Engagement in prostitution is not punishable under the Act without clear evidence of procurement or inducement.

ORDER

Dated : 9^th January, 2026 Accused No.3 in crime No.318/2023 of Kasaba police station, Kozhikode, which is now pending as C.C.No.490/2023 on the file of Judicial Magistrate of First Class-III, Kozhikode, filed this petition under Section 5 28 of B.N.S.S praying for quashing all further proceedings against him. The offences alleged against the petitioner and the other accused persons are under Sections 4 , 5 and 7 of the Immoral Traffic (Prevention) Act , 1956 (in short 'the Act'). 2. The prosecution case is that on 26.4.2023 at about 4.20. pm in room No.612 on the 5^th floor of KY residency which situates about 25 metres away from the new bus stand at Kozhikode, the accused persons 1, 2 and 3 were found keeping women brought from Bangalore for the purpose of prostitution and for making earning from prostitution, brought accused persons 3 to 5 for prostitution, received Rs.2500 each from them and thereby they were alleged to have committed the aforesaid offences.

3. According to the learned counsel for the petitioner, the offences alleged under Sections 4 , 5 and 7 of the above Act are not attracted against the petitioner and therefore, he prayed for quashing all further proceedings against him.

4. The petition was strongly opposed by the learned Public Prosecutor.

5. In the decision in Vijayakumar and Others v. State of Kerala and Others , 2016 (1) KHC 698, relied upon by the learned counsel for the petitioner, in paragraph 8 this Court held that :

“S.3 deals with the punishment for keeping a brothel or allowing premises to be used, as a brothel and S.4 deals with the punishment for living on the earnings of prostitution and S.5 deals with procuring, inducing or taking person for the sake of prostitution and S.7 deals with the prostitution in or in the vicinity of public place. On an analysis of the allegation against the petitioners in Annexure- A, First Information Report, it is seen that even if, the allegation against the petitioners are admitted at its entirety and taken at its face value, none of the accused have committed any of the offences under S.3, S.4(1), S.5 and S.7 of the Act. Put it differently, engaging in sexual activity even in brothel is not made an offence punishable under the Act. If the allegations in the First Information Report taken at its face value and accepted at its entirety, that does not constitute the offence alleged against the accused, I have no hesitation to hold that all further prosecution proceedings against the accused under such First Information Report would amount to an abuse of the process of the Court and are liable to be quashed, invoking the jurisdiction under S.482 of the Code of Criminal Procedure and I do so.”

6. In the decision in Sarath Chandran v. State of Kerala, 2025 (6)

KHC 25 in paragraph 10 this Court held that :

10.The diametrically opposite view taken by the other High Courts is that a customer in a brothel cannot be penalised under Sections 5 or 7 of the Act. I respectfully disagree with the reasoning in those decisions. In my view, a person utilising the service of a sex worker at a brothel cannot be termed a customer. To be a customer a person should buy some goods or services. A sex worker cannot be denigrated as a product. In most cases, they are lured into the trade through human trafficking and compelled to offer his/her body to satisfy the carnal pleasure of others. Indeed, the pleasure seeker may be paying money, a large chunk of which goes to the keeper of the brothel. The payment therefore can only be perceived as an inducement to make the sex worker offer his/ her body and act in accordance with the demands of the payer. Thus, a person availing the services of a sex worker in a brothel is actually inducing that sex wo