Boby T.P. v. State of Kerala

# **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ``` THE HONOURABLE MR.JUSTICE ZIYAD RAHMAN A.A. FRIDAY, THE 1[ST] DAY OF APRIL 2022 / 11TH CHAITHRA, 1944 CRL.MC NO. 1315 OF 2017 ``` ``` CC 1407/2016 OF JUDICIAL MAGISTRATE OF FIRST CLASS -II, ALUVA ``` ## **`PETITIONER/ACCUSED NO.3:`** ``` BOBY T.P. AGED 39 YEARS S/O PAPACHAN,THEKKINOTH HOUSE, VARAPUZHA VILLAGE,ERNAKULAM, PUTHANPALLIKARA. BY ADVS. SRI.S.RAJEEV SRI.K.K.DHEERENDRAKRISHNAN SRI.D.FEROZE SRI.V.VINAY ``` ## **`RESPONDENT/COMPLAINANT/STATE:`** ``` STATE OF KERALA REP. BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. 682031, (CRIME NO. 734/2016 OF ELAMAKKARA POLICE STATION, ERNAKULAM DISTRICT) ``` ``` BY ADV SRI.SUMAN CHAKRAVARTHY, SR.PUBLIC PROSECUTOR SRI.RANJIT GEORGE, SR.PUBLIC PROSECUTOR ``` ``` THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 01.04.2022, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: ``` ``` CRL.MC NO. 1315 OF 2017 ``` ``` 2 ``` ## **`ORDER`** The petitioner herein is the 3[rd] accused in Crime No.734/2016 which was registered for the offences under Sections 3,4,5 and 7 Immoral Traffic (Prevention) Act. The prosecution case is as follows: On 09.08.2016 at 2.30 p.m., on the basis of information received by the Inspector of Police, Kalamassery, to the effect that some persons are carrying out prostitution in the premises of the 2[nd] accused, conducted a search in the said premises. During the course of the search, the 3[rd] accused was found indulging in sexual intercourse with one of the accused persons. On the basis of the same, crime was registered and after completing the investigation thereon Annexure A II final report was submitted. 2. This Crl.M.C. is filed for quashing the proceedings pursuant to Annuxure AII as against the petitioner herein. 3. Heard Sri.Vinay V., learned counsel appearing for the petitioner and Sri.Ranjit George, learned Public Prosecutor appearing for the State. 4. The learned counsel for the petitioner contends that, ``` CRL.MC NO. 1315 OF 2017 ``` ``` 3 ``` none of the offences alleged against the petitioner are attracted, and the entire prosecution as against him is unsustainable. The learned counsel contends that, even according to the prosecution, the petitioner was the only a customer who visited the place where the prostitution allegedly was taking place. As far as the offences under Sections 3, 4 and 5 of the Act are concerned, those do not apply to a person visiting a brothel or any place of prostitution as a customer. Section 3 of the Act deals with punishment for keeping a brothel or allowing premises to be used as a brothel. Section 4 of the Act provides for punishment for living on the earnings of prostitution. Section 5 deals with punishment for procuring, inducing or taking a person for the sake of prostitution. On going through the contents of AnnexureAII final report, it can be seen that none of the allegations which constitute the offences under Sections 3, 4, and 5 were made against the petitioner herein. The only allegation is that the petitioner was found engaged in a physical relationship with one of the accused persons. Therefore, the offences under sections ``` CRL.MC NO. 1315 OF 2017 ``` ``` 4 ``` ## 3,4 and 5 of the Act are not attracted against the petitioner. What remains is the offence under section 7 of the Act, which 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 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 this behalf by the Commissioner of Police or Magistrate in the manner prescribed, shall be punishable with 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 the offence shall be punishable with imprisonment of either description for a term which shall not be less than seven years but which may be for life or for a term which may extend to ten years and shall also be liable to fine: Provided that the court may, for adequate and special reasons to be_ ``` CRL.MC NO. 1315 OF 2017 ``` ``` 5 ``` _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 prostitution 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 may be used for prostitution, or is wilfully 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, or with both, and in the event of a second or subsequent conviction with imprisonment for a term which may extend to six months and also with fine which may extend to two hundred rupees, and if the public place or premises 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_ ``` CRL.MC NO. 1315 OF 2017 ``` ``` 6 ``` _than three months but which may extend to one year: Provided that if an offence committed under this sub-section is in respect of a child or minor in a hotel, such license shall also be liable to be cancelled. Explanation.- For the purposes of this 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 or areas as may be specified in the notification._ _(4) Where a notification is issued under subsection (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 certainity. (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, going by the stipulation contained in Section 7 of the Act, a notification as contemplated under sub-section (3) of the Act is ``` CRL.MC NO. 1315 OF 2017 ``` ``` 7 ``` necessary to attract the aforesaid offence. The specific case of the learned counsel for the petitioner is that the place in which the petitioner herein was found indulging in immoral activity was not an area coming within any of the notified areas as contemplated under Section 7(3) of the Act. 5. The learned Public Prosecutor, upon instructions submits that, as on date, no notification as contemplated under Section 7(3) of the Act has been published by the Government. The learned counsel appearing for the petitioner also brought my attention to the Communication No.U5-124908/2018/PHQ dated 27.09.2018 issued by the State Police Chief to the Director General of Prosecution and Special Public Prosecutor, High Court of Kerala, Ernakulam. In the aforesaid communication, the fact of lack of notification under section 7 of the Act has been specifically mentioned. It appears that this communication was produced as part of the records by the learned Public Prosecutor in Crl.M.C.No.1315/2017. 6. Thus, it is evident from the aforesaid documents that ``` CRL.MC NO. 1315 OF 2017 ``` ``` 8 ``` no notification as contemplated under Section 7(3) has been published so far. In the absence of any such notification, no offence under Section 7 can be imposed upon the petitioner herein. Evidently, the alleged offences alleged to have been committed in an area not notified under section 7(3). Therefore, an offence under Section 7 of the Act is not attracted against the petitioner herein. The learned counsel for the petitioner also brought my attention to the decision of this Court in **Radhakrishnan K. v. State of Kerala [2008(2) KHC 416],** wherein the same issue was considered and decided in favour of the accused therein. In the light of the aforesaid judgment and also due to the reasons mentioned above, I am of the view that this is a fit case in which powers of this Court under Section 482 Cr.P.C. can be invoked. Accordingly, this Crl.M.C. is allowed, and AnnexureAII final report submitted in Crime.No.734/2016 of Elamakkara Police Station and all further proceedings in C.C.No.1407/2016 on the files of Judicial First Class Magistrate Court-II, Aluva are ``` CRL.MC NO. 1315 OF 2017 ``` ``` 9 ``` hereby quashed as against the petitioner herein, who are accused Nos.3 in the aforesaid crime. ``` ZIYAD RAHMAN A.A. JUDGE ``` ``` SCS ``` ``` CRL.MC NO. 1315 OF 2017 ``` ``` 10 ``` ## **`APPENDIX OF CRL.MC 1315/2017`** ``` PETITIONER ANNEXURES ANNEXURE ITRUE COPY OF THE F.I.R. IN CRIME NO.734 OF 2016 OF ELAMAKKARA POLICE STATION ANNEXURE IICERTIFIED COPY OF THE FINAL REPORT IN CRIME NO.734 OF 2016 OF ELAMAKKARA POLICE STATION ``` ``` RESPONDENT ANNEXURES ANNEXURE ATRUE COPY OF THE COMMUNICATION DATED 27.09.2018 ANNEXURE BTRUE COPY OF THE COMMUNICATION DATED 22.09.2018 ```