Immoral Trafficking

Kerala High Court

 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.
Criminaising
 ITPA 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.
Two types of persons
 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.