IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE A.K.BASHEER FRIDAY, THE 18TH SEPTEMBER 2009 / 27TH BHADRA 1931 Crl.MC.No. 3729 of 2006 --------------------------- CC.1469/2005 of JUDL. MAGISTRATE OF FI RST CLASS COURT-III, NEYYATTINKARA PETITIONER(S): ACCUSED ----------------------------- 1. MADHAVAN NAIR, KRISHNA MANDIRAM, MADICHAL, VILAVANCODE VILLAGE, K.K.DISTRICT. 2. SUMAL RAJ, 'H0LY CROSS', VALIYATHURA, MUTTATHARA, THIRUVANANTHAPURAM. 3. ANIL, S/O.SHIVARAJAN, 'SWATHY', PERUNTHANNI WARD, PALKULANGARA, THIRUVANANTHAPURAM. BY ADV. SRI.J.HARIKUMAR SRI.SUMAN CHAKRAVARTHY RESPONDENT(S): COMPLAINANT -------------------------------------- STATE OF KERALA, REP. BY ITS PROSECUTOR, HIGH COURT OF KERALA. BY PUBLIC PROSECUTOR SRI.K.S.SIVAKUMAR. THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON 18/09/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: A.K. Basheer, J. - - - - - - - - - - - - - - - - - - - - - - - - - - - Crl.M.C.No. 3729 of 2006 - - - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 18th day of September, 2009 ORDER Petitioners who are being prosecuted for the offences punishable under Sections 3, 4, 5, 6 and 7 of the Immoral Traffic (Prevention) Act, 1956 and Section 294 (a) of the Indian Penal Code have filed this petition under Section 482 of the Code of Criminal Procedure to quash the proceedings pending against them. Petitioners have been arraigned as accused Nos.6, 8 and 12 in CC.No.1469/05 on the file of the Judicial Magistrate of First Class, No. III, Neyyattinkara. 2. The prosecution case appears to be that on October 31, 2002 at about 3.30 p.m. the Circle Inspector of Police , Vizhinjam had conducted a search in the building of Guruprakash Ayurvedic Centre, Vellar, Kovalam which allegedly was owned by accused No.1. According to the prosecution, the building referred to above was being used as a brothel and accused Nos.2 to 12 were found indulging in sexual activities. The specific case against petitioner No.1 is that he was caught in the act with accused No.7 while petitioner No.2 was found having sex with accused No.9 and petitioner 3 with accused No.13. 3. Sri.Suman Chakravarthy, learned counsel for the petitioners, while inviting my attention to Section 7 of the Act contends that a charge under that Section would lie only if any Crl.M.C.3729/06 2 person “carried on prostitution” in a premises within a distance of two hundred meters of any place of public religious worship, educational institution, or such other public place of any kind as may be notified. He also invites my attention to a decision of this Court in Radhakrishnan v. State of Kerala (2008 (2) KLT 521) in which the above statutory provision has been considered. This Court held that in the absence of a notification issued by the State of Kerala under sub-section (3) of Section 7 or by the Commissioner of Police or the District Magistrate under clause (b) of Section 7(1), the prosecution cannot be sustained. The prosecution does not have a case that such a notification was ever issued in respect of the area from where the petitioners were allegedly apprehended while having sex with the other accused. Learned counsel has also invited my attention to Sections 3, 4, 5 and 6 of the Act which will not obviously be attracted in the case of the petitioners (See X vs. State of Kerala (2009 (2) KLT 7). 4. Same is the position as far as the offence under Section 294(a) of the IPC is concerned. Admittedly accused No.1 was the owner of the building from where the alleged sexual activity was detected. Even according to the prosecution, petitioners were customers and they were found indulging in sex with three other accused. Therefore 294(a) also cannot be attracted in the present case. 5. It is further pointed out by the learned counsel that the Crl.M.C.3729/06 3 search is vitiated inasmuch as no independent woman was summoned or made as a witness as provided under Section 15(2) of the Act. 6. In the above facts and circumstances I am satisfied that the proceedings pending against the petitioners are liable to be quashed. I do so. The Crl.M.C is allowed. A.K. Basheer Judge. an.