Maniraj v. State of Kerala

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE R. NARAYANA PISHARADI** **WEDNESDAY, THE 22ND DAY OF MAY 2019 / 1ST JYAISHTA, 1941** **Crl.MC.No. 7201 of 2016** **CC NO.1381/2014 of JUDICIAL MAGISTRATE OF FIRST** **CLASS -I,ATTINGAL** **CRIME NO. 1145/2013 OF Attingal Police Station , Thiruvananthapuram** **PETITIONER/A1:** **MANIRAJ AGED 48, S/O.RAGHAVAN, NALINAM HOUSE,18 MILE, KORANI P.O., CHITTATTINKARA DESOM,EDAIKODE VILLAGE, ATTINGAL, THIRUVANANTHAPURAM.** **BY ADV. SRI.SHAJIN S.HAMEED** ## **RESPONDENT/STATE:** **STATE OF KERALA REPRESENTED BY THE INSPECTOR OF POLICE,ATTINGAL, REPRESENTED THROUGH THE PUBLIC PROSECUTOR,HIGH COURT OF KERALA, ERNAKULAM.** **SMT. SHEEBA KK PUBLIC PROSECUTOR** **THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON 04.04.2019, THE COURT ON 22.05.2019 PASSED THE FOLLOWING:** Crl.M.C.No.7201/2016 2 ## **“CR”** ## **R.NARAYANA PISHARADI, J** ************************ Crl.M.C.No.7201 of 2016 -------------------------------------------Dated this the 22[nd] day of May, 2019 ## **O R D E R** The petitioner is the first accused in the case C.C.No.1381 of 2014 on the file of the Court of the Judicial First Class Magistrate-1, Attingal. He is accused of committing the offences punishable under Sections 3(1) and 5(1)(b) of the Immoral Traffic (Prevention) Act, 1956 (hereinafter referred to as 'the Act'). 2. On 12.10.2013, the Inspector of Police, Attingal got information that the petitioner and another man and two women had reached house No.V/1252 of Kizhuvilam Panchayat for prostitution. The Inspector prepared memorandum to search the aforesaid house and sent it to the court concerned. Thereafter, he reached that house at about 13.45 hours and conducted search of the house. He saw accused 2 to 4 in a bedroom, making Crl.M.C.No.7201/2016 3 preparation to conduct prostitution. He arrested them and registered Crime No.1145 of 2013 of Attingal police station in the matter. After completing the investigation of the case, AnnexureB final report was filed against the petitioner and accused 2 to 4 for the offences punishable under Sections 3(1) and 5(1)(b) of the Act. 3. The charge against the poetitioner is that he had taken on rent house No.V/1252 of Kizhuvilam Panchayat and that he used that house as a brothel. The Judicial First Class Magistrate-1, Attingal has taken cognizance of the aforesaid offences and the case is pending in that court as C.C.No.1381 of 2014. The petitioner seeks to quash the proceedings against him in the case by invoking the power of this Court under Section 482 of the Code of Criminal Procedure, 1973 (hereinafter referred to as 'the Code'). 4. Heard learned counsel for the petitioner and the learned Public Prosecutor. 5. One of the main contentions urged by the learned counsel for the petitioner is that the police officer who conducted Crl.M.C.No.7201/2016 4 the search of the house had failed to comply with the mandatory requirement under Section 15(2) of the Act. Learned counsel has submitted that there was no woman present as a witness to the search as required under Section 15(2) of the Act. Learned counsel would contend that the requirement under Section 15(2) of the Act is mandatory and non-compliance with that provision would vitiate the entire proceedings. 6. Section 15(2) of the Act reads as follows: _“(2) Before making a search under subsection (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 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.”_ _7_ . In the instant case, when the police officer conducted search of the house, he had not called upon any woman to attend and witness the search. No woman was present as a witness at the time of the search. Therefore, there was non- Crl.M.C.No.7201/2016 5 compliance with the requirement under Section 15(2) of the Act. 8. In **Bai Radha v. State of Gujarat : AIR 1970 SC 1396** , the Apex Court has considered the requirement under Section 15(2) of the Act and held as follows: _“The principles which have been settled with regard to the effect of an irregular search made in exercise of the powers under Section 165 of the Code of Criminal Procedure would be fully applicable even to a case under the Act where the search has not been made in strict compliance with its provisions. It is significant that there is no provision in the Act according to which any search carried out in contravention of Section 15 would render the trial illegal. In the absence of such a provision we must apply the law which has been laid down with regard to searches made under the provisions of the Criminal Procedure Code”._ The Apex Court proceeded to hold as follows: _“The investigating agencies cannot and ought not to show complete disregard of such provisions as are contained in subsections (1) and (2) of Section 15 of the_ Crl.M.C.No.7201/2016 6 _Act. The legislature in its wisdom provided special safeguards owing to the nature of the premises which have to be searched involving inroads on the privacy of citizens and handling of delicate situations in respect of females. But the entire proceedings and the trial do not become illegal and vitiated owing to the nonobservance of or non-compliance with the directions contained in the aforesaid provisions. The court, however, has to be very careful and circumspect in weighing the evidence where there has been such a failure on the part of the investigating agency but unless and until some prejudice is shown to have been caused to the accused person or persons the conviction and the sentence cannot be set aside.”_ 9. In the light of the decision of the Apex Court in **Bai Radha** (supra), the plea that non-compliance with the requirement under Section 15(2) of the Act would vitiate the entire proceedings cannot be accepted. In many cases, due to various reasons, the police officer who conducts the search may Crl.M.C.No.7201/2016 7 not be able to procure the presence of a woman to witness the search. During the trial of the case, the police officer who conducted the search may show or explain the reason for noncompliance with the aforesaid provision. But, the accused will be entitled to plead and prove during the trial of the case that noncompliance with the provision contained in Section 15(2) of the Act has caused prejudice to him. Whether any such prejudice has been caused or not would depend on the facts and circumstances of each case. It is a matter in the realm of appreciation of evidence in each case. 10. The offences under Sections 3(1) and 5(1)(b) of the Act are alleged against the petitioner. Section 3(1) of the Act provides that any person who keeps or manages, or acts or assists in the keeping or management of a brothel shall be punishable in the manner indicated in the said section. Section 2(a) of the Act defines that '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 Crl.M.C.No.7201/2016 8 exploitation or abuse for the gain of another person or for the mutual gain of two or more prostitutes. It is only if a person keeps or manages a brothel or acts or assists in the keeping or management of a brothel that he commits an offence under Section 3(1) of the Act. 11. The petitioner has raised a plea that merely because a place was used only once for sexual exploitation, such a place cannot be a brothel. Reliance is placed upon the decision of this Court in **Mr.X v. State of Kerala : 2009 (2) KHC 5** in support of this contention. In that case, this Court has referred to the decision of the Apex Court in **Krishnamurthy v. Public Prosecutor: AIR 1967 SC 567** and held that the room in a Government Guest House will not answer the definition of 'brothel' if it was used for sexual exploitation only once. What the Apex Court has held in **Krishnamurthy** (supra) is as follows: _“It has been urged, however, that a solitary instance of the house of the appellant being used_ Crl.M.C.No.7201/2016 9 _for the purpose of prostitution will not suffice for establishing that the house was being kept as a brothel. It may be true that a place used once for the purpose of prostitution may not be a brothel, but it is a question of fact as to what conclusion should be drawn about the use of a place about which a person goes and freely asks for girls, where the person is shown girls to select from and where he does engage a girl for the purpose of prostitution. The conclusion to be derived from these circumstances about the place and the person 'keeping' it' can be nothing else than that the place was being used as a brothel and the person in charge was so keeping it. It is not necessary that there should be evidence of repeated visits by persons to the place for the purpose of prostitution. A single instance coupled with the surrounding circumstances is sufficient to establish both that the place was being used as a brothel and that the person alleged was so keeping it”._ (emphasis supplied). 12. In this context, the subsequent decision of the Hon'ble Supreme Court in **Gaurav Jain v. Union of India : AIR 1997 SC 3021** may also be noticed. It has been held therein as Crl.M.C.No.7201/2016 10 ## follows: _“The phrase 'for the purpose of' indicates that the place being used for the purpose of the prostitution may be a brothel provided a person uses the place and ask for girls, where the person is shown girls to select from and where one does engage or offer her body for promiscuous sexual intercourse for hire. In order to establish prostitution, evidence of more than one customer is not always necessary. All that is essential to prove is that a girl/lady should be a person offering her body for promiscuous sexual intercourse for hire. Sexual intercourse is not an essential ingredient. The inference of prostitution would be drawn from diverse circumstances established in a case. Sexuality has got to be established but that does not require the evidence of more than one customer and no evidence of actual intercourse should be adduced or proved. It is not necessary that there should be repeated visits by persons to the place for the purpose of prostitution. A single instance coupled with the surrounding circumstances may be sufficient to establish that the place is being used as a brothel and the person alleged was so keeping it. The prosecution has to prove only_ Crl.M.C.No.7201/2016 11 _that in a premises a female indulges in the act of offering her body for promiscuous sexual intercourse for hire. On proof thereof, it becomes a brothel”._ (emphasis supplied). 13. Therefore, it cannot be found that proof of a single instance of sexual exploitation in a place is always not sufficient to establish that such place was used or kept as a brothel. It depends on the circumstances of each case. In **Mr.X** (supra), the place involved was a room in a Government Guest House and not a house owned or taken on lease by a person. 14. However, in view of the definition of brothel contained in Section 2(a) of the Act, only if the house in question had been used for purposes of sexual exploitation or abuse, it could be a brothel. Only if the petitioner had kept or managed a brothel or acted or assisted in the keeping or management of a brothel, it could be found that he has committed an offence under Section 3(1) of the Act. The petitioner is the person who has taken the house on lease. Therefore, he cannot, at this stage of the case, raise a plea that the house was not in his possession or under his Crl.M.C.No.7201/2016 12 control. But, the fact remains that there is no allegation that the house was used for sexual exploitation or abuse. The detecting officer had found two ladies and a man in a room in the house. He did not see any sexual exploitation or abuse being made or done. Even in the final report, the allegation is only that the detecting officer found accused 2 to 4 making preparation for prostitution. What was the preparation for prostitution made by them is not mentioned either in the first information report or in the final report. The essential ingredient that a place being used for the purpose of sexual exploitation or abuse is absent. In these circumstances, it has to be found that the offence under Section 3(1) of the Act is not made out against the petitioner. 15. When a person 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, the offence under Section 3(2)(a) of the Act is attracted. But, no such offence is alleged against the petitioner. Crl.M.C.No.7201/2016 13 16. The other offence alleged against the petitioner is under Section 5(1)(b) of the Act. Section 5(1)(b) of the Act provides that any person who induces a person to go from any place, with the intent that he may for the purpose of prostitution become the inmate of, or frequent, a brothel shall be liable to the punishment prescribed under that provision. Section 5(1)(b) of the Act would be attracted only if the prosecution has a case that the accused induced a person to go from any place, with the intent that he may for the purpose of prostitution become the inmate of, or frequent a brothel. There is no such allegation made against the petitioner. Therefore, Section 5(1)(b) of the Act is also not attracted. ## 17. In **Vijayakumar v. State of Kerala : 2016 (1) KHC** **698** , when the police conducted a raid in a home stay, two ladies and some men were found in a room. Accused 1 and 2 in that case were conducting the home stay. The case was registered against them under Sections 3, 4(1), 5 and 7 of the Act. This court found that even if the allegation against the accused is Crl.M.C.No.7201/2016 14 taken at its face value, it cannot be found that they had committed any of the aforesaid offences and quashed the first information report by invoking the power under Section 482 of the Code. 18. In the aforesaid circumstances, continuation of the proceedings against the petitioner would be an abuse of process of the court. I am of the considered view that this is a fit case where the power of this Court under Section 482 of the Code can be exercised to quash the proceedings against the petitioner. 19. Consequently, the petition is allowed. All proceedings against the petitioner in the case C.C.No.1381 of 2014 on the file of the Court of the Judicial First Class Magistrate-1, Attingal are quashed. (sd/-) ## **R.NARAYANA PISHARADI, JUDGE** jsr/09/05/2019 Crl.M.C.No.7201/2016 15 ## **APPENDIX** ## **PETITIONER'S EXHIBITS:** **ANNEXURE-A: CERTIFIED COPY OF FIR IN CRIME NO.1145/2013 OF ATTINGAL POLICE STATION. ANNEXURE-B: CERTIFIED COPY OF THE FINAL REPORT IN CRIME NO.1145/2013 OF ATTINGAL POLICE STATION.** ## **RESPONDENT'S EXHIBITS:** ## **NIL** **TRUE COPY** **PS TO JUDGE**