Sex worker’s customer cannot be prosecuted for trafficking merely for availing services: Telangana High Court

Hyderabad: A Division Bench of Justice K Lakshman and Justice BR Madhusudhan Rao of the Telangana High Court have held that a customer of a sex worker cannot be prosecuted for the offence of trafficking under Section 370 IPC merely for availing sexual services. However, such a customer can be prosecuted under Section 370A(2) IPC if it is established that the sex worker was a trafficked person and the customer had knowledge or reason to believe the same.

The Division Bench rendered the ruling while answering a reference arising from a batch of criminal petitions involving persons accused of being customers during raids conducted at brothels and premises allegedly used for prostitution. The Bench clarified that Section 370 IPC, which deals with trafficking of persons, is intended to punish traffickers and not customers.

A person who merely seeks sexual services from a sex worker cannot be treated as a trafficker, the Court held. However, the Court observed that Section 370A(2) IPC targets the exploitation of trafficked persons and is aimed at penalising those who create demand for trafficking.

The Court further held that prosecution under Section 370A(2) IPC would be maintainable only where there is material to show that the sex worker was a victim of trafficking and that the customer knew or had reason to believe that fact. The existence of such knowledge would depend on the facts and circumstances of each case.

On the issue of customers found during brothel raids, the Bench ruled that mere presence in the vicinity of a brothel or at premises where prostitution is allegedly carried on is insufficient to attract Section 370A(2) IPC. The Court held that there must be material indicating engagement of a trafficked person for sexual exploitation coupled with the requisite knowledge or reason to believe that the person had been trafficked.

Referring to the Supreme Court’s decision in Budhadev Karmaskar, the Bench reiterated that voluntary sex work by consenting adults is not illegal and that voluntary sex workers and their clients cannot be harassed by law enforcement agencies merely on that basis.