CRL.M.C. Nos. 6251 of 2021 and 6264 of 2021 (Midhun vs State of Kerala; Prajeesha vs State of Kerala)

**IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE K.HARIPAL** **WEDNESDAY, THE 2[ND] DAY OF MARCH 2022 / 11TH PHALGUNA, 1943** **CRL.MC NO. 6251 OF 2021** **CC 1161/2016 OF JUDICIAL MAGISTRATE OF FIRST CLASS - I, KALPETTA CRIME 224/2011 OF VYTHIRI POLICE STATION, WAYANAD** ## **PETITIONER/2ND ACCUSED:** **MIDHUN AGED 31 YEARS S/O MOHANAN, VYAAPARIPOYYIL HOUSE, KARUMALA, UNNIKULAM, KOZHIKODE DISTRICT, PIN-673 612.** **BY ADVS. P.A.MUJEEB RESHMA R. ATHIRA PRASAD** ## **RESPONDENTS/COMPLAINANT & STATE:** **STATE OF KERALA** **REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM, PIN-682 031.** ## **OTHER PRESENT:** **SR.PP - SRI. HRITHWIK C.S.** **THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON, 13.12.2021, ALONG WITH Crl.MC.6264/2021, THE COURT ON 02.03.2022 PASSED THE FOLLOWING:** Crl.M.Cs.6251 & 6264 of 2021 2 **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE K.HARIPAL** **WEDNESDAY, THE 2[ND] DAY OF MARCH 2022 / 11TH PHALGUNA, 1943** **CRL.MC NO. 6264 OF 2021** **CC 1161/2016 OF JUDICIAL MAGISTRATE OF FIRST CLASS - I, KALPETTA CRIME 224/2011 OF VYTHIRI POLICE STATION, WAYANAD** **PETITIONER/1ST ACCUSED:** **PRAJEESHA, AGED 29 YEARS D/O. RAJAN, PANNIVETTUMCHALIL HOUSE, SIVAPURAM EKAROOL KARA, UNNIKULAM, KOZHIKODE DISTRICT, PIN 673 574.** **BY ADVS. P.A.MUJEEB ATHIRA PRASAD(K/002253/2019) RESHMA R.** ## **RESPONDENT/COMPLAINANT:** **STATE OF KERALA,** **REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM, PIN 682 031.** **SR.PP - SRI. RENJITH T.R.** **THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 02.03.2022, ALONG WITH Crl.MC.6251/2021, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** Crl.M.Cs.6251 & 6264 of 2021 3 ## **O R D E R** These are miscellaneous cases filed under Section 482 of the Criminal Procedure Code seeking to quash the proceedings initiated against the petitioners in C.C.1161 of 2016 on the file of the Judicial First Class Magistrate, Kalpetta. The genesis of the case is the final report in crime 224/2011 of Vythiri police station in Wayanad district. The petitioner in Crl.M.C.6251/2021 is the 2[nd] accused in the said Calendar Case whereas the 1[st] accused has moved Crl.M.C.6264/2021. Not only that the petitioners are co-accused in the case, the contentions raised for quashing the proceedings are also common so that both the matters were heard together and are being disposed of by this common order. 2. Crime 224/2011 of Vythiri police station was registered on 31.08.2011 by M.B. Premdas, Inspector of police, Vythiri. The First Information Report indicates that on that day at 16.00 hours while the Inspector of police was engaged in his usual duties, he got reliable information that at Lake View home-stay, a home-stay situated near Pookkodu lake, a man and woman are engaged in prostitution. Then after intimating the information to the Dy.S.P., Kalpetta who instructed him to conduct search, as he will not get time for getting a search memorandum Crl.M.Cs.6251 & 6264 of 2021 4 from the Court, after preparing a search memorandum and sending it to the court, he along with Assistant Sub Inspector, K. Ayyappan, CPO 1891 Sunilraj, CPO 1846 Reji and Driver PC 1683 Babu proceeded to the place and at 16:25 hours ascended the upstairs of building No.VP/XI-334 and reached in front of the room on the south-eastern corner. The room was found locked. He forcibly opened the door and found a lady and a man engaged in sexual intercourse. They were made to wear the dresses and their names and addresses were asked and finding that they were engaged in prostitution, both were arrested and after returning to the police station, crime 224/2011 was registered. On conclusion of investigation, charge sheet has been laid and the petitioners and another face allegations under Sections 4, 5 and 3 read with 7 of the Immoral Traffic (Prevention) Act, 1956, hereinafter referred to as the Act. 3. The charge sheet indicates that on 31.08.2011 at 16:25 hours the CW1 Inspector of police and party found accused Nos.1 and 2 engaged in sexual intercourse in the said building, which is an alleged act of prostitution. Thus offence under Section 4 is alleged against the 1[st] accused, the petitioner in Crl.M.C.6264/2021; offence under Section 5 of the Act is alleged against the 2[nd] accused i.e. the petitioner in Crl.M.C. 6251/2021 and Sections 3 and 7 are directed against the 3[rd] accused who is Crl.M.Cs.6251 & 6264 of 2021 5 the owner of the home-stay. In other words, the allegation against the 1[st] accused is that she was committing prostitution, the 2[nd] accused had procured her to the said room and subjected her to prostitution and the activities of accused 1 and 2 were facilitated by the 3[rd] accused, the owner of the home-stay and that was how final report was laid before Court. The proceedings are sought to be quashed by the petitioners. 4. I heard the learned counsel for the petitioners and also the learned Senior Public Prosecutor. 5. According to the learned counsel for the petitioners, even though detection was conducted by the Special Police Officer as notified under the Act, the investigation was conducted and charge sheet was laid by a Sub Inspector of police, which is illegal. In this connection, he has relied on the decision reported in **Shajahan and others v. State of Kerala [2014 (2) KLJ 239]** . Relying on the decision reported in **Radhakrishnan v. State of Kerala [2008 (2) KLT 521]** the counsel pointed out that detection and investigation have to be conducted by a notified officer with specified rank by the Government under Sections 13 and 14 of the Act, who is the Circle inspector of police of a given area, and not a Sub Inspector who is not empowered to conduct investigation and to file the final report. Therefore, according to him, the entire proceedings are Crl.M.Cs.6251 & 6264 of 2021 6 vitiated. 6. In fact, the learned Senior Public Prosecutor could not meet the various lacunae highlighted by the learned counsel for the petitioners in the investigation and in laying the charge sheet. 7. After going through various aspects of the matter and also the decisions holding the field, there is no doubt that the charge sheet filed against the petitioners cannot legally sustain and that cannot end in conviction. 8. As rightly pointed out by the learned counsel for the petitioners, even though detection was conducted by the Circle Inspector of Vythiri police station, who is a Special Police Officer notified under Section 13 of the Act, the investigation has been conducted by an officer in the rank of Sub Inspector, which is bad. The charge sheet contains 15 witnesses. CW1 Premdas is the detecting officer and CWs.3 to 6 are the said Ayyappan, Assistant Sub Inspector of police, CPO 1891 Sunilraj, WCPO 1846 Reji and driver PC1683 Babu. All the same, CW2 Ubaidath is the Sub Inspector of police, Vythiri who conducted preliminary investigation. CW7 and CW8 are Basheer and Roy respectively, who are eye witnesses and witnesses to the search list. Similarly, CW9 and CW10 are the witnesses to the scene mahazar. CW11 is the Secretary of the Crl.M.Cs.6251 & 6264 of 2021 7 panchayat who issued certificate proving the ownership of the home-stay, CW12 is Dr.Bincy, the Junior Consultant of Vythiri Taluk Hospital who had examined the 1[st] accused and CW13 is N.D. George, Sub Inspector of police who completed investigation and laid the charge sheet. In other words, even though the offence was detected by a special officer in the rank of Circle Inspector of police, who is a notified officer, his role has ended there; investigation was conducted by two Sub Inspectors, CW2 Ubaidath and CW13 N.D. George. As held in the decision reported in **Shajahan** , quoted supra, investigation conducted by a lower ranking officer is bad. In the said decision, this Court, relying on various authorities, held that investigation done and final report filed by an inferior officer of rank i.e. Sub Inspector of police who is not an officer empowered to conduct the investigation, such cases vitiates the final report. This dictum squarely applies to the facts of this case. 9. Even otherwise, in my reading there are other reasons also to say that the detection and all proceedings initiated against the petitioners are vitiated. Section 15 deals with search without warrant. Section 15(2) of the Act reads thus: “Before making a search under sub-section (1), the special police officer or the trafficking police officer, as the case may Crl.M.Cs.6251 & 6264 of 2021 8 be, shall call upon two or more respectable inhabitants (at least one of whom shall be a 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: Provided 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.” In other words, even though it is stated that a woman police officer was also among the team of officials who had conducted search and detected the offence, this provision under Section 15(2) of the Act has not been complied. Prosecution has no case that the search was conducted in the presence of two or more respectable inhabitants of the locality. On that reason also the search and arrest are bad. 10. For yet another reason, the entire proceedings are liable to be quashed. As noticed earlier, offence alleged against the 1[st] accused, i.e. the petitioner in Crl.M.C. 6264/2021 is under Section 4 of the Act. 11. Section 4 says that any person over the age of eighteen years who knowingly lives, wholly or in part, on the earnings of the prostitution of any other person, shall be punishable with imprisonment for a term which may extend to two years, etc. In other words, it must be shown that Crl.M.Cs.6251 & 6264 of 2021 9 she must be living on the earnings of prostitution. There is no allegation or proof that the petitioner in Crl.M.C.6264 of 2021 is a prostitute or she is earning by prostitution; no attempt has been made to say that she is a sex worker or a prostitute by avocation or she has any such history to her credit. Therefore, on that count also, the offence will not lie against her. 12. Coming to Section 5, that is against the petitioner in Crl.M.C.6251 of 2021 also there is no allegation or proof that he had procured the 1[st] accused for the sake of prostitution. Therefore, so long as Section 4 cannot lie against the 1[st] accused, as a necessary corollary, Section 5 will not lie against the 2[nd] accused as well. 13. Let us assume that the prosecution allegations are gospel truth that the officials had seen accused Nos.1 and 2 engaged in sexual intercourse in the said home-stay as alleged. Ex facie, that will not attract offence under Section 4 or 5 of the Act as the prosecution wanted to prove it. As held by this Court in **Radhakrishnan K. v. State of Kerala [2008** **(2) KLT 521]** , if only sexual abuse or exploitation carried on for profit motive is proved, that alone will amount to prostitution. If a man and woman of grown-up age engage in sexual act for pleasing their lust or prurient desires for no monetary considerations between consenting partners, that cannot amount to trading in flesh or prostitution. I am in Crl.M.Cs.6251 & 6264 of 2021 10 respectful agreement with this proposition laid in **Radhakrishnan** ’s case, quoted supra. In the absence of other materials to say that accused Nos.1 and 2, even accepted, had engaged in sexual activities on their own volition, in the absence of materials to say that it is prostitution as defined in the Act, their act cannot attract penal provisions under the Act. 14. To put it in other words, the allegations against the petitioners are not sufficient to find that they are guilty of the offence. There are technical lapses as pointed out; the investigation was conducted by officers who are incompetent which will vitiate the entire proceedings. Moreover, there are no materials to say that accused Nos.1 and 2 were engaged in prostitution. Therefore, the case against petitioners in C.C.1161 of 2016 pending before the Judicial First Class Magistrate’s Court, Kalpetta cannot legally stand and the proceedings are quashed and they shall stand exonerated. Both the Crl.M.Cs are allowed as above. **Sd/-** **K.HARIPAL JUDGE** okb/26.2.22 **//True copy// P.S. to Judge** Crl.M.Cs.6251 & 6264 of 2021 11 ## **APPENDIX OF CRL.MC 6251/2021** PETITIONER ANNEXURES Annexure A1 TRUE COPY OF FIR AND FIRST INFORMATION STATEMENT IN CRIME NO 224/2011 OF VYTHIRI POLICE STATION, WAYANAD DISTRICT DATED 31.8.20211 Annexure A2 TRUE COPY OF FINAL CHARGE IN CC NO 1161/2016 OF HON'BLE JUDICIAL FIRST CLASS MAGISTRATE COURT, KALPETTA DATED 1.12.2012 Crl.M.Cs.6251 & 6264 of 2021 12 ## **APPENDIX OF CRL.MC 6264/2021** PETITIONER ANNEXURES Annexure A1 CERTIFIED COPY OF FIR AND FIRST INFORMATION STATEMENT IN CRIME NO. 224/2011 OF VYTHIRI STATION, WAYANAD DISTRICT DATED 31.08.2011. Annexure A2 CERTIFIED COPY OF THE FINAL CHARGE IN C.C. NO. 1161/2016 OF HON'BLE JUDICIAL FIRST CLASS MAGISTRATE COURT, KALPETTA DATED 01.12.2012.