IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR THURSDAY, THE 2ND JULY 2009 / 11TH ASHADHA 1931 Crl.MC.No. 639 of 2009(D) ---------------------------------- CC.322/2006 of JUDL. MAGISTRATE OF FIRST CLASS COURT-III, NEYYATTINKARA .................... PETITIONER(S): IST ACCUSED ------------------------------------------- RAJEESH, S/O.CHANDRASEKHARAN NAIR, T.C. 21/1190, ANATHANAM, NEDUMCADU, KARAMANA, THIRUVANANTHAPURAM. BY ADV. SRI.D.KISHORE RESPONDENT(S): STATE & COMPLAINANT ------------------------------------------------------------- 1. STATE OF KERALA, REPRESENTED BY ITS PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. 2. THE CIRCLE INSPECTOR OF POLICE FORT POLICE STATION, THIRUVANANTHAPURAM. (IN CHARGE OF VIZHINJAM CIRCLE ON THE DATE OF OFFENCE ALLEGED). R1 & R2 BY PUBLIC PROSECUTOR SRI.AMJAD ALI. THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON 02/07/2009, ALONG WITH CRMC NO. 3644 OF 2005 THE COURT ON THE SAME DAY PASSED THE FOLLOWING: M.SASIDHARAN NAMBIAR, J. ================== Crl.M.C. No. 639 of 2009-D ================== Dated this the 2nd day of July, 2009. O R D E R Petitioner is the first accused in C.C.No.322/2006 on the file of Judicial First Class Magistrate Court-III, Neyyattinkara. Prosecution case is that on 19-10-2005 at 1.30 PM on getting information, Circle Inspector of Police, Fort Circle Station, who was in charge of Vizhinjam Circle Station, along with Women Constables proceeded to house No.VRP.111/625 of Venganoor Village and found the petitioner engaged in sexual intercourse with other accused and arrested him and petitioner thereby committed the offences under Sections 3, 4, 5 and 7 of Immoral Traffic (Prevention) Act, 1956. This petition is filed under Section 482 of Code of Criminal Procedure to quash the case as against him contending that even if the allegations in Annexure II final report is accepted, the ingredients of the offences under Sections 3, 4, 5 and 7 is not attracted and therefore the case as against the petitioner is to be quashed. Crl.M.C.No.639/2009-D -2- 2. Learned Counsel appearing for the petitioner and learned Public Prosecutor were heard. 3. The argument of the learned Counsel appearing for the petitioner is that in order to attract Section 3 of Immoral Traffic (Prevention) Act, 1956 (hereinafter referred to as the Act) there should be an allegation that petitioner keeps or manages or acts or assists in keeping or management of a brothel as defined in Section 2(a) of the Act. There is no case that petitioner has kept, managed or acted or assisted in keeping or management of any brothel. Hence on the allegations in the final report an offence under Section 3 is not attracted. It is also pointed out that Section 4 of the Act provides punishment for living on the earnings of prostitution and under the said section petitioner could be prosecuted, only if he is living with or is habitually in the company of a prostitute or have control or direction or influence over the movements of a prostitute and in the absence of a case that petitioner is living on the earnings of a prostitute or is living with or is habitually in the company of a prostitute, an offence under Section 4 is also not attracted. It is further pointed out Crl.M.C.No.639/2009-D -3- that Section 5 provides punishment for procuring, inducing or taking a person for the purpose of prostitution and there is no allegation as against the petitioner to attract Section 5 also. Learned Counsel then argued that the final report does not disclose whether petitioner has been charged based on Clause (a) or Clause (b) of Section 7 and if petitioner is to be prosecuted for clause (a) the house from where petitioner was arrested, should be in a notified area and in the absence of a case that it is a notified area, clause (a) is not attracted. It is also argued that clause (b) is attracted only if the house is within a distance of 200 metres of any place of public religious worship, educational institution, hostel, hospital or nursing home and there is no such case for the prostitution and therefore clause (b) is also not attracted. Reliance was placed on the decision of the learned Single Judge in Radhakrishnan v. State of Kerala (2008 (2) KLT 521). Learned Counsel also argued that Section 15(2) of the Act provides for presence of atleast one respectable inhabitant of the locality at the time of search and when the mahazer prepared and the final report do not show that any such respectable woman inhabitant was Crl.M.C.No.639/2009-D -4- present, the search is vitiated and as held in Sinu Sainudheen v. S.I. of Police (2002 (1) KLT 693), based on an illegal search prosecution will not lie. 4. Learned Public Prosecutor submitted that even if Section 7 is not attracted for want of notification and Section 3 as no case of a brothel, Section 5 is attracted. 5. As rightly pointed out by the Counsel appearing for the petitioner, on the allegations in Annexure II final report, an offence under Section 3 will not lie when there is no case that petitioner is either keeping or managing or acting or assisting in the keeping or management of a brothel. Similarly in the absence of a case that petitioner is living in the earnings of prostitution or is living with or is habitually in the company of a prostitute or exercise control, direction or influence over the movements of a prostitute in such a manner as to show that he is aiding, abetting or compelling prostitution or that he was acting as a tout or pimp on behalf of a prostitute, he cannot be prosecuted for the offence under Section 4 also. In order to attract Section 7, prostitution is to be carried either within the area notified under sub-section (3) as provided in clauses (a) or Crl.M.C.No.639/2009-D -5- it should be within a distance of 200 metres of any place of public religious worship, educational institution, hostel, hospital or nursing home. There is no case that the house, from which petitioner was arrested with other accused, is within the notified area as provided under sub-section (3). So also there is no allegation that the said house is within a distance of 200 metres either from a public religious worship or educational institution or hostel or hospital or nursing home. Therefore Section 7 is also not attracted. 6. What remains is only Section 5 of the Act. Section 5 provides that any person who procures or attempts to procure a person with or without his consent, for the purpose of prostitution or induces a person to go from any place with intention that he may for the purpose of prostitution become the inmate of or frequent, a brothel or takes or attempts to take a person or causes a person to be taken from one place to another with a view to carrying on or being brought up to carry on prostitution or causes or induces a person to carry on prostitution. Crl.M.C.No.639/2009-D -6- 7. The argument of the learned Public Prosecutor is that clause (d) of Section 5 applies. Clause (d) will apply only if prosecution has a case that petitioner caused or induced a person to carry on prostitution. There is no case that petitioner either caused or induced the other accused to carry on prostitution. In the absence of such a case, an offence under Section 5 also will not lie. In such circumstances, continuation of the proceedings as against the petitioner is not in the interest of justice as the possibility of conviction is very bleak. 8. Petition is allowed. C.C.No.322/2006 on the file of Judicial First Class Magistrate Court-III, Neyyattinkara as against the petitioner is quashed. M.SASIDHARAN NAMBIAR JUDGE dkr