Justice Dr. Gautam Chowdhary held,

“If a person visits a brothel as a customer, then at the most, he may be procuring a prostitute to satisfy his personal lust, but not for the 'purpose of prostitution' as defined under the Act (which requires commercia exploitation). Therefore, a customer who pays money for gratification cannot be prosecuted under Section 3, 5, or 7 of the Act.”

On information that women were engaged in the sex trade at a house near the DLF police chowki at Bhojpura crossing, Ghaziabad, the police raided the premises and apprehended 16 persons, nine of them women and seven men. The women stated that they were engaged in the sex trade and paid a share of their earnings to the man in whose house they were found. An FIR was lodged the same day, a charge sheet was submitted under Sections 3, 4, 5 and 7 of the Act. Thereafter, cognizance was taken by the Magistrate.

Applicant, one of the persons charge-sheeted, approached the High Court under Section 482 Cr.P.C. for quashing the proceedings, the charge sheet and the summoning order. It was argued that Section 15(2) of the Act, which requires the presence of two independent local witnesses, had not been complied with. It was urged that even if the allegations in the FIR were taken to be true, no offence was made out against the applicant as he was merely a customer who had visited the premises.

Reliance was placed on a decision of the High Court in Dinesh Tiwari @ Dhirendra Kumar Tiwari v. State of U.P. and another, where it was held that a customer cannot be said to keep or manage, or to act or assist in the keeping or management of, a brothel under Section 3 of the Act, since he only comes and pays money for gratification.

Counsel for State opposed the application on grounds that the applicant was caught red-handed during the raid at a house being run as a brothel and had procured prostitution by payment of money.

On the record, the Court found the applicant to be a customer.

“…the applicant was merely a customer and he had come to satisfy his personal lust after paying the money and not for the purpose of prosecution and therefore the provisions of Section Sections 3, 4, 5, 7 of Immoral Traffic (Prevention) Act, 1956 is not attracted against the applicant, thus continuance of the proceedings against the accused applicant, would amounts to sheer misuse of the process of Court”

Accordingly, the application was allowed. The proceedings pending before the Civil Judge (Junior Division)/F.T.C. Judicial Magistrate, Ghaziabad, along with the charge sheet and the summoning order, were quashed.

Case Title: Nitin v. State of U.P.