'Not Living On Earnings Of Sex Workers': Calcutta High Court Quashes Proceedings Against Brothel Customer

The Calcutta High Court on Monday held that a customer merely visiting a brothel for sexual pleasure cannot be held liable for offences under the Immoral Traffic (Prevention) Act 1956 (Act). 

Justice Ajoy Kumar Mukherjee underscored that what is punishable under the Act is sexual exploitation or abuse of a person for commercial purpose and to earn the bread thereby, keeping or allowing a premises as brothel.

"Mere visiting the house of sex worker as customer cannot be presumed to be living on earnings of sex workers. To invoke the presumption it must be shown that he was found in the company of the sex worker on some other occasion," the Court observed. 

In the instant case, an NRI businessman Suresh Babu was booked after he was arrested during a raid by the police on January 4, 2019. He was picked up from a local body massage center along with 8 women and one man.

It was contended by the prosecution that the other man arrested was a pimp while the women were sex workers and one of them was the owner of the brothel, that was being run under the guise of massage center. Offences under the Act were registered against all of them by the police authorities for running a brothel within the vicinity of a public place and living on the earnings arising from prostitution. 

Pursuant to the rival submissions, the Court enumerated that prostitution per se is not prohibited under the Act but that it is also equally true that a "customer" may virtually encourages prostitution and may exploit the sex worker for money but in the absence of any specific allegation and materials, it is doubtful whether the petitioner who is according to prosecution case merely a "customer" can be convicted with the help of materials in C.D. and under the said provisions of law.

The Court further observed that the provisions of the Act only punish sexual exploitation or abuse of a person for commercial purpose, however that was not the case against the applicant.

"I find no material in the case diary which can suggest that the present petitioner is living on earning of the prostitution. There is no material in the case diary that he was at the material time living with the sex worker or that he was habitual at the material time in her company. There is nothing to show that the petitioner exercised control, direction or influence over her movement in the way, which can be shown to be aiding or abetting her sex work," the Court stated. 

Accordingly,  the Court quashed the chargesheet and the criminal proceedings initiated against the petitioner by observing, 

"Having regard to the facts and circumstances of the present case and considering the materials that the petitioner was found in the alleged brothel as customer and that on the date of occurrence he only went there after coming from Dubai to have sex with a sex worker in lieu of money and in the absence of any evidence that he is living on the earning of any of the accused/sex worker or is a habitual visitor of the said place and thereby has exercised control, direction or influence over the movement of any of the sex worker against which can be said to be aiding or abetting their sex work or that he was habitually living with any of the accused sex worker, I find that the sections in which the cognizance has been taken by the Magistrate against the present petitioner is bad in law and the said cognizance is taken without considering the materials in the case diary."

Case Title: Suresh Babu @ Arakkal Arjunan Suresh Babu v. State of West Bengal

Case Citation: 2022 LiveLaw (Cal) 244

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