Person Availing Services Of Sex Worker In Brothel Can Be Prosecuted U/S.5(1)(d) Of Immoral Traffic Act: Kerala High Court

The Petition before the High Court was filed by one of the accused persons in a case registered under Sections 3, 4, 5(1)(d) and 7 of the Immoral Traffic (Prevention) Act, 1956.

The Single Bench of Justice V.G.Arun held, “Thus, a person availing the services of a sex worker in a brothel is actually inducing that sex worker to carry on prostitution by paying money and is therefore liable to be prosecuted for the offence under Section 5(1)(d) of the Act. In that view of the matter, if the inducer is termed as a customer that would be contrary to the object of the Act, which is intended to prevent human trafficking and not punish the persons compelled to indulge in prostitution. Here, it is pertinent to note that only Section 7 of the Act is intended to punish the sex worker, that too only when prostitution is carried on in a prohibited area.”

Advocate C.S. Sumesh represented the Petitioner, while Senior Public Prosecutor Pushpalatha. M.K. represented the Respondent.

Factual Background

It was alleged that the Inspector of Police, along with his subordinate officersconducted a search in a building on the basis of reliable information that prostitution was going on in it. The Officials found the petitioner and a woman lying naked on a bed in one of the rooms. Another man and a lady were found in one of the other rooms, and on questioning, the woman tried to hide inside the kitchen. It came to light that the two accused persons had procured three women and were inviting interested persons for the purpose of prostitution. The keeper of the brothel stated that Rs 2000 per hour was collected from the persons desirous of indulging in physical relationships with the three women, and out of the said amount, Rs 1000 was the share of the ladies.

Reasoning

Referring to the judgment in Mathew v. State of Kerala (2022), the Bench stated, “The legal position that a customer in a brothel situated in a notified area would fall within the purview of Section 7 and offence will lie against him/her is no longer res integra…” The Bench took note of the petitioner’s contention that only a person keeping or managing, or acting or assisting in the management of a brothel, can be prosecuted and punished for the offence under Section 3. Section 4 applies only against a person living on the earnings of prostitution of another person, it further noted.

The Bench was of the view that a person utilising the service of a sex worker at a brothel cannot be termed a customer. To be a customer, a person should buy some goods or services. As per the Bench, a sex worker cannot be denigrated as a product and in most cases, they are lured into the trade through human trafficking and compelled to offer his/her body to satisfy the carnal pleasure of others. It was further noted that the pleasure seeker may be paying money, a large chunk of which goes to the keeper of the brothel.

The Bench mentioned that the payment can only be perceived as an inducement to make the sex worker offer his/ her body and act in accordance with the demands of the payer. As per the Bench, a person availing the services of a sex worker in a brothel is liable to be prosecuted for the offence under Section 5(1)(d).

Thus, allowing the Petition in part by quashing the further proceedings against the petitioner for the offences under Sections 3 and 4, the Bench permitted the prosecution to continue for the offences under Sections 5(1)(d) and 7 of the Act.

Cause Title: Sarath Chandran v. State of Kerala (Neutral Citation: 2025:KER:59585)

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