IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MRS. JUSTICE K.HEMA WEDNESDAY, THE 10TH MARCH 2010 / 19TH PHALGUNA 1931 Crl.MC.No. 692 of 2007() ------------------------ CC.309/2002 of CHIEF JUDICIAL MAGISTRATE, KALPETTA .................... PETITIONER(S): ACCUSED NO.10 ---------------------------- V.P.BALAN NAIR, S/O.KRISHNAN NAIR, KOTTAPPADY VILLAGE, VYTHIRI TALUK, WAYANAD DISTRICT. BY ADV. SRI.GRASHIOUS KURIAKOSE SMT.CELINE JOSEPH RESPONDENT(S): COMPLAINANT -------------------------- STATE- DY.S.P., KALPETTA, REP.BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. PUBLIC PROSECUTOR SRI. B.JAYASURYA THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON 10/03/2010, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: ORDER ON CRL.M.A.NO.1155/07 IN CRL.M.C.692/07 DISMISSED. ID/- K. HEMA, JUDGE. 10.3.2010 // TRUE COPY// P.S. TO JUDGE. K. HEMA, J. --------------------------------------------------- Crl.M.C. No. 692 of 2007 --------------------------------------------------- Dated this the 10th day of March, 2010. ORDER Petition filed by petitioner to quash Annexure-V order passed by Magistrate Court. 2. Petitioner was examined as PW9 in the case. On the basis of evidence adduced, Magistrate Court found that there is evidence to proceed against petitioner under Section 319 of The Code of Criminal Procedure ('Cr.P.C'. for short) and he was impleaded as accused no.10 in the case after taking cognizance of offence under Section 3, 2 (b) of the Immoral Traffic (Prevention) Act. The said order is under challenge. 3. Learned counsel for petitioner submitted that the house in which the offence was committed belonged to PW9, but it was rented out to first accused through one Sasidharan on execution of an agreement. Petitioner has no direct acquaintance with first accused. When the petitioner was cross-examined in court, he gave these details in evidence. He also stated that he did not [Crl.M.C.692/2007 2 receive the rent. The trial court was of the opinion that petitioner gave evidence that he knew that the house was a brothel house and he also did not receive any rent for the house. Therefore, there is sufficient materials to prove that petitioner is the owner of the house and he had knowledge that the house is intended to be used as brothel and allowed first accused to use the premise as a brothel. Even if all these facts are admitted, petitioner cannot be proceeded against, in view of the provision contained in Section 132 of the Evidence Act, it is submitted. 4. A decision was also cited in support of the above argument which is reported in Gangadharan v. S.I. of Police (1989 (2) KLT 448). It is also submitted by petitioner's counsel on the basis of the dictum laid down in the above decision that petitioner appeared before the court as a witness and as summoned by the court and the alleged incriminating evidence was brought out in cross-examination as answer to the question. Such answers are to be treated as having given under compulsion and hence those cannot be used for proceeding against a witness under Section 313 Cr.P.C., it is strongly argued. 5. On hearing both sides and on going through the decision [Crl.M.C.692/2007 3 cited by learned counsel for petitioner, I find that petitioner cannot be proceeded against on the basis of the evidence given by him on his appearance on summons issued by the court. It is held in the decision cited that the answer given by such a witness cannot be charactered as a mere voluntary statement and without any compulsion. If in the course of the testimony, such person has given answers incriminating himself, he can look forward to the protection under the proviso to Section 132 of the Evidence Act. Hence, in the light of the dictum laid down in Gangadharan's case, petitioner is entitled for the protection under the proviso to Section 132 of the Evidence Act and he cannot be proceeded under Section 319 of Cr.P.C. Therefore, the impugned order is to be set aside. In the result, the following order is passed: 1. Anneuxre-V order is set aside. 2. Petitioner shall not be proceeded against on the basis of Annexure-V order. Petition is allowed. K. HEMA, JUDGE. krs.