Beneesh Kumar and Shiny v. State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE RAJA VIJAYARAGHAVAN V** **TUESDAY, THE 21ST DAY OF MAY 2019 / 31ST VAISAKHA, 1941** ## **Crl.MC.No. 8095 of 2016** **AGAINST THE ORDER/JUDGMENT IN CC NO.142/2016 OF THE ADDITIONAL CHIEF JUDICIAL MAGISTRATE (E&O), ERNAKULAM** **CRIME NO. 716/2010 OF SOUTH POLICE STATION, ERNAKULAM** ## **PETITIONER/2ND ACCUSED:** **BENEESH KUMAR, S/O.PAPPU, AGED 46 YEARS, MADATHUMPADY HOUSE, NEAR DON BOSCO HIGH SCHOOL, VADULTHALA, CHERANALLOOR VILLAGE, ERNAKULAM.** **BY ADVS. SRI.KRISHNADAS P. NAIR SMT.B.SABITHA (DESOM) SMT.DEEPA MOHANAN SMT.K.JYOTHY SMT.K.L.SREEKALA SRI.HARIDAS P.NAIR SRI.M.A.VINOD SRI.P.P.SAVI** ## **RESPONDENT/S:** - **1 STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM.** - **2 THE STATION HOUSE OFFICER SOUTH POLICE STATION, ERNAKULAM TOWN, ERNAKULAM.** ## **OTHER PRESENT:** **SRI. M. S. BREEZ SR.PP** **THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON 21.05.2019, ALONG WITH Crl.MC.3386/2017, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** Crl.MC.Nos. 8095/2016 &3386/2017 ..2.. ## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE RAJA VIJAYARAGHAVAN V** **TUESDAY, THE 21ST DAY OF MAY 2019 / 31ST VAISAKHA, 1941** **Crl.MC.No. 3386 of 2017** **AGAINST THE ORDER/JUDGMENT IN CC 142/2016 OF ADDITIONAL CHIEF JUDICIAL MAGISTRATE (E&O),ERNAKULAM** **CRIME NO. 716/2010 OF ERNAKULAM SOUTH POLICE STATION, ERNAKULAM** ## **PETITIONER/ACCUSED:** **SHINY, AGED 40 YEARS, W/O.ALEX JACOB, KIZHAKKEVELIKKAKATHU HOUSE, VALLIYAD, THAMARASSERY.** **BY ADVS. SRI.KRISHNADAS P. NAIR SMT.B.SABITHA (DESOM) SMT.K.L.SREEKALA SRI.HARIDAS P.NAIR SRI.M.A.VINOD** ## **RESPONDENTS:** **1 STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA,ERNAKULAM. 2 THE STATION HOUSE OFFICER, SOUTH POLICE STATION, ERNAKULAM TOWN, ERNAKULAM.** ## **BY SR. PUBLIC PROSECUTOR SRI.M.S.BREEZ** **THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON 21.05.2019, ALONG WITH Crl.MC.8095/2016, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** Crl.MC.Nos. 8095/2016 &3386/2017 ..3.. ## **ORDER** These petitions are filed under Section 482 of the Cr.P.C. 2. The petitioners herein are the accused Nos.2 and 3 in C.C. No.142 of 2016 on the file of Additional Chief Judicial Magistrate Court (Economic Offences), Ernakulam. In the said case, they face indictment under Sections 3, 4 and 5 of the Immoral Traffic (Prevention) Act, 1956 (hereinafter referred to as 'the Act' for short). 3. The 1[st] accused was in possession of house bearing No. CC 54/2417 situated at Kadavanthra, originally owned by his deceased brother. Based on source information, a search was conducted by the Inspector of Police, Ernakulam Town Police Station, on 3.5.2010. He allegedly found the accused Nos. 2 and 3 indulging in sexual intercourse in a room inside the building. Alleging that the 1[st] accused had procured the services of the 3[rd] accused and had provided her to the 2[nd] accused for sexual exploitation, Crime No. 716 of 2010 was consequently registered under Sections 3, 4 and 5 the Immoral Traffic (Prevention) Act, Crl.MC.Nos. 8095/2016 &3386/2017 **==> picture [31 x 7] intentionally omitted <==** 1956. Certain valuables were also seized from the possession of the accused. After completing investigation final report was laid before the jurisdictional Court. 4. The learned counsel appearing for the petitioners submitted that the offence under Sections 3, 4 and 5 will not be attracted as against the petitioners. He would refer to Annexure-B order passed by this Court in Crl.M.C. No.638 of 2015 and it is contended that the entire criminal proceedings as against the 1[st] accused has been quashed by this Court holding that the allegations in the final report will not make out any offense against him. The learned counsel would also refer to the decision of this Court in **Vijaykumar and others v. State of Kerala and others** (2016 (1) KHC 698) and it was argued that engaging in sexual activity even in a brothel is not made an offence punishable under the Act. He would also rely on **Radhakrishnan v. State of Kerala** (2008 (2) KLT 521) and it is argued that activity carried on in a given premise will amount to “prostitution” within the meaning of Section 2(f) of the Act only if sexual abuse or exploitation of a person is done for a commercial purpose. 5. Heard the learned Public Prosecutor, who argued that the Crl.MC.Nos. 8095/2016 &3386/2017 **==> picture [31 x 7] intentionally omitted <==** contentions advanced by the learned counsel appearing for the petitioners are a matter of evidence and this Court in exercise of powers under Section 482 of the Cr.P.C will not be justified in quashing the criminal proceedings. 6. I have anxiously considered the submissions advanced and have gone through the final report. 7. The question for consideration is whether the offences alleged will be made out against the petitioners herein. 8. Section 3 of the Act provides for punishment for keeping a brothel or allowing the premises to be used as a brothel. Brothel has been defined under Section 2(a) to include any house, room, conveyance or place or any portion of any house, room, conveyance or place, which is used for purposes of sexual exploitation or abuse for the gain of another person or for the mutual gain of two or more prostitutes. Prostitution has been defined under Section 2(f) of the Act to mean the sexual exploitation or abuse of persons for commercial purposes. 9. It is by now settled that in order to attract the provisions of the Act 44 of 1956, it is necessary for the prosecution to show Crl.MC.Nos. 8095/2016 &3386/2017 **==> picture [31 x 7] intentionally omitted <==** that the premises was being used as a brothel house, wherein sexual exploitation was being carried on for commercial purposes, for the mutual gain or two or more prostitutes. In other words, consensual sexual activity between two adults in a private apartment will not attract the penal provisions of the Act. 10. Section 3 of the Act penalises a person, who keeps or manage or act or assist in the keeping or management of a brothel. The prosecution allegation in the instant case was that the 1[st] accused was running the brothel. However, the proceedings against him has been quashed holding that the ingredients of the offense are not made out. Insofar as the petitioners herein are concerned, there is no allegation that they had kept a brothel or they had been managing a brothel or acting or assisting in the keeping or management of a brothel. Section 4 of the Act deals with punishment for living on the earnings of prostitution. In order to attract this provision, it must be alleged and established that the accused, who is over the age of 18 years, knowingly lives, wholly or in part, on the earnings of prostitution of any other person. Having going through the allegations, I am unable to hold that the prosecution has made out a case that the petitioners had indulged Crl.MC.Nos. 8095/2016 &3386/2017 ..7.. in the acts prohibited by Section 4 of the Act. Insofar as Section 5 of the Act is concerned, in order to attract the said provision, it has to be shown that the person had procured or attempted to procure a person for the purpose of prostitution. No such allegation is there against the petitioners in the final report. None of the allegations would make out any offence under Section 482 of the Cr.P.C. 11. Now the question is whether the inherent powers under Section 482 is to be invoked to bring the proceedings to a premature termination. 12. In **Madhavrao Jiwajirao Scindia and Ors. v. Sambhajirao Chandrojirao Angre and Ors.** , [(1988) 1 SCC 692], the Hon’ble Supreme Court observed as follows: “7. The legal position is well settled that when a prosecution at the initial stage is asked to be quashed, the test to be applied by the court is as to whether the uncontroverted allegations as made prima facie establish the offence. It is also for the court to take into consideration any special features which appear in a particular case to consider whether it is expedient and in the interest of justice to permit a prosecution to continue. This is so on the basis that the court cannot be utilised for any oblique purpose and where in the opinion of Crl.MC.Nos. 8095/2016 &3386/2017 ..8.. the court chances of an ultimate conviction are bleak and, therefore, no useful purpose is likely to be served by allowing a criminal prosecution to continue, the court may while taking into consideration the special facts of a case also quash the proceeding even though it may be at a preliminary stage.” ## 13. Further in **Janata Dal v. H.S. Chowdhary and Ors.** , [(1992) 4 SCC 305], the Apex Court observed as follows: “132. The criminal courts are clothed with inherent power to make such orders as may be necessary for the ends of justice. Such power though unrestricted and undefined should not be capriciously or arbitrarily exercised, but should be exercised in appropriate cases, ex debito justitiae to do real and substantial justice for the administration of which alone the courts exist. The powers possessed by the High Court Under Section 482 of the Code are very wide and the very plenitude of the power requires great caution in its exercise. Courts must be careful to see that its decision in exercise of this power is based on sound principles.” 14. Having considered the entire facts and in the light of the above precedents, I am of the view that this is a fit case, wherein this Court will be justified in terminating the criminal proceedings Crl.MC.Nos. 8095/2016 &3386/2017 **==> picture [31 x 7] intentionally omitted <==** at the threshold stage itself. In the result, these petitios are allowed. All further proceedings against the petitioners pending as C.C. No. 142/2016 on the file of Additional Chief Judicial Magistrate Court (Economic Offences), Ernakulam are quashed. **Sd/-** **RAJA VIJAYARAGHAVAN V., JUDGE** Bka/23.05.2019 Crl.MC.Nos. 8095/2016 &3386/2017 ..10.. ## **APPENDIX OF Crl.MC 8095/2016** ## **PETITIONER'S/S EXHIBITS:** **ANNEXURE A** **THE TRUE COPY OF THE FIRST INFORMATION REPORT IN CRIME NO 716/2010 REGISTERED BY THE 2ND RESPONDENT DTD 3/5/2010 AND FINAL REPORT IN CRIME NO 716/2010 OF ERNAKULAM SOUTH POLICE STATION, NUMBERED AS CC NO 95/2012.** ## **ANNEXURE B** **THE TRUE COPY OF THE ORDER IN CRMC NO 638 OF 2015 DTD 13/1/2015.** ## **APPENDIX OF Crl.MC 3386/2017** **PETITIONER'S/S EXHIBITS:** **ANNEXURE A** **THE TRUE COPY OF THE FIRST INFORMATION REPORT IN CRIME NO.716/2010 REGISTERED BY THE 2ND RESPONDENT DATED 03.05.2010 AND FINAL REPORT IN CRIME NO.716/2010 OF ERNAKULAM SOUTH POLICE STATION,NUMBERED AS C.C.NO.95/2012** **ANNEXURE B THE TRUE COPY OF THE ORDER IN CRL.M.C.NOI.638 OF 2015 DATED 13.01.2015 ANNEXURE C THE TRUE COPY OF THE MARRIAGE CERTIFICATE DATED 28.11.2016 ANNEXURE D THE TRUE COPY OF THE STAY ORDER IN CRL.M.C.NO.8095 OF 2016 DATED 23.11.2016.**