9.9.2026 5 sb CRR 3435 of 2026 Sabarna Saha alias Sabarna Shah Vs. The State of West Bengal Mr. Somopriyo Chowdhury Ms. Anamika Pandey … for the Petitioner Mr. Ramashis Mukherjee Mr. Utsav Dutta …for the State Affidavit of service filed by the petitioner is taken on record. In this application, the petitioner has assailed the proceeding being ACGR no. 1351 of 2019, presently pending before learned Additional Chief Judicial Magistrate, Alipore under Sections 3/4/5/7 of the Immoral Traffic (Prevention) Act, 1956 (in short the Act of 1956). Learned counsel for the petitioner submits that on 30.3.2019, a raid was conducted on the ground floor premises of A/4 Bapujinagar, based on a source information and it is alleged that upon entering the said premises, seven accused persons including the present petitioner were found in a compromising position with four women on make-shift cots. Upon conclusion of investigation, police submitted charge- sheet against petitioner and other accused persons, alleging commission of aforesaid offences, upon which the Trial Court has taken cognizance. Being aggrieved by the aforesaid proceeding, learned counsel for the petitioner submits that admitted case of the investigating agency is that the petitioner was a mere 2 customer. Therefore, even if the prosecution case is accepted in its entirety neither of the provisions of Section 3/4/5/7 of the Act of 1956 attracts herein, inasmuch as none of the aforesaid provisions apply against a customer. He specifically submits that Section 3 of the said Act makes it punishable for any person to keep or manage a brothel or to allow his premises to be used as a brothel. There is no prima facie case made out against the petitioner that the petitioner has in any way kept or managed brothel or has allowed any premises belonging to the petitioner to be used as a brothel. Therefore, prima facie offence under Section 3 of the said Act has got no application in the present case. Similarly Section 4 of the said Act has also not been made out inasmuch as the said provision only attracts to a person who lives on the earnings of prostitution. There is nothing to show that the petitioner was at the material time living with the sex worker or that he was habitual at that time in her company. There is nothing to show that the petitioner exercised control or direction or influence over movement of any of the sex workers, in the way, which can be shown to be aiding or abetting any one’s sex work. In the present case, the prosecution admitted that the petitioner was a mere customer and therefore, there is no allegation that the petitioner was living on the earnings of prostitution and prima facie charge under Section 4 of the said Act is also not made out against the present petitioner. 3 Similarly Section 5 of the said Act is also not made out against the petitioner inasmuch as it only attracts against a person who procures, induces or takes another person or causes another person to be taken from one place to another with a view to carrying on prostitution. No such allegation has been attributed in the present case against the present petitioner and therefore, Section 5 of the said Act does not attract. Now so far as Section 7 of the said Act is concerned, it has also got no application in the present context because this particular offence deals with prostitution in the vicinity of public place. Prosecution miserably failed to show even after investigation that petitioner had indulged any such prostitution at a public place as mentioned in Section 7(1)(a) or (b) of the Act of 1956. Learned counsel appearing for the state placed the case diary and submits that prima facie case under Section 7(1) of the Act of 1956 has been made out against the petitioner but he also admits that petitioner was a mere customer as per prosecution case. Having considered the submissions made by the parties and after going through the materials in the case diary, it appears that the prosecution during investigation has not drawn any sketch map nor has shown any notification to attract Section 7(1)(b) or (a) of the Act of 1956. There is nothing to show that the alleged prostitution was carried on in a premises which is within 200 meters of any place of public 4 religious worship, educational institution, hostel, hospital, nursing home etc. and there is also nothing to show that the petitioner was carrying on prostitution. Even otherwise, the term “vicinity of Public place” appearing in the said Section is not made out in the instant case. In the present case, it appears that admitted position of the petitioner is that the petitioner has been prosecuted being found to be a customer, who was there to satisfy his lust on payment In order to attract Section 7(1) of the Act of 1956, the prosecution must show even prima facie that:- (i) The petitioner is the person with whom prostitution is carried on (ii) a) the prostitution was carried on within the area or areas notified under sub-section (3) of Section 7. or b) at a place 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. The term prostitution has been defined in the said Act of 1956 in Section 2(f) which is:- “2(f) Prostitution” means the sexual exploitation or abuse of persons for commercial purposes and the term “Prostitute” shall be construed accordingly. 5 Therefore, what is punishable under Section 7(1) of the Act of 1956 is sexual exploitation or abuse of a person for commercial purpose and to earn the bread thereby keeping or allowing a premises as brothel and that prostitution is carrying with such person in a public place. Under standard international legal frame works (such as the Unite nations guidelines and WHO), “sexual exploitation” has been defined as “any actual or attempted abuse of a position or vulnerability, differential power or trust for sexual purposes, including but not limited to profiting monetarily, socially or politically from the sexual exploitation of another” Whereas the word “abuse” denotes, forcing, coercing, deceiving or manipulating someone to act against their freewill or dignity and “commercial purpose” means an activity intended to generate financial gain, trade, profit or business advantages for a third party like a pimp, trafficker or brothel owner. In the present case, the materials collected during investigation even after completion of investigation, failed to demonstrate that the sex worker/victim was procured or any attempt was made to procure the victim for prostitution by the present petitioner/customer. Moreover, in the absence of any sketch map, the place where the petitioner was allegedly found in compromising position as a customer cannot be said to be situated in a vicinity of public place as mentioned in Section 7(1)(a) and (b) of the Act of 1956. Accordingly, the term “the person with whom such prostitution is carried on” as 6 mentioned in Section 7(1) of the Act of 1956, even after wider connotation does have any application in respect of the present petitioner, since it does not fulfill the condition as mentioned in Section 7(1)(a) or (b) of the Act of 1956. It is needless to mention that Section 7 of the said Act is maintainable only if the other conditions of said Section of the Act of 1956 are satisfied. Therefore, I find that further continuance of the impugned proceeding against the petitioner customer would be nothing but a mere abuse of process of the court. In view of above, CRR 3435 of 2026 is allowed. The impugned proceeding being ACGR no. 1351 of 2019, presently pending before the learned Additional Chief Judicial Magistrate, Alipore is hereby quashed qua the petitioner namely, Sabarna Saha alias Sabarna Shah. Urgent photostat certified copy of this order, if applied for, be given to the parties upon compliance of all requisite formalities. (Dr. Ajoy Kumar Mukherjee, J.)