Can Customer Of Sex Worker Be Prosecuted For Trafficking? Telangana High Court Explains Scope Of Sections 370 & 370A IPC

The Telangana High Court has held that a customer of a sex worker cannot be prosecuted for the offence of trafficking under Section 370 of the IPC; however the customer can be prosecuted under Section 370A(2) IPC if the sex worker is a trafficked person and the customer had knowledge or reason to believe the same. [2026 LiveLaw (Tel) 88]

For context, Section 370 IPC states that whoever, for the purpose of exploitation, (a) recruits, (b) transports, (c) harbours, (d) transfers, or (e) receives, a person or persons, by using threats, or using force, or any other form of coercion, or by abduction, or by fraud/deception, or abuse of power or by inducement, including the giving or receiving of payments or benefits, in order to achieve the consent of any person having control over the person recruited, transported, harboured, transferred or received, commits the offence of trafficking.

Section 370A(2) states whoever, knowingly by or having reason to believe that a person has been trafficked, engages such person for sexual exploitation in any manner, shall be punished with rigorous imprisonment for a term which shall not be less than three years, but which may extend to five years, and shall also be liable to fine.

A Division Bench of Justice K. Lakshman and Justice B.R. Madhusudhan Rao held:

“i. A customer of a sex worker cannot be prosecuted for trafficking under Section 370 of the IPC;

ii. A customer of a sex worker can be prosecuted under Section 370A(2) of the IPC, provided that such sex worker is a trafficked person and the customer had the knowledge or reason to believe the same; and

iii. Whether mere presence of a person in the vicinity of a brothel house or on premises where the business of prostitution is carried on is sufficient to prosecute a person under Section 370A(2) of the IPC depends on the facts and circumstances of each case. Further, a person can be prosecuted under Section 370A(2) of the IPC, even in the absence of evidence establishing specific acts of sexual exploitation, provided the material on record indicates engagement of a trafficked person for the purpose of sexual exploitation, with the requisite knowledge or reason to believe that such person was trafficked.”

The batch of criminal petitions was placed before the Division Bench pursuant to a reference made by a Single Judge, seeking clarification on the applicability of Section 370A(2) IPC to customers of sex workers and whether mere presence in a brothel, without evidence of specific acts of exploitation or management, would constitute an offence.

The petitioners were allegedly “customers” or clients of sex workers. Some of them claimed that they were merely present in the vicinity of the brothel house. FIRs had been registered against them under Sections 3, 4 and 5 of the Immoral Traffic (Prevention) Act, 1956 and Sections 370 and 370A(2) IPC.

The Court noted that the reference was primarily confined to Section 370A(2) IPC. However, since the reference order had observed that Section 370 IPC may apply to a customer depending on the facts, the Division Bench also decided to clarify the applicability of Section 370 IPC to customers of sex workers.

At the outset, the Bench noted that Sections 370 and 370A IPC were introduced by the Criminal Law (Amendment) Act, 2013 to protect women and children from trafficking, pursuant to the Justice J.S. Verma Committee recommendations. The Court, however, emphasised that the provisions “do not proscribe voluntary sex work”.

Referring to the clarification issued by the Justice Verma Committee, the Bench noted that Section 370 IPC was not intended to permit law enforcement agencies to harass voluntary sex workers or their clients. The Court also relied on the Supreme Court's decision in Budhadev Karmaskar v. State of W.B., where it was held that voluntary sex work is not illegal and that police must refrain from interfering when an adult sex worker participates with consent.

Answering the first issue, the Court held that Section 370 IPC penalises the trafficker who recruits, transports, harbours, transfers or receives a person for exploitation. A customer, the Court said, is a person who seeks sexual gratification by paying a sex worker for her services and “cannot be termed a trafficker.”

“As can be seen from the text of Section 370 of the IPC, it penalises the offence of “trafficking of person.” It punishes a “trafficker” who, for the purpose of exploitation, recruits, transports, harbours, transfers, or receives a person. The provision does not contemplate the prosecution of a customer of a sex worker. A customer herein is a person who seeks sexual gratification by paying a sex worker for her services. Such a person cannot be termed a “trafficker.” A person who merely visits a brothel house or premises where the business of prostitution is carried on cannot be prosecuted for trafficking. A transaction for sexual services involving only the sex worker and the customer cannot be termed trafficking".

The Bench, however, clarified that if a person procures, engages or arranges the services of a sex worker for another person, he cannot be treated as a “mere customer” and may, depending on the facts, be liable under Section 370 IPC.

On Section 370A(2), the Court held that the provision punishes the exploitation of a trafficked person, as distinct from Section 370, which punishes trafficking itself. The object of Section 370A(2), the Court said, is to punish the “end user of trafficking, who drives the demand for trafficked persons.”

The Court observed that the word “engages” in Section 370A(2) means hiring or availing of the services of a sex worker. Therefore, a customer who engages a sex worker for sexual services, while knowing or having reason to believe that she has been trafficked, can be prosecuted under the provision.

At the same time, the Court stressed that mens rea is central to Section 370A(2). It said that “knowledge” or “reason to believe” must be deduced from the facts and circumstances of each case, and courts must examine whether the surrounding circumstances were such that a reasonable person would conclude that the person engaged was trafficked.

The Bench added that courts may consider whether the customer dealt directly with the sex worker or through a third party such as a pimp, facilitator, broker, agent or brothel manager. The statement of the sex worker may also be relevant to determine whether she acted voluntarily or at the instance of another person.

Importantly, the Court clarified that actual sexual exploitation need not take place for Section 370A(2) to apply. The offence is attracted where there is engagement of a trafficked person for the purpose of sexual exploitation, with the requisite knowledge or reason to believe.

However, the Bench reiterated:

“Section 370A(2) of the IPC will not apply in cases where sexual services are offered voluntarily by the sex worker directly to a customer. Voluntary sex workers and their clients cannot be harassed by invoking Section 370A(2) of the IPC.”

On the issue of mere presence in a brothel, the Court held that such presence may be a relevant factor but, by itself, is insufficient to prosecute a person under Section 370A(2). The Bench further clarified that it is also incorrect to say that Section 370A(2) applies only when the customer is found with the sex worker.

“For instance, a person may engage a trafficked person through a pimp or a broker. In such a case, the act of engaging and dealing with the pimp, coupled with the knowledge or reason to believe, is sufficient to attract Section 370A(2) of the IPC. Such person need not be found in the company of the sex worker,” the Court said.

Accordingly, the reference was answered.

Case Title: Mr. Konda Hemanth Kumar v. State of Telangana & Anr. and batch

Case No.: Criminal Petition Nos. 4093 of 2024 & batch, along with Crl.R.C. No. 935 of 2025

Citation: 2026 LiveLaw (Tel) 88

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