Kerala HC held brothel ‘customer’ criminally liable under Immoral Traffic (prevention) Act

In Mathew v State of Kerala, the Kerala High Court held that a ‘customer’ would come under the purview of a ‘person with whom the prostitution is carried on under Section 7(1) of the Immoral Traffic (Prevention) Act, 1956 as immoral traffic or sexual exploitation cannot be carried on without a client/person. The question raised by the Petitioner was whether a ‘customer’ in a brothel be proceeded against criminally under this Act or not.

The prosecution alleges that the first accused had taken a building situated 175 meters away from the Ravipuram Temple at Ernakulam, to conduct an Ayurvedic Hospital but under the cover ran the prostitution business. Accused number 2 was the supervisor and accused number 4 and 5 carried on prostitution in the said place.

On 15th of December 2004 at 2:45 pm, the third accused (petitioner) was found engaged in a sexual act with the fourth and fifth accused and paid Rs. 500/- (Rupees Five hundred only). Hence, he was accused of committing offenses under sections 3, 4, and 7 of the Immoral Traffic (Prevention) Act, of 1956. The Petitioner stated that he had approached the Ayurvedic Hospital for his back treatment and the doctor on duty advised him for an oil massage for a time period of thirty days. He was undergoing the said treatment when the police officer barged in arrested him and accused number 4 and 5 who were the nurses at the hospital.

The statement collected during the police investigation revealed that the petitioner was found in the company of two females (accused number 4 and 5) without any clothes on and engaged in a sexual act. To this, the judge said, “even if, for argument’s sake, the allegations are assumed to be true, still, he, being only a ‘customer’, cannot be proceeded against, as the statute does not contemplate prosecuting a ‘customer”. After this context was acknowledged the fourth and fifth accused pleaded guilty to the crime and were imposed with a fine. The second accused was discharged by the trial court whereas the proceedings of the first accused and the petitioner were pending before the Court.

The Learned counsel for the petitioner contended that Section 7 of the Act can be only proceeded toward his client and not Section 3 and 4 as they are applicable to the owner or any other person running a brothel. Also, in absence of the statute defining ‘customer’, the petitioner can not be roped in as an accused, this is an abuse of the process of court and the said proceedings are hanging over the petitioner’s head.

The Public Prosecutor K. A. Noushad contended that section 7 of the Act could alone be applied here. Hence, he sought the dismissal of the petition. After having a glance at the Act, it revealed that Section 7 is punishable under some specific regions and they are:

  1. Areas notified by State Government under section 7(3),
  2. Areas that are within a distance of two hundred meters from places of public religious worship, educational institutions, hostel, hospital, or nursing homes, and
  3. public place of any kind which is notified by the Commissioner of Police or Magistrate in the manner prescribed.

Further, the Act penalizes two types of people found engaged in prostitution under Section 7(1). Those persons are:

  1. The person who carries on prostitution and
  2. The person with whom such prostitution is carried on.

It was noted that the word ‘customer’ is not included in Sections 3 and 4 of the said Act nor the words ‘the person with whom such prostitution is carried on not appear in any other provision of the Act other than section 7. Hence indicating a different category of a person coming under the said provision.

To this, the judge remarked, “The meaning to be ascribed to the words the “person with whom such prostitution is carried on” is significant for this case. Those words will have 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. 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. Thus, the act of immoral traffic cannot be perpetrated or carried on without a ‘customer’.”

Therefore, the court dismissed by petition as it was firm in its 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.

Source: Livelaw, Bar and Bench

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