A customer cannot be prosecuted under Section 370 IPC but can be under Section 370A(2) IPC if the sex worker is trafficked and the customer had knowledge or reason to believe this.

Headnote:(A) Indian Penal Code, 1860 - Sections 370 and 370A (2) - Immoral Traffic (Prevention) Act, 1956 - Sections 3, 4, and 5 - Bharatiya Nyaya Sanhita - Sections 143 and 144 - Criminal Law (Amendment) Act, 2013 - A customer of a sex worker cannot be prosecuted for trafficking under Section 370 IPC, as the provision punishes the ‘trafficker’ who recruits, transports, harbours, transfers, or receives a person, and a customer seeking sexual gratification does not fall within that definition (Paras 15, 16) - A customer can be prosecuted under Section 370A(2) IPC, provided the sex worker is a trafficked person and the customer had knowledge or reason to believe the same; the provision punishes the end-user of trafficking (Paras 24, 25, 28) - Mere presence in the vicinity of a brothel is insufficient to prosecute under Section 370A(2) IPC; however, engagement of a trafficked person with requisite mens rea is sufficient, and actual sexual exploitation need not occur (Paras 39, 40, 41) - The court clarified that voluntary sex work is not prohibited and that the police should not harass voluntary sex workers or their clients (Paras 12, 33).

(B) Criminal Procedure Code, 1973 - Section 357-C - Constitutional law - Rights of sex workers - Guidelines from the Supreme Court in Budhadev Karmaskar v. State of W.B. (2022) 20 SCC 220 - Directed that voluntary sex workers are entitled to equal protection of law, should not be arrested or harassed during raids on brothels, and should be treated with dignity (Paras 5.1-5.11).

Facts of the case:
The present batch of criminal petitions, involving a large number of individuals allegedly customers or clients of sex workers, was placed before a Division Bench by the Hon’ble Acting Chief Justice following a reference order by a Single Judge. The Single Judge noted ambiguity regarding the applicability of Section 370A(2) of the IPC to customers and the evidentiary threshold for its invocation. The court broadly addressed three questions: (i) whether a customer is liable for trafficking under Section 370 IPC; (ii) whether a customer can be prosecuted under Section 370A(2) IPC; and (iii) whether mere presence in a brothel vicinity is sufficient for such prosecution. The Justice J.S. Verma Committee Report was also referenced, clarifying that Amendment was not intended to harass voluntary sex workers or their clients.

Findings of Court:
The court held that Section 370 IPC does not apply to customers, but Section 370A(2) IPC can apply if the sex worker is trafficked and the customer had knowledge or reason to believe same. Mere presence is insufficient; engagement with requisite mens rea is required. The existence of knowledge or reason to believe is a question of fact to be decided based on circumstances, and actual sexual exploitation need not be established for prosecution.

Issues: The main issues were: (i) Whether a customer of a sex worker is liable for trafficking under Section 370 IPC; (ii) Whether a customer can be prosecuted under Section 370A(2) IPC; (iii) Whether mere presence in a brothel, without specific acts of exploitation, is sufficient for prosecution under Section 370A(2) IPC.

Ratio Decidendi: The court ruled that the key to prosecution under Section 370A(2) IPC is the ‘engagement’ of a ‘trafficked’ person with knowledge or reason to believe they were trafficked. A customer who engages a trafficked person fits this description. Mere presence does not establish engagement or mens rea, but evidence of specific exploitation is not required if engagement and mens rea are otherwise proven. Result : Reference answered as per conclusions in paragraphs 42(i)-(iii).

Table of Content
1. reference order: scope and reframed questions (Para 1 , 2 , 3 , 4 , 5 , 6 , 7 , 8 , 9 , 10)
2. voluntary sex work not prohibited under ipc sections 370 and 370a (Para 11 , 12 , 13 , 14)
3. customer not liable for trafficking under section 370 ipc (Para 15 , 16 , 17 , 18 , 19)
4. customer liable under section 370a(2) ipc if mens rea proven (Para 20 , 21 , 22 , 23 , 24 , 25 , 26 , 27 , 28 , 29 , 30 , 31 , 32 , 33 , 34)
5. mere presence in brothel not sufficient for section 370a(2) (Para 35 , 36 , 37 , 38 , 39 , 40 , 41)
6. summary of answers to referred questions (Para 42)

COMMON ORDER ON REFERENCE:

(Per Hon’ble Sri Justice K. Lakshman)

1. The present batch of criminal petitions has been placed before this Division Bench by the then Hon’ble Acting Chief Justice, pursuant to the order dated 09.06.2025 passed by the learned Single Judge in CRLP No. 2767 of 2025 and batch [hereinafter “reference order”].

2. Seeking clarification regarding the applicability of Section 370A (2) of the Indian Penal Code, 1860 [hereinafter “IPC”] to customers of a sex worker, the learned Single Judge had referred the following questions to be decided:

“i. Whether mere presence in such premises, without evidence of specific acts of exploitation or management, is sufficient to constitute an offence under the said provisions?

ii. Whether the customer in Immoral Traffic (Prevention) Act, 1956 can be prosecuted for the offence punishable under Section 370-A (2) of the IPC?”

3. Before dealing with the questions to be decided in the present reference, we deem it appropriate to discuss the background and the reference order passed by the learned Single Judge.

4. The Petitioners herein, allegedly, are the “customers” or clients of sex workers. Some of them claim to be merely present in the vicinity of the brothel house. Alleging that they were inducing and abetting prostitution, FIRs were registered against them under Sections 3, 4, and 5 of the Immoral Traffic (Prevention) Act, 1956 [hereinafter “ITPA”], and Sections 370 and 370A (2) of the IPC (now Sections 143 and 144 of the Bharatiya Nyaya Sanhita).

5. Before the learned Single Judge, all the Petitioners had contended that the offences alleged against them pertain to human trafficking for the purpose of sexual exploitation. Since they were alleged to be mere customers, they contended that such offences would not apply to them. They contended that customers who pay money in exchange for sexual services cannot be held liable for trafficking or for sexual exploitation.

6. The learned Single Judge held that Sections 3, 4, and 5 of the ITPA would not apply to the “customers” of a sex worker. Likewise, it was held that the applicability of Section 370 of the IPC would depend upon the facts and circumstances of each case. However, with regard to the applicability of Section 370A(2) of the IPC to customers of a sex worker, the learned Single Judge noted that there was ambiguity in the correct legal position.

7. The learned Single Judge observed that different views had been expressed by multiple Benches of this Court regarding the applicability of Section 370A(2) of the IPC to customers and the evidentiary threshold required for its invocation. Likewise, the reference order noted that contrary views had been expressed on the question of whether the mere presence of a person in a brothel is sufficient to attract Section 370A(2) of the IPC. The relevant paragraphs of the reference order are extracted below:

“13. A plain reading of the aforesaid provision shows that in cases where a sex worker engages in prostitution out of her free will without there being any inducement, force or coercion, there is ambiguity whether the customer would come within the purview of Section 370 IPC. This Court is of the view that it would still be a question of fact whether the woman is carrying on the said profession out of her free will or not. Generally, going by the traditions of the country, no woman would enter the s

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A customer cannot be prosecuted under Section 370 IPC but can be under Section 370A(2) IPC if the sex worker is trafficked and the customer had knowledge or reason to believe this.

Cases Referred (1)