The Allahabad High Court recently observed that a customer visiting a brothel to satisfy his lust and not for the purpose of making commercial gains, would not be liable for prostitution-related offences under the Immoral Traffic (Prevention) Act (ITPA).The Court reasoned that it would be "prostitution" only if a person (prostitute) is sexually exploited or abused for commercial purposes (for earning money).A brothel customer may at best be viewed as someone who has engaged a prostitute to fulfill their lust rather than for such commercial ends, the Court opined.Justice Arun Kumar Singh Deshwal concluded that such a brothel customer would not be liable under Sections 3 to 9 of the ITPA, which concerns offences related to the practice of prostitution."The Court is of the view that if a person visits a brothel, then, at the most, he may be said to be a procurer of a prostitute to satisfy his lust but not for the purpose of prostitution because acquiring a person for prostitution means sexual exploitation or abuse for commercial purposes and not for any other purpose which does not have any commercial purpose or earning money ... a customer who visits the brothel will not be liable u/s 3/4/5/7/8/9 of the Act (ITPA)," the Court said in its February 22 order.The Court made the observation while quashing a case filed against a man (applicant) after he was found in an intimate position with a woman who was allegedly involved in prostitution.By way of background, on June 11, 2006, the police searched the house owned by a person named Haji, based on information that it was being used to run a brothel.During the search, the applicant was discovered in an intimate position with a woman (allegedly a prostitute) inside a locked room. According to the police, the Station House Officer (SHO) had observed both of them in this intimate position through the cracks in the door.Subsequently, a criminal case was filed, and several persons including the applicant were booked for offences under the ITPA.After a trial court took cognisance of the criminal case, the applicant filed a petition before the High Court to quash the criminal case against him.The applicant's counsel argued that being a customer at a brothel, would not attract any penalty under the ITPA unless the customer is involved in the business of prostitution.He further argued that the search of the alleged brothel was not conducted as per Section 15(2) of the ITPA as the search was not conducted in the presence of two local witnesses.The State argued that the applicant was caught red-handed at a brothel and that an offence under the ITPA was established against him.The Court examined Sections 3 to 9 of the ITPA individually to conclude that a brothel customer could not be held liable under any such provision.To summarise, the Court held:1. Since a customer cannot be said to be keeping or managing or acting or assisting in the keeping or management of a brothel because he simply comes and pays money to get a woman to satisfy his lust and nothing more, he would not be liable under Section 3 of ITPA;
2. Any customer who is not earning money from prostitution (of another) or helping or abetting the prostitution for money will not be liable to be punished Section 4 of ITPA;
3. Even if a person procures a woman who is involved in prostitution by paying money to satisfy his lust, he cannot be said to procure or induce the woman for prostitution. Therefore, merely being a customer will not attract the liability under Section 5, ITPA;
4. A customer cannot be said to carry on prostitution or help the prostitution because he does not get involved in running the business of prostitution. Even otherwise, if prostitution is not being carried on in a premises which is in the vicinity of any public place, Section 7 of ITPA will not be attracted;
5. Section 8 which punishes solicitation for prostitution, does not attract any liability on the customer found to be in any brothel;
6. Section 9 punishes persons who have authority over any person, including a woman, and persons aid or abet prostitution. This provision also does not attract any penalty for the person who was simply a customer without having any authority, charge or custody over the person who was involved in prostitution, the Court said.
The Court proceeded to quash the criminal case against the applicant since "a customer who visits the brothel will not be liable u/s 3/4/5/7/8/9 of the Act (ITPA)."
The Court also held that a search conducted in violation of Section 15(2) of the ITPA cannot be the sole ground to quash the case entirely.
A search in violation of Section 15(2) could be a ground to quash the ITPA case only if the accused shows that some prejudice has been caused due to the failure to adhere to the requirements of this provision. In this regard, reference was made to the Supreme Court's judgment in Sahib Singh vs. State of Punjab.
"A search conducted in violation of Section 15(2) of the Act can be said to be irregular but this ground cannot be the basis for quashing the impugned proceeding u/s 482 Cr.P.C. Still, this ground is available during trial, which can be decided on the basis of evidence, which may ultimately make the search doubtful," the Court concluded.
Advocates Anshumali Srivastava and Mayank Srivastava appeared for applicant.
AGA Arvind Kumar Tripathi appeared for the State.
TAGS: Allahabad High Court prostitution Immoral Traffic (Prevention) Act (ITPA) brothel criminal proceedings intimate position
