Can A Sex Worker’s Customer Be Charged With Trafficking ? Telangana HC Clarifies [Read Order]

The Division Bench held that mere presence of a person in the vicinity of a brothel is insufficient to attract Section 370A(2) IPC; actual engagement of a trafficked sex worker with requisite knowledge or reason to believe is necessary.

A Division Bench of the Telangana High Court has held that a customer of a sex worker cannot be prosecuted for the offence of trafficking under Section 370 of the Indian Penal Code, 1860. 

The Bench further held that prosecution under Section 370A(2) IPC is permissible only where the sex worker is a trafficked person and the customer had knowledge or reason to believe so. The Court also clarified that mere presence of an accused in the vicinity of a brothel, without evidence of engagement of a trafficked person, is not sufficient to attract Section 370A(2) IPC.

The matter came before the Division Bench on a reference made by a learned Single Judge in a batch of over a hundred criminal petitions filed by persons alleged to be customers of sex workers. FIRs had been registered against the petitioners under Sections 3, 4 and 5 of the Immoral Traffic (Prevention) Act, 1956 and Sections 370 and 370A(2) of the IPC. The Single Judge held that Sections 3, 4 and 5 of the ITPA would not apply to customers, but noted divergence among co-ordinate Benches on the applicability of Section 370A(2) IPC and referred two questions as to whether mere presence in a brothel suffices and whether a customer can be prosecuted under Section 370A(2)  to the Division Bench for authoritative determination.

The Division Bench, exercising its jurisdiction to reframe referred questions for better exposition, added a third question concerning the applicability of Section 370 IPC to customers. It prefaced its analysis by noting that voluntary sex work is not prohibited under Sections 370 and 370A IPC, as clarified by the Justice J.S. Verma Committee and affirmed by the Supreme Court in Budhadev Karmaskar v. State of W.B., (2022) 20 SCC 220, which directed that police must refrain from interfering with or taking criminal action against adult, consenting sex workers and their clients.

On the first question, the Bench answered emphatically in the negative. It held that Section 370 IPC punishes the act of trafficking the recruitment, transport, harbouring, transfer or receipt of a person for the purpose of exploitation and is directed at the trafficker, not the end user. 

It further also held that a customer who visits a brothel to avail sexual services is not a trafficker and a bilateral transaction between a sex worker and her customer cannot constitute trafficking. The Bench disapproved the observation in the reference order that applicability of Section 370 to a customer depends on facts and circumstances, holding that Section 370 is simply inapplicable to a customer. It clarified, however, that a person who procures or arranges a sex worker for a third party is not a mere customer and may face prosecution under Section 370 depending on the facts.

On the second question, the Bench held that a customer can be prosecuted under Section 370A (2) IPC, which punishes a person who, with knowledge or reason to believe that a person has been trafficked, engages such person for sexual exploitation.

Drawing on Article 19 of the Council of Europe Convention on Action against Trafficking in Human Beings the Court observed that the provision targets the end user of trafficking who drives the demand for trafficked persons. The word “engages” in Section 370A(2) means the hiring or availing of the services of a sex worker. Importantly, the Court held that actual sexual exploitation need not occur; the offence is complete upon engagement with the requisite mens rea. 

The Bench stressed that Section 370A(2) will not apply where a sex worker offers services voluntarily, and that the question of whether she was trafficked or acting of her own volition is one of fact to be determined in each case.

On the third question, the Bench held that mere presence of a person in the vicinity of a brothel is insufficient to attract Section 370A(2) IPC. The Court reasoned that what the provision penalises is the act of engagement coupled with knowledge or reason to believe in the trafficking not physical proximity to the premises. 

At the same time, the Court clarified that a person need not be found in the company of the sex worker inside a room for the offence to be made out. Where a person engages a trafficked sex worker through a pimp or broker, the act of dealing with such intermediary, with requisite knowledge, is sufficient. Additionally, the court also held that the presence in the premises is a relevant but not determinative factor, and courts must examine the totality of circumstances to determine whether engagement and the necessary mens rea are established.

Answering the reference, the Division Bench held: a customer of a sex worker cannot be prosecuted under Section 370 IPC; prosecution under Section 370A(2) IPC is permissible only if the sex worker is a trafficked person and the customer had knowledge or reason to believe so; and mere presence in the vicinity of a brothel is insufficient for prosecution under Section 370A(2), though engagement with requisite mens rea need not be established through evidence of specific sexual acts or physical proximity to the sex worker.

Cause Title: Mr. Konda Hemanth Kumar v. The State of Telangana & Anr. (Crl.P. No. 4093 of 2024 & batch)

[Read Order]