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Synopsis

The Allahabad High Court recently held that a customer who visits a brothel will not be liable under Sections 3/4/5/7/8/9 of the Immoral Traffic (Prevention) Act, 1956.

The bench of Justice Arun Kumar Singh Deshwal emphasized that merely visiting a brothel does not qualify as procuring a person for prostitution, as it lacks the element of commercial exploitation or abuse for financial gain.

"If a person visits a brothel, then, at the most, he may be said to be a procurer of a prostitute to satisfy his lust but not for the purpose of prostitution because acquiring a person for prostitution means sexual exploitation or abuse for commercial purposes and not for any other purpose that does not have any commercial purpose or earning money," he said.

The observations were made in an application filed under Section 482 CrPC seeking quashing of the entire proceeding in a case registered against the applicant for having been found by the police in a locked room with an alleged prostitute. The police had seen the applicant and the alleged prostitute in an intimate position.

The FIR was lodged against the accused persons, including the applicant under Sections 3/4/5/7/8/9 of the Act. 

Before the high court, the applicant's counsel argued for relief, citing a violation of Section 15(2) of the Act during the search of the relevant house. The counsel alleged a failure to adhere to the mandatory requirement of having two local witnesses present during the search.

Furthermore, he submitted that according to the prosecution's case, the applicant was merely a customer. He asserted that simply being a customer at a residence utilized for prostitution does not warrant penalties under the Act unless the customer is actively involved in the business of prostitution.

Contrarily, the government advocate opposed the plea contending that as the applicant was caught red-handed during the search of a house that was being used as a brothel, therefore an offence under the Act was made out against him.

Regarding violation of Section 15(2) of the Act during the search, the bench though acknowledged the existence of such a breach but emphasized that it alone could not serve as sufficient grounds to quash the entire proceedings. 

Referring to legal precedents, it held that lacuna in search is a question that should be decided during trial.

"...because in practical, none of the persons of locality comes forward to accompany the police in case of search of a brothel. If such ground is considered for quashing the proceedings under the Act, then most of the proceedings will be quashed without going to trial," court opined. 

In view of this, the court held that "the direction of Section 15(2) of the Act is directory in nature and not mandatory despite the use of the word "shall" in Section 15(2) of the Act".

So far as the culpability under Sections 3/4/5/7/8/9 of the Act was concerned, court held that Section 3 makes it clear that a customer cannot be said to be keeping or managing or acting or assisting in the keeping or management of a brothel because he simply comes and pays money to get a woman to satisfy his lust and nothing more.

Accordingly, court allowed the application and quashed the entire legal proceedings against the applicant. 

Case Title: Dinesh Tiwari @ Dhirendra Kumar Tiwari v. State Of U.P. Thru. Prin. Secy. Home Civil Sectt. Lko. And Another