Can Clients Of Sex Workers Be Prosecuted Under Sections 370 Or 370A IPC? Andhra Pradesh High Court Division Bench To Decide

A single judge of the Andhra Pradesh High Court has made a reference for a decision of a division bench on the legal question whether clients or customers of sex workers can be prosecuted under Sections 370 and 370A IPC.

"Registry is directed to place the matter before the Hon'ble the Chief Justice for constitution of an appropriate Bench for deciding the reference 'whether, in a case registered for the offences under Sections 3 to 7 of the Immoral Traffic (Prevention) Act, 1956, a customer can be prosecuted for the offences under Sections 370 or 370A of the Indian Penal Code, 1860?'", the court said.

Though Justice K. Sreenivasa Reddy in the decision held that a 'customer' would come within the ambit of Section 370A IPC, it noted that conflicting decisions have been rendered by co-ordinate benches on similar question of law. 

"In view of the conflicting orders passed by the learned single Judges of this Court, to put a quietus to the issue, it is desirable to refer the matter to a Division Bench for an authoritative pronouncement and to attain finalty as whether a customer can be brought into purview of Sections 370 and 370A IPC," said the court.

Justice Reddy said that, “When the object of the Justice J.S Verma committee (for Section 370A IPC) is to prevent this kind of nefarious activities, there is no reason as to why a customer can be considered to be an innocent victim in the flesh trade.”

The court was hearing a batch of petitions seeking quashing of the criminal proceeding against the clients of sex workers. The cases were filed for the offence of sexually exploiting the women who were trafficked, under Sections 370A(2) IPC and 3, 4, 5, and 7 of the Immoral Traffic (Prevention) Act, 1956 (the Act, 1956). The petitions were filed on the ground that the clients of sex worker or customer would not come within the purview of the offences under Sections 3, 4 and 5 of the Act, 1956 and 370 and 370A IPC and hence, cannot be prosecuted for the offences.

However, the prosecution argued that prima facie a case for the offence under Section 370A IPC would be made out as against a customer, as they were caught red-handed by the officials at the time of the raid. Whether the case is one of attempt, or to commit an offence or preparation, would be the subject matter of investigation or trial, and at this stage, the Court in a petition under Section 482 CrPC, would not be in a position to conduct a roving enquiry to go into these details, the counsel submitted.

On the other hand, the counsel for the petitioner argued that clients of sex workers cannot be held liable under Sections 3 and 5 of the Act, 1956 as the law is silent as to the offenses committed by the customers who visit the houses of victims.

The court said the question regarding invocation of Section 3 and Section 4 "is no longer res integra for the reason that this Court, in its Order dated 12.06.2013 in Criminal Petition No.408 of 2011, passed an order to the extent that the customer would not come within the purview of Sections 3 and 4 of the Act, 1956. Accordingly, the proceedings as against the petitioners in respect of offences under Sections 3 and 4 of the Act, 1956 are not maintainable."

However, the court noted that the police are registering cases against a customer for the offences punishable under Sections 3, 4 and 5 of the Act, 1956 along with Section 370 IPC.

"A plain reading of the aforesaid provision goes to show that the main object of the provision is prevention of exploitation of a girl or a woman. It makes very clear that whoever, for the purpose of exploitation, recruits, transports, harbours, transfers or receives a person by using threats, or using force or any other form of coercion, or by abduction, or by practicing fraud or deception, or by abuse of power, commits the offence of trafficking. The Section has been enacted by the Legislature with the avowed object of preventing sexual exploitation of a girl or woman," said the court, while referring to Section 370 IPC.

It added that the provision makes it very clear that whoever, for the purpose of exploitation, recruits, transports, harbours, transfers or receives any girl or woman for the purpose of sexual exploitation, such person is guilty of the offence under Section 370 IPC. "The provision also makes it very clear that the consent of the victim is not material in determination of the offence of traffic. The expression 'exploitation' includes any act of physical exploitation or any form of sexual exploitation, slavery or practices similar to slavery, servitude, or the forced removal of organs," said the court.

The court also referred to the Gujarat High Court judgement in Vinod @ Vijay Bhagubhai Patel v. State of Gujarat, wherein the high court held that, “it is extremely difficult to take the view that a customer at a brothel is not covered within the provision of Section 370 of the Penal Code, 1860. A customer at a brothel could be said to receive the victim. I see no good reason why the customer should be kept out of Section 370 of the Penal Code, 1860”.

In the decision, the Gujarat High Court had also referred the clarification issued by the Justice Verma Commission on the intent of Section 370 wherein it stated that their intention behind recommending the amendment to Section 370 was to protect women and children from being trafficked. The Committee did not intend to bring within the ambit of the amended Section 370 sex workers who practice of their own volition. It was also clarified that the recast Section 370 ought not to be interpreted to permit law-enforcement agencies to harass sex workers who undertake activities of their own free will, and their clients.

Considering the above, the court observed that if a sex worker engages in prostitution out of her own free will without any inducement, force or coercion, it is unclear whether the customer would come within the purview of Section 370 IPC or not.

"This Court is of the view that it would still be a question of fact whether the woman is carrying on the said profession out of her free will or not. In generic, going by the traditions of the country, no woman would get into the said profession by choice unless and until she being forced to get into the said profession. Here, the view of this Court is whether it is out of free will or not, would remain a question of fact and the same has to be decided in the course of trial."

However, Justice Reddy also said that court feels there is no ambiguity in sub- section (2) of Section 370 A IPC. Referring to the case of S.Naveen Kumar @ Naveen v. State of Telangana, the court said:

"In the aforesaid decision, this Court has taken a view that 'customer' would come within the ambit of Section 370A IPC since the object of the committee under the Chairmanship of late Sri Justice J.S.Verma had interacted with cross sections of stake holders and after hearing them, suggested several amendments and introduction of various provisions in penal laws with an object of preventing the said nefarious activities. When the object of the committee is to prevent this kind of nefarious activities, there is no reason as to why a customer can be considered to an innocent victim in the flesh trade"

Case Title: Sheikh Ajmatulla v. State Of Andhra Pradesh

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