A Brothel 'Customer' Doesn't Procure Woman For Commercial Purposes; Can't Punish Him Under 'Immoral Traffic Prevention Act': Allahabad HC

The Allahabad High Court recently observed that If a person ('customer') comes to a brothel and pays money for the satisfaction of his lust, then, at the most, it can be said that he procures a woman to satisfy his lust and not for commercial purposes and hence, it can't be said that he procured or induced the woman for prostitution.A bench of Justice Arun Kumar Singh Deshwal added that merely the presence of a person as a customer at a brothel would not attract the ingredients of offences u/s 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 the sake of prostitution), 7 (Prostitution in or in the vicinity of public places), 8 (Seducing or soliciting for purpose of prostitution) and 9 (Seduction of a person in custody) of the Immoral Traffic (Prevention) Act, 1956. "...this Court is of the view that if a person visits a brothel, then, at the most, he may be said to be a procurer of a prostitute to satisfy his lust but not for the purpose of prostitution because acquiring a person for prostitution means sexual exploitation or abuse for commercial purposes and not for any other purpose which does not have any commercial purpose or earning money," the Court observed as it endorsed the view of the Gujarat High Court, Karnataka High Court, as well as Andhra Pradesh High Court that merely the presence of a person as a customer at a brothel would not attract the ingredients of offence u/s 3/4/5/7/8/9 of the Act.The Court made these observations while dealing with a quashing petition filed by an accused/applicant booked under Sections 3/4/5/7/8/9 of the Immoral Traffic (Prevention) Act, 1956 on the allegations that he was found in an intimate position with co-accused lady "S" (name changed), who was allegedly involved in prostitution in a locked room.In his quashing plea, it was argued by his counsel that the applicant was simply a customer, and simply being a customer at any house that is being used for prostitution will not attract any penalty under the Act unless there is the involvement of the customer in the business of prostitution.A second contention was also raised that the search of the alleged brothel was not conducted as per the mandatory provision of Section 15(2) of the Act as the search was not conducted in the presence of two local witnesses.On the other hand, the AGA, appearing for the state argued that since the applicant was caught red-handed during the search of a house that was being used as a brothel, therefore an offence under the Act was made out against him. It was further submitted that being a customer, it was the applicant who procured a prostitute for consideration of money to satisfy his lust. Therefore, ingredients of the offence u/s 3/4/5/7/8/9 of the Act are attracted.High Court's observations Perusing the mandate of Section 3 of the Act, the Court noted that a customer cannot be said to be keeping or managing or acting or assisting in the keeping or management of a brothel because he simply comes and pays money to get a woman to satisfy his lust and nothing more and therefore, such a customer can't be punished under Section 3 of the Act.So far as Section 4 was concerned, the Court noted that this Section provides punishment for a person who knowingly lives on the earnings of prostitution and therefore any customer who is not earning money from prostitution or helping or abetting the prostitution for money will not be liable to be punished u/s 4 of the Act.Regarding the invocation of Section 5 against the accused applicant, the Court noted that a person can be held liable under the said Section only if he procures, induces or takes a person for the sake of prostitution and therefore, If a person comes to a brothel and pays money for the satisfaction of his lust, then, at the most, it can be said that he procures a woman to satisfy his lust and not for commercial purposes. "Therefore, even if a person procures a woman who is involved in prostitution by paying money to satisfy his lust, he cannot be said to procure or induce the woman for prostitution. Therefore, merely being a customer will not attract the liability u/s 5 of the Act," the Court added.About offended under section 8, the Court noted that the provision doesn't attract any liability on the customer found to be in any brothel as this section provides punishment for a person if he attempts or endeavours to attempt or attract the attention of any person for the purpose of prostitution in any public place."Therefore, this Section is for the person who is either a prostitute or pimp or touts or attracts in any manner the other person (customer) for the purpose of prostitution," the Court noted.Lastly, about the application of Section 9 in the instant case, the Court observed that this provision provides punishment for those persons who have authority over any person, including a woman, and...

A Brothel 'Customer' Doesn't Procure Woman For Commercial Purposes; Can't Punish Him Under 'Immoral Traffic Prevention Act': Allahabad HC

Sparsh Upadhyay

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