A Brothel 'Customer' Doesn't Procure Woman For Commercial Purposes; Can't Punish Him Under 'Immoral Traffic Prevention Act': Allahabad HC

The Allahabad High Court recently observed that If a person ('customer') comes to a brothel and pays money for the satisfaction of his lust, then, at the most, it can be said that he procures a woman to satisfy his lust and not for commercial purposes and hence, it can't be said that he procured or induced the woman for prostitution.

A bench of Justice Arun Kumar Singh Deshwal added that merely the presence of a person as a customer at a brothel would not attract the ingredients of offences u/s 3 (Punishment for keeping a brothel or allowing premises to be used as a brothel), 4 (Punishment for living on the earnings of prostitution), 5 (Procuring, inducing or taking person for the sake of prostitution), 7 (Prostitution in or in the vicinity of public places), 8 (Seducing or soliciting for purpose of prostitution) and 9 (Seduction of a person in custody) of the Immoral Traffic (Prevention) Act, 1956. 

"...this 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," the Court observed as it endorsed the view of the Gujarat High Court, Karnataka High Court, as well as Andhra Pradesh High Court that merely the presence of a person as a customer at a brothel would not attract the ingredients of offence u/s 3/4/5/7/8/9 of the Act.

The Court made these observations while dealing with a quashing petition filed by an accused/applicant booked under Sections 3/4/5/7/8/9 of the Immoral Traffic (Prevention) Act, 1956 on the allegations that he was found in an intimate position with co-accused lady "S" (name changed), who was allegedly involved in prostitution in a locked room.

In his quashing plea, it was argued by his counsel that the applicant was simply a customer, and simply being a customer at any house that is being used for prostitution will not attract any penalty under the Act unless there is the involvement of the customer in the business of prostitution.

A second contention was also raised that the search of the alleged brothel was not conducted as per the mandatory provision of Section 15(2) of the Act as the search was not conducted in the presence of two local witnesses.

On the other hand, the AGA, appearing for the state argued that since the applicant was caught red-handed during the search of a house that was being used as a brothel, therefore an offence under the Act was made out against him.

It was further submitted that being a customer, it was the applicant who procured a prostitute for consideration of money to satisfy his lust. Therefore, ingredients of the offence u/s 3/4/5/7/8/9 of the Act are attracted.

High Court's observations 

Perusing the mandate of Section 3 of the Act, the Court noted that 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 and therefore, such a customer can't be punished under Section 3 of the Act.

So far as Section 4 was concerned, the Court noted that this Section provides punishment for a person who knowingly lives on the earnings of prostitution and therefore any customer who is not earning money from prostitution or helping or abetting the prostitution for money will not be liable to be punished u/s 4 of the Act.

Regarding the invocation of Section 5 against the accused applicant, the Court noted that a person can be held liable under the said Section only if he procures, induces or takes a person for the sake of prostitution and therefore, If a person comes to a brothel and pays money for the satisfaction of his lust, then, at the most, it can be said that he procures a woman to satisfy his lust and not for commercial purposes.

"Therefore, 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 u/s 5 of the Act," the Court added.

About offended under section 8, the Court noted that the provision doesn't attract any liability on the customer found to be in any brothel as this section provides punishment for a person if he attempts or endeavours to attempt or attract the attention of any person for the purpose of prostitution in any public place.

"Therefore, this Section is for the person who is either a prostitute or pimp or touts or attracts in any manner the other person (customer) for the purpose of prostitution," the Court noted.

Lastly, about the application of Section 9 in the instant case, the Court observed that this provision provides punishment for those persons who have authority over any person, including a woman, and they aid or abet such person for prostitution.

However, the Court further noted, since in the instant case, it was undisputed that the applicant was not in the custody or authority or care over the lady "S", who was involved in prostitution, therefore, the Court ruled that Section 9 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.

Against this backdrop, the Court held that merely the presence of a person as a customer at a brothel would not attract the ingredients of offence u/s 3/4/5/7/8/9 of the Act.

Further, regarding the search conducted by the police in the instant case, the Court noted that the non-presence of independent witnesses, as required u/s 15(2) of the Act, was clearly explained by the police as no one was ready to accompany them to search the house which was being used for prostitution.

Therefore, the Court added, unless a prejudice is shown to be caused to the applicant during trial by the applicant, the prosecution story merely on the violation of Section 15(2) of the Act cannot be thrown out.

"...this Court is of the view that lacuna in search is a question that should be decided during trial and proceeding cannot be quashed only on the ground that there is irregularity or non-compliance of Section 15(2) of the Act while conducting the search of a house, being used for prostitution because in practical, none of the persons of locality comes forward to accompany the police in case of search of a brothel. If such ground is considered for quashing the proceedings under the Act, then most of the proceedings will be quashed without going to trial...Therefore, this Court also holds that the direction of Section 15(2) 6 of the Act is directory in nature and not mandatory despite the use of the word "shall" in Section 15(2) of the Act," the Court observed as it ruled that 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 CrPC.

However, finding that no case u/s 3/4/5/7/8/9 of the Act was made out against the present applicant, the Court allowed the petition and quashed the criminal proceedings against the applicant-accused pending in a court in Lucknow.

Case title -  ABC vs State Of U.P. Thru. Prin. Secy. Home Civil Sectt. Lko. And Another 2024 LiveLaw (AB) 109 [name of the applicant hidden]

Case Citation: 2024 LiveLaw (AB) 109

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