Telangana HC Division Bench: Customers of Sex Workers Cannot Be Prosecuted for Trafficking Under Section 370 IPC, But Section 370A(2) Applies If They Knew the Worker Was Trafficked
A Telangana High Court Division Bench resolved conflicting Single Judge views on whether brothel customers face trafficking charges, drawing a firm line between Section 370 and Section 370A(2) of the IPC.
A Division Bench of the High Court for the State of Telangana, comprising Justice K. Lakshman and Justice B.R. Madhusudhan Rao, answered a reference arising from over a hundred criminal petitions filed by persons arrested during brothel raids across Telangana. The petitioners, described as customers or clients of sex workers, had been charged under Sections 3, 4, and 5 of the Immoral Traffic (Prevention) Act, 1956 (ITPA) and under Sections 370 and 370A(2) of the Indian Penal Code. The bench held, unequivocally, that a customer cannot be prosecuted for trafficking under Section 370 of the IPC. It further held that prosecution under Section 370A(2) is permissible only where the sex worker was a trafficked person and the customer had knowledge or reason to believe that fact. Mere presence near a brothel, without more, does not suffice.
How the Reference Arose
The batch of petitions was placed before the Division Bench by the then Acting Chief Justice following a reference order dated 9 June 2025 passed by a learned Single Judge in CRLP No. 2767 of 2025 and batch. The Single Judge had noted genuine ambiguity in the legal position and observed that multiple benches of the court had expressed divergent views on two questions: whether a customer could be prosecuted under Section 370A(2) of the IPC, and whether mere presence in a brothel was sufficient to attract that provision.
The Single Judge had already held that Sections 3, 4, and 5 of the ITPA do not apply to customers. On Section 370 of the IPC, the Single Judge had said applicability depended on the facts and circumstances of each case. On Section 370A(2), the Single Judge found the position unclear and referred the matter upward.
The Division Bench accepted the reference but went further. It noted that the Single Judge's observation on Section 370 — that its applicability to a customer depends on facts — appeared contrary to earlier decisions of the court. The bench therefore reframed the referred questions to also address Section 370 directly, relying on the principle that a larger bench exercising reference jurisdiction may, in appropriate cases, reframe or add to the questions referred.
The three questions the Division Bench took up were: first, whether a customer is liable for trafficking under Section 370 of the IPC; second, whether a customer can be prosecuted under Section 370A(2) of the IPC; and third, whether mere presence in the vicinity of a brothel, without evidence of specific acts of exploitation, is sufficient for prosecution under Section 370A(2).
The Statutory Framework and Its Legislative History
Sections 370 and 370A of the IPC were introduced by the Criminal Law (Amendment) Act, 2013, following the recommendations of the Justice J.S. Verma Committee. Section 370 punishes the act of trafficking — recruiting, transporting, harbouring, transferring, or receiving a person for the purpose of exploitation, using threats, force, coercion, abduction, fraud, deception, or abuse of power. Section 370A(2) punishes a person who, knowingly or having reason to believe that a person has been trafficked, engages such person for sexual exploitation in any manner.
The bench noted that the Justice J.S. Verma Committee had itself clarified, in response to a representation from the National Network of Sex Workers, that Section 370 was not intended to harass voluntary sex workers or their clients. The Committee's clarification stated that the provision ought not to be interpreted to permit law enforcement agencies to harass sex workers who undertake activities of their own free will and their clients.
The bench also referred to the Supreme Court's directions in Budhadev Karmaskar v. State of W.B., (2022) 20 SCC 220, where it was held that voluntary sex work is not illegal and that police must refrain from interfering or taking criminal action when it is clear that a sex worker is an adult participating with consent.
Question 1: Section 370 Does Not Reach Customers
The Division Bench answered the first question in the negative. A customer of a sex worker cannot be prosecuted for trafficking under Section 370 of the IPC.
The bench's reasoning was textual. Section 370 penalises a “trafficker” who recruits, transports, harbours, transfers, or receives a person for the purpose of exploitation. A customer — a person who seeks sexual gratification by paying a sex worker for her services — does not perform any of those acts. A transaction for sexual services involving only the sex worker and the customer cannot be termed trafficking. A person who merely visits a brothel cannot be prosecuted for trafficking.
The bench drew one important distinction. Where a person procures, engages, or arranges the services of a sex worker for another person, he cannot be regarded as a mere customer. In such circumstances, depending on the facts, that person may be liable under Section 370. The protection extends only to those who avail services for themselves.
The bench expressly disapproved the Single Judge's observation that the applicability of Section 370 to a customer depends on facts and circumstances. That observation, the bench held, was contrary to earlier decisions of the court in Mohammad Riyaz v. The State of Telangana, Kosunam Srisailam v. The State of Telangana, and Chinthala Shiva Rao v. The State of Telangana.
Question 2: Section 370A(2) Can Apply, But Only With Requisite Mens Rea
The bench answered the second question in the affirmative, with a significant qualification. A customer can be prosecuted under Section 370A(2) of the IPC, but only if the sex worker was a trafficked person and the customer had knowledge or reason to believe that fact.
The bench first addressed the apparent conflict among Single Judge decisions. Several benches — in S. Naveen Kumar v. The State of Telangana, Sahil Patel v. The State of A.P., Gangasani Anil Reddy v. The State of Telangana, Mohammad Nawaz v. The State of Telangana, and others — had held that Section 370A(2) applies to customers. Other decisions, including Bula Akhil v. The State of Telangana, Jatin Kocher v. The State of Telangana, Mohammad Naseem v. The State of Telangana, and Dasari Gangadhar v. The State of Telangana, had been read as holding the contrary. The Division Bench rejected that reading. Those latter decisions, it held, were rendered on the basis of insufficiency of evidence on the facts of each case. They did not lay down that Section 370A(2) is categorically inapplicable to customers.
On the substance, the bench drew a clear distinction between Section 370 and Section 370A. Section 370 punishes the trafficker and the act of trafficking. Section 370A punishes the exploitation of a trafficked person. Section 370A(2) targets the end user of trafficking — the person who drives demand for trafficked persons.
The bench referred to Article 19 of the Council of Europe Convention on Action Against Trafficking in Human Beings, which obligates signatories to criminalise the use of services of a trafficking victim where the user has knowledge that the person is a victim. The Explanatory Report on that Convention describes the main purpose as discouraging the demand for exploitable people that drives trafficking. The bench found Section 370A(2) to be aligned with that object.
The word “engages” in Section 370A(2), the bench held, means the hiring or availing of the services of a sex worker. A customer who engages a sex worker for sexual services, having knowledge or reason to believe that she has been trafficked, can be prosecuted under the provision.
The bench applied the Supreme Court's test for “knowledge” and “reason to believe” from Joti Parshad v. State of Haryana, [1993 Supp (2) SCC 497]. Knowledge is an awareness on the part of the person indicating his state of mind. Reason to believe is a higher level of state of mind than suspicion or doubt. A person has reason to believe if the circumstances are such that a reasonable person would, by probable reasoning, conclude or infer the relevant fact. Both are questions to be deduced from the circumstances of each case.
The bench gave practical guidance on what circumstances courts may examine. Where a customer dealt directly with the sex worker, that differs from a situation where a third party — a pimp, facilitator, broker, agent, or manager of the brothel — exercised control over the sex worker. The involvement of such a third party may constitute a relevant factor in determining whether the customer had reason to believe the sex worker was trafficked. The statement of the sex worker is also relevant to ascertain whether she was voluntarily engaged or was acting at the instance of another person.
The bench also clarified that actual sexual exploitation need not occur for the offence under Section 370A(2) to be complete. The provision penalises the act of engaging a trafficked person for the purpose of exploitation, not the successful fulfilment of that purpose. Engagement with the requisite mens rea is sufficient.
The bench reiterated that Section 370A(2) will not apply where sexual services are offered voluntarily by the sex worker directly to a customer. Voluntary sex workers and their clients cannot be harassed by invoking the provision.
Question 3: Mere Presence Is Not Enough, But Physical Co-Location Is Not Required Either
The third question addressed a specific factual pattern that had generated conflicting outcomes: persons found in the vicinity of a brothel during a raid, but not found in a room with a sex worker.
In Mohammad Nawaz and Beeram Thirupathi Reddy, Single Judges had held that Section 370A(2) is attracted to a customer found at the scene of the offence. In Jatin Kocher, a Single Judge had held that mere presence is not enough and that there must be proof the petitioner was found along with the sex worker. In Mohammad Naseem, it was held that persons caught in the premises or surroundings of a brothel house, who were not found along with sex workers in a room, cannot be termed customers at all.
The Division Bench steered between these positions. Mere presence in the vicinity of a brothel, without proof of engagement of a trafficked person or knowledge or reason to believe that such person was trafficked, is insufficient to invoke Section 370A(2). Presence may be a relevant factor, but it is not determinative on its own.
At the same time, the bench rejected the view that Section 370A(2) is attracted only where a customer is found physically with the sex worker. A person may engage a trafficked person through a pimp or broker. In such a case, the act of engaging and dealing with the pimp, coupled with the requisite knowledge or reason to believe, is sufficient. The person need not be found in the company of the sex worker.
The test, the bench held, is whether the facts and circumstances indicate that the person present in the premises had engaged a trafficked sex worker with the requisite mens rea. Evidence of specific acts of sexual exploitation need not be established. What must be shown is engagement of a trafficked person for the purpose of sexual exploitation, with knowledge or reason to believe that the person was trafficked.
Order
The Division Bench answered the reference on 9 June 2026 as follows. First, a customer of a sex worker cannot be prosecuted for trafficking under Section 370 of the IPC. Second, a customer can be prosecuted under Section 370A(2) of the IPC, provided the sex worker is a trafficked person and the customer had knowledge or reason to believe that fact. Third, whether mere presence in the vicinity of a brothel is sufficient to prosecute a person under Section 370A(2) depends on the facts and circumstances of each case; a person can be prosecuted under Section 370A(2) even without evidence of specific acts of sexual exploitation, provided the material on record indicates engagement of a trafficked person for the purpose of sexual exploitation with the requisite knowledge or reason to believe.
The individual criminal petitions in the batch were not finally disposed of by the reference order. The answers to the referred questions will govern the consideration of those petitions in accordance with the facts of each case.