Back
IN THE HIGH COURT OF KERALA AT ERNAKULAM
BECHU KURIAN THOMAS, J.
Mathew, S/o.Jacob – Appellant
Versus
State Of Kerala – Respondent
Crl.MC No. 1398 of 2013
Decided on : 07-12-2022
Immoral Traffic (Prevention) Act, 1956 - Sections 3, 4, 7, (1) - Code of Criminal Procedure, 1973 - Section 482 - Brothel - Customer - Can a 'customer' in a brothel be proceeded against criminally under Immoral Traffic (Prevention) Act, 1956 – person engaged in the act of exploitation is also a person who falls within the term 'persons with whom such prostitution is carried on' - Para 14.
Finding of the Court :
In decision in Vijayakumar and Others v. State of Kerala and Others, this Court had held that engaging in sexual activity even in a brothel is not made an offence and quashed proceedings against a customer - As mentioned earlier, section 7 operates only within certain specified areas - Prostitution within those specified areas alone is made punishable under said section - There is nothing to suggest that decision in Vijayakumar's case related to a notified area, and therefore that decision cannot apply to present set of facts – Court is of firm view that a 'customer' in a brothel can be proceeded against criminally under provisions of section 7 of Act if other conditions of section are satisfied.
Result: Petition dismissed.
Based on the provided legal document, the key legal principles are as follows:
Definition of Prostitution: The term “prostitution” is defined as the sexual exploitation or abuse of persons for a commercial purpose. The term “prostitute” is to be construed accordingly (!) .
Scope of Section 7 of the Act: Section 7 specifically pertains to prostitution in or near designated areas, which include notified areas, areas within a certain distance of public places such as religious worship, educational institutions, hospitals, or nursing homes, and other public places as notified by authorities (!) (!) (!) (!) (!) .
Persons Covered Under Section 7: The section penalizes both the person who carries on prostitution and the person with whom such prostitution is carried on, within the specified areas. Notably, the section explicitly includes “the person with whom such prostitution is carried on,” which encompasses the customer, as part of the scope of the offence (!) (!) (!) (!) (!) (!) (!) .
Inclusion of Customers: The legislative intent, as interpreted, indicates that the words “person with whom such prostitution is carried on” are meant to include customers or persons engaging in prostitution within the specified areas. The definition of prostitution as sexual exploitation or abuse further supports that the person exploiting or abusing the prostitute is also within the scope of the offence, implying that customers can be proceeded against criminally if other conditions of the section are satisfied (!) (!) (!) (!) (!) (!) .
Limitations of Other Sections: Sections 3 and 4 of the Act pertain to maintaining or living on the earnings of a brothel and do not explicitly include or target customers. The scope of these sections is different, and they primarily address the owners or persons managing the premises (!) .
Legislative Intent and Purpose: The primary purpose of the Act is to deter and prevent immoral traffic and exploitation. Including customers within the penal provisions aligns with the objective of the legislation to prevent immoral traffic and exploitation comprehensively (!) (!) (!) .
Judicial Interpretation: The interpretation of the relevant provisions indicates that a customer involved in prostitution within a notified or specified area can be criminally proceeded against under the provisions of Section 7 if the other statutory conditions are met. The legislative language and purpose support including customers within the scope of the offence (!) (!) (!) (!) (!) (!) (!) (!) (!) (!) (!) (!) .
In summary, the legal interpretation confirms that a person who is a customer in a brothel situated within the notified or specified areas can be prosecuted under the relevant provisions of the Immoral Traffic (Prevention) Act, 1956, provided the conditions of the section are satisfied. The legislative intent and statutory language support the inclusion of customers as liable parties under section 7 of the Act.
ORDER :
Can a ‘customer’ in a brothel be proceeded against criminally under the Immoral Traffic (Prevention) Act, 1956 (for short, 'the Act')? The above question requires to be answered in this petition filed by the alleged customer, invoking the inherent jurisdiction of this Court under section 482 of the Code of Criminal Procedure, 1973.
2. Petitioner faces an indictment as the third accused in C.C No. 1778 of 2007, on the files of the Chief Judicial Magistrate’s Court, Ernakulam. The prosecution alleges that the first accused had taken a building situated 175 metres away from the Ravipuram Temple at Ernakulam, to conduct an Ayurvedic Hospital and under the cover of the ayurvedic hospital permitted the conduct of prostitution by appointing the second accused as the supervisor and accused Nos.4 and 5 for carrying on the prostitution. It was further alleged that on 15.12.2004 at 2.45 p.m., the Investigating Officer found the third accused engaged in a sexual act with accused Nos.4 and 5 after paying Rs.500/-and thus the accused committed the offences under sections 3, 4 and 7 of the Act.
3. Petitioner alleged that he had approached the Ayurvedic Hospital for treatment of his back pain and the doctor on duty had prescribed oil massage for a period of thirty days. According to the petitioner, while he was undergoing treatment, the police officers came to the hospital and arrested him and accused Nos.4 and 5, who were the nurses employed at the hospital.
4. The statement collected by the police during investigation reveals that when the police reached the building, petitioner was found in the company of two women, who are accused 4 and 5, without any dress and engaged in a sexual act. According to the petitioner, even if, for argument's sake, the allegations are assumed to be true, still, he, being only a 'customer', cannot be proceeded against, as the statute does not contemplate prosecuting a 'customer'.
5. It is relevant to mention in this context that, after cognizance was taken, accused Nos.4 and 5 had pleaded guilty to the crime and were imposed with a fine, while, the second accused, who was alleged to be the supervisor, was discharged by the trial court. Thus the proceedings now pending before the trial court are only against the first accused and the petitioner. It is noticed from E-court's website that the first accused is absconding.
6. Sri.R.Santhosh Babu, learned counsel for the petitioner, contended that section 7 of the Act is the only section against which petitioner can be proceeded against, as sections 3 and 4 cannot apply to any person other than the owner or the person who conducts a brothel. According to the learned counsel, since petitioner's alleged conduct as a 'customer' is stated to be offensive, in the absence of the statute including a 'customer' within the scope of the Act, he cannot be roped in as an accused. The proceeding being an abuse of the process of court, the trauma of a criminal trial ought not to hang over petitioner's head anymore, contended the learned Counsel. In support of his contention, he relied upon several decisions of various High Courts and that of this Court including the decisions in Radhakrishnan v. State of Kerala (2008 (2) KLT 521) and in Vijayakumar and Others v. State of Kerala and Others (2016 (1) KHC 698).
7. Sri.K.A.Noushad, learned Public Prosecutor, on the other hand, contended that though section 7 of the Act alone can apply to the petitioner, the provisions of the said section will apply, especially since he can be regarded as a person with whom the “prostitution was carried on”. Learned Public Prosecutor further contended that in any event, the contentions raised can be decided only after taking evidence and hence interference under section 482 of the Cr.P.C is not warranted and thus sought for dismissal of this petition.
8. As mentioned at the beginning, the question raised for consideration is whether a customer in a brothel situated inside the specified area would fall
“Prostitution” means sexual exploitation or abuse of persons for commercial purpose, and expression “prostitute” shall be construed accordingly.”
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.
A customer found in a brothel cannot be prosecuted under the Immoral Traffic (Prevention) Act unless involved in managing or facilitating prostitution.
Immoral Traffic (Prevention) Act, 1956 do not prohibit sale of sexual services per se – There is no specific provision under Act, 1956, that is directed towards customers.
Violation of Section 15(2) of the Act is irregular but not a ground for quashing the proceeding. A customer found in a brothel cannot be held liable under the Immoral Traffic (Prevention) Act.
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....
Point of Law : Continuation of criminal proceedings against petitioner therein, who was present in a brothel house at time of raid by Police as a customer, or fastening with any criminal liability in....
An indispensable Tool for Legal Professionals, Endorsed by Various High Court and Judicial Officers
Please visit our Training & Support
Center or Contact Us for assistance
Scan Me!
India’s Legal research and Law Firm App, Download now!
For Daily Legal Updates, Join us on :
Back to top
