Mere Presence Of The Person In The Brothel During Raid Does Not Entail Penal Consequences: Madras High Court

In the present case, the allegation against the petitioner was that he was present along with the sex workers at the time when the police party raided a massage centre. He was thus apprehended and arrayed as an accused. He was charged with offences punishable under Sections 3(2) a, 4(1), 5(1)a and 5(1)d of the Immoral Traffic (Prevention) Act, 1956 and 370A (2) of the Indian Penal Code.

The petitioner contended that even if the allegations were to be taken together, it would not attract the offences as alleged. He submitted that doing sex work was not illegal and it was running a brothel which was illegal. He further submitted that the sex workers were engaged in prostitution of their own volition and without any inducement, force, or coercion and therefore no prosecution was warranted under Section 370 of the IPC.

After going through the documents, the court noticed that the FIR does not reveal the presence of the petitioner at the alleged place. Even as per the submission of the respondent, the brothel was run by Accused 1 and not the present petitioner. Further, the petitioner was not shown as an accused in the FIR but only in the Alteration report. Even if the reports were to be considered, it would not show any offence committed by the petitioner except his presence at the place.

The bench relied on the decision of Budhadev Karmaskar v. The State of West Bengal & Ors (2022Live Law (SC) 525), wherein the Apex Court had held that whenever any brothel is raided, sex workers should not be arrested or penalised or harassed or victimised and it is only the running of the brothel, which is unlawful.

The court opined that since there was no evidence to show that there was coercion by the petitioner on the sex workers to commit the act, he could not be penalised for his mere presence at the place. The court reiterated that as per the decision of the Supreme Court in the above case, any sex worker, being an adult and indulging in a sexual act with his/her own consent, the police authorities should refrain from taking action against such individuals. The act of the petitioner would not amount to an act of pressurizing the sex workers to commit acts against their volition.

Therefore, the court allowed the petition and quashed proceedings against the petitioner.

Case Title: Udhaya Kumar v. The State and others

Case No: Crl. O.P No. 10334 of 2022

Citation: 2022 LiveLaw (Mad) 257

Counsel for the Petitioner: Mr. D. Prasanna Kumar

Counsel for the Respondent: Mr. A Gokulakrishnan, Additional Public Prosecutor