Kunjumon and Jayakumar v. State of Kerala

“CR” **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. 2606 of 2019** **AGAINST THE ORDER/JUDGMENT IN CC NO.131/2013 ON THE FILES OF THE JUDICIAL MAGISTRATE OF FIRST CLASS-V, THIRUVANANTHAPURAM (SPECIAL COURT-MARKLIST CASES)** **CRIME NO. 222/2010 OF Valiyathura Police Station, Thiruvananthapuram** ## **PETITIONERS/ACCUSED NOS.1 & 2:** - **1 KUNJUMON, AGED 48 YEARS, S/O. ABUBACKER, TC 20/1972, ABUBACKER PALACE, KUNJALUMOODU, MUDAVANMUGHAL WARD, THIRUMALA VILLAGE, THIRUVANANTHAPURAM.** - **2 JAYAKUMAR, AGED 57 YEARS, S/O.SIVANASARY, THRIKARTHIKA VEEDU, PAZHAYA KARAIKA MANDAPAM, NEMOM VILLAGE, THIRUVANANTHAPURAM.** **BY ADV. SRI.G.SUDHEER** ## **RESPONDENT/COMPLAINANT:** **STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM-682031.** **SMT. M. K. PUSHPALATHA SR. PUBLIC PROSECUTOR** **THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON 21.05.2019, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** Crl.MC.No. 2606 of 2019 **==> picture [31 x 7] intentionally omitted <==** ## **ORDER** This petition is filed under Section 482 of the Cr.P.C seeking to quash the proceedings against the petitioners in C.C. No.131 of 2013 on the file of the Judicial Magistrate of the First Class-V, Thiruvananthapuram. 2. The 1[st] petitioner is the owner of a lodge by name “Ruksana Tourist Home”, situated at Valiyathura, near to the Thiruvananthapuram Airport. The 2[nd] petitioner is the Manager of the lodge. On 3.3.2010 at about 11.40 am, based on source information, the C.I. of Police, Poonthura Police Station conducted a search in the lodge and its premises. According to the prosecution, accused Nos. 3 and 4 were found inside Room No. 209 and accused Nos. 5 and 6 were found inside Room No. 210. They were not able to convince the officer that they were married. Assuming that they had taken the rooms for indulging in the flesh trade, they were arrested. The petitioners are alleged to have facilitated the acts of the accused Nos. 3 to 6. Crime No. 222 of 2010 was consequently registered under Section 3, 4, and 5 of the Crl.MC.No. 2606 of 2019 **==> picture [31 x 7] intentionally omitted <==** Immoral Traffic Prevention Act, 1956 (Act 44 of 1986). Later, investigation was completed and final report was laid before the jurisdictional Court. 3. Sri.G.Sudheer, the learned counsel appearing for the petitioners, submitted with much vehemence that the offences under Sections 3, 4 and 5 of Act 44 of 1986 will not be attracted as against the petitioners. According to the learned counsel, the petitioners, being owner and Manager respectively of a lodge, which is situated near to the Airport, had no reason to suspect the intentions of accused Nos.3 to 6. He would urge that the prosecution had not placed any materials before court to even prima facie conclude that the accused Nos.3 to 6 had even indulged in sexual intercourse. He would further argue that the couples, who had come together, had convinced the 2[nd] petitioner, who was the Manager of the lodge, that they had come for sightseeing to the nearby beach. The 2[nd] petitioner had no reason to think otherwise. It is pointed out that the proceedings against accused Nos.5 and 6 have already been quashed by this Court holding that the ingredients of the offences alleged would not be made out. The learned counsel would maintain that the 1[st] petitioner was not even present at the lodge at the time of search Crl.MC.No. 2606 of 2019 ..4.. and he was arrayed as an accused in the course of investigation, as the ownership of the lodge stood in his name. He would submit that the lodge which is being operated after obtaining all licenses and permissions from the authorities concerned, could not have been categorised as a brothel as defined in Section 2(a) of the Act, submits the learned counsel. By placing reliance on **State of Kerala v. Pathumma** (1968 KLT 453), **Radhakrishnan.K. v. State of Kerala** (2008 (2) KLT 521) and **Mr.X, Central Kerala v. State of Kerala** (2009 (2) KLT 7), it was contended that none of the offences attributed to the petitioners would stand legal scrutiny. Except for collecting the rent for the stay, the petitioners have not secured any gain, contends the learned counsel. 4. Heard the learned Public Prosecutor, who has refuted the submissions of the learned counsel appearing for the petitioners. The fact that the proceedings against accused Nos.5 and 6 were quashed would not advance the case of the petitioners, contends the learned Public Prosecutor. It is urged that the allegations are grave and no interference is warranted at this stage. 5. I have considered the submissions advanced by both sides and have gone through the final report. Crl.MC.No. 2606 of 2019 **==> picture [31 x 7] intentionally omitted <==** 6. Section 2(a) of the Act defines the term “brothel”. It 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 for the mutual gain of two or more prostitutes. As per section 2(f) “prostitution” means the sexual exploitation or abuse of persons for commercial purpose, and the expression “prostitute” shall be construed accordingly. Section 3 provides for punishment for keeping a brothel or allowing premises to be used as a brothel. Section 3 is extracted below. “Section 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— Crl.MC.No. 2606 of 2019 ..6.. (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 (b) being the owner, lessor or landlord of 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. (2A) For the purposes of sub-section (2), it shall be presumed, until the contrary is proved, that any person referred to in clause (a) or clause (b) of that sub-section, is knowingly allowing the premises or any part thereof to be used as a brothel or, as the case may be, has knowledge that the premises or any part thereof are being used as a brothel, if, (a) a report is published in a newspaper having circulation in the area in which such person resides to the effect that the premises or any part thereof have been found to be used for prostitution as a result of a search made under this Act; or (b) a copy of the list of all things found Crl.MC.No. 2606 of 2019 ..7.. during the search referred to in clause (a) is given to such person. (3) Notwithstanding anything contained in any other law for the time being in force, on conviction of any person referred to in clause (a) or clause (b) of subsection (2) of any offence under that sub-section in respect of any premises or any part thereof, any lease or agreement under which such premises have been leased out or are held or occupied at the time of the commission of the offence, shall become void and inoperative with effect from the date of the said conviction.” 7. A close reading of the Sections 2(a), (f) and Section 3 makes it clear that to brand a hotel/lodge as a brothel house, the following essential requirements are to be prima facie proved from the records:- - (a) the hotel/lodge was used for the purposes of sexual exploitation (or) abuse. - (b) Such use was for gain of another person or for the mutual gain of two or more prostitutes. 8. In the instant case, in my considered view, both the above ingredients have not been satisfied by the prosecution. Firstly, no materials have been collected by the prosecution to show that the petitioners herein had knowledge that the accused Nos. 3 to 6 had Crl.MC.No. 2606 of 2019 **==> picture [31 x 7] intentionally omitted <==** taken the rooms on rent for the purpose of prostitution or that they were aware that the rooms were intended to be used for that purpose. All that is evident from the record is that two sets of couples had taken adjacent rooms of a lodge on rent and the records in the final report would not even show that they had indulged in sexual acts. Even the chemical analysis certificate has not been produced before the court. Secondly, as per Section 2(a), the hotel should have been used for sexual exploitation or for the gain of another person. In this case, there is absolutely no material to show that the petitioner had gained out of the alleged use of the hotel by accused Nos 3 or 5. In the absence of knowledge on the part of the accused, the fact that a room was booked for stay, for the purpose of sexual exploitation or abuse of anyone, and mere collection of money for the stay will not amount to gain as envisaged in Section 2 of the Act. Here, the alleged gain should be understood in the context of the use of the room. In my considered opinion, the gain as reflected in Section 2(a) of the Act should be unlawful gain and not the proceeds of mere stay of guests in the hotel. Thus the second ingredient of the above section has also not been satisfied. Furthermore, the presumption under section (2A) of Section 3 will not have any application in the instant case as the requirement under sub clause (a) and (b) have not been satisfied. Crl.MC.No. 2606 of 2019 **==> picture [31 x 7] intentionally omitted <==** 9. Section 4 penalises a person, who knowingly lives, wholly or in part, on the earnings of prostitution of any other person. For the reasons mentioned above, the said provision has no application insofar as the petitioners herein are concerned. Furthermore, the prosecution has no case that the petitioners had either procured or induced any person to indulge in prostitution. That being the case, the offence under Section 5 of the Act will not have any application. 10. 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 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 Crl.MC.No. 2606 of 2019 ..10.. preliminary stage. (See **Madhavrao Jiwajirao Scindia and Ors. v. Sambhajirao Chadrojirao Angre and Ors.** , [(1988) 1 SCC 692]. 11. On an over all survey of the pronouncement of the Apex Court and the purport of Sections 3, 4 and 5 of Act 44 of 1986 and I am disposed to hold that this is a fit case, wherein this Court will be justified in terminating the criminal proceedings at the threshold stage itself. In the result, this petition is allowed. Annexure-B final report and all further proceedings pursuant thereto against the petitioners now pending as CC No.131 of 2013 on the file of the Judicial First Class Magistrate Court-V, Thiruvananthapuram are quashed. Sd/- ## **RAJA VIJAYARAGHAVAN V.,** ## **JUDGE** Bka/23.05.2019 Crl.MC.No. 2606 of 2019 ..11.. ## **APPENDIX** ## **PETITIONER'S/S EXHIBITS:** **ANNEXURE A COPY OF FIR IN CRIME NO.222/2010 OF VALIYATHURA POLICE STATION DATED 31.3.2013.** **ANNEXURE B ATTESTED COPY OF FINAL REPORT IN CRIME NO.222/2010 OF VALIYATHURA POLICE STATION, BEFORE THE CHIEF JUDICIAL MAGISTRATE COURT, THIRUVANANTHAPURAM.** **ANNEXURE C** **TRUE COPY OF THE JUDGMENT DATED 20.2.2019 IN CRL.M.C. 2207/2014 OF THIS HON'BLE COURT.**