The Bombay High Court has clarified that mere presence at a brothel, without evidence of procurement, inducement, or active participation in prostitution, cannot sustain charges under the Immoral Traffic (Prevention) Act, 1956 or Section 143 of the Bhartiya Nyaya Sanhita, 2023. This ruling reinforces the necessity of substantive evidence to establish criminal liability in trafficking-related offences.
Background & Facts
The Dispute
The applicant, a 19-year-old student, was named as Accused No. 7 in an FIR registered at MIDC Waluj Police Station following a raid on Patil Lodge in Aurangabad. The sole allegation against him was that he was found waiting at the premises and, upon questioning, admitted he had come to avail sexual services from a sex worker. No victim statement was recorded. No evidence linked him to procuring, transporting, or exploiting any individual. The charge-sheet filed under Sections 3, 4, 5, and 7(1)(b) of the Immoral Traffic (Prevention) Act, 1956, and Section 143 of the Bhartiya Nyaya Sanhita, 2023, relied entirely on his presence and self-admission.
Procedural History
- 06 June 2025: FIR No. 523 of 2025 registered based on secret information and raid report
- Post-investigation: Charge-sheet filed naming applicant as Accused No. 7
- 2025: Criminal Application No. 2853 of 2025 filed seeking quashment of FIR and proceedings
- 23 January 2026: Arguments heard
- 30 January 2026: Judgment pronounced
Relief Sought
The applicant sought quashment of the FIR and all consequential proceedings on grounds that the allegations, even if accepted at face value, fail to disclose any offence under the ITPA or BNS.
The Legal Issue
The central question was whether mere presence at a brothel and admission of intent to avail sexual services constitute an offence under Section 5(1)(d) of the Immoral Traffic (Prevention) Act, 1956, or Section 143 of the Bhartiya Nyaya Sanhita, 2023, in the absence of evidence showing procurement, inducement, or exploitation of a person for prostitution.
Arguments Presented
For the Petitioner
The applicant’s counsel relied on Mahesh Vinayak Patil v. State of Maharashtra to argue that Section 5 of the ITPA requires proof of active involvement in procuring or inducing a person for prostitution. Mere presence and self-admission, without corroboration from the victim or other material evidence, cannot establish the essential ingredients of the offence. He further cited State of Karnataka v. M.R. Hiremath and decisions from the Allahabad, Hyderabad, and Andhra Pradesh High Courts to demonstrate a consistent judicial stance against criminalizing mere customers without evidence of exploitation.
For the Respondent/State
The State’s counsel relied on Sarath Chandran v. State of Kerala to contend that seeking sexual services at a brothel amounts to an offence under Section 5(1)(d) of the ITPA. He argued that the applicant’s admission constituted a confession and that the very act of availing services in a known brothel implies complicity in the illegal trade.
The Court's Analysis
The Court undertook a rigorous statutory interpretation of Section 5 of the Immoral Traffic (Prevention) Act, 1956, which criminalizes procuring, inducing, or taking a person for prostitution. The Court emphasized that Section 2(f) defines prostitution as the sexual exploitation of a person, and Section 5 requires active participation in that exploitation. The applicant’s conduct - being present and admitting intent - falls short of these elements.
"In the present case the only incriminating material relied upon by the prosecution against him is the statement of the police official that the applicant who is a customer, was found in a room with the victim. The statement of the victim was not recorded. In such view of the matter, it can hardly be said that there is any material on record even at this stage qua this applicant to demonstrate that the victim was procured or attempt was made to procure the victim for the prostitution."
The Court distinguished Sarath Chandran on grounds that it involved additional evidence of solicitation and prior arrangement, absent here. It reaffirmed the State of Haryana v. Bhajan Lal test: where the allegations, even if accepted at face value, do not prima facie constitute an offence, the court may exercise its inherent powers under Section 482 CrPC to quash proceedings. The absence of any victim statement, witness testimony, or material linking the applicant to exploitation rendered the case legally unsustainable.
The Verdict
The applicant succeeded. The Court held that mere presence at a brothel and admission of intent to avail sexual services, without evidence of procurement, inducement, or exploitation under Section 5 of the ITPA, do not constitute a cognizable offence. The FIR and all proceedings were quashed in exercise of the Court’s inherent powers.
What This Means For Similar Cases
Presence Alone Is Not Enough
- Practitioners must challenge FIRs where the sole basis is presence at a brothel without corroborative evidence of trafficking or exploitation
- Prosecutors must now establish active involvement in procuring or facilitating prostitution, not merely prove the accused was present
- Defence counsel should move for quashment at the earliest stage if no victim statement or material links the accused to the offence
Victim Testimony Is Critical
- The judgment establishes that unrecorded victim statements render charges under ITPA legally untenable
- Police investigations must prioritize recording statements from sex workers or victims to establish the element of exploitation
- Absence of such evidence cannot be compensated by police affidavits or admissions of intent
Judicial Consistency on Customer Liability
- This ruling aligns with precedents from multiple High Courts rejecting criminal liability for customers absent exploitation
- It signals a shift away from punitive approaches targeting clients and toward focusing on traffickers and brothel operators
- Practitioners can now cite this judgment to resist overbroad application of ITPA in cases involving alleged clients
