S.370A IPC Not Attracted To Brothel Customers Unless It Is Shown They Had Knowledge That Sex-Worker Was Trafficked: Telangana High Court

The Telangana High Court has held that Section 370A of the Indian Penal Code cannot be interpreted to include a 'customer' within its ambit, unless there is evidence to prove that he had knowledge or reason to believe that the sex-workers were trafficked.

"...the complainant is always the Police Agency, who raids on the brothel houses, and that at that particular point of time, the customers whether knowingly by or having reason to believe that a person has been trafficked, engages such person for sexual exploitation in any manner have come to the brothel house or not, cannot be stated by the Police Agency at that particular point of time, in order to attract the said offence."

The Bench of Justice G. Anupama Chakravarthy observed that to attract section 370A to a customer, the Police needs to prove knowledge of trafficking on part of customer.

"However, the issue as to whether the customer has the knowledge that the person is trafficked or engaged for sexual exploitation has to be analyzed in order to punish him for the said offence....Furthermore, at the stage of filing of the FIRs, the Police Agency could not prove that the customers have knowledge and/or the reason to believe that the women were trafficked for the purpose of sex work."

The bench also noticed in a batch of quash petitions, that none of the statements given by the sex workers under section 161 of CrPC would indicate that they had been trafficked; per contra, their statements disclosed that they had willingly participated in the work.

Justice Chakravarthy further observed that the prevention of Immoral Trafficking Act does not prohibit the act of sex work itself but only penalizes trafficking of minors and women. Adding to that, it was observed that there is no specific section that indicts a customer.

"The Act, 1956 does not prohibit the sale of sexual services per se but it does criminalise the exploitation of sexual workers by third parties or any aspect of sex work that is likely to cause public nuisance. The Act, 1956 does not explicitly mention the customer’s liability," it noted.

The Court noted that in many cases where customers are indicted under Section 370A and other sections of the Immoral Trafficking Act, 1956 the police has no way to prove Mens Rea.

It was held that mere presence, cannot amount to sexual exploitation as defined under section 2(f) of the Act. Like in the present case, there were no medical tests conducted to establish sexual activity or link the customer to the Sex Worker, court said.

The Court took note of the fact that section 3, 4,5 and 6 of the Immoral Trafficking Act cannot be attached to a customer either, which stipulate punishment for keeping a brothel or allowing premises to be used as a brothel, punishment for living on the earnings of sex work, procuring, inducing or taking a person for the sake of sex work and detaining a person in premises where sex work is carried on, respectively.

Justice Chakravathy pointed out that the Police not only failed to prove sexual relations, but also failed to establish any kind of monitory transaction and hence even section 7 of the Act, that stipulates sex work in or in the vicinity of public places cannot be attached either.

“Admittedly, even the 161 Cr.P.C. statements do not disclose that there was proof of any exchange of money. There is no specific provision under the Act, 1956, that is directed towards the customers.”

Thereby, all petitions filed by customers as petitioners/accused seeking to quash crimes registered against them were allowed.

Bikki Krishna Pranav vs. State of Telangana and batch.

CRLP 6020/2023, 5073/2023, 5560/2023, 5673/2023, 5983/2023, 5954/2023, 6106/2023, 6110/2023, 6198/2023, 6299/2023, 6932/2023, 6952/2023, 6876/2023, 6266/2023, 6626/2023, 6282/2023, 6183/2023, 6717/2023, 7058/2023, 7140/2023 and 7164/2023

16/08/23

Petitioner Advocate: Maram Anil Kumar, Nageshwar Rao Pujari, Rajeshwar Reddy Cheemarla, T S Praveen Kumar, Maram Anil Kumar, C Vijaya Shekar Reddy, K Venumadhav, R R Kalyan, S. Ram Reddy, T Rajinikanth Reddy, Pranay Aditya Boyini, Md Fasiuddin, Mettu Shankar, Venkat Rao Patil, Shaik Mahammad Hussen.

Respondent Advocate: Public Prosecutor

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