IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE A.K.BASHEER TUESDAY, THE 25TH MARCH 2008 / 5TH CHAITHRA 1930 Crl.MC.No. 2219 of 2003() ------------------------- PETITIONER: ACCUSED 1 AND 2 --------------------------------------------- 1. GIJIMOL, AGED 26 YEARS, THATASSERIL VEEDU, ASHRAMAM WARD, ALAPPUZHA. 2. NAZIR S/O. MUHAMMED KUNHI, VALIYAKULANGARA VEEDU, ATHIYOOR VILLAGE, ALAPPUZHA DISTRICT. BY ADV. SRI.S.SANAL KUMAR SMT.BHAVANA VELAYUDHAN RESPONDENTS: COMPLAINANT --------------------------------------------- STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. BY PUBLIC PROSECUTOR SRI.C.M.NAZAR. THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON 25/03/2008 , THE COURT ON THE SAME DAY PASSED THE FOLLOWING: ORDER ON CRL.M.P.2544/2003 IN CRL.M.C. 2219 OF 2003. ......... DISMISSED. 25/03/2008 SD/- A.K.BASHEER, JUDGE. A.K. Basheer, J. - - - - - - - - - - - - - - - - - - - - - - - - - Crl.M.C. No. 2219 of 2003-B - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 25th day of March, 2008. ORDER Kanakakkunnu Police had charge sheeted the petitioners and 3 others alleging commission of offences punishable under Sections 3 (2)(b) and Sections 4 and 7 of the Immoral Traffic (Prevention) Act 1956. 2. Circle Inspector of Police, Kayamkulam along with his party had conducted a raid at the residence of accused No. 5 at about 10.45 PM on October 27, 2002 pursuant to information received by him that accused No.5 had been facilitating accused No.s 1 to 4 to engage in prostitution. In the suo motu First Information Report registered by the Circle Inspector it was alleged that on reaching the residence of accused No.5, he had peeped through a window into the bed room on the northern side of the house and he found accused Nos.1 and 2 fully naked and engaged in sexual intercourse. A search was conducted by the Circle Inspector thereafter. He found accused Nos.3 and 4 apart from accused No.5 also in the house. A sum of Rs.100/- each was recovered from accused No.2 and 3 apart from a mobile phone. A sum of Rs.900/- was recovered from the purse of accused No.1. An ambassador car bearing registration No.KL 4/D 3427 which was allegedly used by the accused, was also also taken into custody. The accused were arrested and taken to the Police Station. 3. It is brought to my notice that the Police had completed the Crl.MC. 2219/2003. 2 investigation and filed a charge sheet against the accused before the Judicial Magistrate of First Class, Haripad. The case is now stated to be pending in CC.No.14/2003. 4. It is contended by learned counsel for the petitioner that the prosecution launched against them is totally misconceived and unsustainable. As rightly pointed out by Ms.Bhavana, learned counsel for the petitioners, Section 3(2) (b) of the Act would be attracted only if a person being the owner , lessor or landlord of any premises or the agent of such owner, lessor or landlord of any premises or the agent of such owner, lessor or landlord, lets the same or any part thereof with the knowledge that the same or any part thereof is intended to be used as a brothel, or is wilfully a party to the use of such premises of any part thereof as a brothel. It is further contended that Section 4 which deals with punishment for living on the earnings of prostitution will not also be attracted. A perusal of the provisions contained in Section 4 shows that any person over the age of eighteen years who knowingly lives, wholly or in part, on the earnings of prostitution of any other person shall be punishable with imprisonment for a term which may extend to two years or with fine. The other clauses in Section 4 also refer to a person living with or to be habitually in the company of a prostitute or to have exercised control, direction or influence over the movement of a prostitute in such a manner as to show that such person is aiding, abetting or compelling her for prostitution. It is further seen that any person who is acting as a tout or pimp on behalf of a prostitute shall be presumed, until the Crl.MC. 2219/2003. 3 contrary is proved, that such person is knowingly living on the earnings or prostitution of another person within the meaning of sub section (1) of Section 4 of the Act. Section 7 of the Act reads thus: “7. Prostitution in or in the vicinity of public places:-- (1) Any person who carries on prostitution and the person with whom such prostitution is carried on, in any premises, (a) which are within the areas, notified under sub-section (3) or (b) which are within a distance of two hundred meters of any place of public religious worship, educational institution, hotel, hospital nursing home or such other public place of any kind as may be notified in this behalf by the Commissioner or Police or Magistrate in the manner prescribed.” A perusal of the provisions contained in the above section will clearly show that the allegation made against the petitioners would not come within the ambit of the above section. It is submitted by the learned counsel that the provisions contained in Section 15 of the Act had been clearly violated. In this context learned counsel invites my attention to a decision in T.Jacob v. State of Kerala (AIR 1971 Kerala 166) and Public Prosecutor v. Uttaravalli Nageswararao ((1965)1 Crl.L.J. 543. Crl.MC. 2219/2003. 4 5. Having heard learned counsel for the petitioner and the learned Public Prosecutor and having perused the entire materials available on record, I am satisfied that the proceedings pending against the petitioners arising from Crime No.175/2002 of Kanakakunnu Police Station are liable to be quashed. I do so. Crl.M.C is allowed. A.K. Basheer, Judge. an.