The Allahabad High Court has held that a person who visits a brothel as a customer cannot be prosecuted under Sections 3, 5 and 7 of the Immoral Traffic (Prevention) Act, 1956, merely for paying money for personal gratification.
A Bench of Justice Dr. Gautam Chowdhary observed that a customer who pays for sexual gratification does not procure a person “for the purpose of prostitution” as contemplated under the Act, which involves commercial exploitation.
The case arose after police received information that women were allegedly engaged in the sex trade at a house near the DLF police chowki at Bhojpura crossing in Ghaziabad. A raid was conducted and 16 persons, nine women and seven men, were apprehended.
According to the women, they were engaged in the sex trade and paid a portion of their earnings to the man who owned the house. An FIR was registered on the same day, followed by a charge sheet under Sections 3, 4, 5 and 7 of the Act. The Magistrate subsequently took cognizance of the offences.
One of the accused approached the High Court under Section 482 of the CrPC, seeking quashing of the criminal proceedings, charge sheet and summoning order. It was argued that the mandatory requirement under Section 15(2) of the Act concerning the presence of two independent local witnesses during the raid had not been followed.
It was further submitted that even if the allegations in the FIR were accepted as true, no offence was made out against the applicant as he was merely a customer who had visited the premises.
The applicant relied on the High Court’s earlier decision in Dinesh Tiwari @ Dhirendra Kumar Tiwari v. State of U.P. and another, which held that a customer cannot be said to keep or manage a brothel, or assist in its management, under Section 3 of the Act merely because he visits the premises and pays money for gratification.
The State opposed the application, arguing that the applicant had been caught during the raid at a premises being operated as a brothel and had procured prostitution by paying money.
After examining the record, the Court found that the applicant was merely a customer who had visited the premises to satisfy his personal lust after making a payment, and not for the purpose of prostitution as contemplated under the Act.
The Court held that Sections 3, 4, 5 and 7 of the Immoral Traffic (Prevention) Act were not attracted against the applicant and that continuing the proceedings would amount to an abuse of the process of law.
Accordingly, the High Court allowed the application and quashed the proceedings pending before the Civil Judge (Junior Division)/F.T.C. Judicial Magistrate, Ghaziabad, along with the charge sheet and summoning order.
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