Can case be registered against customer in brothel under Immoral Traffic (Prevention) Act? Kerala HC says yes [Read Order]

Kochi: The Kerala High Court recently held that a customer in a brothel can be hauled up in a case under the Immoral Traffic (Prevention) Act, 1956 (ITP Act).

 Accordingly, this Revision Petition is disposed of holding that the petitioner is liable to be charged for an offence under Section 5 of the ITP Act alone. Insofar as offences punishable under Sections 3, 4 and 7 of the ITP Act, the petitioner is discharged and the impugned order to that extent is confirmed, Justice PG Ajithkumar said.  

The allegation against the petitioner was that he was found as a customer in the house (brothel) from where all the accused were arrested. Accused numbers 4 and 6 were allegedly subjected to prostitution at the instance of two accused. Accused numbers 3 and 5 were alleged to be the customers.

Though the petitioner argued that a customer cannot be implicated for offences under the ITP Act, his petition seeking discharge was rejected. Aggrieved, he moved the High Court. 

The offences alleged against him were Sections 3, 4, 5 and 7 of the ITP Act. Section 3 deals with persons keeping a brothel or allowing premises to be used as a brothel. Section 4 deals with initiation of prosecution against those who are living on the earnings of prostitution. Under Section 5, a person who procures, induces or takes persons for the purpose of prostitution are liable. Section 7 makes prostitution in or in the vicinity of public places punishable. The allegation against the petitioner is that he was a customer. 

Therefore, he cannot be charged with offences under Section 3, 4 or 7 of the ITP Act, the counsel for the petitioner argued. Even regarding the offence under Section 5, it was contended that the act as a consumer would not come within the contours of the penal provision. 

Acts punishable under Section 5 of the ITP Act may include procuring of a person, whether with or without consent of that person, for the purpose of prostitution. It is submitted that the word procure takes in the act of a person involved in prostitution as a customer also, the Court was told. 

This prompted the Court to look into the definition of the term procure and it was noted that the term was undefined in the ITP Act. Therefore, the word has to be understood in the context in which it is used and bearing in mind the object, the statute intends to achieve, the Bench stated. 

As per the Statement of Objects and Reasons of the Act, the aim is to prevent commercialisation of the vices and trafficking among women and girls. 

This is the explanation that the Court gave - 

The meaning of procure given in Merriam Webster Dictionary is to get possession of; or to obtain something. If the said meaning of the word procure is understood in the context of the aforesaid objective of the Statute, the person, who gets or obtains domain over a person for the purpose of prostitution, has to be said to procure a person for the purpose of prostitution. In that view of the matter, a consumer also comes within the purview of Section 5 of the ITP Act. Hence, the contention of the petitioner that even an offence under Section 5 of the ITP Act does not lie against the petitioner is untenable. The impugned order is therefore not liable to be set aside altogether. 

Further, the petitioner argued that due to non-compliance of Sections 15(5) and 15(5A) of the ITP Act, the prosecution has become illegal. 

What contemplated in the said provisions are not conditions precedent for a prosecution, but procedural safeguards for the protection of the interest of the victims of offence and also that of the offenders. Therefore, the said contention is untenable, the Court opined while refusing to rule in favour of the petitioner.

[Read Order]