Sex Workers should not be arrested, treated as accused under Immoral Traffic (Prevention) Act, 1956, Calcutta HC

In a significant order, the Calcutta High Court has directed that sex workers exploited for commercial sex should not be arrayed as accused for offences under the Immoral Traffic (Prevention) Act, 1956 until and unless cogent materials come on record that she was also involved as a co-conspirator in the crime..Further, the Court also directed that Investigating officers who are involved in investigating offences under the Immoral Traffic (Prevention) Act, 1956 and/or other cognate offences under the Indian Penal Code shall not arrest any sex worker in the course of the investigation. Instead, they should treat the sex workers as victims of crime and extend to them all ameliorative measures available under the law including witness protection programmes, grant of interim compensation and/or other rehabilitative measures and protective custody..The directions were passed by a Bench of Justices Manojit Mandal and Joymalya Bagchi in an anticipatory bail plea by the owner of a health spa wherein women including a minor were sexually exploited for prostitution..When the matter had come up initially before the Chief Judge, City Sessions Court, Calcutta, an adjournment was granted after the Public Prosecutor made a request to that effect on the ground of issuing notice under Section 41A of the Code of Criminal Procedure to the Petitioner..The Court went on to note that the Investigating Officer in the instant case had sought it fit to arrest the vulnerable witnesses namely, the sex workers who were forced to carry on prostitution under the guise of a health spa. However, an unusually lenient approach was adopted towards the owner of the said health spa i.e. the petitioner..That apart, one of the victims appeared to be a minor as evidenced by her date of birth. Forcing a minor to prostitution attracts graver penalty punishable above seven years under the Immoral Traffic (Prevention) Act, 1956 which completely rules out the possibility of invocation of Section 41A of the Code of Criminal Procedure, the Bench noted..All these aspects of the case were ignored when the Public Prosecutor made an application seeking an adjournment of the case on the ground of issuing notice under Section 41A of the Code of Criminal Procedure to the petitioner..Moreover, the Judge who was hearing the anticipatory bail application of the brothel owner, mechanically permitted adjournment without application of mind whatsoever thereby giving effect to such illegal recourse to Section 41A of the Code of Criminal Procedure..The Court went on to berate the Police officer, Public Prosecutor and the Judge for their indifferent and lacklustre manner in which the investigation and case were dealt with..“The instant case is one of the most glaring example of misuse of police power in this regard. While the Investigating Officer sought it fit to arrest the vulnerable witnesses namely, the sex workers who were forced to carry on prostitution under the guise of health spa, he resorted to an unusually lenient approach towards the owner of the said health spa i.e. the petitioner herein who appears to be the kinpin of the organised crime racket and issued notice under section 41A Cr.P.C. against him.”.The Court disapproved of the manner in which the police officer and judge appeared to be shifting the onus on each other’s shoulder..“Although the police officer and the Judge presently appear to be shifting the onus of initiation of such wholly unacceptable mode of investigation on each other’s shoulder, it can be concluded without an iota of doubt that all the stakeholders in the administration of justice in the present case appear to have forgotten the stringent provisions of law enacted to counter exploitation of women for prostitution as an organised crime and had mechanically condescended to the wholly unacceptable course of issuance of notice under Section 41A of the Code of Criminal Procedure upon the brothel owner while the poor girls who were exploited in the same brothel were incarcerated as accused persons in jail.”.It reaffirmed that in offences involving exploitation of women under Immoral Traffic (Prevention) Act, 1956 the sex workers who are exploited by brothel owners and others are not accused persons but the victims of crime..It was, thus, a sad reflection on the quality of investigation conducted in the present case by a specialised agency namely, Anti-Human Trafficking Unit (AHTU). Its officers wholly ignored the wholesome object of the law and unlawfully proceeded to arrest of the victims of sexual exploitation while resorting to the issuance of notice under Section 41A of the Code of Criminal Procedure upon the brothel owner during the investigation, the Court said..They ignored their bounden duty to protect the vulnerable witnesses i.e. the exploited sex workers and record their statements under Section 164 of the Code of Criminal Procedure, ensure their protection under Witness Protection Schemes and recommend them for interim compensation..Considering the above aspects and taking into account the gravity of the offence, the Court rejected the anticipatory bail application of the petitioner..It then issued the following directions with regard to the investigation of offences under Immoral Traffic (Prevention) Act, 1956 and other cognate offences under Sections 363, 366, 366-A, 366-B, 370, 370-A, 372, 373 of the Indian Penal Code:.While conducting the investigation in respect of offences under Immoral Traffic (Prevention) Act, 1956 and other cognate offences in the Indian Penal Code, the investigating agency shall not mechanically resort to Section 41A of the Code of Criminal Procedure without applying its mind to the parameters laid down in Section 41(1)(ii) of the Code.When the victim is a minor, graver penalty involving sentence above seven years is attracted and recourse to Section 41A of the Code of Criminal Procedure is wholly prohibited;No sex worker exploited for commercial sex shall be arrayed as an accused in the course of investigation/ prosecution of offences under the Immoral Traffic (Prevention) Act, 1956 until and unless cogent materials come on record that she was also involved as a co-conspirator in the crime;Investigating officers who are involved in investigating offences under the Immoral Traffic (Prevention) Act, 1956 and/or other cognate offences under the Indian Penal Code shall not arrest any sex worker in the course of investigation but shall treat them as victims of crime and extend to them all ameliorative measures available under the law including witnesses protection programmes, grant of interim compensation and/or other rehabilitative measures and protective custody. If the victim is a minor she shall be forthwith forwarded to CWC for her care, protection and rehabilitation..Before parting, the Court directed that with regard to the role of Public Prosecutor, a copy of the order be sent to the Home Secretary and Director of Prosecution for due intimation..The Court also expressed its displeasure with regard to the indifference shown by the Chief Judge, City Sessions Court, Calcutta while dealing with the instant case involving a prostitution ring..“It is expected that a senior judicial officer would show greater sensitivity and concern in such cases. While dealing with offences of this nature it is not expected that a judicial officer shall remain a mute spectator but must play a proactive role to ensure the offender is punished and prompt succour and redress are assured to the hapless victims of crime.”.[Read Order]