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Whether prostitute’s customer commits offence

Shivendra Pratap Singh

Advocate

04/04/2022

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Question: Police is calling prostitute’s customer. The police said that it is an offence under Section 3/4/5/7 of the Immoral Traffic Prevention Act. I want to know whether prostitute’s customer commits offence if he had sex with her? Mrs X is doing some sort of Pimp/Brothel. Call Girls put their mobile no to her. Some men customers have been calling girls from Mrs X Pimp for many years. One day in the past 12 days  Mr. Maximus who was sometimes a customer in past few months got information that Mrs X was taken out from her home when two arranged partners just arrived in her home. The information said no indulgence/unclothing was yet happened about the two arranged partners. Police abducted/arrested the two women and seized Mrs. X mobile handset for investigation it said. On that past 12 day from the incident, Mr. Maximus was called by Police to record witness statements in their Station. 

Mr Maximus a govt employee felt disturbed so he denied as he never knew Mrs X as doing such. Knowing as just one acquaintance. But Police said don’t lie, we had a conversation (about your asking/giving call girl) on the seized mobile handset but Police did not show that. Police did not tell even the case number but simply said we arrested two women under human trafficking that is serious. After another 4 days i.e. 16 days from the incident day, Mr Maximus learned Mrs X was released on Bail from Jail.   

She said two of them (both women) were not in jail but only she is in jail and bailed. Police did not take them to Court/Magistrate yet from the incident day also. But she said court date hearing to be in the future 13.03.2022. She said she did not know the case number and did not get any paper from the Police so far. 

Now all circumstances/events/story had become doubtful and cannot be confirmed. (1) Is Mr Maximus govt employee status in danger? If to apply anticipatory bail when to do, how to do without actually knowing the matter & case number? Ignoring as previous customer will be good or bad. What steps are necessary. Or, does it seems the Police do things correctly and seriously? Crime of Mrs X and Customer (anyone) who are at crime and the degree of punishment? 

Asked from: Nagaland

There is no law which makes the sex with prostute an offence. Hence, customer of prostitute does not commit any offence if he had sexual relations with her. Both are adults and of sound mind. They are doing sex with their free consent. Free consent of parties towards sexual intercourse does not amount to rape. 

But running a brothel house is illegal and punishable under the Immoral Traffic Prevention Act (ITP Act). A person who is running a brothel house or inducing a person for the sake of prostitution commits offence under ITP Act. In Goenka Sajan Kumar v. State of A.P. AIR ONLINE 2014 AP 5 the Andhra Pradesh High Court has held that:

Running a brothel house, acting as a pip for personnel in brothel house, procuring, inducing or in dicing any person for sake of prostitution, earning on premises where prostitution is carried out are offence under ITP Act.

Mr Maximus was a customer of a prostitute. He never indulged in any activity as mentioned above, therefore, he has not committed any offence. Police cannot call him an accused. A person being the prostitute’s customer commits no offence under the Immoral Traffic (Prevention) Act 1956.

If Mr. Maximus is named as accused by the police, then he should immediately file a petition in the High Court for the quashing of the FIR. The High Court may quash the FIR if it finds that Mr Maximus was only a customer. In the Bhajan Lal’s case the Supreme Court has held that when no offence is made out against the accused the High Court should quash the criminal proceeding.

shivendra pratap singh advocate

Shivendra Pratap Singh

Advocate

Practising lawyer in the High Court Lucknow. You can consult on Criminal, Civil, Matrimonial, Writ, Service matters, Property, Revenue and RERA related issues.

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