Gopalakrishnan and Kunjumon v. State of Kerala

## IN THE HIGH COURT OF KERALA AT ERNAKULAM ## PRESENT THE HONOURABLE MR.JUSTICE ZIYAD RAHMAN A.A. TUESDAY, THE 21[ST] DAY OF JUNE 2022 / 31ST JYAISHTA, 1944 CRL.MC NO. 1244 OF 2020 [TO QUASH PROCEEDINGS IN C.C.NO.1184/2017 ON THE FILE OF THE CHIEF JUDICIAL MAGISTRATE COURT, THIRUVANANTHAPURAM] [CRIME NO.482/2014 OF VALIYATHURA POLICE STATION] ## PETITIONERS/ACCUSED: 1 GOPALAKRISHNAN, AGED 68 YEARS S/O. CHAMI, MANAGER, STAR RUKSANA HOTEL, THIRUVANANTHAPURAM. 2 KUNJUMON, AGED 47 YEARS S/O. ABOOBAKER, OWNER, STAR RUKSANA HOTEL, THIRUVANANTHAPURAM. BY ADVS. K.S.ARUN KUMAR SRI.JUSTINE JACOB ## RESPONDENT/COMPLAINANT: STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM, PIN-682031. BY ADV. C.S.HRITHWIK, SR.PP THIS CRIMINAL MISC. CASE HAVING COME UP FOR HEARING ON 21.06.2022, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: CRL.MC No.1244 of 2020 2 ## O R D E R The petitioners are the accused Nos.4 and 5 in Crime No.482/2014 of Valiyathura Police Station, which is now pending as C.C.No.1184/2017 before the Chief Judicial Magistrate Court, Thiruvananthapuram. The offences alleged against the accused persons are under Sections 3,4,5,7 of the Immoral Traffic (Prevention)Act, 1956 (hereinafter referred to as ‘the Act’). 2. The prosecution case is that on 14.4.2014, at about 7.30 p.m., the 1[st] and 2[nd] accused availed a room in a hotel named ‘Star Ruksana’. The 1[st] petitioner is the Manager, and the 2[nd] petitioner is the owner of the hotel, respectively. According to the prosecution, the 3[rd] accused booked Room 209 in the said Hotel for the 1[st] and 2[nd] accused to have sexual intercourse with the knowledge and connivance of the petitioners and thereby accused are alleged CRL.MC No.1244 of 2020 3 to have committed the offences mentioned above. Annexure-1 is the F.I.R. This Crl.M.C. was originally filed for quashing all further proceedings pursuant to the F.I.R. above, but later, the petitioners produced the final report as Annexure-IV. 3. Heard Sri. K.S.Arunkumar, the learned counsel for the petitioners and Sri.C.S. Hrithwik, the learned Senior Public Prosecutor for the State. 4. The specific contention put forward by the learned counsel for the petitioners is that the offences alleged against the petitioners are not attracted from the materials produced by the prosecution through Annexure-IV final report. According to the learned counsel for the petitioners, the petitioners were implicated in the commission of the offences under Section 3 r/w. Section 2(a) of the Immoral Traffic CRL.MC No.1244 of 2020 4 (Prevention) Act, 1956, being the Manager and the owner of the aforesaid hotel. Merely because of the reason that the accused persons have availed a room in the aforementioned hotel, the petitioners cannot be implicated in the offence. It is pointed out that the prosecution produced no admissible evidence to substantiate that the petitioners were running a brothel as defined under Section 2(a) of the Act. Hence, no offence under Section 3 is attracted. 5. On the other hand, the learned Public Prosecutor would oppose the aforesaid contentions by pointing out that the question of involvement of the petitioners is a matter to be considered during the trial. The above mentioned question cannot be a subject matter of a proceeding under Section 482 of Cr.PC. The learned Public Prosecutor seeks for dismissal of the Crl.M.C. CRL.MC No.1244 of 2020 5 6. The only question is whether the materials produced along with Annexure-IV final report make out a case for implicating the petitioners for the offence under Section 3 of the Immoral Traffic (Prevention) Act, 1956. Section 3 of the said Act is reads as follows: _“3. Punishment for keeping a brothel or allowing premises to be used as a brothel.— (1) Any person who keeps or manages, or acts or assists in the keeping or management of, a brothel shall be punishable on first conviction with rigorous imprisonment for a term of not less than one year and not more than three years and also with fine which may extend to two thousand rupees and in the event of a second or subsequent conviction, with rigorous imprisonment for a term of not less than two years and not more than five years and also with fine which may extend to two thousand rupees._ ## (2) Any person who— _(a) being the tenant, lessee, occupier or person in charge of any premises, uses, or knowingly allows any other person to use, such premises or any part thereof as a brothel, or_ CRL.MC No.1244 of 2020 6 _(b) being the owner, lessor or landlord or any premises or the agent of such owner, lessor or landlord, lets the same or any part thereof with the knowledge that the same or any part thereof is intended to be used as a brothel, or is wilfully a party to the use of such premises or any part thereof as a brothel,_ _shall be punishable on first conviction with imprisonment for a term which may extend to two years and with fine which may extend to two thousand rupees and in the event of a second or subsequent conviction, with rigorous imprisonment for a term which may extend to five years and also with fine. ”_ The brothel is defined under Section 2(a) of the Act which reads as follows: _“2(a): “brothel” includes 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 the mutual gain of two or more prostitutes.”_ 7. From the definition of ‘brothel’, it is evident that the house or the room in question must have been used for any sexual exploitation CRL.MC No.1244 of 2020 7 or abuse for the gain of another person or the mutual gain of two or more prostitutes. In this case, going through the allegations in the final report and the statements of the witnesses recorded under Section 161 of the Cr.PC, it can be seen that the only allegation is that the 1[st] and 2[nd] accused have taken a room in the aforesaid hotel while CW2, who is an employee in the hotel was at the counter. Later, the Police conducted an inspection of the hotel and found the 1[st] and 2[nd] accused in Room No.209 in a half naked condition. It is further contended that, upon questioning the 1[st] and 2[nd] accused, they have stated that the 2[nd] accused had brought them to the said hotel for a consideration of Rs.8,000/-. They also stated that the room was booked for them by the 3[rd] accused. Upon questioning the 3[rd] accused, who was in Room No.208, he also said in tune with the above and further stated that the owner and CRL.MC No.1244 of 2020 8 manager of the hotel, who are the petitioners herein, have agreed that such activities shall be permitted in their hotel. All the witnesses cited by the prosecution have stated about the incident in the manner mentioned above. However, the crucial aspect to be noticed is that, apart from the statements alleged to have been made by the accused persons, there is no independent material to establish the complicity of the petitioners herein. Even as per the prosecution case, at the time when the accused persons had taken a room and at the time of the search, none of the petitioners was present. They were arrested at a later point of time. Therefore, the only connecting link is the statement alleged to have been given by the accused 1 to 3. In my view, the aforesaid statement alone cannot form the basis for implicating the petitioners as accused persons. The statements are confession statements hit by section 25 of the Evidence Act. CRL.MC No.1244 of 2020 9 8. Therefore, the only conclusion possible is that the prosecution produces no admissible evidence to establish that the acts alleged to have been committed by the accused Nos.1 to 3 were with the knowledge of the petitioners herein. The learned counsel for the petitioners places reliance upon the decision in Kunjumon v. State of Kerala [2019(3) KLT 302], wherein it was held that in the absence of knowledge on the part of the accused, the Manager and owner of a hotel cannot be implicated for the offences merely because of the reason that a room was happened to be taken in the hotel for sexual exploitation. It was observed in the decision after referring to Section 2(a) and Section 3 of the Act that to establish that a hotel was used as a ‘brothel house’, two essential requirements are to be proved from the records ie. _(i) whether the_ _house/room was used for sexual exploitation or abuse and (ii) whether the same was for the gain_ CRL.MC No.1244 of 2020 10 _of another person or for the mutual gain of two or more prostitutes._ In this case, when the contents of Annexure-IV final report are considered, it can be seen that, there are no materials to establish the aforesaid aspects. This is mainly because there are absolutely no materials in the form of admissible evidence to establish the petitioners' knowledge about the commission of the offences or the purposes for which the other accused persons took the room. Moreover, the prosecution also has no case that the petitioners have obtained any personal gain or the acts of the petitioners resulted in any gain to any other person. It is also not the case of the prosecution that the alleged sexual exploitation or the abuse was for the mutual gain of two or more prostitutes. Evidently, the case indicates the involvement of a single woman, and therefore, the question of mutual gain of two or more prostitutes would not arise. In such CRL.MC No.1244 of 2020 11 circumstances, it is evident that the offence under Section 3 of the Act is not attracted as against the petitioners herein. 9. The other offences alleged are under Sections 4,5 and 7 of the Act. Section 4 of the Act provides punishment for living on the earnings of prostitution. As far as the petitioners are concerned, there is no case for the prosecution that they are living on the earnings of prostitution. Similarly, the offence under Section 5 of the Act is also not attracted because the prosecution does not have a case that the petitioners have committed any act by procuring or inducing or taking any person for the sake of prostitution. As far as Section 7 of the Act is concerned, it deals with the person who carries on prostitution in the vicinity of public places. On going through the prosecution case, it is evident that no offence punishable under Sections 4,5 and 7 are attracted against CRL.MC No.1244 of 2020 12 the petitioners herein, and the Police implicated them only in connection with the offence under Section 3 of the Act. I have already found that the offence under Section 3 of the Act is not attracted, and hence the prosecution as against the petitioners is not legally sustainable. In such circumstances, this Crl.M.C. is allowed and Annexure-IV final report submitted by the Police in Crime No.482/2014 of Valiyathura Police Station and all further proceedings in C.C.No.1184/2017 pending before the Chief Judicial Magistrate Court, Thiruvananthapuram as against the petitioners herein, who are accused Nos.4 and 5 are hereby quashed. Sd/- ## ZIYAD RAHMAN A.A. JUDGE pkk CRL.MC No.1244 of 2020 13 ## APPENDIX OF CRL.MC 1244/2020 PETITIONERS’ ANNEXURES: ANNEXURE I TRUE COPY OF THE FIR IN CRIME NO.482/2014 OF THE VALIATHURA POLICE STATION, THIRUVANANTHAPURAM DISTRICT. ANNEXURE II TRUE COPY OF THE FIS IN CRIME NO.482/2014 OF THE VALIATHURA POLICE STATION, THIRUVANANTHAPURAM DISTRICT. ANNEXURE III TRUE COPY OF THE MAHAZER IN CRIME NO.482/2014 OF THE VALIATHURA POLICE STATION, THIRUVANANTHAPURAM DISTRICT. ANNEXURE IV TRUE COPY OF THE FINAL REPORT IN CRIME NO.482/2014 OF THE VALIATHURA POLICE STATION, THIRUVANANTHAPURAM DISTRICT.