IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.RAMKUMAR FRIDAY, THE 11TH APRIL 2008 / 22ND CHAITHRA 1930 Crl.MC.No. 1005 of 2007() ------------------------- PETITIONER: ------------ K.RADAKRISHNAN,S/O.KUNJAN,AGED 46 YEARS, THORATTAHIL HOUSE,THALAYOLAPRAMBU,ATTAYAM,VAIKOM. BY ADV. SRI.T.A.UNNIKRISHNAN SRI.P.P.BIJU RESPONDENTS: ------------- STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR,HIGH COURT OF KERALA,ERNAKULAM. BY PUBLIC PROSECUTOR SRI.K.S. SIVAKUMAR THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON 04/04/2008 ALONG WITH OTHER CONNECTED CASE, THE COURT ON 11-04-2008 PASSED THE FOLLOWING: V. RAMKUMAR, J. * * * * * * * * * * * * * * * * * * Crl.M.C. Nos. 294 of 2008 and Crl.M.C. 1005 of 2007 * * * * * * * * * * * * * * * * * * Dated: 11-04-2008 ORDER The common petitioner (K. Radhakrishnan) in these petitions filed under Section 482 Cr.P.C. is the first accused in Crime No. 782 of 2006 of Taliparamba Police Station for offences punishable under Sections 7 and 8 of the Immoral Traffic (Prevention Act) 1956 (“I.T.P. Act” for short). The petitioner is a Deputy Superintendent of Police (Dy.S.P.) under suspension and working as such in the District Crime Records Bureau (DCRB), Kannur. In Crl. M.C. No. 1005 of 2007 he seeks to quash the F.I.R. and all further proceedings in the above Crime. in Crl.M.C. 294 of 2008 he seeks to quash Annexure II final report and all further proceedings including C.C. No. 739 of 2007 on the file of the Court of the Judicial Magistrate of the First Class, Thaliparamba. THE PROSECUTION CASE 2. On 15-12-2006 at 2.45 p.m. one Thaikandy Balakrishnan who was the Vice Chairman of Taliparamba Municipality gave a statement to Habeeb Rahman, Dy. S.P., Kannur who was holding Crl.M.C. No. 294 of 2008 and Crl.M.C. No. 1005 of 2007 -:2:- additional charge of Taliparamba Sub Division. The statement reads as follows:- “14-12-2006 was a hartal day. In the morning of that day he had started for attending the procession in connection with the hartal. At about 9 a.m. he noticed a police jeep proceeding to the house of one Padmanabhan, a bank employee and situated near the A.K.G. Stadium at Thoovodu. The local public were also at that time keeping a watch over the said house and its surroundings. He had also noticed the coming and going of a white Maruti Car and the black Car now parked in the porch of the said house and bearing Reg. No. KL 5-U 1879 and men and women who were strangers to him were coming and going. After about 9 '0 clock in the night he heard the screams of a woman. The noise became louder after some time. At that time one T. Rajendran and others who are neighbouring residents came near the house and peeped through the southern window lying open into the south western bedroom to find a woman and two males lying completely naked on the bed. The two men were lying on either side of the woman. The dark complexioned and fat man who was subsequently identified as the Dy.S.P. was seen indulging in sexual intercourse with the woman and the other man was seen fondling her. It was then 11 0' clock in the night. Realising that the above Crl.M.C. No. 294 of 2008 and Crl.M.C. No. 1005 of 2007 -:3:- persons were publicly having illegal carnal intercourse, the local public forced open the front door of the house. They got inside the house and found two persons lying asleep on the floor in the entrance room. They found 12 liquor bottles of various brands and glasses on the table which was lying towards southern wall of the room. The local public including the statement giver then held the four males and one female as captives in the said house and informed the police. One of the two persons found in the entrance room was later identified to be the driver of the Dy.S.P. The police who came from Taliparamba took the four persons and the woman to the hospital. The police jeep bearing Reg. No. KL0-1 X 9049 in which the Dy. S.P. had arrived there is lying in the car porch of the house”. After recording the said statement the Dy. Superintendent of Police, Kannur forwarded the same to the Station House Officer, Taliparamba for appropriate action. The Addl. Sub Inspector of Police, Taliparamba registered the above crime on 15-12-2006 at 2.45 p.m. While the petitioner was at the house of occurrence which is a rented house of the 3rd accused (Rajesh) the local public had barged into the said house armed with motor cycle chains, iron rods etc. and had brutally assaulted the inmates of the house including the petitioner herein Crl.M.C. No. 294 of 2008 and Crl.M.C. No. 1005 of 2007 -:4:- resulting in the police taking the injured including the petitioner to the Pariyaram Medical College Hospital from where on the strength of the statement given by the petitioner herein the Taliparamba Police registered Crime No. 783 of 2006 for offences punishable under Sections 143, 147, 148, 452, 324 and 294 (b) read with Sec. 149 I.P.C. against 15 identifiable persons. The present case, namely, Crime No. 782 of 2006 was investigated by the Dy. S.P. (Administration), Kannur who filed a final report dated 18- 8-2007. The following are the allegations in the final report :- On 14-12-2006 at about 11 '0 clock in the night at Koovodu in Thaliparamba Amsom in the residential building belonging to charge witness No. 12 and taken on rent by A3 (Rajesh) and A4 (Viiluthi) for their residence and bearing No. TMC XVII/58(A), in furtherance of the previous plan, A1 (Radhakrishnan) and A2 (Santhosh) came as guests in the said house. After keeping open the windows of the south western bedroom of the said house and switching on the lights in such a way that the neighbours and members of the public ould see their activities A1, A3 and A5 (Sosammo Chacko @ Ammini) publicly indulged in Crl.M.C. No. 294 of 2008 and Crl.M.C. No. 1005 of 2007 -:5:- prostitution in a completely naked condition. The accused persons have thereby committed offences punishable under Sections 7 and 8 of the Immoral Traffic Prevention Act, 1956. On 31-08-2007, the J.F.C.M. Thalaiparamba took cognizance and registered the case as C.C. 739 of 2007. It is the said proceedings which are assailed in these petitions. 3. I heard Advocate Sri. T.A. Unnikrishnan, the learned counsel appearing for the petitioner and Advocate Sri. K.S. Sivakumar, the learned Public Prosecutor who defended the State. JUDICIAL ANALYSIS 4. Section 7 of the ITP Act reads as follows: “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 area or 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, hostel, hospital, nursing home or such other public place of any kind as may be notified in this behalf by the commission of police or magistrate in the manner prescribed shall be punishable with Crl.M.C. No. 294 of 2008 and Crl.M.C. No. 1005 of 2007 -:6:- imprisonment for a term which may extend to three months. (1A). Where an offence committed under sub- section (1) is in respect of a child or minor the person committing an offence shall be punishable with imprisonment of either description for a term which shall not be less than seven years but which shall also be liable to fine: Provided that the court may, for adequate and special reasons to be mentioned in the judgment, impose a sentence of imprisonment for a term of less than seven years. (2) Any person who (a) being the keeper of any public place knowingly permits prostitutes for purposes of their trade to resort to or remain in such place; or (b) being the tenant, lessee, occupier or person in charge of any premises referred to in sub- section (1) knowingly permits the same or any part thereof to be used for prostitution or (c ) being the owner lessor or landlord of any premises referred to in sub section (1) 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 may be used for prostitution, or is willfully a party to such use shall be punishable on first conviction with imprisonment for a term which may extend to three months, or with fine which may extend to two hundred rupees and if the public place or premise happen to be a hotel the license for carrying on the business of such hotel under any law for the time being in force shall also be liable to be suspended for a period of not less than three months but which may extent to one year. Provided that if an offence committed under this sub-section is in respect of child or minor in a hotel, such license shall also be liable to be cancelled. Crl.M.C. No. 294 of 2008 and Crl.M.C. No. 1005 of 2007 -:7:- Explanation: For the purposes of sub-section “hotel” shall have the meaning as in clause (6) of section 2 of the Hotel Receipts Tax, Act 1980 (54 of 1980) (3) The State Government may having regard to the kinds of persons frequenting any area or areas in the state, the nature and the density of population therein and other relevant considerations, by notification in the official gazette, direct that prostitution shall not be carried on in such area as may be specified in the notification. 4) Where a notification is issued under sub- section (3) in respect of any area or areas, the State government shall define the limits of such area or areas in the notification with reasonable certainty. 5) No such notification shall be issued so as to have effect from a date earlier than the expiry of a period of ninety days after the date on which it is issued. Thus, sub-section (1) of the above Section makes the “carrying on of prostitution” by any woman and the person with whom such prostitution is carried on, liable for punishment. The words “carries on prostitution” have a definite meaning and import. It is only if plural and indiscriminate sexuality is proved, could it be said that a person is carrying on prostitution. Whether the activity amounts to the keeping of a brothel or using the premises as a brothel, there should be the activity of carrying on prostitution. The expression “Prostitution” has Crl.M.C. No. 294 of 2008 and Crl.M.C. No. 1005 of 2007 -:8:- been defined under Section 2(f) as follows: “Prostitution” means the sexual exploitation or abuse of persons for commercial purposes and the expression “prostitute” shall be constructed accordingly”. In order to become prostitution there should be the offering of her body by a female for promiscuous sexual intercourse for hire, whether in money or in kind. The word “promiscuous” means indiscriminate. The import of the word “promiscuous” is that the woman or girl offering her body offers it for hire to anyone who desires it for sexual intercourse. In other words, the woman is available to be shared without any discrimination. It, therefore, excludes sexual intercourse which a person may have with a permanently kept concubine. (See State of Kerala v. Pathumma - 1968 KLT 453). 5. Clause (a) of Section 7(1) is attracted only if any person “carries on prostitution” within an area notified by the State Government in the official Gazette under sub Sec. 3 of Section 7. Clause (b) of Sec. 7 (1) is attracted if any person “carries on prostitution” in a premises within a distance of two Crl.M.C. No. 294 of 2008 and Crl.M.C. No. 1005 of 2007 -:9:- hundred metres of any place of public religious worship, educational institution, hostel, hospital, nursing home or such other public place of any kind as may be notified in that behalf either Commissioner of Police or by a Magistrate (evidently District Magistrate) in the manner prescribed. There is no allegation that the house of occurrence is within 200 metres of any of the enumerated public places under clause (a) of section 7(1) of the I.T.P. Act. It was admitted by the learned Public Prosecutor that no notification has been issued either by the State Government under sub-section (3) of Sec. 7 or by the Commissioner of Police or the District Magistrate under clause (b) of Section 7(1). If so, the charge under Section 7 of the ITP Act is misconceived. 6. Even if the premises in question was situated in an area notified under Section 7(3) or within 200 metres of any of the enumerated public places or a public place notified under clause (b) of Section 7(1) of the I.T.P. Act, a person becomes liable for punishment only if it is shown that he or she was “carrying on prostitution”. The activity will amount to Crl.M.C. No. 294 of 2008 and Crl.M.C. No. 1005 of 2007 -:10:- prostitution only if sexual abuse or exploitation of persons is done for commercial purpose. The expression “commercial purpose” has not been defined under the ITP Act. In Strout's Judicial Dictionary, V Edition, the term “Commercial” has been defined as traffic, trade, or merchandise in buying or selling of goods . See also New Delhi Municipal Council v. Sohan Sachdev - 2000 (2) SCC 494. In order that an activity can be called a commercial activity it should include any type of business or activity which is carried on for a profit. The activity must imply some investment of capital and must run the risk of profit or loss. The word “traffic” means the business of buying and selling. It comprehends illegal or disreputable business or activity. “Trafficking” means “ the carrying on of the trade of buying and selling, often with a sinister implication and is used in a disparaging sense. Thus, it is only if sexual abuse or exploitation is carried on for mercenary motives could it be said that it is prostitution. It is pertinent to note in this context that the prosecution has no case that there was any payment or receipt of money or money's worth, nor has the Police recovered Crl.M.C. No. 294 of 2008 and Crl.M.C. No. 1005 of 2007 -:11:- any money constituting the consideration for the lascivious venture alleged. Satiating one's lust or prurient desires for no monetary consideration between consenting partners cannot amount to trading in flesh which is an inevitable ingredient for the vice of prostitution. “Prostitute” means a female who offers her body for promiscuous sexual intercourse for hire whether for money or in kind. (See State of Uttar Pradesh v. Kaushaliya and Others - 1964 (4) SCR 1002 and Gaurav Jain v. Union of India - 1997 (8) SCC 114). A prostitute is also called a harlot, whore of a base hireling. When used as a verb, “to prostitute” means to offer oneself or another for lewd purposes usually for hire. 7. Clauses (a) to (c ) of sub section 2 of section 7 of the I.T.P. Act also will be attracted only if the keeper, occupier, tenant or the person in charge of the premises knowingly permits prostitution in such premises. There is no such accusation against the petitioner herein. The prosecution has no case that the petitioner was keeping or possessing the premises in question and therefore, clauses a to c of sub section 2 of Crl.M.C. No. 294 of 2008 and Crl.M.C. No. 1005 of 2007 -:12:- Section 7 of I.T.P. Act are not attracted. 8. The further question which survives for consideration is whether the detection , arrest and investigation was by a “special police officer” appointed by or on behalf of the Government for the area in question under Sec. 13 of the I.T.P. Act. For a proper consideration of this question advertance to some of the provisions of the I.T.P. Act may be necessary. Section 2(i) defines a “Special Police Officer” to mean a police officer appointed by or on behalf of the State Government to be in charge of police duties within a specified area for the purpose of this Act. We are not in this case concerned with “trafficking police officers” since they are police officers appointed by the Central Government under sub Sec. 4 of Section 13. Sub Sections 1 to 3 of Section 13 of the I.T.P. Act read as follows:- “13. Special police officer and advisory body:- (1) There shall be for each area to be specified by the State Government in his behalf a special police officer appointed by or on behalf of that Government for dealing with offences under this Act in that area. (a) The special police officer shall not be below the rank of an Inspector of Police. (2A) The District Magistrate may, if he considers it necessary or expedient so to do, confer upon any retired police or military officer all or any of the powers conferred Crl.M.C. No. 294 of 2008 and Crl.M.C. No. 1005 of 2007 -:13:- by or under this Act on a special police officer, with respect to particular cases or classes of cases or to cases generally: Provided that no such power shall be conferred on - (a) a retired police officer unless such officer, at the time of his retirement, was holding a post not below the rank of an inspector (b) a retired military officer unless such officer, at the time of his retirement, was holding a post not below the rank of a commissioned officer) 3) For the efficient discharge of his functions in relation to offences under this Act - (a) the special police officer of an area shall be assisted by such number of subordinate police officers (including women police officers wherever practicable) as the State Government may think fit ; and (b) the State government may associate with the special police officer a non-official advisory body consisting of note more than five leading social welfare workers of that area (including women social welfare workers wherever practicable) to advise him on questions of general importance regarding the working of this Act”. Thus, an officer not below the rank of an Inspector of Police i.e. the Circle Inspector of Police alone can be appointed by the State Government as a Special Police Officer. Section 14 of the Act reads as follows:- “14. Offences to be cognizable - Notwithstanding anything contained in the Code of Criminal Crl.M.C. No. 294 of 2008 and Crl.M.C. No. 1005 of 2007 -:14:- Procedure, 1973 (2 of 1974), any offence punishable under this Act shall be deemed to be a cognizable offence within the meaning of that Code: Provided that, notwithstanding anything contained in that Code,- (i) arrest without warrant may be made only by the special police officer or under his direction or guidance, or subject to his prior approval; (ii) when the special police officer requires any officer subordinate to him to arrest without warrant otherwise than in his presence any person for an offence under this Act, he shall give that subordinate officer an order in writing, specifying the person to be arrested and the offence for which the arrest is being made; and the latter officer before arresting the person shall inform him of the substance of the order and, on being required by such person, show him the order; (iii) any police officer not below the rank of (sub- inspector) specially authorised by the special police officer may, if he has reason to believe that on account of delay involved in obtaining the order of the special police officer, any valuable evidence relating to any offence under this Act is likely to be destroyed or concealed,or the person who has committed or is suspected to have committed the offence is likely to escape, or if the name and address of such a person is unknown or there is reason to suspect that a false name or address has been given, arrest the person concerned without such order, but in such a case he shall report, as soon as may be, to the special police officer the arrest and the circumstances in which the arrest was made”. Crl.M.C. No. 294 of 2008 and Crl.M.C. No. 1005 of 2007 -:15:- In exercise of the powers under Sec. 13 of the I.T.P. Act the Government of Kerala has issued the following notification published under G.O. MS No. 56/2002/Home. dt. 24-04-2002 in Kerala Gazette Extra Ordinary No. 625 dated 10-5-2002:- “Notifying Special Police Officers under S. 13 (i) of the Immoral Traffic Prevention Act S.R.O. No. 344/2002 - In exercise of the powers conferred by sub- section (i) of Section 13 of the Immoral Traffic Prevention Act, 1956 (Central Act 104 of 1956) and in supersession of Notification issued under G.O. MS. 131/87/Home, dated the 28th October, 1987 and published as SRO 1451/87 in Kerala Gazette Extraordinary No. 897 dated the 9th November, 1987, the Government of Kerala hereby appoint the Circle Inspectors of Police attached to the following Police Stations in the State as Special Police Officers for dealing with offences under the said Act within their respective area of jurisdiction: Crl.M.C. No. 294 of 2008 and Crl.M.C. No. 1005 of 2007 -:16:- Thiruvananthapuram City 1. Cantonment 2. Peroorkada 3. Museum 4. Pettah 5. Medical College 6. Poonthura 7. Fort 8. Nemom 9. Vizhinjam 10. Thampanoor Kollam 24. Kollam East 25. Kollam West 26. Paravoor 27. Chathannur 28. Kundara 29. Karunagappally 30. Sasthamcotta 31. Chavara 32. Punalur 33. Kottarakkara 34. Kadakkal 35. Kulathupuzha 36. Anchal Thiruvananthapuram Rural 11. Attingal 12. Varkala 13. Kadakkavoor 14. Kazhakuttom 15. Venjaramoodu 16. Kilimanoor 17. Nadumangadu 18. Aryanad 19. Palode 20. Kattakkada 21. Neyyattinkara 22. Poovar 23. Parassala Pathanamthitta 37. Pathanamthitta 38. Kozhenchery 39. Chittar 30. Kakkad 41. Adoor 42. Pandalam 43. Konny 44. Thiruvalla 45. Mallappally 46. Ranni 47. Vadasserikkara Crl.M.C. No. 294 of 2008 and Crl.M.C. No. 1005 of 2007 -:17:- Alappuzha 48. Alappuzha North 49. Alappuzha South 50. Ambalappuzha 51. Pulinkunnu 52. Cherthala 53. Kuthiathode 54. Mararuikulam 55. Chengannur 56. Mannar 57. Mavelikkara 58. Kayamkulam 59. Haripad Idukki 74. Thodupuzha 75. Kaliyar 76. Karijar 77. Idukki Headquarters station 78. Karimanal 79. Munnar 80 Devikulam 81. Adimali 82. Nedumkandam 83. Kattappana 84. Kumily 85. Peerumedu Kottayam 60. Kottayam East 61. Kottayam West 62. Changanassery 63. Vakathanam 64. Ettumanoor 65. Kanjirappally 66. Ponkunnam 67. Manimal 68. Pampady 69. Pala 70. Vaikom 71. Kaduthuruthy 72. Ramapuram 73. Erattupettah Kochi City 86. Eranakulam Central 87. Harbour 88. Town south 89. Mattancherry 90. Fort Kochi 91. Palluruthi 92. Kalamassery 93. Hill Palace (Thripunithura) Crl.M.C. No. 294 of 2008 and Crl.M.C. No. 1005 of 2007 -:18:- Ernakulam Rural 94. Aluva 95. Binanipuram 96. North Paravoor 97. Vadakkekara 98. Kunnathunadu 99. Njarakkal 100. Angamali 101. Kuruppampady 102. Muvattupuzha 103. Puthencruz 104. Kallorkadu 105. Kothamangalam 106. Piravam 107. Perumbavoor Palakkad 122. Town South 123. Town South 124. Palakkad Rural (kasba) 125. Chittur 126. Hemambika Nagar 127. Alathur 128. Koyalmannam 129. Vadakkumcherry 130. Kollangode 131. Nemmara 132. Ottappalam 133. Pattambi 134. Cherpulassery 135. Mannarghat 136. Agali Thrissur 108. Thrissur East (Headquarters Station) 109. Town East 110. Ollur 111. Pthucadu 112. Kunnamkulam 113. Chavakkad 114. Guruvayur 115. Vadakkancherry 116. Chelakkara 117. Irinjalakuda 118. Cherpu 119. Chalakudy 120. Mala 121. Valappad Malappuram 137. Malappuram 138. Kondotty 139. Thirurangadi 140. Manjeri 141. Tirur 142. Tanur 143. Ponnani 144. Valancherry 145. Perinthalmanna 146. Pandikkad 147. Wandoor 148. Nilambur Crl.M.C. No. 294 of 2008 and Crl.M.C. No. 1005 of 2007 -:19:- Kozhikode City 149. Kozhikode Town 150 Cusba Kozhikode 151. Cherubannor 152. Medical College 153. Nadakkacu 154. Chevayoor Kozhikode Rural 155. Badagara 156. Payyoili 157. Nadapuram 158. Kuttiyadi 159. Permbra 160. Thamarassery 161. Koduvally 162. Koyilandy 163. Balussery Kannur 170. Kannur Town 171. Kannur City 172. Valapattanam 173. Iritty 174. Thalassery 175. Koothuparamba 176.