# Dinesh Tiwari @ Dhirendra Kumar Tiwari v. State of U.P. & Anr. Opp. Parties

- **Citation:** (2024) 2 ILRA 641
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2024-02-22
- **Case number:** Application U/S 482 No. 9161 of 2023
- **Bench:** Arun Kumar Singh Deshwal
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/dinesh-tiwari-dhirendra-kumar-tiwari-v-state-of-u-p-anr-opp-parties-51454
- **Pages:** 13

## Headnote

Criminal Law - Criminal Procedure Code,
1973 - Sections 100(4) & 482 - Immoral
Traffic (Prevention) Act, 1956 - Sections
2(f), 3, 4, 4(1), 5, 7, 7(1)(a), 7(1)(b), 8, 9
& 15(2) - Application under Section 482 of
Cr.P.C. - for quashing of the entire criminal
proceedings - Police Raid - search & Seize -
applicant found in an intimate position with coaccused lady, who was allegedly involved in in
prostitution - FIR - Investigation - Chargesheet
-
order
of
Cognizance
-
instant
Application - applicant taken plea that the
search violated Section 15(2) of the Act due to
the absence of two local witnesses, and that the
applicant, being merely a customer, cannot be
penalized under the Act unless actively involved
in the prostitution business - court examined -
whether the applicant, found as a customer in a
brothel, could be prosecuted under Sections 3 to
9 of the Immoral Traffic (Prevention) Act, and
whether the search violated Section 15(2),
which
mandates
the
presence
of
two
respectable local witnesses including a woman -
court held that - (i) a search conducted in
violation of Section 15(2) of the Act can be said
642 INDIAN LAW REPORTS ALLAHABAD SERIES
to be irregular but this ground cannot be the
basis for quashing the impugned proceeding u/s
482 Cr.P.C. Still, this ground is available during
trial, which can be decided on the basis of
evidence, - (ii) a customer who visits the brothel
will not be liable u/s 3/4/5/7/8/9 of the Act -
consequently, the court quashed the criminal
proceedings against the applicant.
(Para - 23, 24, 25, 27, 29, 31, 32)

Application Allowed. (E-11)

List of referred Cases: -

## Text

_Characters 0–39,858 of 43,801. This is a partial read: ask again with offset=39858 for what follows._

2 All. Dinesh Tiwari @ Dhirendra Kumar Tiwari Vs. State of U.P. & Anr.
641
with the order of acquittal. The appellate
court should bear in mind the presumption
of innocence of the accused and further
that the trial court's acquittal bolsters the
presumption of his innocence. Interference
in a routine manner where the other view is
possible should be avoided, unless there
are
good
reasons
for
interference."
(emphasis supplied)" (emphasis supplied
by us)

12. Thus, having regard to aforesaid
overall facts and circumstances of this case
and in view of the law laid down by
Hon'ble the Supreme Court in Balraje's
case (supra), Ramesh's case (supra) and
Anwar Ali's case (supra), we are of the
considered
view
that
the
impugned
judgment and order dated 16.05.2013
insofar
as
it
relates
to
the
respondent, Smt. Phoolan Devi @
Phoolmati, who has been acquitted
of the charge under Section 302
I.P.C., is based on proper analysis
of evidence available on record. It
is a possible view of the matter on
the
basis
of
evidence
adduced
before
the
learned
trial
court,
therefore, the same cannot be said
to be perverse.

13. On the basis of foregoing
discussion,
we
are
of
the
considered
view
that
the
application for leave to appeal
lacks merit and is, accordingly,
rejected.

14. Since the application for
leave to appeal has been rejected,
the appeal also does not survive
and the same stands dismissed.

15. Let the record of trial
court,
if
any,
be
transmitted
forthwith to the learned trial court
concerned.
----------
(2024) 2 ILRA 641
ORIGINAL JURISDICTION
CRIMINAL SIDE
DATED: LUCKNOW 22.02.2024

BEFORE

THE HON'BLE ARUN KUMAR SINGH
DESHWAL, J.

Application U/S 482 No. 9161 of 2023

Dinesh Tiwari @ Dhirendra Kumar Tiwari
 ...Applicant
Versus
State of U.P. & Anr. ...Opp. Parties

Counsel for the Applicant:
Anshumali Srivastava, Mayank Srivastava

Counsel for the Opp. Parties:
G.A.

Criminal Law - Criminal Procedure Code,
1973 - Sections 100(4) & 482 - Immoral
Traffic (Prevention) Act, 1956 - Sections
2(f), 3, 4, 4(1), 5, 7, 7(1)(a), 7(1)(b), 8, 9
& 15(2) - Application under Section 482 of
Cr.P.C. - for quashing of the entire criminal
proceedings - Police Raid - search & Seize -
applicant found in an intimate position with coaccused lady, who was allegedly involved in in
prostitution - FIR - Investigation - Chargesheet
-
order
of
Cognizance
-
instant
Application - applicant taken plea that the
search violated Section 15(2) of the Act due to
the absence of two local witnesses, and that the
applicant, being merely a customer, cannot be
penalized under the Act unless actively involved
in the prostitution business - court examined -
whether the applicant, found as a customer in a
brothel, could be prosecuted under Sections 3 to
9 of the Immoral Traffic (Prevention) Act, and
whether the search violated Section 15(2),
which
mandates
the
presence
of
two
respectable local witnesses including a woman -
court held that - (i) a search conducted in
violation of Section 15(2) of the Act can be said
642 INDIAN LAW REPORTS ALLAHABAD SERIES
to be irregular but this ground cannot be the
basis for quashing the impugned proceeding u/s
482 Cr.P.C. Still, this ground is available during
trial, which can be decided on the basis of
evidence, - (ii) a customer who visits the brothel
will not be liable u/s 3/4/5/7/8/9 of the Act -
consequently, the court quashed the criminal
proceedings against the applicant.
(Para - 23, 24, 25, 27, 29, 31, 32)

Application Allowed. (E-11)

List of referred Cases: -

1. Shivaraj Vs St. of Karn. (Criminal Petition No.
200782 of 2016),

2. Raghavendra @ Raghu Vs St. of Karn. (Criminal
Petition No. 8055 of 2016),

3. Mahesh Hebbar @ Mahesh Vs The Station House
Officer, Banaswadi, P.S. Bangalore (Writ Petition No.
56504 of 2015),

4. Babu S. Vs St. by Kengeri Police Station Bengaluru
(Criminal Petition No. 2119 of 2022),

5. Barath S.P. Vs St. of Karn. (Criminal Petition No. 1757
of 2022),

6. Suraj Vs St. of Karn. (Criminal Petition No. 7110 of
2011),

7. Salapu Venkateswara Rao Vs St. of Andhra Pradesh
(Criminal Petition No. 2156 of 2022),

8. Korada Subrahmanyam Vs St. of Andhra Pradesh
(Criminal Petition No. 6182 of 2022),

9. Goenka Sajan Kumar Vs St. of Andhra Pradesh
(Criminal Petition No. 4161 of 2014),

10. Nartu Rambabu Vs St. of Andhra Pradesh (Criminal
Petition No. 4289 of 2022),

11. Padala Venkata Sai Rama Reddy Vs St. of Andhra
Pradesh (Criminal Petition No. 6733 of 2021),

12. Vinod @ Vijay Bhagubhai Patel Vs St. of Guj.
(Criminal Misc. Application No. 8156 of 2017),

13. Naman Laddha Vs St. of M.P. (Misc. Criminal Case
No. 34970 of 2022).
14. Pratibha Vs Rameshwari Devi, (2007) 12 SCC 369,

15. Bai Radha Vs St. of Guj.; (1969) 1 SCC 43,

16. Kalpnath Rai Vs St. (through CBI); (1997) 8 SCC
732,

17. Sahib Singh Vs St. of Punj.; (1996) 11 SCC,

18. D. Vinod Shivappa Vs Nanda Belliappa; (2006) 6
SCC 456,

19. Heydon's Case (1584) 76 ER 637.

(Delivered by Hon'ble Arun Kumar Singh
Deshwal, J.)

1. Heard learned counsel for the
applicant, and Sri Arvind Kumar Tripathi
learned A.G.A. for the State.

2. The instant application u/s 482
Cr.P.C. has been filed seeking quashing of
the entire proceeding of Case No. 426 of
2007 (State vs. Rashmi Srivastava &
others), arising out of Case Crime No. 137
of 2006, under Sections 3/4/5/7/8/9 of the
Immoral Traffic (Prevention) Act, 1956
(hereinafter referred to as "Act"), P.S.
Sarojini
Nagar,
District
Lucknow,
including the charge sheet No. 7 of 2006
dated 7.8.2006, pending before Judicial
Magistrate-III, Lucknow.

3. Though the present application has
been filed after a considerable delay, this is
being entertained because question of law
is involved here.

4. The facts, giving rise to the present
impugned
proceeding,
are
that
on
11.6.2006, the police conducted a search of
a house that belonged to one Haji, on the
information received from an informer that
some of the persons were conducting
prostitution.
During
the
search,
the
applicant was found in an intimate position
2 All. Dinesh Tiwari @ Dhirendra Kumar Tiwari Vs. State of U.P. & Anr.
643
with co-accused lady "S" (name changed),
who was allegedly involved in prostitution
in a locked room. As per the police, S.H.O.
had seen the present applicant and one lady
"S" in an intimate position through cracks
in the door. Based on this search, an F.I.R.
dated 11.6.2006 was registered against the
accused persons, including the present
applicant, as Case Crime No. 137 of 2006,
under Sections 3/4/5/7/8/9 of the Act. The
police,
after
investigation,
had
also
submitted a charge sheet against the
applicant
and
five
other
co-accused
persons, u/s 3/4/5/7/8/9 of the Act on
7.8.2006, whereupon the learned C.J.M.
also took cognizance on 10.8.2006, and the
proceeding was registered as Case No. 426
of 2007.

5. The contention of learned counsel
for the applicant is twofold:-

(i) that while conducting the
search of the house in question, mandatory
provision of Section 15(2) of the Act,
which requires the presence of two local
witnesses, was not followed, and there was
a violation of Section 15 (2) of the Act; and

(ii) that as per the prosecution
case, the applicant was simply a customer,
and simply being a customer at any house
that is being used for prostitution will not
attract any penalty under the Act unless
there is the involvement of the customer in
the business of prostitution.

6. In support of his first contention,
learned counsel for the applicant has relied
upon the judgement of High Court of
Karnataka, Kalaburagi Bench in the case of
Shivaraj vs. State of Karnataka (Criminal
Petition No. 200782 of 2016) and in
support of his second contention learned
counsel for the applicant has relied upon
the judgements of Karnataka High Court in
Raghavendra @ Raghu vs. State of
Karnataka (Criminal Petition No. 8055 of
2016), Mahesh Hebbar @ Mahesh vs. The
Station House Officer, Banaswadi, P.S.
Bangalore (Writ Petition No. 56504 of
2015), Babu S. vs. State by Kengeri Police
Station Bengaluru (Criminal Petition No.
2119 of 2022), Barath S.P. vs. State of
Karnataka (Criminal Petition No. 1757 of
2022) and Suraj vs. State of Karnataka
(Criminal Petition No. 7110 of 2011), the
judgements of Andhra Pradesh High Court
in Salapu Venkateswara Rao vs. State of
Andhra Pradesh (Criminal Petition No.
2156 of 2022), Korada Subrahmanyam vs.
State of Andhra Pradesh (Criminal
Petition No. 6182 of 2022), Goenka Sajan
Kumar vs. State of Andhra Pradesh
(Criminal Petition No. 4161 of 2014),
Nartu Rambabu vs. State of Andhra
Pradesh (Criminal Petition No. 4289 of
2022) and Padala Venkata Sai Rama
Reddy vs. State of Andhra Pradesh
(Criminal Petition No. 6733 of 2021), the
judgement of Gujarat High Court in the
case of Vinod @ Vijay Bhagubhai Patel
vs. State of Gujarat (Criminal Misc.
Application No. 8156 of 2017) as well as
the judgement of Madhya Pradesh High
Court in the case of Naman Laddha vs.
State of M.P. (Misc. Criminal Case No.
34970 of 2022).

7. Per contra, learned A.G.A.
submitted that as the applicant was caught
red-handed during the search of a house
that was being used as a brothel, therefore
an offence under the Act is made out
against him. It is further submitted that the
applicant cannot be said to have committed
no offence on being a customer because it
is the customer who procures the prostitute
for consideration of money to satisfy his
lust. Therefore, ingredients of the offence
u/s 3/4/5/7/8/9 of the Act are attracted.
644 INDIAN LAW REPORTS ALLAHABAD SERIES

8. After hearing learned counsel for
the parties and on perusal of the record, two
questions arise: (i) whether there was a
violation of Section 15(2) of the Act while
conducting a search of the house in
question where the applicant was found as
a customer of a prostitute. If yes, then as to
what will be its effect on the impugned
proceeding; and (ii) whether a person who
was found as a customer at a place that was
being used as a brothel can be held liable
u/s 3/4/5/7/8/9 of the Act.

9. So far as the first question is
concerned, it would be appropriate to quote
Section 15 of the Act as follows:-

"15. Search without a warrant.-
(1) Notwithstanding anything contained in
any other law for the time being in force,
whenever the special police officer or the
trafficking police officer, as the case may
be, has reasonable grounds for believing
that an offence punishable under this Act
has been or is being committed in respect
of a person living in any premises, and that
search of the premises with warrant cannot
be made without undue delay, such officer
may, after recording the grounds of his
belief, enter and search such premises
without a warrant.

(2) Before making a search under
sub-section (1), the special police officer or
the trafficking police officer, as the case
may be, shall call upon two or more
respectable inhabitants (at least one of
whom shall be a woman) of the locality in
which the place to be searched is situate, to
attend and witness the search, and may
issue an order in writing to them or any of
them so to do:

Provided that the requirement as
to the respectable inhabitants being from
the locality in which the place to be
searched is situate shall not apply to a
woman required to attend and witness the
search.
 (3) Any person who, without
reasonable cause, refuses or neglects, to
attend and witness a search under this
Section, when called upon to do so by an
order in writing delivered or tendered to
him, shall be deemed to have committed an
offence under section 187 of the Indian
Penal Code (45 of 1860).

(4) The special police officer or
the trafficking police officer, as the case
may be, entering any premises under subsection (1) shall be entitled to remove
therefrom all the persons found therein.
 (5) The special police officer or
the trafficking police officer, as the case
may be, after removing the person under
sub-section (4) shall forthwith produce him
before the appropriate magistrate.

(5A) Any person who is produced
before a magistrate under sub-section (5),
shall be examined by a registered medical
practitioner
for
the
purposes
of
determination of the age of such person, or
for the detection of any injuries as a result
of sexual abuse or for the presence of any
sexually transmitted diseases.

Explanation.-In this sub-section,
"registered medical practitioner" has the
same meaning as in the Indian Medical
Council Act, 1956.

(6) The special police officer or
the trafficking police officer, as the case
may be, and other persons taking part in,
or attending, and witnessing a search shall
not be liable to any civil or criminal
proceedings against them in respect of
anything lawfully done in connection with,
or for the purpose of, the search.

(6-A) The special police officer or
the trafficking police officer, as the case
may be, making a search under this Section
shall be accompanied by at least two
women police officers, and where any
2 All. Dinesh Tiwari @ Dhirendra Kumar Tiwari Vs. State of U.P. & Anr.
645
woman or girl removed under sub-section
(4) is required to be interrogated, it shall
be done by a woman police officer and if no
woman police officer is available, the
interrogation shall be done only in the
presence of a lady member of a recognised
welfare institution or organisation.

Explanation.-For the purposes
of this sub-section and section 17A,"recognised
welfare
institution
or
organisation" means such institution or
organisation as may be recognised in this
behalf by the State Government.

(7) The provisions of the Code of
Criminal Procedure, 1973 (2 of 1974),
shall, so far as may be, apply to any search
under this Section as they apply to any
search made under the authority of a
warrant issued under section 94 of the said
Code."

10. From the perusal of above-quoted
Section, it is clear that Section 15 provides
if any place is searched without a warrant,
then before searching, a special police
officer or trafficking police officer is
required to call upon two or more
respectable inhabitants of the locality
where the place to be searched is situated
and at least one of the persons shall be a
woman who may be from the same locality
or any other locality.

11. In the present case, it is admitted
case in the F.I.R. as well as in the search
memo that no person was ready to
accompany the Special Police Officer
during the search of the house in question
and even at the time of preparing the search
and recovery memos, no public witness
was ready to sign, and the police party
signed it. Therefore, the provision of
Section 15(2) regarding the presence of two
witnesses of locality, including a woman,
was violated. Thus, the entire search,
recovery and arrest in the present case
become doubtful. But a question arises
whether the violation of Section 15(2) of
the Act is itself a ground for quashing of
the proceeding.

12. Though in the judgement of
Karnataka High Court in the case of
Shivaraj (Supra), relied upon by learned
counsel for the applicant, the Hon'ble
Single
Judge
quashed
the
entire
proceeding. Hon'ble Apex Court, in the
case of Bai Radha vs. State of Gujarat;
(1969) 1 SCC 43, observed that in the
absence of any prejudice, having shown by
noncompliance with the provision of
Section 15(2), proceedings or trial cannot
be quashed. However, the Court has to be
very careful and cautious in weighing the
evidence where there has been such failure
on the part of the investigating agency.
Paragraph 10 of the above judgement is
quoted as follows:-

"10. In conclusion it may be
observed that the investigating agencies
cannot and ought not to show complete
disregard of such provisions as are
contained in sub-sections (1) and (2) of
Section 15 of the Act. The Legislature in its
wisdom provided special safeguards owing
to the nature of the premises which have to
be searched involving inroads on the
privacy of citizens and handling of delicate
situations in respect of females. But the
entire proceedings and the trial do not
become illegal and vitiated owing to the
non-observance of or non-compliance with
the directions contained in the aforesaid
provisions. The court, however, has to be
very careful and circumspect in weighing
the evidence where there has been such a
failure on the part of the investigating
agency but unless and until some prejudice
is shown to have been caused to the
646 INDIAN LAW REPORTS ALLAHABAD SERIES
accused person or persons the conviction
and the sentence cannot be set aside. It may
not be out of place to reiterate what was
said in H.N. Rishbud and Inder Singh v.
State of Delhi [1955 (1) SCR 1150] that a
defect or an illegality in the investigation,
however serious, has no direct bearing on
the competency or the procedure relating
to cognizance or trial of an offence and
that whenever such a situation arises,
Section 537 of the Code of Criminal
Procedure is attracted and unless the
irregularity
or the
illegality
in the
investigation or trial can be shown to have
brought about a miscarriage of justice, the
result is not affected."

13. Section 15(2) of the Act is pari
materia with Section 100(4) of Cr.P.C.,
which also prescribes that before making a
search, two or more independent and
respectable inhabitants of the locality must
be there. Section 100(4) of Cr.P.C. reads as
under:-

"100(4). Before making a search
under this Chapter, the officer or other
person about to make it shall call upon two
or more independent and respectable
inhabitants of the locality in which the
place to be searched is situate or of any
other locality if no such inhabitant of the
said locality is available or is willing to be
a witness to the search, to attend and
witness the search and may issue an order
in writing to them or any of them so to do."

14. Hon'ble Apex Court in the case of
Kalpnath Rai vs. State (through CBI);
(1997) 8 SCC 732, while interpreting
Section 100(4) Cr.P.C. observed that
there can be no legal proposition that
evidence of police officer is unworthy of
acceptance in case of absence of a
witness during police raid. At the most, it
would cast a duty on the court to adopt
greater
care
while
scrutinizing
the
evidence of the police officer. If the
evidence of a police officer is found
acceptable,
then
it
would
be
the
erroneous proposition that the court must
reject the prosecution version, solely on
the ground that no witness was present.
Paragraph No. 88 of the above judgement
is quoted as under:-

"88. There can be no legal
proposition that evidence of police
officers, unless supported by independent
witnesses, is unworthy of acceptance.
Non-examination of independent witness
or even presence of such witness during
police raid would cast an added duty on
the court to adopt greater care while
scrutinising the evidence of the police
officers. If the evidence of the police
officer is found acceptable it would be an
erroneous proposition that the court must
reject the prosecution version solely on
the ground that no independent witness
was examined. In Pradeep Narayan
Madgaonkar [(1995) 4 SCC 255 : 1995
SCC (Cri) 708] to which one of us
(Mukherjee, J.) was a party, the aforesaid
position has been stated in unambiguous
terms, the relevant portion of which is
extracted below: (SCC p. 261, para 11)

"Indeed, the evidence of the
official (police) witnesses cannot be
discarded merely on the ground that they
belong to the police force and are, either
interested in the investigating or the
prosecuting agency but prudence dictates
that their evidence needs to be subjected
to strict scrutiny and as far as possible
corroboration of their evidence in material
particulars should be sought. Their desire
to see the success of the case based on their
investigation requires greater care to
appreciate their testimony."
2 All. Dinesh Tiwari @ Dhirendra Kumar Tiwari Vs. State of U.P. & Anr.
647

15. Similarly, in the case of Sahib
Singh vs. State of Punjab; (1996) 11 SCC
685, while interpreting Section 100(4)
Cr.P.C., the Apex Court observed that the
absence of independent witness during the
search would affect the weight of the
evidence of police officer, though not its
admissibility. In the present case, nonpresence of independent witnesses, as
required u/s 15(2) of the Act, was clearly
explained by the police as no one was
ready to accompany them to search the
house
which
was
being
used
for
prostitution. Therefore, unless a prejudice
is shown to be caused to the applicant
during
trial
by
the
applicant,
the
prosecution story merely on the violation of
Section 15(2) of the Act cannot be thrown
out.

16. Therefore, this Court is of the
view that lacuna in search is a question that
should be decided during trial and
proceeding cannot be quashed only on the
ground that there is irregularity or noncompliance of Section 15(2) of the Act
while conducting the search of a house,
being used for prostitution because in
practical, none of the persons of locality
comes forward to accompany the police in
case of search of a brothel. If such ground
is considered for quashing the proceedings
under the Act, then most of the proceedings
will be quashed without going to trial. Hon'ble
Apex Court in the case of D. Vinod Shivappa
vs. Nanda Belliappa; (2006) 6 SCC 456, also
observed that in interpreting a statute, the Court
must adopt the construction which suppresses
the mischief and advance the remedy. This rule
is laid down in Heydon's Case (1584) 76 ER
637. Therefore, this Court also holds that the
direction of Section 15(2) of the Act is
directory in nature and not mandatory
despite the use of the word "shall" in Section
15(2) of the Act.

17. So far as the second question of
whether a customer found in the brothel is
liable to be prosecuted under Sections
3/4/5/7/8/9 of the Act is concerned, Section 3 of
the Act provides punishment for keeping or
managing or acting or assisting in the keeping
or management of a brothel. For reference,
Section 3 is quoted below:-

"3. Punishment for keeping a
brothel or allowing premises to be used as a
brothel.-(1) Any person who keeps or
manages, or acts or assists in the keeping or
management of, a brothel shall be punishable
on first conviction with rigorous imprisonment
for a term of not less than one year and not
more than three years and also with fine which
may extend to two thousand rupees and in the
event of a second or subsequent conviction,
with rigorous imprisonment for a term of not
less than two years and not more than five
years and also with fine which may extend to
two thousand rupees.

(2) Any person who-

(a) being the tenant, lessee, occupier
or person in charge of any premises, uses, or
knowingly allows any other person to use, such
premises or any part thereof as a brothel, or

(b) being the owner, lessor or
landlord of any premises or the agent of
such owner, lessor or landlord, lets the
same or any part thereof with the
knowledge that the same or any part
thereof is intended to be used as a
brothel, or is willfully a party to the use
of such premises or any part thereof as a
brothel,

shall be punishable on first
conviction with imprisonment for a term
which may extend to two years and with
fine which may extend to two thousand
rupees and in the event of a second or
subsequent
conviction,
with
rigorous
imprisonment for a term which may extend
to five years and also with fine.
648 INDIAN LAW REPORTS ALLAHABAD SERIES

(2-A) For the purposes of subsection (2), it shall be presumed, until the
contrary is proved, that any person
referred to in clause (a) or clause (b) of
that sub-section, is knowingly allowing the
premises or any part thereof to be used as a
brothel or, as the case may be, has
knowledge that the premises or any part
thereof are being used as a brothel, if,-

(a) a report is published in a
newspaper having circulation in the area in
which such person resides to the effect that
the premises or any part thereof have been
found to be used for prostitution as a result
of a search made under this Act; or

(b) a copy of the list of all things
found during the search referred to in
clause (a) is given to such person.

(3)
Notwithstanding
anything
contained in any other law for the time
being in force, on conviction of any person
referred to in clause (a) or clause (b) of
sub-section (2) of any offence under that
sub-section in respect of any premises or
any part thereof, any ease or agreement
under which such premises have been
leased out or are held or occupied at the
time of the commission of the offence, shall
become void and inoperative with effect from
the date of the said conviction."

18. From perusal of Section- 3, it is
clear that a customer cannot be said to be
keeping or managing or acting or assisting in
the keeping or management of a brothel
because he simply comes and pays money to
get a woman to satisfy his lust and nothing
more.

19. So far as Section 4 is concerned,
this Section provides punishment for a person
who knowingly lives on the earnings of
prostitution. For reference, Section 4 is
quoted as under:-

"4. Punishment for living on the
earnings of prostitution.-(1) Any person
over the age of eighteen years who knowingly
lives, wholly or in part, on the earnings of the
prostitution of any other person shall be
punishable with imprisonment for a term
which may extend to two years, or with fine
which may extend to one thousand rupees, or
with both and where such earnings relate to
the prostitution of a child or a minor, shall be
punishable with imprisonment for a term of
not less than seven years and not more than
ten years.

(2) Where any person over the age
of eighteen years is proved-

(a) to be living with, or to be
habitually in the company of, a prostitute; or
 (b) to have exercised control,
direction or influence over the movements of
a prostitute in such a manner as to show that
such person is aiding, abetting or compelling
her prostitution; or
 (c) to be acting as a tout or pimp
on behalf of a prostitute,

it shall be presumed, until the
contrary is proved, that such person is
knowingly living
on the earnings
of
prostitution of another person within the
meaning of sub-section (1)."

20. From the perusal of Section 4(1), it
is clear that only those persons who either
live on the earnings of prostitution or
themselves prostitute or work for prostitution
to attract customers as a tout or pimp or
exercise control, direction or influence over
the movements of a prostitute to aid, abet
or compel for prostitution. Therefore, a
customer will not in any manner fall within
the Section 4 of the Act. As a result, any
customer who is not earning money from
prostitution or helping or abetting the
prostitution for money will not be liable to
be punished u/s 4 of the Act.
2 All. Dinesh Tiwari @ Dhirendra Kumar Tiwari Vs. State of U.P. & Anr.
649

21. So far as Section 5 is concerned,
to attract the liability under this Section, a
person either procures or attempts to
procure a person for prostitution or induces
a person with the intention to make him an
inmate of a brothel for prostitution or takes
or attempts to take a person from one place
to another place to carry on the prostitution
or induces a person to carry on prostitution.
For reference, Section 5 is quoted as
under:-

"5.
Procuring,
inducing
or
taking
person
for
the
sake
of
prostitution.- (1) any 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 may for
the purpose of prostitution become the
inmate of, or frequent, a brothel; or

(c) takes attempts to take a
person, or causes a person to be taken,
from one place to another with a view to
his carrying on, or being brought up to
carry on prostitution; or

(d) causes or induces a person to
carry on prostitution;

shall be punishable on conviction
with rigorous imprisonment for a term of
not less than three years and not more than
seven years and also with fine which may
extend to two thousand rupees and if any
offence under this sub-section is committed
against the will of any person, the
punishment of imprisonment for a term of
seven years shall extend to imprisonment
for a term of fourteen years:

Provided that if the person in
respect of whom an offence committed
under this sub-section,-

(i) is a child, the punishment
provided under this sub-section shall
extend to rigorous imprisonment for a term
of not less than seven years but may extend
to life; and

(ii) is a minor, the punishment
provided under this sub-section shall
extend to rigorous imprisonment for a term
of not less than seven years and not more
than fourteen years;

(3) An offence under this Section
shall be triable-

(a) in the place from which a
person is procured, induced to go, taken or
caused to be taken or from which an
attempt to procure or take such person is
made; or

(b) in the place to which he may
have gone as a result of the inducement or
to which he is taken or caused to be taken
or an attempt to take him is made."

22. From the perusal of the abovequoted Section 5, it is clear that a person
can be held liable under the said Section
only if he procures, induces or takes a
person for the sake of prostitution. Section
2(f)
of
the
Act
defines
the
word
"Prostitution". For reference, the same is
quoted as under:-

"2(f). "prostitution" means the
sexual exploitation or abuse of persons for
commercial purposes, and the expression
"prostitute"
shall
be
construed
accordingly"

23.

From
the
definition
of
"prostitution", it is clear that if a person is
sexually
exploited
or
abused
for
commercial purposes (for earning money),
only then will there be prostitution. If a
person comes to a brothel and pays money
for the satisfaction of his lust, then, at the
most, it can be said that he procures a
woman to satisfy his lust and not for
commercial purposes. Therefore, even if a
650 INDIAN LAW REPORTS ALLAHABAD SERIES
person procures a woman who is involved
in prostitution by paying money to satisfy
his lust, he cannot be said to procure or
induce
the
woman
for
prostitution.
Therefore, merely being a customer will
not attract the liability u/s 5 of the Act.

24. Section 7 of the Act provides the
liability if a person carries on prostitution
and the person with whom prostitution is
being carried on in the vicinity of any
public place. For reference, Section 7 is
quoted as under:-

"7. Prostitution in or in the
vicinity of public places.-(1) Any person,
who carries on prostitution and the person
with whom such prostitution is carried on,
in any premises, -
 (a) which are within the area or
areas, notified under sub-section (3), or

(b) which are within a distance of
two hundred metres of any place of public
religious worship, educational institution,
hostel, hospital, nursing home or such
other public place of any kind as may be
notified in this behalf by the Commissioner
of Police or magistrate in the manner
prescribed, shall be punishable with
imprisonment for a term which may extend
to three months.

(1-A)
Where
an
offence
committed under sub-section (1) is in
respect of a child or minor, the person
committing the offence shall be punishable
with imprisonment of either description for
a term which shall not be less than seven
years but which may be for life or for a
term which may extend to ten years and
shall also be liable to fine:

Provided that the court may, for
adequate and special reasons to be
mentioned in the judgment, impose a
sentence of imprisonment for a term of less
than seven years.

(2) Any person who-

(a) being the keeper of any public
place knowingly permits prostitutes for
purposes of their trade to resort to or
remain in such place; or

(b) being the tenant, lessee,
occupier or person in charge of any
premises referred to in subsection (1)
knowingly permits the same or any part
thereof to be used for prostitution; or

(c) being the owner, lessor or
landlord, of any premises referred to in
sub-section (1), or the agent of such owner,
lessor or landlord, lets the same or any
part thereof with the knowledge that the
same or any part thereof may be used for
prostitution, or is wilfully a party to such
use,

shall be punishable on first
conviction with imprisonment for a term
which may extend to three months, or with
fine which may extend to two hundred
rupees, or with both, and in the event of a
second or subsequent conviction with
imprisonment for a term which may extend
to six months and also with fine which may
extend to two hundred rupees, and if the
public place or premises happen to be a
hotel, the licence for carrying on the
business of such hotel under any law for
the time being in force shall also be liable
to be suspended for a period of not less
than three months but which may extend to
one year:

Provided that if an offence
committed under this sub-section is in
respect of a child or minor in a hotel, such
licence shall also be liable to be cancelled.

Explanation.-For the purposes
of this sub-section, "hotel" shall have the
meaning an in clause (6) of section 2 of the
Hotel-Receipts Tax Act, 1980 (54 of 1980).

(3) The State Government may,
having regard to the kinds of persons
frequenting any area or areas in the State,
2 All. Dinesh Tiwari @ Dhirendra Kumar Tiwari Vs. State of U.P. & Anr.
651
the nature and the density of population
therein and other relevant considerations,
by notification in the Official Gazette,
direct that prostitution shall not be carried
on in such area or areas as may be
specified in the notification.

(4) Where a notification is issued
under sub-section (3) in respect of any area
or areas, the State Government shall define
the limits of such area or areas in the
notification with reasonable certainty.

(5) No such notification shall be
issued so as to have effect from a date
earlier than the expiry of a period of ninety
days after the date on which it is issued."

25. From a perusal of Section 7, it is
clear that this offence can be said to be
committed by a person if he carries on
prostitution or he is helping in carrying on
prostitution in any premises which is in the
vicinity of public places. As mentioned
above, a customer cannot be said to carry
on prostitution or help the prostitution
because he does not get involved in running
the
business
of
prostitution.
Even
otherwise, if prostitution is not being
carried on in a premises which is in the
vicinity of any public place, Section 7 will
not be attracted. Word "Public Place" has
also been defined u/s 7(1)(a) & (b) of the
Act that either the area has been notified
as public place or that place is within a
distance of 200 meters of any religious
worship place, institution of education,
hostel, hospital or nursing home, but in
the present case, there is nothing on
record, showing that the brothel, where
the applicant was found as a customer,
was in the vicinity of public place as
mentioned u/s 7(1)(a) & (b). Therefore,
no offence u/s 7 is made out against the
present applicant who was simply a
customer..

26. So far as Section 8 is concerned,
this Section provides punishment for a
person if he attempts or endeavours to
attempt or attract the attention of any
person for the purpose of prostitution in
any public place. Therefore, this Section is
for the person who is either a prostitute or
pimp or touts or attracts in any manner the
other person (customer) for the purpose of
prostitution. For reference, Section 8 is
quoted as under:-

"8. Seducing or soliciting for
purpose of prostitution.-Whoever, in any
public place or within sight of, and in such
manner as to be seen or heard from, any
public place, whether from within any
building or house or not-

(a) by words, gestures, wilful
exposure of his person (whether by sitting
by a window or on the balcony of a
building or house or in any other way), or
otherwise tempts or endeavours to tempt,
or attracts or endeavours to attract the
attention of, any person for the purpose of
prostitution; or

(b) solicits or molests any person,
or loiters or acts in such manner as to
cause obstruction or annoyance to persons
residing nearby or passing by such public
place or to offend against public decency,
for the purpose of prostitution,

shall be punishable on first
conviction with imprisonment for a term
which may extend to six months, or with
fine which may extend to five hundred
rupees, or with both, and in the event of a
second or subsequent conviction, with
imprisonment for a term which may extend
to one year, and also with fine which may
extend to five hundred rupees:

Provided that where an offence
under this Section is committed by a man,
he shall be punishable with imprisonment
652 INDIAN LAW REPORTS ALLAHABAD SERIES
for a period of not less than seven days but
which may extend to three months."

27. From the perusal of Section 8,
it is clear that this Section does not attract
any liability on the customer found to be in
any brothel. In the present case also, there
was no allegation against the applicant that
in any manner he was seducing or soliciting
any person for the purpose of prostitution at
any public place.

28. Section 9 of the Act provides
punishment for those persons who have
authority over any person, including a
woman, and they aid or abet such person
for prostitution. However, in the present
case, it is undisputed that the applicant was
not in the custody or authority or care over
the lady "S", who was involved in
prostitution. Therefore, Section 9 also does
not attract any penalty for the person who
was simply a customer without having any
authority, charge or custody over the
person who was involved in prostitution.

29. In the judgements mentioned
above, relied upon by the applicant in
support of his second contention, the
Gujarat High Court, Karnataka High Court,
as well as Andhra Pradesh High Court also
observed that merely the presence of a
person as a customer at a brothel would not
attract the ingredients of offence u/s
3/4/5/7/8/9 of the Act. Paragraph No.5 of
the judgement in Goenka Sajan Kumar
(supra) reads as under:-

"5. None of these sections speaks
about punishment to the customer of a
brothel house. Admittedly, the petitioner
does not fall under the provisions of
Sections 3 to 7 of the Act, as the petitioner
was not running a brothel house, nor did he
allow his premises to be used as a brothel
house. The petitioner is not alleged to be
living on the earnings of prostitution. It is
also not the case of the prosecution that the
petitioner was procuring or inducing any
person for the sake of prostitution, nor is it
the case of the prosecution that any person
was earning on the premises where
prostitution is carried out."

30. Similarly, the Andhra Pradesh
High Court, in the case of Nartu Rambabu
(supra), relying upon the judgement in
Goenka Sajan Kumar (supra), observed in
paragraph No.8 that when a person visits a
brothel as a customer, then he is not liable
for prosecution for the offence u/s 3/4/5 of
the Act.

31. In view of the above analysis, this
Court is of the view that if a person visits a
brothel, then, at the most, he may be said to
be a procurer of a prostitute to satisfy his
lust but not for the purpose of prostitution
because acquiring a person for prostitution
means sexual exploitation or abuse for
commercial purposes and not for any other
purpose
which
does
not
have
any
commercial purpose or earning money.
Therefore, this Court answered both the
questions raised in this case.