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2nd Year

3rd Semester

B
CRIMINAL BUYING AND SELLING OF A MINOR FOR
LAW PROSTITUTION

Guided by Prof. Rose Varghese | Submitted by Mohd. Abid Hussain Ansari


Buying And Selling Of a Minor For Prostitution

Just remember your own


Daughter or any other
female member of your
family before pushing them
in Sex trade.

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Contents
1. Quotes.4
2. General Introduction ....5
3. Nature and
Definitions..5 & 6
4. Constituents elements of Crimes....8
5. Trafficking of
Women..16
6. Section 372..20
7. Section 373..23
8. Cases from the Newspaper27
9. Reports on both sections...30
10. Bibliography.31

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Before I begin my assignment, I would like to question myself that Any


idea what the fastest growing product for sale in the world is...??
Children
Every fifteen hours in India another childhood is stolen. Buying and
Selling of Minor for Prostitution. Not on our watch.
Its happening here. In India. Buying and Selling of a minor for
Prostitution leaves our kids with wounds that are nearly impossible to
heal. Help them, Help ourselves. Stop it.
Prostitution is not something a woman gets habituated to and does not
want to leave.
Prostitution is not the oldest profession of the world... It is the oldest
form of exploitation of women and children by men.
Prostitution is not a necessity in order to protect other women from rape
& sexual abuse... It is a necessity for men to legitimize their male
sexuality over powerless women and to justify it as a necessity for
another set of powerless women.

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GENERAL INTRODUCTION
NATURE AND DEFINITION OF CRIME

I. NATURE OF CRIME
WHAT IS A CRIME? We must answer this question at the outset. In order to
answer this question we must know first, what is law because the two questions are
closely interrelated. Traditionally, we know a law to be a command enjoining a
course of conduct. The command may be of a sovereign or of political superiors to
the political inferiors; or it may be the command of a legally constituted body or a
legislation emanating from a duly constituted legislature to all the members of the
society. A crime may, therefore, be an act of disobedience to such a law forbidding
or commanding it. But then disobedience of all laws may not be a crime, for
instance, disobedience of civil laws or laws of inheritance or contracts. Therefore,
a crime would mean something more than a mere disobedience to a law, "it means
an act which is both forbidden by law and revolting to the moral sentiments of the
society." Thus robbery or murder would be a crime, because they are revolting to
the moral sentiments of the society, but a disobedience of the revenue laws or the
laws of contract would not constitute a crime. Then again, "the moral sentiments of
a society" is a flexible term, because they may change, and they do change from
time to time with the growth of the public opinion and the social necessities of the
times. So also, the moral values of one country may be and often are quite contrary
to the moral values of another country. To cite a few instances, heresy was a crime
at one time in most of the countries of the world, because in those days it offended
the moral sentiments of the society. It was punished with burning. But nobody is
punished nowadays for his religious beliefs, not even in a theocratic state. The
reason is obvious. Now it does not offend the moral sentiments of the society.
Adultery is another such instance. It is a crime punishable under our Penal Code,
but it is not so in some of the countries of the West. Then again suttee, i.e., burning
of a married woman on the funeral pyre of her deceased husband, was for a long
time considered to be a virtue in our own country, but now it is a crime. Similarly,
polygamy was not a crime in our country until it was made so by the Hindu
Marriage Act, 1955. This Act, it may be stated, does not apply to Mohammedans
or Christians. But Christians are forbidden to practice polygamy under their law of
marriage, while Mohammedans are yet immune from punishment for polygamy.
All these instances go to show that the content of crime changes from time to time
in the same country and from country to country at the same time because it is
conditioned by the moral value approved of by a particular society in a particular
age in a particular country. A crime of yesterday may become a virtue tomorrow
and so also a virtue of yesterday may become a crime tomorrow. Such being the
content of crime, all attempts made from time to time beginning with Blackstone

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down to Kenny in modern times to define it have proved abortive. Therefore, the
present writer agrees with Russell when he observes that "to define crime is a task
which so far has not been satisfactorily accomplished by any writer. In fact,
criminal offences are basically the creation of the criminal policy adopted from
time to time by those sections of the community who are powerful or astute
enough to safeguard their own security and comfort by causing the sovereign
power in the state to repress conduct which they feel may endanger their position".
But a student embarking on study of principles of criminal law must understand the
chief characteristics and the true attributes of a crime. Though a crime, as we have
seen, is difficult of a definition in the true sense of the term, a definition of a crime
must give us "the whole thing and the sole thing," telling us something that shall be
true of every crime and yet not be true of any other conceivable non-criminal
breach of law. We cannot produce such a definition of crime as might be flexible
enough to be true in all countries, in all ages and in all times. Nevertheless, a crime
may be described and its attributes and characteristics be clearly understood. In
order to achieve this object, we propose to adopt two ways, namely, first, we shall
distinguish crime from civil and moral wrongs, and secondly, we shall critically
examine all the definitions constructed by the eminent criminal jurists from time to
time.

DEFINITIONS OF CRIME

Many prominent jurists have made attempts to define Crime.

Sir William Blackstone in his classical work, Commentaries on the Laws of


England, Volume IV, which is devoted to Public Wrongs or Crimes, attempted
to define crime at two different places in his work. We shall examine both these
definitions given by him. At one place, he states that crime is an act committed or
omitted in violation of a public law forbidding or commanding it. Here in defining
crime Blackstone uses "public law." Now what is meant by public law? It has
several accepted meanings. For instance, Austin takes public law as identical with
constitutional law. In that sense, the definition given by him would cover only
political offences which are only a very small portion of the whole field of crime.
If we were to follow Austin and interpret the definition given by Blackstone as
violation of our constitutional law, namely, Articles 21 and 31, which guarantee
protection of one's life, liberty and property, even then the definition of crime
would remain too narrow. The Germans, on the other hand, interpret "public law"
to mean both constitutional law and criminal law. In this sense, the definition given
by Blackstone ceases to define because we shall be using criminal law in defining

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a crime. Then again, some take "public law" to mean positive law or municipal
law, which would mean all laws made by the state. In that sense, the definition
given by Blackstone obviously become too wide, for the crime will include every
legal wrong or violation of law. Therefore, this definition given by Blackstone is
not satisfactory.
Now we pass on to the second definition given by the same jurist, Blackstone. He
defines crime as a violation of the public rights and duties due to the whole
community considered as a community. This definition has been slightly altered
by the learned editor of Blackstone, Serjeant Stephen, who expresses it thus:

A crime is a violation of a right considered in reference to the evil tendency


of such violation as regards the community at large.

As regards the reconstructed definition, it might be observed that it introduces a


new error, namely, it limits crimes to violations of rights only, whereas Blackstone
applied it to a violation of both a right and a duty. Instances of a violation of a duty
amounting to crimes are numerous, for example, being in possession of house-
breaking tools by night or possession of counterfeit coins. Undoubtedly the idea
incorporated in the definition given by Blackstone as well as by his learned editor
Stephen is very important, namely, that crimes are breaches of those laws which
injure the community. The same was the idea which was noted by the Roman
jurists as well. Therefore they called crimes delicta publica and the criminal trials
judicia publica. Indeed, if only a rough, general description of crime were to be
given then public mischief could be made the salient feature of the crime, but this
alone would not suffice for a definition. It would be a vague fact for a definition of
a crime. There are many things which are only breaches of contract and are
injurious to the community but they are not crimes, for example, the negligent
management of the affairs of a company, which may bring about a calamity to the
community greater than that produced by a thief stealing an article. The latter is a
crime, while the former is only a wrong and not a crime. On the other hand, a
conduct may amount to a crime, though instead of bringing an evil to the
community it may bring some good to the community. For instance, constructing a
sloping causeway, though it might facilitate the landing of passengers and goods, is
an offence of common nuisance. Therefore, the definition of crime that it is a legal
wrong, if it tends to cause evil to the community, is not correct. It is, of course, an
instructive general description of it.

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CONSTITUENT ELEMENTS OF CRIME


ELEMENTS OF A CRIME
The two elements of crime are Mens Rea and Actus reus. Apart from these two
elements that go to make up a crime, there are two more indispensable elements,
namely,

A human being under a legal obligation to act in a particular way and a fit
subject for the infliction of appropriate punishment,

An injury to another human being or to the society at large.

Thus the four elements that go to constitute a crime are as follows:

firstly, a human being under a legal obligation to act in a particular way and
a fit subject for the infliction of appropriate punishment,

Secondly, an evil intent or mens rea on the part of such human being,

Thirdly, actus reus, i.e., act committed or omitted in furtherance of such an


intent; and

Fourthly, an injury to another human being or to society at large by such an


act.

I. Human Being- The first element requires that the act should have been done
by a Human being before it can constitute a crime punishable at law. The
human being must be under a legal obligation to act, and capable of being
punished.

II. Mens Rea: The second element, which is an important essential of a crime,
is mens rea or guilty mind. In the entire field of criminal law there is no
important doctrine than that of mens rea. The fundamental principle of
English Criminal jurisprudence, to use a maxim which has been familiar to
lawyers following the common law for several centuries, is actus non facit
reum nisi mens sit rea. Mens rea is the state of mind indicating
culpability, which is required by statute as an element of a crime. It is
commonly taken to mean some blameworthy mental condition, whether
constituted by intention or knowledge or otherwise, the absence of which on
any particular occasion negatives the intention of a crime. The term mens

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rea has been given to volition, which is the motive force behind the
criminal act. It is also one of the essential ingredients of criminal liability.

As a general rule every crime requires a mental element, the nature of which will
depend upon the definition of the particular crime in question. Even in crimes of
strict liability some mental element is required. Expressions connoting the
requirement of a mental element include:

with intent, recklessly, unlawfully, maliciously, unlawfully, maliciously,


willfully, knowingly, knowing or believing, fraudulently, dishonestly,
corruptly, allowing, and Permitting.

Each of these expressions is capable of bearing a meaning, which differs from that
ascribed to any other. The meaning of each must be determined in the context in
which it appears, and the same expression may bear a different meaning in
different contexts. Under the IPC, guilt in respect of almost all offences is fastened
either on the ground of intention or knowledge or reason to believe. All the
offences under the Code are qualified by one or the other words such as wrongful
gain or wrongful loss, dishonestly, fraudulently, reason to believe, criminal
knowledge or intention, intentional co-operation, voluntarily, malignantly,
wantonly. All these words describe the mental condition required at the time of
commission of the offence, in order to constitute an offence. Thus, though the
word mens rea as such is nowhere found in the IPC, its essence is reflected in
almost all the provisions of the code. The existence of the mental element or guilty
mind or mens rea at the time of commission of the actus reus or the act alone will
make the act an offence.

Generally, subject to both qualification and exception, a person is not criminally


liable for a crime unless he intends to cause, foresees that he will probably cause,
or at the lowest, foresees that he may cause, the elements which constitute the
crime in question. Although the view has been expressed that it is impossible to
ascribe any particular meaning to the term mens rea, concepts such as those of
intention, recklessness and knowledge are commonly used as the basis for criminal
liability and in some respects may be said to be fundamental to it.

Intention: To intend is to have in mind a fixed purpose to reach a desired


objective; it is used to denote the state of mind of a man who not only foresees but
also desires the possible consequences of his conduct. The idea foresees but also
desires the possible consequences of his conduct. The idea of intention in law is
not always expressed by the words intention, intentionally or with intent to. It
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is expressed also by words such as voluntarily, wilfully or deliberately etc.


Section 298 IPC makes the uttering of words or making gestures with deliberate
intent to wound the religious feelings punishable under the Act. ON a plain reading
of the section, the words deliberate and intent seem synonymous. An act is
intentional if, and in so far as it exists in idea before it exists in fact, the idea
realizing itself in the fact because of the desire by which it is accompanied.
Intention does not mean ultimate aim and object. Nor is it a synonym for motive.

Transferred intention: Where a person intends to commit a particular crime and


brings about the elements which constitute that crime, he may be convicted
notwithstanding that the crime takes effect in a manner which was unintended or
unforeseen. A, intends to kill B by poisoning. A places a glass of milk with poison
on the table of B knowing that at the time of going to bed B takes glass of milk. On
that fateful night instead of B, C enters the bedroom of B and takes the glass of
milk and dies in consequence. A is liable for the killing of C under the principle of
transferred intention or malice.

Intention and Motive: Intention and motive are often confused as being one and
the same. The two, however, are distinct and have to be distinguished. The mental
element of a crime ordinarily involves no reference to motive. Motive is something
which prompts a man to form an intention. Intention has been defined as the fixed
direction of the mind to a particular object, or determination to act in a particular
manner and it is distinguishable from motive which incites or stimulates action.
Sometimes, motive plays an important role and becomes a compelling force to
commit a crime and, therefore, motive behind the crime become a relevant factor
for knowing the intention of a person.

In Om Prakash v. State of Uttaranchal1 and State of UP v. Arun Kumar Gupta2


the Supreme Court rejected the plea that the prosecution could not signify the
motive for the crime holding that failure to prove motive is irrelevant in a case
wherein the guilt of the accused is proved otherwise. It needs to be emphasized that
motive is not an essential element of an offence but motive helps us to know the
intention of a person. Motive is relevant and important on the question of intention.

Intention and knowledge: The terms intention and knowledge which denote
mens rea appear in Sections 299 and 300, having different consequences. Intention
and knowledge are used as alternate ingredients to constitute the offence of
1
[(2003) 1 SCC 648]
2
[(2003) 2 SCC 202]

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culpable homicide. However, intention and knowledge are two different things.
Intention is the desire to achieve a certain purpose while knowledge is awareness
on the part of the person concerned of the consequence of his act of omission or
commission, indicating his state of mind. The demarcating line between
knowledge and intention is no doubt thin, but it is not difficult to perceive that they
connote different things. There may be knowledge of the likely consequences
without any intention to cause the consequences. For example, a mother jumps into
a well along with her child in her arms to save herself and her child from the
cruelty of her husband. The child dies but the mother survives. The act of the
mother is culpable homicide. She might not have intended to cause death of the
child but, as a person having prudent mind, which law assumes every person to
have, she ought to have known that jumping into the well along with the child was
likely to cause the death of the child. She ought to have known as prudent member
of the society that her act was likely to cause death even when she may not have
intended to cause the death of the child.

Recklessness: Intention cannot exist without foresight, but foresight can exist
without intention. For a man may foresee the possible or even probable
consequences of his conduct and yet not desire this state of risk of bringing about
the unwished result. This state of mind is known as recklessness. The words
rash and rashness have also been used to indicate this same attitude.

Negligence: If anything is done without any advertence to the consequent event or


result, the mental state in such situation signifies negligence. The event may be
harmless or harmful; if harmful the question arises whether there is legal liability
for it. In civil law (common law) it is decided by considering whether or not a
reasonable man in the same circumstances would have realized the prospect of
harm and would have stopped or changed his course so as to avoid it. If a
reasonable man would not, then there is no liability and the harm must lie where it
falls. The word negligence, therefore, is used to denote blameworthy
inadvertence. It should be recognized that at common law there is no criminal
liability for harm thus caused by inadvertence. Strictly speaking, negligence may
not be a form of mens rea. It is more in the nature of a legal fault. However, it is
made punishable for a utilitarian purpose of hoping to improve peoples standards
of behavior. Criminal liability for negligence is exceptional at common law;
manslaughter appears to be the only common law crime, which may result from
negligence. Crimes of negligence may be created by statute, and a statute may
provide that it is a defence to charges brought under its provisions for the accused
to prove that he was not negligent. Conversely, negligence with regard to some

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subsidiary element in the actus reus of a crime may deprive the accused of a
statutory defence which would otherwise have been available to him.

Advertent negligence is commonly termed as willful negligence or recklessness. In


other words, inadvertent negligence may be distinguished as simple. In the former
the harm done is foreseen as possible or probable but it is not willed. In the latter it
is neither foreseen nor willed. In each case carelessness, i.e. to say indifference as
to the consequences, is present; but in the former this indifference does not, while
in the latter it does prevent these consequences from being foreseen. The physician
who treats a patient improperly through ignorance or forgetfulness is guilty of
simple or inadvertent negligence; but if he does the same in order to save him
trouble, or by way of a scientific experiment with full recognition of the danger so
incurred, his negligence is willful. It may be important to state here that the willful
wrong doer is liable because he desires to do the harm; the negligent wrong doer is
liable because he does not sufficiently desire to avoid it. He who will excuse
himself on the ground that he meant no evil is still open to the reply: - perhaps you
did not, but at all event you might have avoided it if you had sufficiently desire to
do so; and you are held liable not because you desired the mischief, but because
you were careless and indifferent whether it ensured or not. It is on this ground that
negligence is treated as a form of mens rea, standing side by side with wrongful
intention as a formal ground of responsibility.

Actus Reus: To constitute a crime the third element, which we have called actus
reus or which Russell has termed as physical event, is necessary. Now what is
this actus reus? It is a physical result of human conduct. When criminal policy
regards such a conduct as sufficiently harmful it is prohibited and the criminal
policy provides a sanction or penalty for its commission. The actus reus may be
defined in the words of Kenny to be such result of human conduct as the law
seeks to prevent.3 Such human conduct may consist of acts of commission as well
as acts of omission. Section 32 of our Penal Code lays down: Words which refer
to acts had done extend also to illegal omissions.

It is, of course, necessary that the act done or omitted to be done must be an act
forbidden or commanded by some statute law, otherwise, it may not constitute a
crime. Suppose, an executioner hangs a condemned prisoner with the intention of
hanging him. Here all the three elements obviously are present, yet he would not
be committing a crime because he is acting in accordance with a law enjoining him
to act. So also if a surgeon in the course of an operation, which he knew to be
dangerous, with the best of his skill and care performs it and yet the death of the
patient is caused, he would not be guilty of committing a crime because he had no
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mens rea to commit it. As regards acts of omission which make a man criminally
responsible, the rule is that no one would be held liable for the lawful
consequences of his omission unless it is proved that he was under a legal
obligation to act. In other words, some duty should have been imposed upon him
by law, which he has omitted to discharge. Under the Penal Code, Section 43 lays
down that the word illegal is applicable to everything which is an offence or
which is prohibited by law, or which furnishes a ground for a civil action; and a
person is said to be legally bound to do whatever it is illegal in him to omit.

Therefore, an illegal omission would apply to omissions of everything which he is


legally bound to do. These indicate problems of actus reus we have discussed in
detail elsewhere. However, the two elements actus reus and mens rea are distinct
elements of a crime. They must always be distinguished and must be present in
order that a crime may be constituted. The mental element or mens rea in modern
times means that the persons conduct must be voluntary and it must also be
actuated by a guilty mind, while actus reus denotes the physical result of the
conduct, namely, it should be a violation of some law, statutory or otherwise,
prohibiting or commanding the conduct.

Injury to Human Being: The fourth element, as we have pointed out above, is an
injury to another human being or to society at large. This injury to another human
being should be illegally caused to any person in body, mind, reputation or
property. Therefore, it becomes clear that the consequences of harmful conduct
may not only cause a bodily harm to another person, it may cause harm to his mind
or to his property or to his reputation. Sometimes, by a harmful conduct no injury
is caused to another human being, yet the act may be held liable as a crime,
because in such a case harm is caused to the society at large. All the public
offences, especially offences against the state, e.g. treason, sedition, etc. are
instances of such harms. They are treated to be very grave offences and punished
very severely also. We may state again that there are four essential elements that
go to constitute a crime.
I. First, the wrongdoer who must be a human being and must have the capacity
to commit a crime, so that he may be a fit subject for the infliction of an
appropriate punishment.
II. Secondly, there should be an evil intent or mens rea on the part of such
human being. This is also known as the subjective element of a crime.
III. Thirdly, there should be an actus reus, i.e. an act committed or omitted in
furtherance of such evil intent or mens rea. This may be called the objective
element of a crime.

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IV. Lastly, as a result of the conduct of the human being acting with an evil
mind, an injury should have been caused to another human being or to the
society at large. Such an injury should have been caused to any other person
in body, mind, reputation or property.

If all these elements are present, generally, we would say that a crime has been
constituted. However, in some cases we find that a crime is constituted, although
There is no mens rea at all. These are known as cases of strict liability. Then again,
in some cases a crime is constituted, although the actus reus has not consummated
and no injury has resulted to any person. Such cases are known as inchoate crimes,
like attempt, abetment or conspiracy. So also, a crime may be constituted where
only the first two elements are present.

In other words, when there is intention alone or even in some cases there may be
an assembly alone of the persons without any intention at all. These are
exceptional cases of very serious crimes which are taken notice of by the state in
the larger interests of the peace and tranquility of the society.

Intention Act Attempt offence

Actus non facit reum nisi mens sit rea

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Desire
Will
Motive
Intention
Preparation
Attempt
Commencemant of offence

The global campaign for elimination of violence against women, in the recent
years indicates the enormity as well as the seriousness of the atrocities committed
against women that are being witnessed the world over is an indication of this fact.
Changes in life styles, living standards, disparity in economic growth due to
urbanization and changes in social ethos and lack of concern for moral values
contributing to a violent approach and tendencies towards women, which has
resulted in an increase in crimes against women, Such incidents are a matter of
serious concern and its containment is a necessity so that the women of India attain
their rightful share and could live with dignity, honour, freedom, and peace free
from crime and aspersions.

Unfortunately, crime against women and their exploitation has multiplied many
folds in recent years in spite of a numbers of laws to protect and safeguard their
interest. This is evident from the fact that Rape takes place once in every 29
minutes, sexual harassment in every 53 minutes, and molestation in every 15
minutes, cruelty by husband or relatives in every 9 minutes, dowry death in every
77 minutes etc. Buying and Selling of a minor for prostitution is one of them. 3

Sex related offences are universal phenomena, which take place in every society.
Sexual offences aptly take the form of sexual violence, which sometimes cause

3
charts given under General Introduction p. 35 of crime clock 2005, crime in India 2005, p.9, A.S. Anand, justice
for women : concern and expressions, 2002 pp1-3

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severe and irreparable damage to the physical and mental health of the victims.
Physical injury includes an increased risk of a range of sexual and reproductive
health problems. Its impact on mental health can be equally serious as that of
physical injury. Sexual offences, when they assume the form of sexual violence
may lead to murder, suicide, acute depression, etc. of victims. It entirely disturbs
the social well being of the victims because of stigmatization and the consequential
loss of status in their families and the neighbourhood.

In India, sex crimes against women and girls are mainly manifested in the form of
rape, molestation, sexual harassment, kidnapping and abduction for sexual
purposes and trafficking of girls for sexual exploitation. Buying and selling girls
for sexual purposes as well as procurement of minor girls for inducement in sexual
trade have shown an alarming increasing trend.

Trafficking of Women and Girls for Commercial Sexual Purposes

Trafficking of women and children and their inclusion into the sex trade is a
burgeoning form of organized crime. In recent years, this has become the flip side
of globalization. The international organization for migration estimates that the
global trafficking industry generates up to $ 8 billion each year from what may be
described as trade in human misery. Both the factors of increasing demand and
supply ruthlessly drive the trafficking industry. Some key factors behind the trade
are inadequate employment opportunities, lack of a social safety net, globalization,
feminization of poverty, and rise in sex tourism and so on.

Today, several international criminal organizations are more heavily involved in


trafficking of women and children than ever before. International trafficking is a
highly organized activity, involving a sophisticated international network of
procurers, document forgers, escorts, corrupt officials and so on. The number of
organized groups engaged in trafficking is likely to further increase in the coming
years because it is becoming a lucrative and low risk operation. Trafficking has
grown in recent years since it is extremely profitable and the risk of prosecution is
relatively low. This is because most countries have weak laws on trafficking and
allied activities. Trafficking in women and children is big business today involving
extensive international networks of organized criminals and unscrupulous

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government officials. It takes an organized effort to move large numbers of people


across borders and over long distances. It takes recruiters to identity and
procures young women and children. It takes transporters to take them across
borders to their destination. Then there are receivers to deliver them to brothels.
Finally, there are the brothel managers and heads of criminal cartels that make the
most profit in this trade in misery.

The Indian scene is also quite disconcerting. India serves as a source country,
transit centre and destination country where thousands of women and girls are
trafficked, initiated and exploited in the horrendous flesh trade every year. A study
conducted by the End Childrens Prostitution in Asian Tourism, 1991, estimates
that there are two million prostitutes in India of whom 20 percent are minors. At
any time, 20,000 girls are transported from one part of the country to another for
prostitution. Research on the trafficking of Nepalese women and girls into India
shows that around 5,000 to 7,000 Nepalese girls are trafficked yearly into India. In
India, social acceptance of prostitution in some communities encourages the
clandestine trade. The traffickers target women from refugee camps, girls from
large and broken families and lure them with the promise of a better life abroad.
Very often on arrival at the destination, travel documents are confiscated and the
victims are forced into prostitution or are given positions of hard labour and
exploitation. They are asked to pay for their transportation cost and living expenses
with interest. Women are often controlled through rape, violence and threats about
the harm that will be done to members of their family.

In India, apart from the provisions in the Constitution enjoining the equality of all
before law, Article 23 prohibits trafficking in human beings and all forms of forced
labour. The Directive Principles enlisted in Article 39 (e) and (k) declare that state
policy should be directed towards protecting childhood and youth against
exploitation and material abandonment. Building upon these, the Suppression of
Immoral Trafficking in Women and Girls Act was enacted in 1956, whose aim is
to inhibit or abolish commercialized vice, namely, trafficking in women and girls
for the purpose of prostitution, an organized means of living.

The Immoral Traffic Prevention Act, 1986 ( IT(P) Act ) Section 5, Paragraph 1
IT(P) Act, 1986

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Procuring, inducing or taking persons for the purpose of prostitution :

( l ) Any person who-

1. procures or attempts to procure a person whether with or without his


consent, for the purpose of prostitution ;
2. induces a person to go from one place, with the intent that he may, for the
purpose of prostitution, become the inmate of, or frequent a brothel ; or
3. takes or attempts to take a person or cause a person to be taken away from
one place to another with a view to his carrying on, or being brought up to
carry on prostitution ; or
4. 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 subsection 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
subsection :

(i) is a child, the punishment provided under this subsection 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 subsection shall extend to
rigorous imprisonment for a term of not less than seven years and not more than
fourteen years. "

Detaining a person in premises where prostitution is carried out, Section 6 IT(P)


Act, 1986

(1) any person who detains any other person, with or without his consent,
(a) in any brothel; or

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(b) in or upon any premises with intent that such person may have sexual
intercourse with a person who is not the spouse of such person,
-shall be punishable on conviction, 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 judgement, impose a sentence of imprisonment for a term of less than seven
years.
(2) Where any person is found with a child in a brothel, it shall be presumed,
unless the contrary is proved, that he has committed an offence under subsection
(1). (2A) Where a child or minor found in a brothel, is, on medical examination,
detected to have been sexually assaulted, it shall be presumed, unless the contrary
is proved, that the child or minor has been detained for purpose of prostitution or,
as the case may tee, has been sexually exploited for commercial purposes.

(3) A person shall be presumed to detain a woman or girl in a brothel or in or upon


any premises for the purpose of sexual intercourse with a man other than her
lawful husband, if such person, with intent to compel or induce her to remain there

(a) Withholds from her any jewellery, wearing apparel, money or other property
belonging to her; or

(b) Threatens her with legal proceedings if she takes away with her any jewellery,
wearing apparel, money or other property tent or supplied to her by or by the
direction of such person.

(4) Notwithstanding any law to the contrary, no suit, prosecution or other legal
proceeding shall lie against such woman or girl at the instance of the person by
whom she has been detained, for the recovery of any jewellery, wearing apparel or
other property alleged to have been lent or supplied to or for such woman or girl,

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or to have been pledged by such woman or girl for the recovery of any money
alleged to be payable by such woman or girl. "

According to Indian Penal Code, Section 372 which is:

Section 372: Selling minor for purpose of prostitution, etc.-

Whoever sells, lets to hire, or otherwise disposes of any **[person under the age of
eighteen years with intent that such person shall at any age be employed or used
for the purpose of prostitution or illicit intercourse with any person or for any
unlawful and immoral purpose, or knowing it to be likely that such person will at
any age be] employed or used for any such purposes, shall be punished with
imprisonment of either description for a term which may extend to ten years, and
shall be liable to fine.

**Explanation I.-

When a Female under the age of eighteen years is sold, let for hire, or otherwise
disposed of to a prostitute or to any person who keeps or manage brothel, the
person so disposing of such female shall, until the contrary is proved, be presumed
to have disposed of her with the intent that she shall be used for the purpose of
prostitution.

Explanation II.-

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For the purpose of this section illicit intercourse means sexual intercourse
between persons not entitled by marriage or by any union or tie which, though not
amounting to a marriage, is recognized by the personal law or custom of the
communities, of both such communities, as constituting between them a quasi-
marital relation.

CLASSIFICATION OF OFFENCE

Punishment Imprisonment for 10 years and fineCognizableNon-bailable


Triable by Court of SessionNon-compoundable.

The introduction of the words at any stage in the above section takes away the
defence that though a girl was made over to a prostitute it was not intended that she
should actually be used for the purpose of prostitution until she had actually be
used for years.4 The dedication of minors to the service of a temple as dasis
(servants) amounts to a disposal of such minors, knowing it to be likely that they
will be used for the purpose of prostitution within the meaning of this section.5

The first explanation added to section 372 creates presumption of the intention of
using her for the purpose of prostitution if the disposal is to a prostitute or to the
manager of a brothel while the words knowing it to be likely that such person, at
any stage, be employed or used for any such purposes enlarges the scope of this
section by penalizing the dedication of devadasis apart from the intention of the
dedicator.6 To sell a minor girl in order that she should be married again, or be kept
as a mistress would be offence under this section.7 But to sell an unmarried Hindu
girl for the purpose of her being married is not an offence under this section even if
the marriage that subsequently takes place turns out to be a marriage not strictly in
conformity with the tenets of Hindu law.8 The act of sale of a minor girl not being
criminal per se, but only proof of one of the intentions mentioned in section 372,
IPC. The point of time which is Crucial for determining the culpability of a person
under section 372, IPC is the one when the sale takes place. It is at that point of

4
Ramanna, 1889 12 Mad 273.
5
(1881) 1 Weir 359, FB; Basava, (1891) 15 Mad 75.
6
Act XVIII of 1924; Gour, Dr. Hari Singh, op.cit p. 3596.
7
Emperor v. Ewaz Ali, AIR 1915 All. 390; Girdhari Lal v. Emperor, AIR 1934 All. 324.
8
Lal Singh v. State, AIR 1954 HP 43

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time that the intention of the accused who sells the minor has to be taken into
account.9

According to Section 372 of the Indian Penal Code punishes the sale of minor girls
below the age of eighteen years for the purpose of prostitution, or illicit
intercourse, or other unlawful and moral purposes.10

The provision envisages protection of the chastity of girls. This section applies to
both married and unmarried female minors irrespective of caste or community,
including girls belonging to the dancing girl case.11 The offence consists in the
intentional or conscious exposure of a minor to the danger of degradation.12

When the offence under section 372 and 366-A is not proved due to age of victim
the conviction under lesser offence and lesser punishment is applicable .The
legislature is advised by Court to consider this legal flaw13.

In Padam Prashad Upadhyaya vs Emperor14

Padam Prasad was tried under Section 372, I.P.C., on the charge of having sold
Rajkumari a girl under 18 years of age for purposed of prostitution. He was
acquitted. He was subsequently charged at the High Court Sessions with having
dishonestly used at the trial (and abetted the fabrication of) a forged birth
certificate which purported to show that Rajkumari was over 18 years of age. His
defence and that of his co-accused Sujauddin (his tadbirkar in the case under
Section 372) was that they were unaware that the birth certificate was forged. They
were both convicted. (Padam Prasad of the principal offence under Section 471 and
Sujauddin of abetment and both of abetment of fabrication of the birth certificate )

In Sannaia Subba Rao & Ors vs State Of A.P15

9
Ibid
10
Venku v. Mahalinga, 1888 ILR 1 Mad 393.
11
Ramanna, 1889 ILR 12 Mad 273.
12
Raghavan on Law of Crimes, 3rd Edn, 1980, p. 897.
13 Shaikh Ramjan v. State, 1999 Cr LJ 2161 (AP).
14 AIR 1929 Cal 617
15 on 24 July, 2008

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This appeal arises out of the judgment and order dated 5.8.2003 passed by the
learned Single Judge of the High Court of Andhra Pradesh at Hyderabad,
convicting the three appellants under the provisions of Section 366A and Section
372 read with Section 511 Indian Penal Code, 1860 (for short `IPC') and requiring
each of them to undergo rigorous imprisonment for a period of 10 years and 5
years respectively on each count, which is to run concurrently. By the said order,
the order dated 16.12.1996 passed by the learned Additional Assistant Sessions
Judge, Guntur in SC No. 25 of 1995, acquitting the three accused was set aside.

According to Indian Penal Code, Section 373 which is:

Section 373: Buying minor for purposes of prostitution, etc.

Whoever buys, hires or otherwise obtains possession of any 16[person under the
age of eighteen years with intent that such person shall at any age be employed or
used for the purpose of prostitution or illicit intercourse with any person or for any
unlawful and immoral purpose, of knowing it to be likely that such person will at
any age be] employed or used for any purpose, shall be punished with
imprisonment of either description for a term which may extend to ten years, and
shall also be liable to fine.

**Explanation I17

Any prostitute or any person keeping or managing a brothel, who buys, hires or
otherwise obtains possession of a female under the age of eighteen years shall,
until the contrary is proved, be presumed to have obtained possession of such
female with the intent that she shall be used for the purpose of prostitution.

**Explanation II

16 Subs. by Act 18 of 1924, sec. 2, for certain words.


17 Ins. by Act 18 of 1924, sec. 4.

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Illicit intercourse has the same meaning as in section 372.

This section and section 372 conjointly punish both the giver as well as the
receiver of a person less than eighteen (18) years for an immoral purpose. Both the
sections relate to the same subject master.

CLASSIFICATION OF OFFENCE

Punishment Imprisonment for 10 years and fineCognizableNon-bailable


Triable by Court of SessionNon-compoundable.

The provisions of Sections 372 and 373 conjointly punish both the giver as well as
the receiver of a person under the age of 18 years for an immoral purpose.

Section 373 of Indian Penal Code is a counterpart of section 372, Indian Penal
Code. The two sections deal with trafficking on minor girls under the age of 18
years.

In Sunny, S/O. Joseph vs State18

The petitioners are allegedly rich and influential people. If they are released on bail
at this stage, it is most likely that they would terrorise, intimidate or influence the
witnesses and tamper with the evidence. It is also likely that the petitioners would
make them scarce and flee from justice. I am not inclined to grant bail to the
petitioners at this stage.

Duncan Grant paedophile case

Childline India Foundation & Anothers. v. Allan John Waters & Ors.

Date of Judgment March 18, 2011.

Appeals were filed against the judgment passed by the Division Bench of the High
Court of Bombay in Criminal Appeal Nos. 476, 603 and 681 of 2006 whereby the
18 8th day of August, 2011

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High Court allowed the appeals and reversed the judgment passed by the
Additional Sessions Judge for Greater Bombay convicting all the accused under
various sections of the Indian Penal Code, the Code of Criminal Procedure, 1973
and the Juvenile Justice Act, 2000.

With regard to the sexual and physical abuse at the Anchorage Shelters, Childline
India Foundation filed a complaint with the Cuffe Parade Police Station but the
police did not take cognizance of the offence under the pretext that the matter
was sub judice and was pending before the High Court. The High Court, by order
dated 07.11.2001, directed the police authorities of the State of Maharashtra to take
action on the basis of the complaint lodged by the Childline India Foundation.
Based on this specific direction, Sr. Inspector of Police, Colaba Police Station was
directed to investigate in detail the complaint lodged by Childline and to take such
action as is required to be taken in law. Police ultimately registered an offence at
Colaba police station by treating the statement of one Sonu Raju Thakur as formal
First Information Report and started investigation. The offence was mainly
registered against three accused but other than William DSouza (A1), the
remaining two accused Allan John Waters (A2) and Duncan Alexander Grant (A3)
had already left the country and thus an Interpol Red Corner Notice was issued
against A2 and A3. In pursuance of Red Corner Notice, A2 was arrested in USA
and sometimes thereafter A3 also surrendered before Court in India. The
Metropolitan Magistrate committed the case to the Court of Session and after
committal; it was initially assigned to the First Track Court at Sewree. All the three
accused pleaded not guilty and, therefore, claimed to be tried. The Sessions Judge
convicted William DSouza (A1) for the offence punishable under Section 377
read with Section 109 IPC, Sections 120B and 323 IPC and under Section 23 of the
Juvenile Justice Act. A2 was convicted under Section 377 IPC, Section 120B read
with Section 377 IPC and Section 373 IPC. A3 was convicted under Section 377
IPC; Section 373 read with 109 IPC, Section 372 IPC and Section 23 of Juvenile
Justice Act. The High Court set aside the order of conviction passed by the
Sessions Judge and allowed the criminal appeals filed by A1, A2 and A3 and
acquitted all of them from the charges leveled against them and dismissed the
appeal filed by the State Government.

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The point for consideration in these appeals was whether the High Court was
justified in acquitting all the accused by interfering with the order of conviction
and sentence passed by the trial Court?

Accused submitted that except the testimony of PWs 1 and 4, there was no
corroborative statement by any of the other boys who stayed with them in the
shelter homes. But the Supreme Court held that there was no need to examine more
victims of similar nature. The accused further submitted that even if the
allegations/statements of prosecution witnesses are acceptable, the same would not
constitute an offence under Section 377 IPC. The Supreme Court observed that to
attract the above offence, the following ingredients are required:

1. Carnal intercourse and


2. Against the order of nature.

Though the High Court had adverted to various dictionary meanings and decisions
to hold that the offence had not been made out, the Supreme Court held that by
reading all the entire testimony of PWs 1 and 4 coupled with the other materials
even prior to the occurrence, it could not be claimed that the prosecution had not
established all the charges leveled against them. On the other hand, the analysis of
the entire material clearly supported the prosecution case and thus the Court agreed
with the conclusion arrived at by the trial Judge. The appeals were thus allowed.

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School girls forced into prostitution19


In Bihar's Araria district to turn the event into a school is out. People send their
daughters to school to enhance career, but he is being pushed into the quagmire of
the sex trade. Last week, police and child welfare committee inspection team found
that the Kasturba Gandhi Vidyalaya Simraha 31 girls were missing. Some of them
disappeared in 2007, while some went missing in the last few months. SP Shivdeep
Lande said that this extremely serious matter. The investigation will be thorough.
SP Shivdeep told me that he had received secret information that an institution run
by the Kasturba Gandhi Vidyalaya Simraha girls and 24 are missing. He has set up
an investigation team. 50 girls enrolled in school investigation found that seven of
the last few months are missing. SP said that in 2007, the year 09, and four in 12 in
2010, and four in 2011 and in 2012 a girl that went missing.
Earlier in February last Farbisganj red light area 25 girls were recovered, of which
ten are the same school. Education Department is not aware of these missing
girls. These girls 'disappearance was not reported to the police on behalf of the
school, the school directors' role is questionable.
DM has ordered a probe.

Child prostitution wanted kidnapper20


Mumbai: Stolen from CST station Sangeeta kidnap innocent three years begging
and prostitution at large was to make. It also started her training was'm a
kidnapper. Sangeeta kidnapper's father said that he had been forced. This fact has
come to light during the police investigation.

Earlier on Friday, the innocent Sangeeta MA - parents arrived in the lap. Sangeeta's
medical examination to be met by her parents - was delayed handing. A month
later, seeing the innocent Sangeeta ma boo arose. Juba with her feelings but tear up
all his pain was upheld. Happy mother's lap advantage Sangeeta ruptured innocent
but what is innocent, and his mother is a wall between law enforcement.

19
Sun, 05 Aug 2012 11:50 AM (IST), School girls forced into Prostitution
(Hindi news from Dainik Jagran, news national Desk)
20
Sat, 14 Jul 2012 04:18 PM (IST), CST Kidnapper girl trained to CALL him 'Papa'
(Hindi news from Dainik Jagran, news national Desk)

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The 9/10 the night of June Sangeeta his parents with the CST were sleeping on the
platform of the station. Raju came only after the accused had been secretly
carrying Sangeeta. Raju went to Haridwar with Sangeeta, but did not inform her
that she has been caught on CCTV did all black.

Raju's complaint on the disappearance of a child more than a hundred police


CCTV footage of the reconstructed images then he came out. After the release of
photos constable Raju recognize dilvar Sangeeta was delivered from his
possession.

Prostitution in the guise of business function21


Panaji: In the guise of business events in Goa running prostitution racket came to
light. According to police raids came after the events in the guise of event
management companies run prostitution rackets. Through different states of the
country for women trafficked are brought here.







Andhra Pradesh Police Inspector Gurudas measures a company's involvement in
sexual exploitation racket busted. Director, Department of Women and Child
Development, said Sanjeev Gdkr Goa along with other states, it will try to find out
who has been organizing the event event management companies are registered or
not. Non-governmental organizations, Andhra Pradesh, Karnataka, West Bengal,
Assam, Nagaland, Manipur and Mizoram representatives are participating in the
program.

Prostitution were provided by national player parents22


Rewari: Earn money toward the Kaliyugi blind parents - his minor daughter
pushed into prostitution racket. Parents - child prostitution national level player for
his refusal would threaten to kill.
21
Tue, 26 Jun 2012 09:45 PM (IST), Business Events Veil Prostitution rackets in Goa
(Hindi news from Dainik Jagran, news national Desk)
22
Tue, 05 Jun 2012 12:23 PM (IST), Minor National Player For Parents To Prostitution charged
(Hindi news from Dainik Jagran, news national Desk)

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National kick boxing athlete banged elopes one day my aunt arrived here. He then
went to Aunt Sarah told the cap open secret. Aunt lodged a police report. The SP
has ordered an investigation. The girl is a non-governmental organization [NGO]
has been sent to. The player in the area of Rohtak Maham alleged that parents -
including other members of the family were making the sex trade. During sexual
abuse were also packed black bar over his eyes so he cannot see anything. He
protests were threatening to kill her family. Four years is being made with the sex
trade.
Girl trying to flee from home opportunity one day away from home and went
straight to the aunt. He told his story to aunt. The player was missing from their
home May 27 and was reported missing to police lodged.

Five convicted in sale of a minor23

NAGPUR: District and additional sessions judge GJ Akarte on Thursday convicted


five persons in the sale of a 17-year-old girl in Rajasthan for Rs55,000.

Four convicts, including Sitaram Nandanwar, Pranita Nanadanwar, Baapurao


Sahare and Meghraj Raut, were held guilty under IPC section 363 for kidnapping a
minor, section 366-A for abducting a minor for the purpose of marrying and under
section 372 for selling a minor for the purpose of prostitution. They were also
slapped with a fine of Rs3, 000 each. The fifth convict, Ramkaran Meena, who married
the girl, was found guilty under Section 373 for buying a minor for the purpose of
prostitution and has been slapped a fine of Rs1,000, informed additional public prosecutor
Jyoti Vajani.

The Nandanwars were the girl's neighbours. Pranita Nanadanwar asked the girl to
accompany her to Bhandara where her sister resides. However, they left Nagpur on
March 7 last year for Mandukhedi in Rajasthan. Pranita along with her husband
and two others got the girl married to Ramkaran who bought her for Rs55,000.

CB Barwe appeared on behalf of Ramkaran Meena while GB Hemke represented


the other four accused.

23
Aug 10, 2012, 02.54AM IST

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Buying/Selling of girls for Prostitution (Sec. 373/372 IPC) (Incidence78/130)

78 cases of Buying of girls and 130 cases of Selling of girls for Prostitution
were reported in the country during 2011 against 32 and 57 such cases respectively
in 2009. West Bengal (48) and Maharashtra (27) have accounted for 96.2% of total
78 cases of Buying of Girls for Prostitution' and West Bengal has accounted for
88.5% (115 cases out of 130 cases) of the total cases of Selling of Girls for
Prostitution' reported in the country.

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Bibliography
1. C.K. Thakker (Rev.), Ratan Lal & Dhiraj Lals Indian
Penal Code, (30th ed., 2004)
2. K.D. Gaur, Criminal Law Cases and Materials, (6th ed.,
2009)
3. R.C. Nigam, Law of Crimes in India (Vol. I) (1965)
4. V.B. Raju, Commentary on Indian Penal Code, 1860 (Vol. I
& II) (4th ed., 1982)
5. K.I. Vibhute (Rev.), P.S.A. Pillais Criminal Law, (10th ed.,
2008)

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