The Punjab & Haryana High Court (Chandigarh Bench) has held that Sections 4 and 5 of the Immoral Traffic (Prevention) Act, 1956 (IT Act) target persons living on the earnings of another woman’s prostitution or procuring another woman for prostitution and cannot be invoked against a woman alleged to have herself participated in consensual paid sex.
The Court said that Section 5 of the IT Act is directed at acts of procuring, inducing, taking or causing another woman or girl to carry on prostitution, and does not apply where the allegation is confined to the accused’s own participation in paid sexual relations. Further, the power to frame charges is not mechanical, and the court must examine whether the allegations, even taken at their face value, disclose the basic ingredients of the offence, and a mere mention of a section in the challan is insufficient to sustain a charge.
A Single Judge Bench of Justice Manisha Batra examined the ingredients of Sections 4 and 5 of the Immoral Traffic (Prevention) Act, 1956 (IT Act) in light of the allegations against Goldy. Section 4 punishes a person who ‘knowingly lives, wholly or in part, on the earnings of the prostitution of a woman or girl’, and the presumption under sub-section (2) operates only against a person living on the earnings of another person’s prostitution. The Court noted that the allegation against Goldy was not that she was living on the earnings of some other woman or girl, but that she herself allegedly participated in prostitution, a fact situation that falls outside the scope of Section 4.
As regards Section 5, the Court observed that the provision is directed at acts such as procuring, inducing, taking, or causing a woman or girl to carry on prostitution, all of which require the accused to act in relation to another woman or girl. No such role was attributed to Goldy, and the prosecution case was confined to the allegation that she herself accompanied the accused persons and participated in sexual relations for consideration. The Court therefore held that the basic ingredients of Section 5 were also not attracted against her.
The Court reiterated the settled position that at the stage of framing of charge, the court is not required to undertake a detailed appreciation of evidence, but it must still examine whether the allegations and the material disclose the basic ingredients of the offence sought to be charged. The Court said that a charge cannot be sustained merely because the investigating agency has mentioned a particular penal provision in the challan, when the facts alleged, even taken at their face value, do not constitute the ingredients of that offence.
In contrast, the Court found that the material against Ajaib Singh, including allegations of demand and receipt of money, statements, and electronic evidence, did prima facie disclose the ingredients of Section 384 IPC, and that the charge under Section 120-B IPC qua Goldy was sustainable since the extortion was allegedly carried out in connivance with her and other co-accused.
Briefly, the case arises out of an FIR registered initially under Sections 376-D and 342 IPC on the statement of one Goldy (petitioner No. 2). Goldy alleged that on Sep 19, 2015, while waiting for an auto at Sector 43, Chandigarh, two persons on a motorcycle offered to drop her to Baltana, Zirakpur, but instead took her to an empty house at Banur, made her drink liquor, and gang-raped her, after which three more persons arrived and also assaulted her sexually. She named Mandeep Singh and four others as accused.
During investigation, however, the police took a contrary view. The challan alleged that Goldy had accompanied the accused persons voluntarily and that the physical relations were consensual, and that she, along with her husband Rakesh Kumar, Mandeep Kaur, Ajaib Singh (petitioner No. 1) and Jagtar Singh, attempted to extort money from the accused persons’ family members by threatening them with a false gang-rape case. Goldy, who was originally the complainant, was herself arrayed as an accused.
The police further alleged that Ajaib Singh demanded Rs. 4 lakhs from the mother of co-accused Parvinder Singh, received Rs. 1 lakh from his sister and Rs. 5,000 from Rakesh Kumar. Ultimately, charges under Sections 3, 4 and 5 of the Immoral Traffic (Prevention) Act, 1956 and Sections 384 and 120-B IPC were framed against Goldy under Sections 4, 5 and 120-B read with 384 IPC, and against Ajaib Singh under Section 384 IPC. The petitioners’ discharge applications were dismissed, prompting the present revision petition.
