Alleged participation in prostitution alone cannot attract IT Act Sections 4 and 5, Punjab and Haryana High Court rules, quashing charges against woman

FIR No. 80 dated 20.09.2015 was initially registered under Sections 376-D and 342 IPC on the statement of petitioner No. 2, Goldy, who alleged that she had been forcibly taken to Banur and gang-raped by the accused persons.

During investigation, the police adopted a contrary version, alleging that Goldy had voluntarily accompanied the accused persons for consensual sex and, in connivance with her husband and others, had attempted to extort money from the accused persons’ family members by threatening them with a rape case.

The police alleged that petitioner No. 1, Ajaib Singh, demanded ₹4 lakhs and received ₹1 lakh and ₹5,000 from persons connected with the accused.

A challan was consequently filed under Sections 3, 4 and 5 of the Immoral Traffic (Prevention) Act, 1956 (“IT Act”), and Sections 384 and 120-B IPC.

By order dated 06.02.2018, the learned Magistrate framed charges against Goldy under the relevant provisions, including Sections 4 and 5 of the IT Act and Sections 384/120-B IPC, and against Ajaib Singh under Section 384 IPC.

The petitioners challenged the framing of charges and dismissal of their discharge applications.

Section 4 of the IT Act applies where a person knowingly lives, wholly or partly, on the earnings of the prostitution of another woman or girl; the statutory presumption under Section 4(2) concerns persons living with, controlling, aiding, abetting, or acting as a tout or pimp for another prostitute.

Section 5 applies to procuring, inducing, taking, or causing a woman or girl to engage in prostitution, and therefore requires conduct directed towards another woman or girl.

At the stage of framing of charge, the court need not conduct a detailed appreciation of evidence or determine the ultimate truthfulness of the prosecution case, but must ascertain whether the allegations and investigation material disclose the basic ingredients of the alleged offence.

Section 384 IPC is prima facie attracted where the material discloses extortion, and the reliability and ultimate proof of the evidence are ordinarily matters for trial.

Section 120-B IPC may be invoked where the material prima facie indicates an agreement or concert to commit the substantive offence.

As regards Goldy, even accepting the prosecution’s subsequent version that she voluntarily accompanied the accused persons and participated in sexual relations for consideration, the allegations did not suggest that she lived on the earnings of another woman’s prostitution, acted as a pimp or tout, or appropriated such earnings; therefore, the essential ingredients of Section 4 were absent.

Likewise, no allegation attributed to her the procuring, inducing, taking, or causing of another woman or girl to engage in prostitution, as required by Section 5.

The charges under Sections 4 and 5 could not, therefore, be sustained merely because the police had invoked those provisions in the challan.

In contrast, the prosecution specifically alleged that Ajaib Singh demanded money from the family members of the accused persons in exchange for withdrawing or deleting their names from the rape case and had received specified amounts.

The supporting witness statements and electronic material were sufficient to disclose a prima facie case under Section 384 IPC; their credibility could be tested during trial, not at the stage of charge.

The material also prima facie indicated that Goldy acted in connivance with Ajaib Singh and others, supporting the charge of conspiracy under Section 120-B read with Section 384 IPC against her.

The charges against petitioner No. 2, Goldy, under Sections 4 and 5 of the IT Act were quashed because the alleged conduct did not satisfy the statutory ingredients of those offences.

The charge under Section 384 IPC against petitioner No. 1, Ajaib Singh, was maintained.

The charges under Section 120-B read with Section 384 IPC against Goldy were also left undisturbed, and the trial court was directed to proceed in accordance with law.