The Kerala High Court has ruled that individuals visiting a brothel fall under the scope of Section 5 of the Immoral Traffic (Prevention) Act, 1956 (ITP Act). This section specifically holds accountable those who solicit, entice, or transport individuals for the purpose of prostitution.

Justice P.G. Ajithkumar noted that in the absence of a specific definition of 'procure' in the ITP Act, its interpretation should align with the legislative intent. The Court emphasized that the statute aims to curb the commercialization of immoral activities and trafficking involving women and girls. Therefore, according to the Court's interpretation, an individual engaging as a customer in a brothel can be held accountable for procuring individuals for prostitution under Section 5 of the Act.

The petitioner was discovered as a patron in a brothel and was listed as the third accused in a case filed at the Alappuzha North Police Station. Accused numbers 4 and 6 were reportedly victims of prostitution involving accused numbers 1 and 2. Accused numbers 3 (the petitioner) and 5 were allegedly implicated as customers in this context.

The accusations involved violations under Sections 3 (pertaining to the punishment for maintaining or permitting premises as a brothel), 4 (related to deriving income from prostitution), 5 (involving solicitation, inducement, or transportation for prostitution), and 7 (concerning prostitution within or near public spaces) of the Immoral Traffic (Prevention) Act.

The petitioner submitted an application seeking discharge, but the Magistrate dismissed it and ordered charges to be framed against them. Dissatisfied with this decision, the petitioner has appealed to the High Court for relief.

The petitioner's counsels, S A Anand and Arun Kumar P V, argued that due to their status as a customer, the petitioner should not face prosecution under Sections 3, 4, 5, and 7 of the ITP Act. They contended that being a consumer, the petitioner couldn't be held accountable under Section 5 of the ITP Act for procuring individuals for prostitution.

On the contrary, Public Prosecutor Maya M N submitted that the term 'procure' in Section 5 also refers to the act of a customer.

The Court, after examining Section 5 of the ITP Act, emphasized interpreting "procure" in line with the statute's objective: preventing the exploitation and trafficking of women and girls. Consequently, the Court affirmed that even consumers could be held accountable under Section 5.

Regarding the petitioner's argument about procedural lapses under Section 15 of the Act, the Court deemed these contentions invalid. It clarified that these procedural safeguards primarily aimed to safeguard the interests of both victims and offenders, rather than being a mandatory prerequisite for prosecution.

Consequently, the Court concluded the revision petition by acknowledging that the petitioner could face charges under Section 5 of the ITP Act while absolving them of other offenses.

Case number: CRL.REV.PET NO. 1208 OF 2023