Does mere act of sexual intercourse at a lodge or guest house makes it brothel?

The Kerala HC on 15th March 2021 quashed proceedings against a sweeper of a lodge held under Immoral Traffic (Prevention) Act.

Background:

The petitioner, Remani, was present at a lodge, which was raided by the Police at 6pm in August 2005. Upon inspection, they found two other accused in a room, engaged in the act of coitus. The petitioner allegedly had given them a room to indulge in flesh trade (prostitution). They were thus arrested and held under Sec.3, 4 and 6(b) of Immoral Traffic (Prevention) Act.

Submissions:               

The counsel for the petitioner stated that Remani was merely a sweeper at the lodge for Rs.50 a day. There was no reason that she allotted a room when there were receptionists and room boys for it.

Further, it was also submitted that the prosecution had no evidence to prove that the two other accused who were engaged in the act of coitus, were sexual exploitation. The receptionist who allotted the room wasn’t even booked. Further, a lodge that was operated by getting all necessary licenses and permission from concerned authorities could not be categorized as a brothel.

The petitioner raised a plea, supported by precedents, that merely because a place was used for sexual exploitation, it could not be called a brothel.

Proceedings:

Hon’ble Justice Ashok Menon separately analyzed the above sections of the Immoral Traffic (Prevention) Act.

Sec.3 (1) of the act provides for punishment for those who are involved in the act of running, assisting or management of a brothel.

Sec.2 (a) defined what a brothel was any place used for sexual exploitation or abuse for the gain of another person or for the mutual gain of two or more prostitutes.

It is only if a person keeps or manages a brothel or acts or assists in the keeping or management of a brothel that he commits an offence under S.3(1) of the Act.

Decision of the Court:

Sections 2(a), (f) and 3 of the Act made it clear that to mark a lodge as a brothel; the following essential requirements were to be prima facie proved:

a)      the records that the lodge was being used for the purposes of sexual exploitation or abuse;

b)    that such use was for gain of another person or for the mutual gain of two or more prostitutes.

Thus, only if the petitioner had kept or managed a brothel or acted or assisted in the keeping or management of a brothel, it could be found that she has committed an offence under S.3(1) of the Act. She was merely employed as a sweeper in the lodge. Thus, it cannot be said that the lodge was under her possession or under her control.

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There was no allegation that the lodge was being used for sexual exploitation or abuse; and the officer had only caught the other two accused having sexual intercourse. This did not show sexual exploitation or abuse; or that anyone was gaining in form of prostitution from the lodge.

The accused had also not gained money or induced persons into prostitution. Hence, the continuation of proceedings against her would be abuse of process of the court. Thus, proceedings against her were quashed.

Case Details-Crl.MC.No.884 OF 2020(A) (Remani vs State of Kerala)

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