IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH WEDNESDAY, THE 19TH JANUARY 2011 / 29TH POUSHA 1932 Crl.MC.No. 4331 of 2010() --------------------------------------- CRIME. NO.616/2009 OF THENMALA POLICE STATION, KOLLAM DISTRICT. C.C. NO.1724/2010 OF THE JUDICIAL FIRST CLASS MAGISTRATE – I, PUNALUR ........ PETITIONER(S): ACCUSED ------------------------------------- REJO.N, S/O.LATE NOORUDHEEN, NOOR VILLA, ADIKATTUKULANGARA MURI, PALAMEL VILLAGE, MAVELIKKARA TALUK, ALAPPUZHA. BY ADV. SRI.K.MADHUSOODHANAN NAIR RESPONDENT(S): RESPONDENT ------------------------------------------------- STATE OF KERALA, REP. BY CIRCLE INSPECTOR OF POLICE, KULATHUPUZHA, REP. BY ITS PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. PUBLIC PROSECUTOR SRI.K.J.MOHAMMED ANZAR THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 19/01/2011, ALONG WITH CRMC. NO.4429 OF 2010 THE COURT ON THE SAME DAY PASSED THE FOLLOWING: tss THOMAS P JOSEPH, J. ---------------------------------------- Crl.M.C.Nos.4331 and 4429 of 2010 --------------------------------------- Dated this 19th day of January, 2011 ORDER These petitions are filed by accused Nos.7 and 8, respectively in C.C.No.1724 of 2010 of the court of learned Judicial First Class Magistrate, Punalur for offences punishable under Secs.3, 4, 5 and 7 of the Immoral Traffic (Prevention) Act, 1956 (for short, "the Act”). That case arose on the final report submitted by Thenmala Police in Crime No.616 of 2009. Case is that on 13.12.2009 at about 10.30a.m, Circle Inspector, Kulathupuzha holding additional charge of Circle Inspector, Punalur on getting information about alleged immoral activities in Green Valley Hotel, along with the party including women police reached the place and searched various rooms. In room No.202 of the said Hotel petitioners were found, according to the police in suspicious circumstances and thereon they were questioned initially petitioners gave wrong answer to the query as to their names. Later they are said to have given their correct names and petitioner in Crl.M.C.No.4331 of 2010 is said to have confessed the purport of their being in the Crl.M.C.Nos.4331 and 4429 of 2010 -: 2 :- said room. Thereon, petitioners were arrested and `.30,000/-, a mobile phone and certain gold ornaments were seized from the body of petitioner in Crl.M.C.No.4331 of 2010. Petitioners were subjected to medical examination the same day. According to the learned counsel medical examination revealed that there was no evidence of recent sexual intercourse between petitioners. Police investigated the case and submitted charge sheet against petitioners along with certain others who were allegedly arrested from the same Hotel for offences as above stated. Learned Judicial First Class Magistrate, Punalur took cognizance of the said offence and filed C.C.No.1724 of 2010 against petitioners and others. It is contended by petitioners that proceedings against them are an abuse of the process of court and that even if the allegations made by the prosecution are accepted as a whole, that would not disclose any offence against petitioners as alleged. Learned counsel has placed reliance on the decisions in Radhakrishnan Vs. State of Kerala (2008(2) KLT 521) and X Vs. State of Kerla (2009(2) KLT 7). It is argued by learned counsel that apart from the fact that there was no evidence of any sexual intercourse between petitioners as alleged, even that would not in any way come within the definition of “Prostitution” under Sec.2(f) of the Act and much less any offence under Sec.7 Crl.M.C.Nos.4331 and 4429 of 2010 -: 3 :- of the Act. Learned counsel pointed out that so far as other offences are concerned, it cannot apply to the petitioners once it is found and Sec.7 of the Act would not stand against them. Learned Public Prosecutor would submit that there is no challenge to the legality of procedure adopted by the detecting and investigating officer and the question whether there was sexual intercourse is a matter to be decided after evidence. According to the learned Public Prosecutor there is no reason to interfere under Sec.482 of the Code of Criminal Procedure (for short, “the Cr.P.C”). 2. Under Sec.482 of the Cr.P.C, this court is empowered to interfere when it is revealed that the proceedings is an abuse of the process of court. Now the question is whether allegations made by the prosecution if accepted would disclose any of the offence charged against petitioners. Even as per the version of prosecution, it is not a case where petitioners were found in any compromising position when the search was allegedly made by the Circle Inspector. Instead, when the Circle Inspector came to room No.202 it was found bolted from inside and on his knocking at the door, petitioner in Crl.M.C.No.4331 of 2010 is said to have opened the door and then he was found wearing a white dothi while petitioner in Crl.M.C.No.4429 of 2010 was found wearing a Crl.M.C.Nos.4331 and 4429 of 2010 -: 4 :- churidar in a careless manner. Alleged questioning and seizure followed. 3. Sec.2(f) of the Act defines the word “prostitution” as meaning sexual exploitation or abuse of persons for commercial purposes, and the expression “prostitute” shall be construed accordingly. In other words, a prostitute is a person who permits her body to be exploited sexually for commercial purposes. In the case on hand even as per the version of prosecution, petitioners were not found engaged in any sexual activity and Annexure-C, certificate produced in Crl.M.C.No.4429 of 2010 would show that medical examination revealed that there was no evidence of recent sexual intercourse so far as petitioner in Crl.M.C.No.4429 of 2010 is concerned which in my view must apply to the petitioner in Crl.M.C.No.4331 of 2010 also. 4. Petitioners have a different story as to their presence in room No.202 of Green valley Hotel which, in a proceeding under Sec.482 of the Cr.P.C is not required to be considered by this Court and hence I am not going into that question. Presently, I need only consider whether charges against petitioners would stand. In the decisions learned counsel had cited above, a learned Judge of this court Crl.M.C.Nos.4331 and 4429 of 2010 -: 5 :- explained what is 'prostitution' and how Sec. 7 of the Act is attracted. There, it was held that to attract Sec.7 of the Act there must be exploitation of the woman for sexual activity, for commercial purposes. Going by the case of prosecution and hearing learned counsel for petitioners and learned Public Prosecutor, it is revealed that no such situation is brought out in the present case so that Sec.7 of the Act could apply against petitioners. If that be so, question of application of other offences charged against petitioners do not arise. For, they are not connected with those offences. In such a situation, I do not consider it necessary to ask petitioners to face trial, the lady bearing the stigma of a prostitute until she is acquitted by the trial court. I am inclined to interfere. Resultantly this criminal miscellaneous case is allowed and the final report in Crime No.616 of 2009 of Thenmala Police Station, cognizance taken and entire proceedings in C.C.No.1724 of 2010 of learned Judicial First class Magistrate, Punalur to the extent it concerned petitioners are quashed. (THOMAS P JOSEPH, JUDGE) Sbna/-