Mere customers cannot be prosecuted under ITPA provisions absent proof of procurement or involvement in prostitution.

The applicant was arrested during a police raid on a SPA/massage parlour at Amroli, Surat, pursuant to secret information. He was alleged to be present as a customer and was arraigned in FIR being CR No. 11210004221357 of 2022 for offences under Sections 3, 4, 5 and 7 of the Immoral Traffic (Prevention) Act, 1956 and Section 370A(2) of the Indian Penal Code, 1860

The applicant contended that he was merely a customer and had neither procured nor attempted to procure any woman or girl for prostitution

He sought quashing of the FIR, Charge-sheet No. 943 of 2022, Sessions Case No. 853 of 2025, and all consequential proceedings under Section 528 of the Bharatiya Nagarik Suraksha Sanhita, 2023

The learned APP did not dispute that the applicant had been arraigned as a customer

Whether the criminal proceedings against a person alleged only to be a customer of a SPA/massage parlour disclose offences under Sections 3, 4, 5 and 7 of the Immoral Traffic (Prevention) Act, 1956?

Whether the applicant’s alleged presence as a customer attracts Section 370A(2) of the Indian Penal Code, 1860, or otherwise warrants continuation of the FIR and consequential proceedings?

Whether the FIR, charge-sheet and criminal proceedings should be quashed in exercise of the High Court’s power under Section 528 of the Bharatiya Nagarik Suraksha Sanhita, 2023?

The Court exercised its inherent jurisdiction under Section 528 of the BNSS, 2023 to prevent continuation of criminal proceedings where the allegations, even if accepted, did not disclose the alleged offences

Under Section 5(1)(a) of the Immoral Traffic (Prevention) Act, prosecution requires procuring or attempting to procure a woman or girl for the purpose of prostitution for a particular individual; a person merely using the services cannot, without more, be treated as having procured her.

The Court relied on State of Gujarat v. Bai Radha, w/o Natvarlal Ramshankar, 9 GLR 261, as quoted in Vishal Bhikhabhai Chavda v. State of Gujarat, 2025 (0) AIJEL-HC 252088

Section 7 of the Act requires prostitution to be carried on in or in the vicinity of a public place and cannot ordinarily be invoked against a person merely alleged to be a customer where the foundational ingredients of the other offences are absent

The Court also considered the coordinate-bench decisions in Jojo Thomas Kannappilly v. State of Gujarat, Criminal Misc. Application No. 7387 of 2023, order dated 15 December 2023, and Umedsinh P. Champavat v. State of Gujarat, 2006 (2) GLH 736

The prosecution case identified the applicant only as a customer apprehended during the raid. There was no allegation or material referred to by the Court showing that he had procured or attempted to procure any woman or girl for prostitution, which was the essential requirement for attracting Section 5 of the Immoral Traffic (Prevention) Act

Applying the reasoning in Vishal Bhikhabhai Chavda and the precedent of Bai Radha, the Court held that mere presence as a customer did not satisfy the statutory concept of “procurement.”

The Court further relied on the principle that Section 7 presupposes the carrying on of prostitution in or near a public place and could not independently sustain the prosecution against the applicant when the principal statutory ingredients were not established

Since the State did not dispute the applicant’s status as merely a customer and the case was squarely covered by the cited decisions, continuation of the FIR and connected proceedings was considered legally unsustainable

It quashed and set aside FIR CR No. 11210004221357 of 2022 registered with Amroli Police Station, Surat, together with Sessions Case No. 853 of 2025 and all other consequential proceedings arising from the FIR, insofar as they concerned the applicant-accused

Direct service was permitted