IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR FRIDAY, THE 12TH NOVEMBER 2010 / 21ST KARTHIKA 1932 Crl.MC.No. 2601 of 2010() ------------------------------------ CC.1646/2009 of JUDL.MAGISTRATE OF FIRST CLASS-I, CHERTHALA .................... PETITIONER(S): 2ND ACCUSED: ------------------------------------------------ SMRUTHY, D/O.SIVANAND, THAIPARAMBU HOUSE, THUMBOLI WARD, ALAPPUZHA. BY ADV. SRI.ASHIK K.MOHAMMED ALI RESPONDENT(S): COMPLAINANT: -------------------------------------------------- STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA ERNAKULAM (REPRESENTING THE CIRCLE INSPECTOR OF POLICE, CHERTHALA). PUBLIC PROSECUTOR SRI.P.A.SALIM THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON 12/11/2010, ALONG WITH CRMC NO. 2807 OF 2010 THE COURT ON THE SAME DAY PASSED THE FOLLOWING: tss M.SASIDHARAN NAMBIAR,J. =========================== CRL.M.C.No. 2601 &2807 OF 2010 =========================== Dated this the 12th day of November,2010 ORDER Petitioner in Crl.M.C.2807/2010 was the first accused and petitioner in Crl.M.C.2601/2010 was the second accused in C.C.1646/2009 on the file of Judicial First Class Magistrate Court-I, Cherthala taken cognizance for the offences under section 7 and 8 of Immoral Traffic (Prevention) Act, 1956 on the final report submitted by the Circle Inspector of Police, Cherthala. The final report shows that prosecution case is that on 18.8.2009 at about 11.30 a.m the petitioners a man and woman were found engaged in sexual intercourse in Hyundai Santro Car KL-04 C 922 parked on the side of the public road. Alleging that it was in the public place, final Crl.M.C.2601 & 2807/2010 2 report was submitted alleging that they committed offences under section 7 and 8 of ITP Act. Petitioners respectively filed CMP 4154/2010 and 4451/2010 before the trial court to stop the proceedings under section 258 of Code of Criminal Procedure, as the case was being tried as a summons case. By common order dated 1.7.2010 learned Magistrate dismissed the petitions. These petitions are filed under section 482 of Code of Criminal Procedure to quash the final report and the cognizance taken contending that when ingredients of the offences are not attracted, continuation of the proceedings is only an abuse of process of the court. 2.Learned counsel appearing for the petitioner and learned Public Prosecutor were heard. 3. Final report filed by the Circle Inspector of Police and taken cognizance by the learned Magistrate shows that nine witnesses are sought to be examined to prove the case. Witnesses 1 to 5 are the police constables and the junior Sub Crl.M.C.2601 & 2807/2010 3 Inspector of Police who are expected to give evidence that they found petitioners engaged in sex in a parked car on the side of a public road. Sixth witness was to prove the scene mahazar and the seventh witness was the doctor to examine the second accused. Eighth witness is the Tahsildar and nineth witness the Circle Inspector of Police. In the light of the final report, the only evidence that could be adduced is that petitioners were found engaged in sex in a car parked on the side of the public road. The question is whether it would attract an offence either under section 7 or 8 of Immoral Traffic (Prevention) Act hereinafter referred to the ITP Act. 4. To attract an offence under section 7, prosecution has to prove that second accused was carrying on prostitution and the first accused was found with the second accused in any premises within the notified area as provided under clause (a) or within the distance as provided under clause (b). Section 2(f), defines prostitution as means Crl.M.C.2601 & 2807/2010 4 sexual exploitation or abuse of persons for commercial purposes, and expression “prostitute” shall be construed accordingly. This court in Radhakrishnan v. State of Kerala (2008(2) 2 KLT 521) considered the meaning of prostitution and held that 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 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. As held in State of Kerala v. Pathumma 1968 KLT 453) it excludes intercourse which a person may have, with a permanently kept concubine. 5. The question is whether there is any material to show that second accused had offered her body for hire for promiscuous intercourse and Crl.M.C.2601 & 2807/2010 5 the first accused accepted offer and was engaged in sexual intercourse. Learned Public Prosecutor did not dispute the submission of the petitioners that statements recorded under section 161 of Code of Criminal Procedure do not disclose that there was any offer of her body for sexual intercourse to anybody by the first accused. If so, for the sole reason that petitioners were found engaged in sex in a car parked on a public place, neither an offence under section 7 or 8 is attracted. Therefore continuation of the proceedings is only an abuse of process of the court. Petitions are allowed. C.C.1646/2009 on the file of Judicial First Class Magistrate Court-I, Cherthala is quashed. M.SASIDHARAN NAMBIAR JUDGE tpl/- M.SASIDHARAN NAMBIAR, J. --------------------- W.P.(C).NO. /06 --------------------- JUDGMENT SEPTEMBER,2006