Dinesh Tiwari @ Dhirendra Kumar Tiwari    (Applicant)   Vs. State Of U.P. Thru. Prin. Secy. Home Civil Sectt. Lko. And Another   (Opposite Party)

(APPLICATION U/S 482 No. – 9161 of 2023)

(Hon’ble Arun Kumar Singh Deshwal,J.)

Facts: The instant application u/s 482 Cr.P.C. has been filed seeking quashing of the entire proceeding of Case No. 426 of 2007 (State vs. Rashmi Srivastava & others), arising out of Case Crime No. 137 of 2006, under Sections 3/4/5/7/8/9 of the Immoral Traffic (Prevention) Act, 1956 (hereinafter referred to as “Act”), P.S. Sarojini Nagar, District Lucknow, including the charge sheet No. 7 of 2006 dated 7.8.2006, pending before Judicial Magistrate-III, Lucknow.

Issue: Whether a person who was found as a customer at a place that was being used as a brothel can be held liable u/s 3/4/5/7/8/9 of the Act?

Arguments on behalf of counsel for applicant:

It is submitted that while conducting the search of the house in question, mandatory provision of Section 15(2) of the Act, which requires the presence of two local witnesses, was not followed, and there was a violation of Section 15 (2) of the Act; and that as per the prosecution case, the applicant was simply a customer, and simply being a customer at any house that is being used for prostitution will not attract any penalty under the Act unless there is the involvement of the customer in the business of prostitution

Arguments on behalf of counsel for non-applicant:

Per contra, learned A.G.A. submitted that as the applicant was caught redhanded during the search of a house that was being used as a brothel, therefore an offence under the Act is made out against him. It is further submitted that the applicant cannot be said to have committed no offence on being a customer because it is the customer who procures the prostitute for consideration of money to satisfy his lust. Therefore, ingredients of the offence u/s 3/4/5/7/8/9 of the Act are attracted.

Held: The court allowed the present appeal and held that, “this Court is of the view that if a person visits a brothel, then, at the most, he may be said to be a procurer of a prostitute to satisfy his lust but not for the purpose of prostitution because acquiring a person for prostitution means sexual exploitation or abuse for commercial purposes and not for any other purpose which does not have any commercial purpose or earning money. Therefore, this Court answered both the questions raised in this case. First, a search conducted in violation of Section 15(2) of the Act can be said to be irregular but this ground cannot be the basis for quashing the impugned proceeding u/s 482 Cr.P.C. Still, this ground is available during trial, which can be decided on the basis of evidence, which may ultimately make the search doubtful. Second, a customer who visits the brothel will not be liable u/s 3/4/5/7/8/9 of the Act.”