Muhammed Nizar v. Circle Inspector of Police, Kothamangalam Police Station, Ernakulam District; The Public Prosecutor, High Court of Kerala, Ernakulam

## **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ``` THE HONOURABLE MR. JUSTICE P.V.KUNHIKRISHNAN ``` ``` TUESDAY, THE 23[RD] DAY OF JULY 2024 / 1ST SRAVANA, 1946 ``` ``` CRL.MC NO. 2620 OF 2015 ``` ``` CRIME NO.852/2013 OF Kothamangalam Police Station, Ernakulam ``` ## **`PETITIONER/4TH ACCUSED:`** ``` MUHAMMED NIZAR AGED 44 YEARS, S/O.MOHAMMED, NADUVILEPARAMBIL, MANJALI ,KARUMALOOR VILLAGE, PARAVUR TALUK BY ADVS. SRI.P.SREEKUMAR SRI.S.PRASANTH ``` ## **`RESPONDENTS/COMPLAINANT:`** - **`1 CIRCLE INSPECTOR OF POLICE KOTHAMANGALAM POLICE STATION, ERNAKULAM DIST, PIN-686691`** - **`2 THE PUBLIC PROSECUTOR HIGH COURT OF KERALA ERNAKULAM`** ## **`OTHER PRESENT:`** ## **`SRI.SANGEETHARAJ.N.R, SR.PP`** ## **`THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON`** ## **`23.07.2024, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:`** CrlM.C..No.2620/2015 **2** ## **P.V.KUNHIKRISHNAN, J. -------------------------------Crl.M.C. No.2620 of 2015** **---------------------------------------------Dated this the 23[rd] day of July, 2024** ## **ORDER** Petitioner is the 4[th] accused in Crime No.852/2013 of Kothamangalam Police Station, which was registered alleging offence punishable under Sections 2(f), 3, 4 and 5 of the Immoral Traffic (Prevention) Act (for short, IT Act). 2. The allegation made against the petitioner is that he was running a brothel in Palamattom in a rented building and the 1[st] and 3[rd] accused had sexual intercourse in the said building on 20.06.2013. The 2[nd] accused is the friend of the 1[st] accused who was found sitting in a car outside the building. According to the petitioner, he is made as an accused without any evidence and the continuation of prosecution against the petitioner is an abuse of process of the court. 3. Heard the learned counsel for the petitioner and the learned Public Prosecutor. 4. This Court perused the final report submitted by the Police. Annexure-A4 is the final report. The only CrlM.C..No.2620/2015 **3** allegation against the petitioner, who is the 4[th] accused is that the other accused used the premises for the purpose of sex. The offence alleged against the petitioner are under Sections 3, 4 and 5 of the IT Act. Sections 3, 4 and 5 of the IT Act are extracted hereunder: ## “ **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 - (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 CrlM.C..No.2620/2015 **4** 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 beig 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 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 CrlM.C..No.2620/2015 **5** 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. ## **4. Punishment for living on the earnings of** — **prostitution.** (1) 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, or with fine which may extend to one thousand rupees, or with both and where such earnings relate to the prostitution of a child or a minor, shall be punishable with imprisonment for a term of not less than seven years and not more than ten years. - (2) Where any person over the age of eighteen years is proved— - (a) to be living with, or to be habitually in the company of, a prostitute; or - (b) to have exercised control, direction or influence over the movements of a prostitute in such a manner as to show that such person is aiding, abetting or compelling her prostitution; or - (c) to be acting as a tout or pimp on behalf of a CrlM.C..No.2620/2015 **6** prostitute, it shall be presumed, until the contrary is proved, that such person is knowingly living on the earnings of prostitution of another person within the meaning of sub-section (1). ## **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 - (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 (c) takes or attempts to take a person, or causes a person to be taken, from one place to another with a 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 CrlM.C..No.2620/2015 **7** 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 sub-section 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; - (3) An offence under this section shall be triable— - (a) in the place from which a person is procured, induced to go, taken or caused to be taken or from which an attempt to procure or take such person is made; or - (b) in the place to which he may have gone as a result of the inducement or to which he is taken or caused to be taken or an attempt to take him is made. ” 5. Even if the entire allegations are accepted, the final report and documents submitted along with the final report would not show that the 4[th] accused committed the offence under Sections 3, 4 and 5 of the IT Act. Moreover, the case against the 2[nd] accused is already quashed by this Court as per order in Crl.M.C. No.8054/2018. Another accused pleaded CrlM.C..No.2620/2015 **8** guilty before the trial court. But as far as the petitioner is concerned, the offence is not attracted. The brothel is defined in the IT Act. The definition of the same was considered by this Court in **X v. State of Kerala** [2009 (2) KLT 7]. It will be better to extract paragraph 6 of the above judgment: “6. S.3 of the Act has absolutely no application because even according to the prosecution, Room No. 108 of the Government Guest House was used only once for sexual exploitation and if so, such a place cannot be called a brothel. (See Krishnamurthy v. Public Prosecutor, 1967 KHC 534 : 1967 CriLJ 544 SC : AIR 1967 SC 567 : 1967 (1) SCR 586 : 1967 (2) MLJ 37). It is only if a person keeps a brothel or allows the premises under his control to be used as a brothel that he commits an offence under S.3 of the Act. S.2(a) defines a 'brothel' as follows: ‘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 for the mutual gain of two or more prostitutes'.” In the light of the interpretation placed by the Apex Court, the room in the Government Guest House will not answer the definition of 'brothel' if it was used for sexual exploitation only once.” 6. Similarly this Court in **Radhakrishnan v. State of** **Kerala** [2008 (2) KLT 521] also considered the carrying on CrlM.C..No.2620/2015 **9** prostitution. It will be better to extract paragraphs 4 and 6 of the above judgment: “In order to become prostitution there should be the offering of her body by a female for promiscuous sexual intercourse for hire, whether in money or in kind. The word "promiscuous" means indiscriminate. The import of the word "promiscuous" is that the woman or girl offering her body offers it for hire to anyone who desires it for sexual intercourse. In other words, the woman is available to be shared without any discrimination. It, therefore, excludes sexual intercourse which a person may have with a permanently kept concubine. 5. xxx xxx xxx xxx xxx xxx xxx xxx xxx xxx xxx xxx 6. Even if the premises in question was situated in an area notified under S.7(3) or within 200 metres of any of the enumerated public places or a public place notified under clause (b) of S.7(1) of the ITP Act, a person becomes liable for punishment only if it is shown that he or she was "carrying on prostitution". The activity will amount to prostitution only if sexual abuse or exploitation of persons is done for commercial purpose. The expression "commercial purpose" has not been defined under the ITP Act. In Strout's Judicial Dictionary, V Edition, the term "Commercial" has been defined as traffic, trade, or merchandise in CrlM.C..No.2620/2015 **10** buying or selling of goods. See also New Delhi Municipal Council v. Sohan Sachdev, 2000 KHC 240 : 2000 (1) KLT SN 75 : AIR 2000 SC 1859 : 2000 AIR SCW 432 : 2000 (2) SCC 494. In order that an activity can be called a commercial activity it should include any type of business or activity which is carried on for a profit. The activity must imply some investment of capital and must run the risk of profit or loss. The word "traffic" means the business of buying and selling. It comprehends illegal or disreputable business or activity. "Trafficking" means "the carrying on of the trade of buying and selling, often with a sinister implication and is used in a disparaging sense. Thus, it is only if sexual abuse or exploitation is carried on for mercenary motives could it be said that it is prostitution. It is pertinent to note in this context that the prosecution has no case that there was any payment or receipt of money or money's worth, nor has the Police recovered any money constituting the consideration for the lascivious venture alleged. Satiating one's lust or prurient desires for no monetary consideration between consenting partners cannot amount to trading in flesh which is an inevitable ingredient for the vice of prostitution. "Prostitute" means a female who offers her body for promiscuous sexual intercourse for hire whether for money or in kind. (See -- State of Uttar Pradesh v. Kaushaliya and Others, AIR 1964 SC 416 : 1964 (1) CriLJ 304 : 1964 CrlM.C..No.2620/2015 **11** (4) SCR 1002 and Gaurav Jain v. Union of India, 1998 KHC 224 : 1998 (1) KLT SN 49 : 1998 (42) MLJ 68 : AIR 1997 SC 3021 : 1997 AIR SCW 3055 : 1997 (8) SCC 114). A prostitute is also called a harlot, whore of a base hireling. When used as a verb, "to prostitute" means to offer oneself or another for lewd purposes usually for hire.” 6. In the light of the above principle, I am of the considered opinion that even if the entire allegations are accepted, no offence is made out against the petitioner. Therefore continuation of prosecution against the petitioner is an abuse of process of the court. Therefore, this Criminal Miscellaneous Case is allowed. All further proceedings against the petitioner, who is the 4[th] accused in C.C.No.4201/2014 on the file of the Judicial First Class Magistrate Court, Kothamangalam, arising from Crime No.852/2013 of Kothamangalam Police Station, are quashed. sd/- **P.V.KUNHIKRISHNAN JUDGE** JV CrlM.C..No.2620/2015 **12** ## **`APPENDIX OF CRL.MC 2620/2015`** ## **`PETITIONER ANNEXURES`** ``` ANNEXURE A1:-CERTIFIED COPY OF THE FIRST INFORMATION REPORT SUBMITTED IN CRIME NO 852/13 OF KOTHAMANGALAM POLICE STATION ANNEXURE A2:-CERTIFIED COPY OF THE EXAMINATION REPORT FURNISHED BY THE DOCTOR ``` ``` ANNEXURE A3:-CERTIFIED COPY OF THE CHEMICAL EXAMINER'S REPORT ANNEXURE A4:-CERTIFIED COPY OF THE FINAL REPORT IN CRIME NO 852 OF 2013 OF KOTHAMANGALAM POLICE STATION IS PRODUCED BEREWITH AND MARKED AS ANNEXURE A5:-A TRUE COPY OF THE COMPLAINT FILED BY THE PETITIONER BEFORE THE DIRECTOR GENERAL OF POLICE ```