MANU M. & SHYAMKUMAR K.B. v. STATE OF KERALA and THE SUB INSPECTOR, PALA POLICE STATION

Crl.M.C.No.6101/21 1 ``` IN THE HIGH COURT OF KERALA AT ERNAKULAM ``` ## `PRESENT` ``` THE HONOURABLE MR.JUSTICE ZIYAD RAHMAN A.A. FRIDAY, THE 19[TH] DAY OF AUGUST 2022 / 28TH SRAVANA, 1944 ``` ``` CRL.MC NO. 6101 OF 2021 ``` ``` [TO QUASH FINAL REPORT IN CRIME NO.250/2019 OF PALA POLICE STATION, KOTTAYAM PENDING AS S.T. NO.1157/2019 BEFORE THE JUDICIAL FIRST CLASS MAGISTRATE COURT, PALA, KOTTAYAM ] ``` ## `PETITIONERS/ACCUSED NOS.2 & 3:` ``` 1MANU M., AGED 29 YEARS, S/O.MANIYAN, KOYITHARA HOUSE, THYCATTUSSERI P.O., CHERTHALA, ALAPPUZHA. ``` ``` 2SHYAMKUMAR K.B, AGED 33 YEARS, S/O.BHASKARAN NAIR, KOCHUPURATHANAM HOUSE, THIRUVARPPU P.O., KOTTAYAM DISTRICT. ``` ``` BY ADVS. LIJI.J.VADAKEDOM REXY ELIZABETH THOMAS TOM E. JACOB ``` ## `RESPONDENTS/STATE AND COMPLAINANT:` ``` 1STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM-682 031. ``` ``` 2THE SUB INSPECTOR, PALA POLICE STATION, PALA, KOTTAYAM, PIN-686 575. BY C.S.HRITHWIK, PP. ``` Crl.M.C.No.6101/21 2 ``` THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 19.08.2022, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: ``` Crl.M.C.No.6101/21 3 ## **O R D E R** The petitioners are the accused Nos.2 and 3 in Crime No.250 of 2019 of Pala Police Station, which is now pending as S.T.No.1157 of 2019 before the Judicial First Class Magistrate Court, Pala. The offences alleged against the petitioners and other accused persons are under Sections 3(2)(a), 3(2)(b) and 5 of the Immoral Traffic (Prevention) Act, 1956. 2. The prosecution case is that on 22.01.2019 at 15.30 hours, upon getting information that prostitution was taking place in the residence of the 1[st] accused, the Police party conducted a search in his residence and thereupon it was found that the petitioners herein were indulging in sexual intercourse with CW9 and CW10. Annexure-I is the FIR and Annexure-II is the final report submitted by the Police. This Crl.M.C. is filed for quashing all further proceedings pursuant to it. 3. Heard Sri.Liji J Vadakkedom, learned counsel for the petitioners and Sri.C.S.Hrithwik, learned Public Prosecutor for the State. 4. The main contention put forward by the learned counsel for the petitioners is that as against the petitioners Crl.M.C.No.6101/21 4 herein, none of the offences alleged is attracted. It is pointed out that, even if it is assumed that the allegations in Annexure-I FIR and Annexure-II final report are correct, it would only reveal that the petitioners were having sexual intercourse with CW9 and CW10 respectively and that by itself would not attract the aforesaid offences. On the other hand, the learned Public Prosecutor would oppose the aforesaid contention by stating that it is a matter of evidence and the same cannot be considered in a proceeding of this nature. 5. On perusal of the records, it is seen that some of the main offences are under Sections 3(2)(a) and 3(2)(b) of the Immoral Traffic (Prevention) Act, 1986. As far as the offences contemplated in the aforesaid Sections are concerned, the same pertains to the act of keeping a brothel or allowing a premise to be used as a brothel. Section 3(2) (a) deals with the culpability of persons who, 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. On the other hand, Section 3(2) (b) deals with the culpability of the person who allows the said place to be used as a brothel with the knowledge that any part of the said building is intended to be Crl.M.C.No.6101/21 5 used as a brothel. From the records, it is discernible that the allegations against the petitioners are that they were found to have indulged in sexual intercourse with some of the witnesses on the premises. Under no stretch of the imagination the offences contemplated under Section 3 can be attracted against the petitioners herein. At the most, the same would get attracted only against the 1[st] accused. 6. The other offence alleged against the petitioners is under Section 5 of the Act. The aforesaid provisions read as follows: "5. Procuring, inducing or taking person for the sake of prostitution.— (1) Any person who— (a) procures or attempts to procure a person, whether with or without his consent, for the purpose of prostitution; or person, whether with or without his consent, for the purpose of prostitution; or" (b) 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; or 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; or" (c) takes or attempts to take a person, or causes a person to be taken, from one place to another with a Crl.M.C.No.6101/21 6 view to his carrying on, or being brought up to carry on prostitution; or (d) causes or induces a person to carry on prostitution, shall be punishable on conviction with rigorous imprisonment for a term of not less than three years and not more than seven years and also with fine which may extend to two thousand rupees, and if any offence under this sub-section is committed against the will of any person, the punishment of imprisonment for a term of seven years shall extend to imprisonment for a term of fourteen years: Provided that if the person in respect of whom an offence committed under this sub-section,— (i) is a child, the punishment provided under this subsection shall extend to rigorous imprisonment for a term of not less than seven years but may extend to life; and (ii) is a minor, the punishment provided under this sub-section shall extend to rigorous imprisonment for a term of not less than seven years and not more than fourteen years;" 7. As per the said provisions, what is made punishable is procuring or attempting to procure a person, whether with or without his consent, for the purpose of prostitution. In this case, there is no allegation that, the petitioner has approached the persons or any persons without his consent for prostitution. The learned counsel for the petitioner also places reliance upon the Crl.M.C.No.6101/21 7 decisions rendered by this Court in **Vijayakumar & Others v. State of Kerala and Others [2016(1) KHC 698]** and **Midhun and Another v. State of Kerala [2022 KHC 2019]** . 8. In the aforesaid judgments, it was held that merely because of the reason that, the accused was found engaging in sexual activity even in a brothel does not become an offence punishable under the Act. When principles laid down by this Court in the aforesaid cases is applied in this case, I am of the view that the offence under Section 5 is also not attracted. This is because of the reason that the only allegation against the petitioners is that they were found engaged in sexual activities. 9. There is yet another aspect which indicates the unsustainability of the prosecution. Section 15 of the Act deals with the manner in which the search of the premises has to be conducted without a warrant. Section 15 specifically provides that, before making a search under sub-section (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 situated, to attend and witness the search, and may issue an order in writing to them or any of them so to do. In this Crl.M.C.No.6101/21 8 case, from the records, it is discernible that the aforesaid statutory mandate has not been complied with. It is true that CW8 was present at the scene of occurrence. However, on perusal of the statement of the aforesaid witness, recorded under section 161 of Cr.P.C, which was made available by the learned counsel before me, it is discernible that she was called to the place where the search was being conducted, after the search. In the said statement, CW8 clearly stated that she was called by the Circle Inspector over the phone and informed that two persons, along with two women, were apprehended by the police for illicit sexual activities. Therefore it is evident that the presence of the said witness was secured after the search. On the other hand, the mandate of Section 15(2) is to the effect that, before conducting such a search, the presence of two respectable persons, including one woman, has to be ensured. Such statutory requirement has not been complied with in this case. Thus, the search conducted in this case is not in tune with the statutory requirement; therefore, the prosecution cannot rely on the materials collected through such an illegal search. Hence, the proceedings are liable to be interfered with on that ground. Thus, while considering all the aforementioned aspects, the only conclusion that can be Crl.M.C.No.6101/21 9 arrived at is that the prosecution against the petitioners is vitiated due to the abovementioned reasons, and the same is an abuse of the process of law. In the result, this Crl.M.C. is allowed, and Annexure-II final report submitted in Crime No.250 of 2019 of Pala Police station and all further proceedings in S.T.No.1157 of 2019 pending before the Judicial First Class Magistrate Court, Pala is hereby quashed as against the petitioners. ## **Sd/-** **ZIYAD RAHMAN A.A. JUDGE** DG/22.8.22 Crl.M.C.No.6101/21 10 ``` APPENDIX OF CRL.MC 6101/2021 ``` ``` PETITIONER’S ANNEXURES Annexure 1THE CERTIFIED COPY OF THE FIR AND FIS IN CR NO 250/19 OF PALA POLICE STATION Annexure 11THE CERTIFIED COPY OF THE FINAL REPORT IN CR NO 250/19 OF PALA POLICE STATION ```