Customer Of Sex Worker Not Liable For Trafficking Unless He Plays Role In Procuring Women For Another Person: Orissa High Court

The Orissa High Court has held that customers cannot be prosecuted under Sections 370(3) and 370A(2) IPC for trafficking and sexually exploiting sex workers, when no evidence is available on record that such persons were trafficked by the customers or they had knowledge about such trafficking.

While elucidating the liability of sex-customers, the Single Bench of Justice Sibo Sankar Mishra held –

“Though exception to the judicial trend of exonerating the customers under the Act, 1956 are limited, but on the strength of weak evidence the customer cannot be tried for under the provisions under Sections of Immoral Traffic (Prevention) Act, 1956. It is only when the customer performs his role of procuring the women for another, the offence under Section 370A IPC could be employed into action against the customer.”

Brief Facts

The petitioners went to a spa where under the guise of running a spa centre, a brothel was being run. On 19.05.2018, a raid was conducted in the spa from where eight young girls were found. Further, seven of those girls were found in compromising positions having sexual activities with some customers, including the present petitioners.

On verification of passports and visas, it was ascertained that all the girls were from Thailand and they were in the age group ranging between 27 to 35 years. After investigation, the police filed charge-sheet against the accused persons, including the petitioners under Sections 3, 4, 5, 6 and 7 of Immoral Traffic (Prevention) Act, 1956 and Sections 370(3) and 370A(2) of the IPC.

The petitioners were aggrieved by the addition of Sections 370(3) and 370A(2) of the IPC against them. Therefore, they approached the High Court seeking to quash cognizance taken by the Court below against them under the aforesaid Sections.

Contentions of Parties

It was contended on behalf of the petitioners that they are neither the owners of the spa nor the managers, rather they were mere customers. They had no clue regarding the identity of the girls and they were also unaware of the age of the girls and if the victims were trafficked.

Therefore, it was submitted that the allegations against the petitioners were not prima facie made out. Thus, it was prayed that cognizance under Sections 370(3) and 370A(2) of the IPC against the petitioners be quashed.

However, the counsel for the State argued that the cognizance has been rightly taken against the petitioners as offences under the aforesaid penal provisions are prima facie made out against them.

Court's Observations

The Court, at the outset, observed that Section 370(3) of the IPC provides for punishment of offence involving the trafficking of more than one person. Similarly, Section 370A(2) prescribes punishment for a person who knowingly or having reason to believe that a person has been trafficked, engages such person for sexual exploitation in any manner.

The Bench, however, noted that statements of none of the victim girls were recorded by the police under Section 161 of the CrPC and they were also not cited as prosecution witnesses.

“Therefore, the allegation that the girls were trafficked and thereafter sexually exploited is a matter found mentioning in the narration of the charge sheet but there is no evidence collected and placed before the Court. In the absence of such evidence likely to come on record, securing conviction against the petitioners is impossible,” it added.

The Court further observed that the petitioner were only the customers of the spa where other accused persons were allegedly running a brothel. Therefore, it held, the role of the petitioners in trafficking the women for sexual exploitation is not forthcoming from the evidence.

“All the alleged victim girls were from Thailand, and they were adults. Nothing has come on record to suggest that they were sexually exploited; rather they were into prostitution out of their own volition. That's what is borne out from record,” it held.

The Court then placed reliance upon two judgments of the Karnataka High Court in Chandru S v. The State by Malleshwaram P.S and Sri Roopendra Singh v. State of Karnataka wherein it was held that Sections 370(3) and 370A(2) of the IPC are not attracted so far as customers are concerned.

“The act of sexual intercourse for consideration is not illegal per se under the Immoral Trafficking (Prevention) Act,1956. But the intent of legislation is only to ensure that women/girls are not illegally trafficked for the purpose of prostitution, and they are exploited. Soliciting or inducing or seducing for the purpose of prostitution is illegal but prostitution per se is not illegal,” Justice Mishra observed.

In the present case, the Court held, none of the sex workers have stated that they were sexually exploited or abused sexually or they were trafficked. In the absence of material that women were trafficked for the purpose of engaging in sexual exploitation, the offence under Section 370A(2) of IPC will not be attracted against the customer.

It was also held that no material was produced to show that the customers had reason to believe that the victims were trafficked for sexual exploitation. Thus, the Court deemed it proper to quash the case against the appellants under Sections 370(3) and 370A(2) of the IPC.

Case Title: Bikash Kumar Jain & Anr. v. State of Odisha

Case No: CRLMC No. 3390 of 2023

Date of Judgment: February 09, 2024

Counsel for the Petitioners: Mr. Amit Prasad Bose, Advocate

Counsel for the State: Mr. B.K. Ragada, Addl. Govt. Advocate

Citation: 2024 LiveLaw (Ori) 12

Click Here To Read/Download Order