The Telangana High Court held that merely availing the services of a sex worker does not attract prosecution for trafficking under Section 370 IPC, as the provision targets traffickers, not customers. However, a customer can be prosecuted under Section 370A(2) if he knew or had reason to believe the sex worker was a trafficked victim.
The Telangana High Court ruled that a customer of a sex worker cannot be prosecuted for trafficking under Section 370 of the Indian Penal Code, 1860.
The Court clarified that Section 370 is meant to penalise traffickers and conduct aimed at trafficking, and not persons who simply avail sexual services from a sex worker. However, the Court held that a customer may be prosecuted under Section 370A(2) IPC if the sex worker is a trafficked person and the customer knew or had reason to believe that fact.
A Division Bench comprising 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.”
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 was necessitated by conflicting views among Single Benches on (i) the scope of Section 370A(2) IPC and (ii) the evidentiary level required to invoke it.
The petitioners were alleged to be customers/clients of sex workers, while some claimed they were only present near brothel premises. FIRs were registered against them under Sections 3, 4 and 5 of the Immoral Traffic (Prevention) Act, 1956, along with Sections 370 and 370A(2) IPC, alleging that they had induced and abetted prostitution.
Before the Single Judge, the petitioners argued that provisions relating to trafficking and sexual exploitation did not apply to them because they were only customers. They contended that customers who pay for sexual services should not 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. Given the ambiguity surrounding Section 370A(2) IPC and the existence of conflicting judicial precedents, the matter was referred to a Division Bench for an authoritative ruling.
The Division Bench examined the object and scheme of Sections 370 and 370A IPC, both introduced by the Criminal Law (Amendment) Act, 2013, following recommendations of the Justice J.S. Verma Committee aimed at protecting women and children from trafficking.
The Bench observed that these provisions target trafficking and exploitation of trafficked persons, and do not seek to criminalise voluntary sex work. It relied on the clarification issued by the Justice J.S. Verma Committee in response to representations by sex workers’ organisations.
The Bench noted that the Committee clarified that,
- the intent behind amending Section 370 was to protect women and children from being trafficked, and
- the amendment was not meant to bring within its scope sex workers who practise on their own volition, and
- Section 370 should not be interpreted in a way that allows harassment of voluntary sex workers and their clients.
The Court also relied upon the Supreme Court’s decision in Budhadev Karmaskar v. State of W.B. (2022), which emphasised that voluntary sex work is not illegal and that law enforcement should not harass adult sex workers who participate with consent.
The Court reproduced the Supreme Court direction,
“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.”
With respect to Section 370 IPC, the Bench held that the provision specifically punishes trafficking and is directed against a person who recruits, transports, harbours, transfers, or receives another for exploitation. It concluded that a customer who only seeks sexual gratification by paying for sexual services cannot be categorised as a trafficker.
The Bench reasoned,
- 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’.
- 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.
At the same time, the Court clarified the boundaries of this conclusion. It observed that if a person procures, engages, or arranges the services of a sex worker for another individual, such conduct may go beyond the role of a mere customer, and liability under Section 370 IPC could arise depending on the specific facts.
Turning to Section 370A(2) IPC, the Bench distinguished between (a) trafficking offences and (b) offences relating to exploitation of trafficked persons. It stated that Section 370A punishes the exploitation of a trafficked person, while Section 370 punishes the act of trafficking itself.
The Bench explained that the purpose of Section 370A(2) IPC is to penalise the end-user who creates demand for trafficked persons. It held that the word engages in Section 370A(2) IPC is broad enough to include hiring or availing the services of a trafficked sex worker.
In particular, the Court held,
“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.”
Therefore, a customer who engages a trafficked sex worker may be prosecuted under Section 370A(2) IPC if he had knowledge or reason to believe that the sex worker was trafficked. The Court stressed that mens rea is crucial.
Relying on Joti Parshad v. State of Haryana (1993), the Bench noted,
“‘Reason to believe’ is not the same thing as ‘suspicion’ or doubt and, 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 the “knowledge or reason to believe” exists must be evaluated based on the facts and circumstances of each case.
The Court further clarified that actual sexual exploitation is not a mandatory ingredient of Section 370A(2) IPC. Instead, the offence is complete when there is engagement of a trafficked person for exploitation with the required knowledge/reason-to-believe; proof that exploitation ultimately occurred is not necessary.
On the question of “mere presence” in the vicinity of a brothel, the Court held that being in the neighbourhood of premises where prostitution is carried on does not, by itself, attract Section 370A(2) IPC. While presence could be relevant as background evidence, prosecution requires material showing engagement of a trafficked person and the required mens rea.
Cause Title: Konda Hemanth Kumar v. State of Telangana & Anr.