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Brothel Customer Cannot Be Booked For Running Premises Or Procuring Women:
The has firmly ruled that a mere customer caught in a brothel raid cannot be prosecuted for offences related to running a brothel or procuring women for prostitution. Justice P. M. Raval a 2010 FIR against Kamlesh Hukamchand Vishnoi, who was arrested as a customer during a police raid at Hotel Dev Palace in Ahmedabad, holding that the penal provisions under the do not apply to customers.
The Raid and the FIR
On , the received a tip-off that Hotel Dev Palace on Ashram Road was being run as a brothel. A raid was conducted with the help of a fake customer (punter) and lady constables. During the operation, the hotel manager was caught at the counter, three customers were apprehended inside a room, and five more were found waiting outside. The FIR alleged that one Nitin @ Sonu Mehta, in collusion with hotel owner Vimalbhai Modi, had brought women from outside the state and was operating a brothel. Kamlesh Hukamchand Vishnoi was named in the as one of the customers caught red-handed.
Arguments: Customer vs. Procurer
Appearing for the applicant, (for ) argued that none of the offences under Sections 3, 5, 7, and 9 of the Immoral Traffic Act could be invoked against a customer. He emphasised that the investigating agency itself had shown the applicant as a customer, and under , such provisions target brothel-keepers, pimps, and procurers—not patrons. Additionally, he contended that the charge under (disobedience to a public servant's order) could not be taken of on a police report, as a private complaint was mandatory under .
The Additional Public Prosecutor, Mr. Rohan Shah, did not dispute the factual position that the applicant was merely a customer. He conceded that as per established legal principles, a customer cannot be attributed with the offences under Sections 3, 5, 7, and 9 of the Act.
Court's Legal Analysis: Why a Customer is Not an Accused
Justice Raval examined each provision of the Immoral Traffic Act and explained why a customer falls outside their ambit.
Section 3 punishes keeping a brothel or allowing premises to be used as one. The court noted that a customer has no role in maintaining or permitting the use of the premises, and therefore no prosecution under this section can lie against him.
Section 5 penalises procuring or attempting to procure a person for prostitution. The court clarified that "procure" means obtaining a woman from a third party—such as an agent or pimp—and not the act of the customer himself. The provision is directed at the procurer, not the person who seeks sexual services.
Section 7 deals with prostitution in or near public places. The court observed that prostitution itself is not an offence under the Act except in the specific circumstances of Sections 7 and 8. To attract Section 7, the prosecution must first establish that prostitution is being carried out; only then does the question of it being in a public place arise. Since Section 4 (which defines prostitution) does not apply to the customer, Section 7 cannot be invoked.
Section 9
targets persons who, by virtue of their position or authority over a woman or girl, cause or aid her seduction into prostitution. The court found no evidence that the applicant held any such position or authority over the women involved.
"There is not an iota of evidence remotely suggesting that the applicant was taking undue advantage of his position or authority over the woman or girl,"
the judgment read.
Key Observations from the Bench
"Section 3 of the said Act, provides punishment for keeping a brothel or allowing premises to be used as a brothel, and thus no prosecution thereunder can be maintained against the present applicant being a customer."
"Section 5 of the said Act, relates to penalties for procuring or attempting to procure a person for the purpose of prostitution, and thus, these provisions are directed against a procurer such as an agent or pimp, and not against a customer, since the word 'procure' connotes obtaining a woman for the purpose of prostitution from a particular individual and not the act of the individual himself."
"The applicant, by no stretch of imagination, can be charged with the offence under Section 7 of the Act, because to attract the said provisions, the prosecution must show that prostitution is being carried out."
Precedents Relied Upon
The court placed reliance on two coordinate bench decisions: Vishal Bhikhabhai Chavda Versus State of Gujarat () and Sajjan Kalikant Zha Versus State of Gujarat and another (). Both cases held that a customer cannot be prosecuted under Sections 3, 5, 7, and 9 of the Immoral Traffic Act, and the court found those observations squarely applicable to the present facts.
The Final Decision
The allowed the petition and FIR No. II-3005 of 2010 along with all consequential proceedings against Kamlesh Hukamchand Vishnoi. The court to the extent of the applicant. The ruling reinforces the legal distinction between those who profit from or facilitate prostitution and those who merely avail of such services, reaffirming that the Immoral Traffic Act does not criminalise the customer.
