A customer found in a brothel cannot be prosecuted under the Immoral Traffic (Prevention) Act unless involved in managing or facilitating prostitution.

JUDGMENT :

Saurabh Lavania, J.

1. Heard Mr. Aakil Khan, learned counsel for the applicant, learned A.G.A. for the State and perused the record.

2. The instant application u/s 482 Cr.P.C. has been filed seeking quashing of the entire proceeding arising out of Case Crime No.0613 of 2023, under Sections 3/4/5/7 of the Immoral Traffic (Prevention) Act, 1956 (hereinafter referred to as "Act"), P.S.-Vibhuti Khand, District Lucknow, including the charge sheet No. 01 of 2024, dated 29.04.2024, pending before Additional Chief Judicial Magistrate, Court No. 26, Lucknow.

3. The facts, giving rise to the present impugned proceeding, are that on 01.12.2023, the police conducted a search of a house that belonged to Ayush Kumar @ Arpit Kumar, on the information received from an informer that some of the persons were conducting prostitution. During the search, the applicant was found in an intimate position with co- accused lady "S" (name changed), who was allegedly involved in prostitution in a locked room. As per the police, S.H.O. had seen the present applicant and one lady "S" in an intimate position through cracks in the door. Based on this search, an F.I.R. dated 01.12.2023 was registered against the accused persons, including the present applicant, as Case Crime No. 613 of 2024, under Sections 3/4/5/7 of the Act. The police, after investigation, had also submitted a charge sheet against the applicant and five other co-accused persons, u/s 3/4/5/7 of the Act on 24.09.2024, whereupon the learned A.C.J.M. also took cognizance on 03.06.2024.

4. It is stated that as per the case of the prosecution against the applicant, the offences indicated under the Act would not be attracted. It is for the reason that as per the prosecution case, the applicant was simply a customer, and simply being a customer at any house that is being used for prostitution will not attract any penalty under the Act unless there is the involvement of the customer in the business of prostitution.

5. It is also stated that while conducting the search of the house in question, mandatory provision of Section 15(2) of the Act, which requires the presence of two local witnesses, was not followed, and there was a violation of Section 15 (2) of the Act and as such, the prosecution in the instant case cannot be permitted to proceed.

6. It is stated that the issues involved in the instant case have already been decided by this Court vide judgment dated 22.02.2024 passed in Application U/S 482 No. 9161 of 2023 (Dinesh Tiwari @ Dhirendra Kumar Tiwari vs. State of U.P. and Another). The relevant paragraphs of this judgment are extracted hereunder:-

"5. The contention of learned counsel for the applicant is twofold:-

(i) that while conducting the search of the house in question, mandatory provision of Section 15(2) of the Act, which requires the presence of two local witnesses, was not followed, and there was a violation of Section 15 (2) of the Act; and (ii) that as per the prosecution case, the applicant was simply a customer, and simply being a customer at any house that is being used for prostitution will not attract any penalty under the Act unless there is the involvement of the customer in the business of prostitution.

6. In support of his first contention, learned counsel for the applicant has relied upon the judgement of High Court of Karnataka, Kalaburagi Bench in the case of Shivaraj vs. State of Karnataka (Criminal Petition No. 200782 of 2016) and in support of his second contention learned counsel for the applicant has relied upon the judgements of Karnataka High Court in Raghavendra @ Raghu vs. State of Karnataka (Criminal Petition No. 8055 of 2016), Mahesh Hebbar @ Mahesh vs. The Station House Officer, Banaswadi, P.S. Bangalore (Writ Petition No. 56504 of 2015), Babu S. vs. State by Kengeri Police Station Bengaluru (Criminal Petition No. 2119 of 2022), Barath S.P. vs. State of Karnataka (Criminal Petition No. 1757 of 2022) and Suraj vs. State of Karnataka (Criminal Petition No.