BINOY (corrected as BIJOY J. JOSE) v. State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE K.HARIPAL** **FRIDAY, THE 28[TH] DAY OF JANUARY 2022 / 8TH MAGHA, 1943** **CRL.MC NO. 8431 OF 2019** **(TO QUASH ANNEXURE I FINAL REPORT IN CRIIME NO.507/2018 OF ERATTUPETTA POLICE STATION, KOTTAYAM DISTRICT WHICH IS NOW PENDING AS C.C.NO.482/2018 OF THE HON'BLE JUDICIAL FIRST CLASS MAGISTRATE COURT, ERATTUPETTA)** ## **PETITIONER/1ST ACCUSED:** BINOY(CORRECTED AS BIJOY J.JOSE) AGED 44 YEARS S/O.MR.GEORGEKUTY, RESIDING AT THATTAMPARAMBIL HOUSE, KADAVUPUZHA KAVALA BHAGOM, MOONNILAVU VILLAGE, ERATTUPETTA, KOTTAYAM-686121 BY ADVS. NIHARIKA HEMA RAJ SRI.ALAN PAPALI ## **RESPONDENT/STATE:** STATE OF KERALA REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KEALA, ERNAKULAM, KOCHI-682031 SR.P.P.SRI.HRITHWIK C.S. THIS CRIMINAL MISC. CASE HAVING COME UP FOR HEARING ON 08.12.2021, THE COURT ON 28.01.2022 PASSED THE FOLLOWING: Crl.M.C No.8431 of 2019 2 ## **ORDER** Petitioner is the first accused in C.C.No.482/2018 on the file of the Judicial First Class Magistrate Court, Erattupetta which originated from the final report in Crime No.507/2018 of Erattupetta police station registered on 24.03.2018 alleging offence under Sections 3 and 4 of the Immoral Traffic (Prevention) Act, hereinafter referred to as the Act. The short allegations against the petitioner, the first accused can be stated as follows: - On 24.03.2018 at 02:30 p.m, the Circle Inspector who is the SHO, Erattupetta police station and party found accused Nos.1 and 2 engaged in sexual activities in building No.XIII/167A of Moonnilavu panchayat. The said building situates in a rubber plantation of 15 acres belonging to one Sen, Thundathil house, Kuruppunthara. The building is in the name of his wife, Sanu Mary Sen, and both of them are in America. The estate and the building are under the supervision and upkeep of the 4[th] accused. It is alleged that the 4[th] accused was using the building as a brothel and he took accused Nos.1 to 3 to the building and facilitated them to indulge in acts of prostitution, thus accused Nos.1 and 2 were found engaged in prostitution at 02:30 p.m Crl.M.C No.8431 of 2019 3 on 24.03.2018 and therefore, offence under Sections 3 and 4 of the Act are alleged against the accused persons. 2. According to the petitioner, he is totally innocent, none of the offences alleged in the charge sheet would lie against him. Section 3 of the Act makes a brothel, keeping or permitting premises to be used as a brothel, a criminal offence. But in the instant case, there is no allegation that the place was being used as a brothel by the petitioner. Police had merely entered the house upon getting information that immoral activities were taking place inside the house and had allegedly witnessed the sexual intercourse between accused Nos.1 and 2. Even if the prosecution allegations are true, the accused persons would have been only indulging in a perfectly legal activity that is permitted between two adults, inside a house. The second accused has no case that she was raped or was abused or exploited. She is not a prostitute. The final report indicates that she is a coolie by profession. The contention that the first accused was seen giving money to the second accused on completion of the alleged sexual intercourse cannot be believed at all. Ingredients of offence under Section 4 of the Act also are not attracted. Therefore, the petitioner is Crl.M.C No.8431 of 2019 4 entitled to be exonerated under Section 482 of the Cr.P.C. 3. I heard the learned counsel for the petitioner and also the learned Senior Public Prosecutor. 4. Apart from the grounds urged in support of the contentions, referring to Section 15(2) of the Act, learned counsel submits that all the witnesses are police officials and the Secretary of the Panchayat and none of the respectable witnesses from the locality was taken to the place before search and the arrest. The entire allegations are denied and therefore, the petitioner is not liable to be prosecuted. Learned counsel also relied on the decision reported in **Radhakrishnan.K v. State of Kerala [2008 (2) KLJ 68] : [2008 (2) KLT 521].** 5. As the petitioner has produced only the charge sheet without other documents or the copy of the FIR or First Information Statement or search mahazar or seizure, I have summoned and perused the case diary and I am of the view that the contentions urged by the petitioner are really formidable. Firstly, the charge sheet contains only six witnesses. CWs 1 to 4 and 6 are police officials. CW6 is the person who led the police team who had allegedly Crl.M.C No.8431 of 2019 5 conducted search and seizure and arrested accused Nos.1 and 2, conducted investigation and laid the charge sheet. No independent witness has been cited to prove the allegation. CW5 is the Secretary of Moonnilavu Panchayat and he has been cited to say that he had produced the ownership certificate of the building before the police. In other words, no independent witness has been examined by the police in connection with the registration of the crime. Section 15(2) of the Act specifies that before making a search under sub -section (1), the special police officer or the trafficking police officer, as the case may be, shall call upon two or more respectable inhabitants (at least one of whom shall be woman) of the locality in which the place to be searched is situate, to attend and witness the search, and may issue an order in writing to them or any of them so to do. Proviso to the sub section says that the requirement as to the respectable inhabitants being from the locality in which the place to be searched is situate shall not apply to a woman required to attend and witness the search. 6. Here, the prosecution allegations indicate that on getting reliable information, the police party proceeded to the said building which is situated at the center of a 15 acre rubber estate belonging to Crl.M.C No.8431 of 2019 6 Sen and his wife, both of them are abroad. But no independent witness was invited nor their presence was obtained before conducting the search. It is a mandatory obligation and non-compliance of the same is fatal to the prosecution and that itself is sufficient to say that the noncompliance of Section 15(2) of the Act cuts the very root of the prosecution case. 7. Secondly, even otherwise, in order to attract offence against the accused, it must be stated that he was found in a brothel or engaged in prostitution. Prostitution is defined in Section 2(f) of the Act means, sexual exploitation or abuse of persons for commercial and the shall be construed purposes expression “prostitute” accordingly. That means, essentially it must be an act of prostitution. As rightly pointed out by the learned counsel, the prosecution has no case that 2[nd] accused, the lady partner of the first accused was a prostitute. Her avocation is shown as 'coolie'. The prosecution records do not indicate that she is a person living or earning of prostitution. If only she was living or earning of prostitution, the offence will be attracted. 8. Thirdly, the contention that the police officials had seen Crl.M.C No.8431 of 2019 7 the petitioner giving money to the second accused cannot be comprehended. Moreover, it is not proved that the said premises is being used as a brothel. It is not proved that the said premises is found being used as a brothel by the 4[th] accused or anyone. If we go to the extreme and found that the police party had detected accused Nos.1 and 2 indulge in sexual activities in the said premises, it does not automatically lead to the conclusion that it was an act of prostitution or the premises were being used as a brothel. As rightly pointed out, at the most, it can only be stated that accused Nos.1 and 2, who are adults were indulging in sexual activities on their own volition, which on the face of it, does not attract an offence under the Act. Both of them are major and it is open to them, without causing nuisance to others, to indulge in sexual activities. That would not attract any of the penal provisions. 9. The alleged act was found inside a room on the north western side of the said building. It is not a public place. There is nothing to prove that it is being used as a brothel. The 3[rd] accused, on the face of the documents, had run away from the place of occurrence, seeing the police. May be because his motorcycle was found on the Crl.M.C No.8431 of 2019 8 side of the building, he was later identified and his name was shown in the records. The police have not seen him indulging in sex with the second accused. 9. To sum up, none of the charges would sustain against the petitioner. It is clearly an idle exercise to prosecute the petitioner. Therefore, he is entitled to be exonerated. The Crl.M.C is allowed. Entire proceedings against the petitioner in C.C.No.482/2018 pending on the file of the Judicial First Class Magistrate Court, Erattupetta are quashed and he shall stand exonerated. Crl.M.C is allowed as above. Sd/- **K. HARIPAL JUDGE** Jms/24.01 //True Copy// P.A to Judge Crl.M.C No.8431 of 2019 9 ## **APPENDIX OF CRL.MC 8431/2019** ## **PETITIONER ANNEXURES** **Annexure I** **TRUE COPY OF THE FINAL REPORT IN CRIME NO.507/2018 DATED 31.05.2018 OF ERATTUPETTA POLICE STATION.**