'Consumer' In A Brothel House Can Be Made Liable U/S 5 'Immoral Traffic Act' For Procuring Persons For Prostitution: Kerala HC

Justice P.G. Ajithkumar observed that since the word 'procure' had not been defined in the ITP Act, it has to be understood to achieve the object behind the statute. The Court stated that the statute was enacted to prevent commercialisation of the vices and trafficking among women and girls, a consumer in a brothel house can also be made liable for procuring a person for prostitution under Section 5 of the Act.

“The meaning of 'procure' given in Merriam Webster Dictionary is to get possession of; or to obtain something. If the said meaning of the word 'procure' is understood in the context of the aforesaid objective of the Statute, the person, who gets or obtains domain over a person for the purpose of prostitution, has to be said to procure a person for the purpose of prostitution. In that view of the matter, a consumer also comes within the purview of Section 5 of the ITP Act”, the Court stated.

The petitioner was found as a customer in a brothel house and was arrayed as 3^rd accused in a crime registered at the Alappuzha North Police Station. Accused nos. 4 and 6 were allegedly subjected to prostitution by accused nos. 1 and 2. Accused nos. 3 (petitioner) and 5 were allegedly arrayed as the customers.

The offences alleged were under Sections 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 prostitution) and 7 (prostitution in or in the vicinity of public places) of the ITP Act.

The petitioner filed an application for discharge which was dismissed by the Magistrate and charges were directed to be framed against him. Aggrieved by this, he has approached the High Court.

The counsel for the petitioner Advocates S A Anand, Arun Kumar P V contended that since he was a customer, he cannot be prosecuted under Sections 3,4,5 and 7 of the ITP Act. It was also argued that since he was a consumer, he could not be made liable under Section 5 of the ITP Act for procuring persons for prostitution.

On the other, Public Prosecutor Maya M N submitted that the term 'procure' in Section 5 takes in the act of a customer also.

On an analysis of Section 5 of the ITP Act, the Court stated that the term procure has to be interpreted to achieve the object behind the statute which was to prevent commercialization and trafficking of women and girls. It thus held that consumers can also be made liable under Section 5.

The Court also stated that contentions raised by the petitioner that prosecution was illegal as procedural safeguards under Section 15 of the Act were not followed were untenable. It held that the procedural safeguards were only meant to protect the interest of the victims and offenders and were not a condition precedent for prosecution.

Accordingly, the Court disposed of the revision petition stating that the petitioner can be charged under Section 5 of the ITP Act, whilst discharging him from other offences.

“Accordingly, this Revision Petition is disposed of holding that the petitioner is liable to be charged for an offence under Section 5 of the ITP Act alone. Insofar as offences punishable under Sections 3, 4 and 7 of the ITP Act, the petitioner is discharged and the impugned order to that extent is confirmed.”

Citation: 2023 LiveLaw (Ker) 766

Case number: CRL.REV.PET NO. 1208 OF 2023

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