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.

ORDER :

1. Petitioner is the 3^rd accused in Crime No.331 of 2021 registered at the Peroorkada Police Station for the offences under Sections 3, 4, 5(1)(d) and 7 of the Immoral Traffic (Prevention) Act, 1956 (hereinafter referred to as 'the Act'). The crime was registered on the allegation that on 18.03.2021, based on reliable information that prostitution was going on in house bearing No.TC-21/755 in Kudappanakkunnu, the Inspector of Police along with his subordinate officers conducted search in that building and found the petitioner and a woman lying naked on a bed in one of the rooms. Another man and a lady was found in one of the other rooms and on questioning the women trying to hide inside the kitchen, it came to light that accused Nos.1 and 2 had procured three women and were inviting interested persons for the purpose of prostitution. The keeper of the brothel stated that Rs.2000/- per hour was collected from the persons desirous of indulging in physical relationship with the three women and out of the said amount, Rs.1000/- will be paid to the ladies.

2. Learned counsel for the petitioner contended that even if the allegations are accepted in their entirety, the alleged offences are not attracted against the petitioner. It is pointed out that Section 3 of the Act pertains to punishment for keeping a brothel, while Section 4 is applicable only to persons living on the earnings of prostitution. For Section 7 to be applicable, the alleged act of prostitution should have been carried out in a notified area. That leaves only Section 5 (1)(d), which has no application since the petitioner was only a customer in the brothel and cannot therefore be proceeded against on the premise that he had caused or induced the sex worker to carry on prostitution.

3. According to the counsel, it is the prostitute (sex worker) who canvasses or projects himself either directly or through brothel manager, tout or pimp for selling or rendering sexual services to others (customers). That being so, the sex worker carries on the business of prostitution with the aid of his/her associates like brothel manager, tout or pimp. Moreover, a customer in a brothel house does not sell goods or services and therefore the expression "carry on trade or business" has no application. On the contrary, the customer is only availing the services rendered by the sex worker. Therefore, the customer is having no nexus or role in the carrying of the business of prostitution by a sex worker and his/her associates. In support of the arguments, reliance is placed on the decisions of this Court in Radhakrishnan K. v. State of Kerala, 2008 (2) KHC 460, Antony Vincent v. State of Kerala, 2014 (3) KHC 542 and Vijayakumar and Others v. State of Kerala and Others, 2016 (1) KHC 698. Reference is also made to the decisions of the High Courts of Allahabad, Gujarat and Andhra Pradesh reported in Dinesh Tiwari v. State of U.P. and Others, MANU/UP/0405/2024, Jojo Thomas Kannappilly v. State of Gujarat, MANU/GJ/1960/2023 and Arjun Rao and Others v. State of A.P., MANU/AP/0543/2013. According to the learned counsel, the contrary view expressed by this Court in Abhijith v. State of Kerala, 2023 KHC 9425 and Mathew v. State of Kerala, 2022 (7) KHC 515 do not lay down the correct law.

4. The learned Public Prosecutor contended that the question whether the offences under Section 5 (1)(d) and 7 of the Act are attracted has to be decided based on the evidence tendered before the trial court.

5. As contended by the counsel for the petitioner, only a person keeping or mana