Court Holds Customers Engaging in Sexual Activity at Spa Are Liable Under Sections 5 and 7 of Immoral Traffic (Prevention) Act; Proceedings Against Others Quashed for Lack of Evidence on Trafficking and Management
In a significant judgment dated September 23, 2026, the Kerala High Court, presided by Justice Jobin Sebastian, delivered a nuanced verdict in the case of Praveen Sodharan and Ors. v. State of Kerala, involving allegations of running a brothel disguised as an Ayurvedic spa centre named "Moksha" in Kochi.
The petitioners, accused Nos. 1 and 3 to 7, were charge-sheeted under Section 143 read with Section 3(5) of the Bharatiya Nyaya Sanhita, 2023 (BNS) and Sections 4, 5, 6, and 7 of the Immoral Traffic (Prevention) Act, 1956 (ITP Act). The prosecution alleged that accused Nos. 1 to 3 managed the spa which was used for sexual exploitation, while accused Nos. 4 to 7 were found engaged in sexual intercourse during a police raid and were also accused of assisting in the recruitment and harbouring of women.
The petitioners sought quashing of the final report and all proceedings, relying heavily on statements and affidavits from women allegedly exploited, who recanted prior statements under Section 164 CrPC and denied involvement in any sex work. They also pointed out procedural irregularities during the raid, including the absence of a female independent witness, and claimed accused No. 1 was not present at the scene as supported by CCTV footage.
The court, however, underscored that the power to quash proceedings under Section 528 of the BNSS (corresponding to Section 482 CrPC) is extraordinary and must be exercised with caution. The court emphasized it is not to conduct a mini-trial or evaluate evidence in detail but to assess whether the allegations and materials prima facie disclose a cognizable offence.
Examining the evidence, the court found sufficient prima facie material against accused Nos. 1 and 3 regarding management and operation of the spa centre. The court declined to quash charges against them, stating the disputed factual issues about trafficking and exploitation should be addressed at trial.
Regarding accused Nos. 4 to 7, the court noted that while they were found engaging in sexual activity at the establishment, no material connected them to the management, recruitment, or harbouring of women. Consequently, the court quashed proceedings against these accused under Section 143 read with Section 3(5) of the BNS and Sections 4 and 6 of the ITP Act.
However, relying on a recent Division Bench precedent (Noushad v. State of Kerala), the court held that customers who voluntarily patronize brothels and avail of sexual services for consideration are liable under Sections 5 and 7 of the ITP Act. Thus, the court allowed prosecution to continue against accused Nos. 4 to 7 for these offences.
The court further clarified that recantation by the women exploited cannot alone justify quashing, especially since the prosecution also relies on statements of independent and official witnesses. Procedural irregularities during search were also deemed insufficient ground for quashing, with legal consequences to be considered during trial.
In conclusion, the Kerala High Court partly allowed the petition by quashing certain charges against accused Nos. 4 to 7 but retained prosecution against accused Nos. 1 and 3 and allowed continued proceedings against accused Nos. 4 to 7 under Sections 5 and 7 of the ITP Act.
This judgment reinforces that participation in the commercial sex trade as a customer attracts penal consequences and that quashing of criminal proceedings requires careful consideration of prima facie material, especially in cases involving public interest statutes like the ITP Act.
Bottom Line:
Quashing under Section 528 BNSS in immoral traffic case - Statements under Section 164 CrPC and affidavits of women denying sexual exploitation are not by themselves sufficient to quash prosecution at threshold - Customers found engaging in sexual activity in brothel can be prosecuted under Sections 5 and 7 of Immoral Traffic (Prevention) Act, but in absence of material showing role in management, recruitment or harbouring, proceedings against them for trafficking/unlawful assembly and Sections 4 and 6 ITP Act liable to be quashed.
Statutory provision(s):
Section 143, Section 3(5) Bharatiya Nyaya Sanhita, 2023; Sections 4, 5, 6, 7 Immoral Traffic (Prevention) Act, 1956; Section 528 Bharatiya Nagarik Suraksha Sanhita, 2023; Section 164 CrPC
Praveen Sodharan v. State of Kerala, (Kerala) : Law Finder Doc Id # 2990560
