Customer Of Sex Worker Cannot Be Prosecuted For Trafficking U/S 370 IPC: Telangana High Court
The Court held that Section 370 IPC penalises trafficking and applies only to a trafficker who recruits, transports, harbours, transfers or receives a person for exploitation. The provision does not contemplate the prosecution of a customer who merely avails the services of a sex worker for himself.
The Telangana High Court has held that a customer of a sex worker cannot be prosecuted for the offence of trafficking under Section 370 of the Indian Penal Code, 1860, clarifying that the provision targets traffickers and not persons who merely avail sexual services from a sex worker.
The Court further held that a customer may, however, be prosecuted under Section 370A(2) IPC if the sex worker is a trafficked person and the customer had knowledge or reason to believe the same.
The Court was hearing a batch of criminal petitions placed before a Division Bench on a reference concerning the applicability of Sections 370 and 370A(2) IPC to customers of sex workers. The reference arose in view of divergent views expressed by different Single Benches regarding the scope of Section 370A(2) IPC and the evidentiary threshold required for its invocation.
A Division Bench of Justice K. Lakshman and Justice B.R. Madhusudhan Rao, while answering the first question referred for consideration, observed: “In relation to the applicability of Section 370 of the IPC to a customer of a sex worker, we answer in the negative. We hold that a customer of a sex worker cannot be prosecuted for the offence of trafficking under Section 370 of the IPC.”
Background
The petitioners were alleged to be customers or clients of sex workers, while some claimed that they were merely present in the vicinity of brothel premises. FIRs had been registered against them under Sections 3, 4 and 5 of the Immoral Traffic (Prevention) Act, 1956, as well as Sections 370 and 370A(2) IPC on allegations that they were inducing and abetting prostitution.
Before the Single Judge, the petitioners contended that the offences concerning trafficking and sexual exploitation were inapplicable to them as they were alleged to be mere customers. It was argued that customers who pay money in exchange for sexual services cannot be treated as traffickers or persons responsible for exploitation.
The Single Judge held that Sections 3, 4 and 5 of the Immoral Traffic (Prevention) Act would not apply to customers of sex workers. However, noting ambiguity regarding the applicability of Section 370A(2) IPC and conflicting judicial opinions on the issue, the matter was referred to a Division Bench for authoritative determination.
Court's Observations
The Court first examined the scheme and object of Sections 370 and 370A IPC, noting that both provisions were introduced by the Criminal Law (Amendment) Act, 2013, pursuant to the recommendations of the Justice J.S. Verma Committee to protect women and children from trafficking. The Bench observed that while these provisions penalise trafficking and exploitation of trafficked persons, they do not prohibit voluntary sex work.
Referring to the clarification issued by the Justice J.S. Verma Committee in response to representations made by sex workers' organisations, the Court noted that the Committee had expressly clarified that “the thrust of their intention behind recommending the amendment to Section 370 was to protect women and children from being trafficked” and that “the Committee has not intended to bring within the ambit of the amended Section 370 sex workers who practice of their own volition.” The Committee had further clarified that Section 370 should not be interpreted in a manner permitting authorities to harass voluntary sex workers and their clients.
The Bench also relied upon the Supreme Court's decision in Budhadev Karmaskar v. State of W.B. (2022), wherein it was observed that voluntary sex work is not illegal and that law enforcement agencies must refrain from harassing adult sex workers who participate voluntarily. The Court reproduced the Supreme Court's direction that “When it is clear that the sex worker is an adult and is participating with consent, the police must refrain from interfering or taking any criminal action.”
Turning to Section 370 IPC, the Court held that the provision specifically penalises trafficking and targets a trafficker who recruits, transports, harbours, transfers or receives a person for exploitation. The Court explained that a customer who merely seeks sexual gratification by paying for sexual services cannot be characterised as a trafficker within the meaning of the provision.
The Bench observed that “The provision does not contemplate the prosecution of a customer of a sex worker. A customer herein is a person who seeks sexual gratification by paying a sex worker for her services. Such a person cannot be termed a ‘trafficker’.” It further held that “A person who merely visits a brothel house or premises where the business of prostitution is carried on cannot be prosecuted for trafficking. A transaction for sexual services involving only the sex worker and the customer cannot be termed trafficking.”
The Court, however, clarified the limits of this protection. It was observed that a person who procures, engages or arranges the services of a sex worker for another person cannot automatically be treated as a mere customer. In such cases, depending upon the facts, liability under Section 370 IPC may arise.
While considering Section 370A(2) IPC, the Court distinguished the offence of trafficking and the offence of exploiting a trafficked person. It was observed that Section 370 punishes the trafficker and the act of trafficking, whereas Section 370A punishes exploitation of a trafficked person. The Court noted that the object of Section 370A(2) IPC is to punish the end-user who drives the demand for trafficked persons.
After examining the legislative framework and comparative international material, the Court held that the expression "engages" used in Section 370A(2) IPC includes hiring or availing the services of a trafficked sex worker. The Bench observed that “The plain, ordinary, and contextual meaning of the word ‘engages’ in Section 370A(2) of the IPC is the hiring or availing of the services of a sex worker.” Consequently, a customer who engages a trafficked sex worker can be prosecuted if he had knowledge or reason to believe that the sex worker was trafficked.
The Court emphasised that the existence of the requisite mens rea is central to the offence. Relying upon Joti Parshad v. State of Haryana (1993), the Bench observed that “‘Reason to believe’ is not the same thing as ‘suspicion’ or ‘doubt’” and that “A person can be supposed to know where there is a direct appeal to his senses and a person is presumed to have a reason to believe if he has sufficient cause to believe the same.” Whether such knowledge or reason to believe exists would depend upon the facts and circumstances of each case.
The Court further clarified that actual sexual exploitation is not an essential ingredient of Section 370A(2) IPC. What the provision criminalises is the engagement of a trafficked person for exploitation with the requisite knowledge or reason to believe. The offence is complete upon such engagement and does not require proof that sexual exploitation actually occurred.
On the issue of mere presence in a brothel, the Court held that mere presence in the vicinity of a brothel house or premises where prostitution is carried on is insufficient to attract Section 370A(2) IPC. The Bench observed that presence may be a relevant circumstance, but prosecution cannot be sustained unless there is material indicating engagement of a trafficked person together with the requisite mens rea.
Conclusion
The reference was accordingly answered in the aforesaid terms.
Cause Title: Konda Hemanth Kumar v. State of Telangana & Anr.
