IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.GIRI WEDNESDAY, THE 27TH AUGUST 2008 / 5TH BHADRA 1930 Crl.MC.No. 107 of 2006() ------------------------ CC.83/2005 of ADDL. CHIEF JUDICIAL MAGISTRATE COURT, TRIVANDRUM .................... PETITIONER: ACCUSED NO.1 & 2 ---------------------------- 1. NAGARAJAN, S/O.RAMACHANDRAN REDDIAR, KRW 126, KATTACHALL ROAD, TIRUMALA. 2. SEENA HARIDAS, D/O.USHADEVI, KOCHUVADAKKETHIL VEEDU, SADANANDAPURAM, KOTTARAKKARA TALUK, KOLLAM DISTRICT. BY ADV. SRI.P.VIJAYA BHANU RESPONDENT: COMPLAINANT ------------------------ STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. BY PUBLIC PROSECUTOR C.M.KAMMAPPU THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON 27/08/2008, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: V.GIRI, J ------------------- Crl.M.C.107/2006 -------------------- Dated this the 27th day of August, 2008 ORDER The accused in C.C.No.83/2005 on the files of the Court of Additional Chief Judicial Magistrate, Thiruvananthapuram, who have been prosecuted for the offence punishable under Sections 4 and 5 of the Immoral Traffic (Prevention) Act, 1956, are the petitioners in this case filed under Section 482 of Cr.P.C. 2. Going by Annexure-A final report, the incident leading to the registration of crime is stated to have taken place at 4.15 hours on 23.10.2004. Apparently on the basis of an information conveyed by one municipal counsellor that certain illegal activities are being carried on in a building bearing No.T.C./132(2), the Circle Inspector of police, Pettah police station along with the police party and other inhabitants of the neighbourhood came to the building. The Circle Inspector of police peeped into the bedroom near the hall and found the petitioners engaged in sexual intercourse. The report Crl.M.C.107/2006 2 shows that according to the prosecution, the building in question had been taken on rent by the first accused in the year 2000 and that accused Nos.1 and 2 used to frequent the building every now and then. A reading of the final report suggests that the building was being used by the accused for carrying on an affair. The accused were not married to each other. It is on this premise that a crime was registered for an offence punishable under Sections 4 and 5 of the Act. The accused were in custody for two days. Thereafter, they were released on bail. Annexure-A final report, was filed before the Court. On the premise that a reading of the report as above, will not make out an offence under Sections 4 and 5 of the Act and there is not even a remote possibility of a conviction for the offences charged against the petitioners, they have approached with this application under Section 482 of the Code of Criminal Procedure contending that further proceedings in C.C.No. 83/2005 is an abuse of process of law. 3. I heard learned counsel for the petitioner Crl.M.C.107/2006 3 Mr.Vijayabhanu and the learned Public Prosecutor. Section 4 and 5(1) of the Act read as follows:- Section 4. - Punishment for living on the earnings of prostitution- (1). Any person over the age of eighteen years who knowingly lives, wholly or in part, on the earnings of the prostitution of any other person shall be punishable with imprisonment for a term which may extend to two years, or with fine which may extend to one thousand rupees or with both and where such earnings relate to the prostitution of a child or a minor, shall be punishable with imprisonment for a term of not less than seven years and not more than ten years. Section 5(1) - Procuring, inducing or taking person for the sake of prostitution- (1)Any person who- (a). procures or attempts to procure a person whether with or without his consent, for the purpose of prostitution or (b). induces a person to go from any place, with the intent that he, may for the purpose of prostitution become the inmate of, or frequent, a brothel: or Crl.M.C.107/2006 4 (c). takes or attempts to take a person or causes a person to be taken from one place to another with a view to his carrying on, or being brought up to carry on prostitution or (d). causes or induces a person to carry on prostitution. 4. Section 4 essentially provides that if any person not only lives wholly or in part on the earnings of the prostitution of any other person he shall be punishable with imprisonment for a term which may extend to two years. Is there any allegation which remotely makes out a case under Section 4 in this case ? The allegation as discernible from Annexure-A report is that the accused were found having sexual intercourse in a building which was taken on rent by the first accused in the year 2000 and which was being frequented by them from time to time. There is no allegation against the second accused that she was a prostitute or was living as a prostitute. There is no allegation against the first accused that he was living wholly or in part on the earnings of another from prostitution. Crl.M.C.107/2006 5 5. Section 5 of the Act deals with the case where a person procures or attempts to procure another for the purpose of prostitution, in the present case, Section 5 could have been conceived only if the Prosecution had a case that the first accused was procuring or was attempting to procure the second accused for prostitution or was trying to take the second accused from one place to another for prostitution. As already noted above, the entirety of the allegations seems to be rested on just one incident of the accused having found to have indulged in sexual intercourse, in a building which was taken on rent by the first accused in the year 2000. The ingredients of Sections 4 and 5 are not even remotely attracted. In such circumstances, I am of the view that it would be a travesty of justice to require the petitioners to undergo trial with all its attendant travails. 6. For all these reasons, Crl.M.C is allowed and the proceedings in C.C.No.83/2005 on the files of the Crl.M.C.107/2006 6 Additional Chief Judicial Magistrate, Thiruvananthapuram, are quashed. V.GIRI, Judge mrcs