel and on bare words of one of the co-accused, the
petitioner could not have been prosecuted under this Act
because as per the scheme of Section 3, it is obligatory on
the part of the prosecution to show from evidence that the
petitioner had kept brothel and he was responsible or liable
for allowing a particular premises to be used as a brothel.
When he was not there in the effective management of the
hotel on the relevant date, no charge-sheet under Section 3
of the Act could have been filed against the present
petitioner.
10. So far as as the offence punishable under Section 4 of
the Act is concerned, it provides punishment for living on the
earning of prostitution. Section says that any person over the
age of 18 years who knowingly lives, wholly or in part, on the
earnings of the prostitution ( of any other person ) is said to
have committed an offence under the Act. In view of the
details given by the petitioner as to his business activities
and involvement in hotel and resort business and other
businesses like mining etc., it would not be proper for this
Court to accept the say of ld. APP that there is prima facie
evidence to show that the petitioner has committed offence
punishable under Section 4 of the Act.
11. The petitioner has also been charged with the offence
punishable under Section 5 of the Act which says that any
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R/CR.MA/11480/2026 (GJHC240368322026) JUDGMENT DATED:
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person who -
(a) procures or attempts to procure a person, whether with or
without his consent for the purpose of prostitution, or
(b) induces a person to go from any place with the intent that
he/she may for the purpose of prostitution becomes the
inmate of, or frequent, or a brothel, or
(c) takes or attempts to take a person or causes a person to
be taken, from one place to another with a view to his/her
carrying-on, or being brought upto carry-on prostitution, or
(d) causes or induces a person to carry on prostitution, shall
be punishable under the Act.
It has been submitted that the evidence which has been
collected by the investigating agency in the form of
Statements of the co-accused and the so-called prostitutes,
at least rules out applicability of clause (b), (c) and (d) in toto.
It is not even the case of the prosecution that the accused is
said to have committed an offence under clause (b), (c) or
(d). What is alleged is that the petitioner has procured or has
attempted to procure a person for the purpose of prostitution.
The question of Law which falls for consideration of the
Hon'ble Court is as to whether a customer or a person who
enjoys sex with a prostitution can be said to have procured a
person for the purpose of prostitution.
(ii) The word "procures" used in this section connotes that
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R/CR.MA/11480/2026 (GJHC240368322026) JUDGMENT DATED:
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somebody other than the petitioner should procure the
woman for him. Section 5(i)(a) of the Act can be invoked only
against the procurer like the agent or a pimp and not against
persons like the petitioner because there is no allegation or
the case that the petitioner was a person involved in
procuring a woman. On the contrary, the case of the
prosecution is that somebody else was procuring a woman or
a girl and certain hotels were being used by them doing
booking of rooms.
12. Ld. counsel Mr. Anandjiwala has drawn attention of this
Court on the observations made by this Court in para-26 of
the decision in the case of State of Gujarat v. Bai Radha, w/o
Natvarlal Ramshankar & Another (9 GLR 261). It would be
beneficial to quote the relevant para-26 which is as under :-
"26. Sec.5(1)(a) provides that any person who procures or
attempts to procure a woman or girl, whether with or without
her consent, for the purpose of prostitution, that person shall
be punished as provided therein. In this respect also Mr.
Nanavati's contention was that accused No.3 can be said to
have procured a woman such as Bai Kanta for the purposes
of prostitution to Kishan and that, therefore, he can be held
liable for the offence under Section5(1)(a) of the Act. The
word "procure" is not defined under the Act, but we were
referred to its dictionary meaning which says "To bring about
by care or pains; also (more vaguely) to bring about, cause,
effect, produce; to obtain by care or effort; to acquire; to
obtain (women) for the gratification of lust; to prevail upon,
induce, persuade (a person) to do something." Giving the
normal meaning to the use of the word "procure" in clause
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R/CR.MA/11480/2026 (GJHC240368322026) JUDGMENT DATED:
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(a) of sub-section (1) of Section 5, what is required is only
that he must have obtained a woman or a girl for the purpose
of prostitution for a particular individual."
Mr. Anandjiwala has placed emphasis on words "obtain a
woman or a girl for the purpose of prostitution for a particular
individual" and it is argued that from these observations
made, it is sufficiently clear that Section 5(i) (a) of the Act
would not be attracted at all in the present case so far as the
present petitioner is concerned.
13. The petitioner is also charged with the offence under
Section 7 of the Act. Section 7 of the Act makes the
prostitution in or in the vicinity of public places an offence.
Firstly, the prostitution in itself is not an offence under the
Act, save in the manner given in Sections 7 and 8. Firstly, the
petitioner by any stretch of imagination cannot be charged
with this offence under Section 7 of the Act because to
attract the said section, the prosecution must prima facie
show that the petitioner is carrying on prostitution. It is only
when the first ingredient is satisfied then the question would
be as to whether the prostitution is being carried out in or in
the vicinity of public place. When Section 3 of the Act is not
applicable, when Section 4 of the Act is not applicable to the
present petitioner, there is no question of charging the
accused with the offence punishable under Section 7 of the
Act. When no formal raid was carried out at Hotel Taj
Residency Umed and no part of the premises of the said hotel
was found in actual use of such illegal activities, it would not
be legal to continue the prosecution against the petitioner for
using the public place for the activities of prostitution.
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R/CR.MA/11480/2026 (GJHC240368322026) JUDGMENT DATED:
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14. Section 9 of the said Act, on the face of it, is not
applicable in the facts and circumstances of the present case.
For attracting Section 9 of the Act, it has to be shown prima
facie that the petitioner having position or authority over any
person, i.e. a woman or girl causes or aids or abets the
seduction for prostitution of that woman or girl. The question
again, at the cost of repetition, is the petitioner's position or
authority over any such woman or girl. There is not a thread
of any evidence even to remotely suggest that the petitioner
taking undue advantage of his position or authority over any
woman or girl, caused or aided or abetted the seduction for
prostitution of that woman or girl.
15. Undisputedly, powers of this Court under Section 482
of CrPC are very wide. It is true that the same should be used
sparingly and in rare case, where it is apparent from record
that the prosecution has no case. The discretion for quashing
the complaint or charge-sheet must be carefully used and the
High Court must see that its decision in exercise of its power
is based on sound principles. As per the settled legal position,
as observed by the Apex Court, if FIR fails to disclose the
commission of offence without anything being added or
subtracted from recitals therein then the High Court would be
absolutely justified in quashing the FIR or the charge-sheet.
In the present case, there is no legal evidence against the
petitioner and, therefore, quashing of the FIR and the charge-
sheet would be justified. The Court is also supposed to
consider the nature of allegations made more particularly in
the case which has been put forward against the petitioner
accused. The Court is in agreement with the say of ld.
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R/CR.MA/11480/2026 (GJHC240368322026) JUDGMENT DATED:
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counsel Mr.Anandjiwala that the ratio of the decision in the
case of Bai Radha (supra) would help the petitioner and even
on facts, it emerges that the prosecution instituted against
the present petitioner is not even healthy one. Totally illegal
implication in the offence is equal to a false implication and
for such an act, the prosecuting officer/agency can be held
liable for malicious prosecution. But this exercise has to be
made by the person falsely implicated before the competent
forum in accordance with law. The petitioner is entitled to do
it."
16. In view of the above, I hold that the prosecution of the
applicant herein for the offence under the Immoral Traffic
(Prevention) Act is not maintainable. The applicant herein
cannot be said to have procured a woman for the purposes of
prostitution."
8. As issue is no more res integra , this Court is of the
opinion that the petition is required to be allowed, and hence,
the same is allowed. Accordingly, the impugned FIR being
no.11214042252200 of 2025 dated 20.12.2025 registered at
Olpad Police Station, Surat Rural, for the offences punishable
under section 143(2), 143(3) and 61(2)(A) of the BNS, 2023,
and section 3, 4 and 5 of the Immoral Traffic (Prevention) Act,
1956, charge-sheet (final report) No.075 of 2026 dated
28.02.2026, Criminal Case No.758 of 2026 pending before the
Ld. Principal Senior Civil Judge and Additional Chief Judicial
Magistrate, Olpad, Surat, is quashed and set aside qua the
applicant. Consequently, all other proceedings arising out of
the aforesaid F.I.R. are also quashed and set aside qua the
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R/CR.MA/11480/2026 (GJHC240368322026) JUDGMENT DATED:
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applicant. Accordingly, Rule is made absolute.
(M. K. THAKKER,J)
AMIT ITALIAN
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