Offence of trafficking under Section 370 IPC Set aside, Court Stated Accused is Herself a Victim

Recently, the Madhya Pradesh High Court set aside an order against a woman charged for human trafficking under Section 370 of the Indian Penal Code, 1860. The order read as follows:

Admittedly, accused/petitioner is a lady and she cannot be considered to be exploiting herself, so as to bring her within the ambit of Section 370. In fact, she herself is the victim of exploitation here.”

Error of Law vs. Error of Fact

The Accused/Petitioner filed a Criminal Revision under Section 397 read with Section 401 of CrPC. The counsel for the petitioner/accused contended that the court has committed an error in framing the charges. Moreover, the police caught the Accused/petitioner involved in the commission of prostitution and not in the trafficking of other people. As a result, the court committed a gross miscarriage of justice in framing charges under Section 370 IPC against the Accused/Petitioner.

The Court allowed her petition observing that, since the accused/petitioner is a woman and cannot be subject to have exploited herself, Section 370 IPC remains unaffected. Vide the order, the court reassessed Section 370 IPC. In a simplified statement the court held:

“The purest objective of section 370 of IPC is to penalise those who exploit others and not themselves. And, it is important to draw a line between such perpetrators and their victims.”

Justice Verma Committee Report and the Ordinance

The court also assessed the dilemma in the word “exploit”, as provided in the Verma Committee report. Explanation 1 under Section 370(1) reads as follows:

“The expression “exploitation” shall include any act of physical exploitation or any form of sexual exploitation, slavery or practices similar to slavery, servitude, or the forced removal of organs.”

Earlier in February 2013, there were clarifications regarding the interpretation of the issue in the Verma Committee Report. It stated:

“This is to express our concern at the ambiguous manner in which the term “prostitution” has been used in Section 370 IPC of the Verma Committee Report. This, in essence, means that “prostitution” will now be interpreted as exploitation. This problematic formulation has now been incorporated into the recently passed Ordinance.”

The court further claimed that such an ordinance is a drawback for the sex-workers who are striving to own a place and recognition in society. Criminalising such an ordinance will bring delay in justice for them. Moreover, it will increase the cases of abuse against them, especially by police and other powerful authorities.

Additionally, the Rule under the relevant section of IPC is universal in nature. Hence, it becomes difficult to lay down a common interpretation for all cases. The court thus concluded that the order would prima facie reflect upon the facts and circumstances of the case.

In coherence with all the above observations, the court discharged the Accused/Petitioner. Subsequently, the court established that it did not assess the Sections 3, 4, 5, 6 of the Immoral Trafficking (Prevention) Act, 1956. Hence the petitioner received the liberty to file a petition before the Trial Court for its consideration.