'No Inducement Of Prostitution': Kerala High Court Quashes Criminal Proceedings Against Brothel Customer

Justice C. Pratheep Kumar was considering a plea preferred by a man who was arrayed as 4^th accused in a crime alleging commission of the offences under Sections 3(1), 3(2)(a) [Punishment for keeping a brothel or allowing premises to be used as a brothel] of the Immoral Traffic (Prevention) Act, 1956.

The prosecution allegation is that the 1^st and 2^nd accused rented a building and conducted a brothel there with the intention of making earnings out of it. It is alleged that the petitioner herein paid some money online and used the service of one of the women in the brothel.

The petitioner contended that he was merely a customer and the offences under Section 3 do not lie against him.

The prosecution opposed the plea and argued that since subsequently, the offences under Sections 5(1)(a), 5(1)(d) [Procuring, inducing or taking woman or girl for the sake of prostitution] and 7(1) (b) [Prostitution in or in the vicinity of public places] and Sections 143(1)(f) [Trafficking of person], 144(2) [Exploitation of a trafficked person] and 34 BNS (Bharatiya Nyaya Sanhita) were revealed, proceedings cannot be quashed.

Prosecution relied on the decision in XX v. State of Kerala, wherein the Court had held that a person availing services of sex worker 'induces prostitution' and can be prosecuted under Section 5 of the Act.

The Court examined Sections 3, 5 and 7 of the Act and referred to various decisions of the Court wherein it was held that a 'customer' of a brothel cannot be held liable under Sections 3, 4 or 5 of the Act.

It remarked:

“in order to attract the offence under Section 5(1)(a) of the Act, a person should procure, induce or take persons for the purpose of prostitution. In order to attract the offence under Section 5(1)(d) of the Act, a person should cause or induce a woman or girl to carry on prostitution… In the instant case, even as per the prosecution case, the women were kept in the brothel by the accused persons 1 and 2 and they were not brought by the petitioner. The prosecution also has no case that the petitioner caused or induced the women to carry on prostitution. Therefore, the allegations raised against the petitioner do not constitute the offence punishable under Section 5 of the Act.”

With respect to the offence under Section 7, the Court opined that the prosecution does not have a case that the alleged incident occurred in a notified area or near a place where there is public religious worship.

It rejected the prosecution's contention that the place of occurrence was within a distance of 50 meters from place of religious worship since a Cross Chapel is not a place where there are any ceremonies like holy mass or service.

“The prosecution has no case that the alleged place of incident is a notified area. It is contended that there is a Cross Chappel…within a distance of 50 metres from the place of occurrence. It is not a place where there are any ceremonies like holy mass or service so as to be called as a public religious worship. Therefore, in the facts of this case the offence under Section 7 of the Act is also not attracted,” the Court added.

Thus, it allowed the plea and quashed all criminal proceedings against the petitioner.

Case No: Crl.M.C. No. 9656 of 2025

Case Title: xxx. v. State of Kerala and Anr.

Citation: 2026 LiveLaw (Ker) 114

Counsel for the petitioner: Baby Thomas, K.K. Mohandas, Mariamma Joseph, Biju George, Indrajith S. Kaimal, Alberthove Francis M.G., Ehlas Haleema C.K., Alicia Jose, Johny George

Counsel for the respondents: Anima M. – Public Prosecutor

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