In a significant judgment, Kerala High Court ruled that a brothel customer can be proceeded against criminally under Section 7 of the Immoral Traffic (Prevention) Act, 1956 if the conditions mentioned in the Act are satisfied.
Justice Bechu Kurian Thomas noted, “In the absence of the customer falling within the penal umbrella of the statute, the objects of the enactment can never be achieved. Thus, in my considered opinion, the words ‘person with whom such prostitution is carried on’ as appearing in Section 7(1) of the Act will include a ‘customer’.”
Section 7 of the Immoral Traffic (Prevention) Act, 1956 makes prostitution punishable in certain areas. In the present case, the bench observed that the words ‘person with whom such prostitution is carried on’ mentioned in Section 7(1) of the Act will include a customer.
37-year-old petitioner, the third accused in the case, had filed a petition before Chief Judicial Magistrate’s Court, Ernakulam. A case was registered against him after he was caught by the police while he allegedly was engaged in a sexual act with two women at an Ayurvedic hospital at Tavipuram in Kochi after paying Rs 500.
Reportedly, the incident took place at around 2.45 pm on December 15, 2004.
The petitioner contended that he visited the hospital for back pain treatment where he was prescribed oil massage for 30 days.
He argued that even if the allegations against him are true, he cannot be booked as he was only a customer.
The Court noted that the two other accused had already pleaded guilty before the trial court and were imposed with a fine. The two women were booked under Section 3, Section 4 and Section 7 of the Immoral Traffic (Prevention) Act.
Advocate R Santhosh Babu, appearing for the petitioner, contended that since the petitioner’s alleged conduct as a ‘customer’ is stated to be offensive, in the absence of the statute including a ‘customer’ within the scope of the Immoral Traffic (Prevention) Act, he cannot be roped in as an accused.
To substantiate his contention, Advocate Babu referred to the Kerela High Court decisions in Radhakrishnan v. State of Kerala and Vijayakumar and others v. State of Kerala and others.
In multiple cases, different High Courts have held that a customer cannot be prosecuted just for visiting the brothel.
On the contrary, Public Prosecutor Advocate K.A. Noushad argued that Section 7 of the Act will apply to the petitioner since he can fall under the ambit of the word “person” with whom the prostitution was carried on as mentioned in the Act.
Immoral Traffic (Prevention) Act of 1956 criminalises a few activities related to prostitution and also in certain specific areas.
The three different areas where prostitution is punishable under Section 7 of the Act include
(i) areas notified by the State Government under section 7(3),
(ii) areas that are within a distance of two hundred metres from places of public religious worship, educational institutions, hostel, hospital, or nursing home, and
(iii) public place of any kind which is notified by the Commissioner of Police or Magistrate in the manner prescribed.
There are two types of persons mentioned who are penalised under Section 7(1) Immoral Traffic (Prevention) Act.
(i) the person who carries on prostitution and
(ii) the person with whom such prostitution is carried on.
The High Court bench noted that the provision that “the person who carries on prostitution” includes the prostitute also.
The bench observed, “till the year 1987, the words used in the first part of section 7(1) were “‘women or girl who carries on prostitution…..”. The words ‘women or girl’ were replaced with the word ‘person’ with effect from 26-01-1987, indicating that even a man can carry on prostitution. Thus the words ‘person who carries on prostitution’ in section 7(1) of the Act includes the prostitute also.”
The bench stated that the words “person with whom such prostitution is carried” has to be read in conjunction with the definition of the word prostitution. The term prostitution is defined as the sexual exploitation or abuse of persons for commercial purposes. Sexual exploitation cannot be done singularly and therefore the person engaged in the act of exploitation is also a person who falls within the term ‘persons with whom such prostitution is carried on’, the bench added.
“In other words, the person who exploits or abuses the prostitute is the person with whom the prostitute carries on prostitution,” the High Court said.
The bench added that the act of immoral traffic cannot be perpetrated or carried on without a ‘customer’ and by using the words ‘person with whom the prostitution is carried on’ in section 7(1) of the Act the legislature has intended the customer also to be brought within the purview of the penal provisions.
“The decision in Vijayakumar and Others v. State of Kerala and Others which held that engaging in sexual activity even in a brothel is not made an offence and quashed the proceedings against a customer would not apply to the instant case as there is nothing to suggest that the aforesaid decision related to a notified area,” the bench said.
The High Court said, “In view of the above discussion, I am of the firm view that a ‘customer’ in a brothel can be proceeded against criminally under the provisions of section 7 of the Act if the other conditions of the section are satisfied.”
Therefore, the bench dismissed the petition.
