The Orissa High Court recently ruled that individuals found in a brothel cannot be charged under the Immoral Traffic (Prevention) Act of 1956 solely for their presence there, even if discovered in a compromising situation. The court clarified that the Act focuses on penalizing those who operate brothels, benefit financially from prostitution, recruit individuals for sex work, and confine such individuals, without imposing penalties on customers.
Justice Sibo Sankar Mishra presided over an application from two men who sought to amend a prior judgment from February 2024. This earlier ruling had dismissed several charges against them but mandated that they still face trial for other offences, including violations of the 1956 Act. The court was tasked with determining if the remaining charges were valid against the two men, who were patrons at a spa.
The court asserted on August 20 that “a customer in a brothel, even if caught in a compromising situation, cannot be prosecuted under the Immoral Trafficking Act.”
In contrast, the Kerala High Court had recently concluded on August 11 that customers visiting brothels for sexual activities could be charged under the 1956 Act, emphasizing that those engaging in such illegal activities should not be exempt from criminal responsibility. This decision arose amid conflicting judicial opinions regarding the prosecution of customers, with the court asserting that anyone who willingly enters a brothel and pays for sexual services is an active participant in the illicit act.
The case before the Orissa High Court dates back to 2018, involving the arrest of the two petitioners while they were using services at the spa. The court examined whether the mere act of being a customer, even if the spa qualified as a brothel, attracted the legal provisions outlined in sections 3, 4, 5, 6, and 7 of the Act.
This latest legal development stemmed from the high court’s judgment on February 9, 2024, which had partially accepted the petitioners’ request and voided the cognizance order related to charges under sections 370(3) (trafficking multiple individuals) and 370A(2) (using a trafficked person for sexual exploitation) of the Indian Penal Code.
However, the 2024 ruling mandated that the petitioners stand trial for other charges acknowledged by the trial court. Subsequently, the petitioners sought a revision of that specific aspect of the judgment.
The court referenced a decision from the Andhra Pradesh High Court in the case of Padala Venkata Sai Rama Reddy v State of Andhra Pradesh, which concluded that a customer at a brothel could not face prosecution under Sections 3, 4, and 5 of the Act.
Section 3 of the Immoral Traffic (Prevention) Act addresses the management or operation of a brothel, while Section 4 concerns profiting from prostitution, and Section 5 pertains to the recruitment, inducement, or transportation of individuals for prostitution. Section 6 deals with the detention of individuals in premises involved in prostitution, and Section 7 covers prostitution occurring in public areas.
The court also cited the case Goenka Sajan Kumar v State of AP, where the Andhra Pradesh High Court clarified that Sections 3 to 6 do not impose penalties on customers. Furthermore, it referred to a ruling from the Karnataka High Court on May 30, 2022, in Rahul Muralidhar v State of Karnataka, which dismissed proceedings against a customer found in a brothel.
The state questioned the high court’s authority to amend a previously issued judgment. However, the court, considering the legal precedents provided by the counsel, including a Supreme Court ruling in Daxaben v State of Gujarat, affirmed that its inherent powers under Section 482 of the Criminal Procedure Code could be exercised to avoid misuse of judicial processes and to uphold justice.
In conclusion, the court recognized the error indicated by the petitioners in the February 2024 ruling and subsequently removed the requirement for them to face trial for the additional offences listed in the chargesheet.
Vineet Upadhyay serves as an Assistant Editor at The Indian Express (Digital), where he focuses on the intricate facets of the Indian legal system.
