Rehim v. State of Kerala

Case Details & Bench

Court: High Court of Kerala
Hon'ble Judges: A. Hariprasad
Judgment Date: 2017-10-04
Court Decision / Holding: Petition allowed; Annexure AI final report in CC No.301/2014 is quashed in the file of the Judicial First Class Magistrate Court, Cherthala. The court held that the facts do not attract Section 5 of the ITPA, and prosecuting would amount to abuse of process.
Final Disposition: Petition allowed; final report quashed; accused not liable under Section 5; prosecution deemed abuse of process if pursued further under Section 5.

Parties to the Case

Appellants / Petitioners

Rehim

Respondents

State of Kerala represented by Public Prosecutor, High Court of Kerala

Legal Representation & Advocates

Counsels for Petitioners

• M.K. Noushad

Counsels for Respondents

• Public Prosecutor Sri C.K. Prasad

Case Synopsis & Summary

This is a Criminal Miscellaneous Case filed by the sole accused, Rehim, challenging the final report in Crime No.1432/2011 pending as CC No.301/2014 before the Judicial First Class Magistrate Court, Cherthala, under Section 5 of the Immoral Traffic (Prevention) Act, 1956. The petitioner contends that the allegations do not constitute prostitution for purposes of Section 5, and that the cognizable offences under Sections 3 and 4 are not attracted by the facts. Annexure AI contains the final report; Annexure AII contains the FIR. A brief factual backdrop shows that on 17.11.2011, the petitioner allegedly engaged in sexual intercourse with CW1, a 30-year-old woman, leading to police action. The court examines the statutory definition of prostitution under Section 2(f) and the ingredients of Section 5, which criminalizes procuring, inducing, or taking a person for prostitution, with enhanced penalties if done against the person’s will. Relying on a prior Kerala High Court ruling in Mr.X, Central Kerala v. State of Kerala, the court notes that prostitution requires the offering of the body for promiscuous sexual intercourse for hire. The petition is allowed, and the final report in CC No.301/2014 is quashed, holding that the present facts do not engage Section 5 and that prosecuting would be an abuse of process. The decision underscores that mere sexual activity with a consenting adult does not amount to prostitution under the Act.

Provisions of Law Cited

Section 5 of the Immoral Traffic (Prevention) Act, 1956Section 2(f) of the Immoral Traffic (Prevention) Act, 1956Section 3Section 4

Legal Doctrines & Maxims

Abuse of the process of the court
Prostitution defined as offering of body for promiscuous sexual intercourse for hire (as interpreted under Section 2(f))

Submissions & Arguments

Contentions of Appellants / Petitioners

The accused contends that the alleged act does not fall within Section 5; there is no prostitution as required by the statute since the act involved consensual sexual relationship with CW1, aged 30; Section 5 requires prostitution and procuring/inducing causing a person to be brought to a brothel, which is not shown in the facts. The cognizance of offences under Sections 3 and 4 is not warranted given the facts.

Contentions of Respondents

The State argues that the facts could bring the case under Section 5 of the ITPA, and that the final report should proceed for consideration by the trial court; the F.I.R. and allegations should be evaluated under the statutory definitions.

Cited Precedents (2)

Case Name	Citation	Treatment	Explanation
Mr.X, Central Kerala v. State of Kerala	2009 (2) KHC 5	Positive	Used to establish that prostitution requires offering of the body for hire; if the facts do not demonstrate this, Section 5 is not attracted.
Radhakrishnan v. State of Kerala	Supra	Positive	Cited to illustrate the meaning of 'promiscuous' in the context of prostitution and the interpretation of the term under the Act.

Extracted Judgment Text

Exact text extracted from official judgment records.

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR. JUSTICE A.HARIPRASAD WEDNESDAY, THE 4TH DAY OF OCTOBER 2017/12TH ASWINA, 1939 Crl.MC.No. 5805 of 2017 () --------------------------CC NO.301/2014 of JUDICIAL FIRST CLASS MAGISTRATE COURT-I, CHERTHALA CRIME NO. 1432/2011 OF CHERTHALA POLICE STATION ,CHERTHALA PETITIONER/ACCUSED NO.1: -------------------------- REHIM AGED 48 YEARS, S/O KUNJUMAKKAR, MANGALASSERY HOUSE, C.C.NO.43/20, ERNAKULAM NORTH P.O., KOCHI-682018. BY ADV. SRI.M.K.NOUSHAD RESPONDENT/COMPLAINANT : --------------------------- STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM, PIN-682031. BY PUBLIC PROSECUTOR SRI.C.K.PRASAD THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 04-10-2017, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: Crl.MC.No. 5805 of 2017 () --------------------------- ## APPENDIX PETITIONER(S)' EXHIBITS ----------------------ANNEXURE AI CERTIFIED COPY OF THE FINAL REPORT IN C.C.NO.301/2014 NOW PENDING BEFORE THE JUDICIAL FIRST CLASS MAGISTRATE COURT-I, CHERTHALA. ANNEXURE AII CERTIFIED COPY OF THE F.I.R IN CRIME NO.1432/2011 DATED 17.11.2011. RESPONDENT(S)' EXHIBITS ----------------------NIL //TRUE COPY// ## **A.HARIPRASAD, J. -------------------------------------Crl.M.C. No.5805 of 2017** **-------------------------------------Dated this the 4[th] day of October, 2017** ## **ORDER** Petitioner is the accused in Cherthala Police Station Crime No.1432 of 2011, which is now pending in C.C.No.301 of 2014 on the file of the Judicial First Class Magistrate Court, Cherthala, registered for offences punishable under Section 5 of the Immoral Traffic (Prevention) Act, 1956 (in short, “the Act”). Annexure-AI is the final report. 2. Gist of allegations, borne out from Annexure-A1, is that on 17.11.2011 at about 10.30 a.m., petitioner was found indulging in sexual intercourse with CW1 and the police arrested him along with another person. 3. Heard the learned counsel for the petitioner and the learned Public Prosecutor. 2 Crl.MC No.5805 of 2017 4. The word “prostitution” is defined under Section 2(f) of the Act in the following words: _““Prostitution” means the sexual exploitation_ _or abuse of persons for commercial purposes, and_ _the expression “prostitute” shall be construed_ _accordingly.”_ In order to constitute an offence under Section 5 of the Act, certain ingredients are to be satisfied. Section 5 of the Act reads as follows: ## _“_ _**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,_ 3 Crl.MC No.5805 of 2017 _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_ 4 Crl.MC No.5805 of 2017 _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 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;_ _xxxxx_ 5 Crl.MC No.5805 of 2017 _(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. Going by the averments in Annexure-AI, what could be seen is that the petitioner indulged in physical relationship with CW1, a lady aged 30 years. That will not attract an offence under Section 5 of the Act. This provision has been considered by a learned Single Judge of this Court in **Mr.X, Central Kerala v. State of Kerala (2009 (2) KHC 5)** . The pronouncement of law reads thus: 6 Crl.MC No.5805 of 2017 _“In order to become prostitution there should_ _be the offering of her body by a female for promiscuous sexual intercourse for hire. The word_ _'promiscuous' means indiscriminate which means that a woman or girl offering her body, should do so for hire to anyone who desires her body for sexual intercourse. In other words, such a female has no choice regarding the persons who are to have sexual intercourse with her. To put it differently, such a female should be available to any person who desires to have sexual intercourse_ _with her (see- Radhakrishnan v. State of Kerala_ _(supra). The learned Magistrate has taken cognizance of the offences punishable under S.3_ _and 4 of the Act which are not at all attracted in this_ 7 Crl.MC No.5805 of 2017 _case. Even S.5 of the Act is not attracted for the_ ## _reasons already mentioned.”_ Having regard to the facts and circumstances, I find that prosecution of the petitioner in the above offence is an abuse of the process of court. In the result, petition is allowed. Annexure-AI final report pending in C.C.No.301 of 2014 on the file of the Judicial First Class Magistrate Court, Cherthala is hereby quashed. ## **A. HARIPRASAD, JUDGE.** **cks**