Brothel Customer Can Be Prosecuted U/S 7 Of Immoral Traffic (Prevention) Act: Kerala High Court

The Kerala High Court on Wednesday observed that a 'customer' in a brothel can be proceeded against criminally under Section 7 of the Immoral Traffic (Prevention) Act, 1956 if the conditions specified in the provision are satisfied.

Section 7 of the Act makes prostitution in certain specific areas punishable and the Court in this instant case observed that the words 'person with whom such prostitution is carried on' as appearing in section 7(1) of the Act will include a 'customer'.

 Justice Bechu Kurian Thomas observed, 

In the absence of the customer falling within the penal umbrella of the statute, the objects of the enactment can never be achieved. Thus, in my considered opinion, the words 'person with whom such prostitution is carried on' as appearing in section 7(1) of the Act will include a 'customer'.

The ruling assumes significance in face of settled position that a customer found in a brothel at the time of raid cannot be prosecuted under the Act.

The petition was moved by the third accused in a case before the Chief Judicial Magistrate's Court, Ernakulam. The prosecution alleged that the first accused had taken a building situated 175 metres away from the Ravipuram Temple at Ernakulam, to conduct an Ayurvedic Hospital and under the cover of the ayurvedic hospital permitted the conduct of prostitution and in December 2004 when the Police reached the building, the petitioner was found in the company of two women engaged in a sexual act and was booked for offences under Section 3,4 and 7 of the Act. 

According to the petitioner, even if, for argument's sake, the allegations are assumed to be true, he, being only a 'customer', cannot be proceeded against, as the statute does not contemplate prosecuting a 'customer'.

Advocate R. Santhosh Babu, appearing for the petitioner, submitted that since the petitioner's alleged conduct as a 'customer' is stated to be offensive, in the absence of the statute including a 'customer' within the scope of the Act, he cannot be roped in as an accused. The Counsel placed reliance an a number of High Court decisions including the Kerala High Court decision in Radhakrishnan v. State of Kerala and Vijayakumar and others v. State of Kerala and others, to substantiate his argument. 

Public Prosecutor Advocate K.A. Noushad on the contrary contended that Section 7 of the Act will apply to the petitioner since he can be regarded as a person with whom the "prostitution was carried on".

The Court observed that the Immoral Traffic (Prevention) Act, 1956, criminalized only certain activities connected with prostitution as well as prostitution in certain specific areas. 

The Court after perusing various provisions of the Act, pointed out that three different areas are contemplated under Section 7 of the Act which makes prostitution in certain specific areas punishable. They are:

(i) areas notified by the State Government under section 7(3),

(ii) areas that are within a distance of two hundred metres from places of public religious worship, educational institutions, hostel, hospital, or nursing home, and

(iii) public place of any kind which are notified by the Commissioner of Police or Magistrate in the manner prescribed.

Section 7(1) of the Act penalises two types of persons for indulging in prostitution within the areas specified. Those persons are

(i) the person who carries on prostitution and

(ii) the person with whom such prostitution is carried on.

The Court observed that the words 'person who carries on prostitution' in section 7(1) of the Act includes the prostitute also.

Till the year 1987, the words used in the first part of section 7(1) were "'women or girl who carries on prostitution…..". The words 'women or girl' were replaced with the word 'person' with effect from 26-01-1987, indicating that even a man can carry on prostitution. Thus the words 'person who carries on prostitution' in section 7(1) of the Act includes the prostitute also, the Court observed. 

The Court observed that the words "person with whom such prostitution is carried" has to be read in conjunction with the definition of the word prostitution. The term prostitution is defined as the sexual exploitation or abuse of persons for commercial purposes. Sexual exploitation cannot be done singularly and therefore the Court observed that the person engaged in the act of exploitation is also a person who falls within the term 'persons with whom such prostitution is carried on'.

In other words, the person who exploits or abuses the prostitute is the person with whom the prostitute carries on prostitution, the Court observed. 

The Court thereby observed that the act of immoral traffic cannot be perpetrated or carried on without a 'customer' and by using the words 'person with whom the prostitution is carried on' in section 7(1) of the Act the legislature has intended the customer also to be brought within the purview of the penal provisions.

The Court further observed that the decision in Vijayakumar and Others v. State of Kerala and Others which held that engaging in sexual activity even in a brothel is not made an offence and quashed the proceedings against a customer would not apply to the instant case as there is nothing to suggest that the aforesaid decision related to a notified area. 

In view of the above discussion, I am of the firm view that a 'customer' in a brothel can be proceeded against criminally under the provisions of section 7 of the Act if the other conditions of the section are satisfied, the Court added. 

Thereby, dismissing the Writ Petition. 

Case Title: Mathew v. State of Kerala 

Citation: 2022 LiveLaw (Ker) 639

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