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IN THE HIGH COURT OF KARNATAKA
M. Nagaprasanna, J.
Babu S. - Appellant
Versus
State By - Respondent
Criminal Petition No. 2119 of 2022
Decided On : 04-04-2022
Immoral Traffic Prevention Act - Customer in Brothel - Sections 3, 4, 5, 6 of Immoral Traffic Prevention Act, 1956 and Section 370 of the IPC - The court discussed the provisions of Sections 3 to 6 of the Immoral Traffic Prevention Act and Section 370 of the IPC. It highlighted that none of the provisions of the Act get attracted against a customer as he neither keeps a brothel, allows the premises to be used as a brothel, lives on the earnings of prostitution, procures, induces or takes a person for the sake of prostitution, or detains a person in the premises where prostitution is carried on. The court also emphasized that Section 370 of the IPC deals with offences punishable for buying or disposing any person as a slave, which was not the allegation in the case. Therefore, the court found the proceedings unsustainable and allowed the Criminal Petition, quashing the pending proceedings.
Fact of the Case:
The petitioner was found at the time when the premises was searched for offences punishable under the Immoral Traffic Prevention Act, 1956 and Section 370 of the IPC. The petitioner was a customer in a brothel at the time of the search.
Finding of the Court:
The court found that none of the provisions of the Act get attracted against a customer, and Section 370 of the IPC deals with offences punishable for buying or disposing any person as a slave, which was not the allegation in the case. Therefore, the court allowed the Criminal Petition and quashed the pending proceedings.
Issues: The main issue was whether the petitioner, as a customer in a brothel at the time of the search, could be held criminally liable under the Immoral Traffic Prevention Act, 1956 and Section 370 of the IPC.
Ratio Decidendi: The court held that the provisions of the Immoral Traffic Prevention Act and Section 370 of the IPC were not applicable to the petitioner as a customer in a brothel, and therefore, the proceedings were unsustainable.
Final Decision: The Criminal Petition was allowed, and the proceedings in Crime No.347/2021 pending before the 32nd Additional CMM Court, Bangalore, were quashed.
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ORDER
1. Petitioner is before this Court calling in question the proceedings in Crime No.347/2021 registered for the offences punishable under Sections 3, 4, 5 and 6 of Immoral Traffic Prevention Act, 1956 ('Act' for short) and Section 370 of the IPC.
2. Heard Sri. Ravi. R., learned counsel appearing for petitioner and Smt.K.P.Yashodha, learned High Court Government Pleader for respondent.
3. Facts in brief are as follows:
A complaint is registered on 23.09.2021 by the PSI of the respondent-police station, on the credible information received, for the offences punishable under the Act and the IPC and proceedings were initiated in Crime No. 347/2021. The petitioner was a customer who was found at the time when the premises was searched on 23.09.2021. Result of the search was seizure of several materials.
4. It is not in dispute that the petitioner was a customer in the brothel when the search was conducted by the respondent-police. A customer, in a brothel, cannot be hauled into criminal proceedings is the consistent view taken by this Court in plethora of cases. This Court while considering the purport of the Act and the Code in the case of BARATH S.P. v. STATE OF KARNATAKA in CrlP.No.1757/2022 disposed on 24.03.2022, has held as follows:
"7. The afore-narrated facts are not in dispute. The proceedings against the accused are pending consideration in the aforesaid C.C.No.109 of 2018 where the petitioner is accused No.4. The petitioner is arrayed as accused for the reason that he was caught as a customer in the brothel when the search or raid took place on 24-09-2015 and the proceedings are instituted for offences punishable under Sections 3 to 6 of the Act and Section 370(3) of the IPC. It is germane to notice Sections 3 to 6 of the Act and they read as follows:
"3. Punishment for keeping a brothel or allowing premises to be used as a brothel.-(1) Any person who keeps or manages, or acts or assists in the keeping or management of, a brothel shall be punishable on first conviction with rigorous imprisonment for a term of not less than one year and not more than three years and also with fine which may extend to two thousand rupees and in the event of a second or subsequent conviction, with rigorous imprisonment for a term of not less than two years and not more than five years and also with fine which may extend to two thousand rupees.
(2) Any person who-
(a) being the tenant, lessee, occupier or person in charge of any premises, uses, or knowingly allows any other person to use, such premises or any part thereof as a brothel, or
(b) being the owner, lessor or landlord of any premises or the agent of such owner, lessor or landlord, lets the same or any part thereof with the knowledge that the same or any part thereof is intended to be used as a brothel, or is willfully a party to the use of such premises or any part thereof as a brothel, shall be punishable on first conviction with imprisonment for a term which may extend to two years and with fine which may extend to two thousand rupees and in the event of a second or subsequent conviction, with rigorous imprisonment for a term which may extend to five years and also with fine.
2A. For the purposes of sub-section (2), it shall be presumed, until the contrary is proved, that any person referred to in clause (a) or clause (b) of that sub-section, is knowingly allowing the premises or any part thereof to be used as a brothel or, as the case may be, has knowledge that the premises or any part thereof are being used as a brothel, if, -
(a) a report is published in a newspaper having circulation in the area in which such person resides to the effect that the premises or any part thereof have been found to be used for prostitution as a result of a search made under this Act; or
(b) a copy of the list of all things found during the search referred to in clause (a) is given to such person.
(3) Notwithstanding anything contained in any other law for the time being in force, on conviction of any perso
The main legal point established in the judgment is that the provisions of the Immoral Traffic Prevention Act and Section 370 of the IPC do not apply to a customer in a brothel, and therefore, the cu....
The absence of evidence proving that victims were trafficked or exploited negates the applicability of Section 370(A)(2) IPC against customers.
Customers cannot be prosecuted under the Immoral Traffic (Prevention) Act without evidence of trafficking, but may be liable under Section 370(A)(2) IPC if they had reason to believe victims were tra....
A customer in a brothel can be prosecuted under Section 5(1)(d) of the Immoral Traffic (Prevention) Act, as they induce the act of prostitution.
In cases where a sex worker engages in prostitution out of her free will without there being any inducement, force or coercion, it would still be a question of fact whether woman is carrying on the p....
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