Remani v. State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE ASHOK MENON** **MONDAY, THE 15TH DAY OF MARCH 2021 / 24TH PHALGUNA, 1942** ## **Crl.MC.No.884 OF 2020(A)** **AGAINST THE ORDER/JUDGMENT IN SC 1839/2014 OF II ADDITIONAL ASSISTANT SESSIONS COURT,TRIVANDRUM** **AGAINST THE ORDER/JUDGMENT IN CC 437/2005 OF JUDICIAL MAGISTRATE OF FIRST CLASS -III,TRIVANDRUM** **CRIME NO.88/2005 OF Museum Police Station , Thiruvananthapuram** ## **PETITIONER/S:** **REMANI AGED 56 YEARS W/O.JAYACHANDRAN NAIR,PERETHUVILA PUTHEN VEEDU,PUNNAMMODE,KALLIYOOR.P.O, THIRUVANANTHAPURAM-695042.** **BY ADVS. SRI.D.KISHORE SMT.MINI GOPINATH SMT.MEERA GOPINATH SRI.R.MURALEEKRISHNAN (MALAKKARA)** ## **RESPONDENT/S:** **1 STATE OF KERALA REPRESENTED BY ITS PUBLIC PROSECUTOR,HIGH COURT OF KERALA, ERNAKULAM-682031.** **2 THE CIRCLE INSPECTOR OF POLICE, MUSEUM POLICE STATION,THIRUVANANTHAPURAM, PIN-695033.** ## **OTHER PRESENT:** ## **SRI.RAMESH CHAND-PP** **THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON 12.02.2020, THE COURT ON 15.03.2021 PASSED THE FOLLOWING:** Crl.MC 884/2020 2 ## ASHOK MENON, J. ------------------------------------ ## Crl.MC No.884 of 2020 ------------------------------------- Dated this the 15[th] day of March, 2021 ## O R D E R This petition is filed under S.482 of the Cr.P.C seeking to quash the proceedings against the petitioner in S.C.No.1839 of 2014 on the file of the II Addl. Assistant Session’s Court, Thiruvananthapuram, emanating from Crime No.88/2005 of Museum Police Station registered under Sections 3,4 and 6 (b) of the Immoral Traffic (Prevention) Act, 1956 (Act 104 of 1956). 2. CW5 is the owner of a lodge by name "Home Plus", situated at Kunnukuzhi in Vanchiyoor Village, near PMG Vikas Bhavan, KSRTC Garage. The petitioner is alleged to be the caretaker of the lodge. On 13/08/2005 at about 06:00 pm, based on Crl.MC 884/2020 3 source information, the CW16, the C.I. of Police, Museum Police Station, and the Police constables, Addl. Sub Inspector and Sub Inspector of the said Police Station (CWs 11 to 15), conducted a raid in the lodge and its premises. According to the prosecution, accused Nos. 2 and 3 were found inside Room No.304 engaged in the act of coitus. The petitioner had allegedly entrusted the room to them for indulging in the flesh trade, and they were arrested. The petitioner had allegedly facilitated the acts of the accused Nos. 2 and 3. Later, investigation was completed and final report was laid before the jurisdictional Court. 3. Sri. D. Kishore, the learned counsel appearing for the petitioner, submitted with much vehemence that the offences under Sections 3, 4 and 5 of Act 104 of 1956 will not be attracted as against the petitioner. According to the learned counsel, the petitioner, as sweeper of the lodge Crl.MC 884/2020 4 and was being paid Rs.50/- per day as wages, and had no reason to allot room to accused Nos.2 and 3, for which, there was a receptionist and room boys. He would urge that the prosecution had not placed any materials before Court to even prima facie conclude that accused Nos.2 and 3 had even indulged in sexual intercourse. The receptionist who had allotted the room to accused 2 and 3 and the room boys are not even made accused. 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 S.2(a) of the Act, submits the learned counsel for the petitioner. By placing reliance on _**State of Kerala v. Pathumma [1968 KHC 56], Radhakrishnan K. v. State of Kerala [2008 (2) KHC 460] and Mr. X, Central Kerala v. State of Kerala, [2009 (2) KHC 5]**_ , it was contended that none of the offences attributed to the petitioners would stand legal Crl.MC 884/2020 5 scrutiny. The petitioner has not gained anything by permitting the alleged act facilitating A2 and A3. 4. Heard the learned Public Prosecutor Sri.Ramesh Chand, who has opposed the submissions with all vehemence. 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. 6. The offences under Sections 3(1), 4 and 6(1) (b) of the Act are alleged against the petitioner and the other accused. 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, Crl.MC 884/2020 **==> picture [7 x 9] intentionally omitted <==** 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. 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 S.3(1) of the Act. 7. 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**_ ( _supra_ ). The Apex Court in _**Krishnamurthy v. Public Prosecutor [1967 KHC 534 : AIR 1967 SC 567]**_ observed as follows: "It has been urged, however, that a solitary instance of the house of the appellant being used 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 Crl.MC 884/2020 7 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." 8. 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 Crl.MC 884/2020 8 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. 9. Section 3 is extracted below. "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 Crl.MC 884/2020 9 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 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) Crl.MC 884/2020 10 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." Sections 2(a), (f) and 3 of the Act makes it clear that to brand a lodge as a brothel house, the following essential requirements are to be _prima_ _facie_ proved from the records that the lodge was being used for the purposes of sexual exploitation or abuse, and that such use was for gain of another person or for the mutual gain of two or more prostitutes. 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 she has committed an offence under S.3(1) of the Act. The petitioner is employed as a sweeper in the lodge. Therefore, it cannot be said that the Lodge is in her possession or under her Crl.MC 884/2020 11 control. And, there is no allegation that the Lodge was used for sexual exploitation or abuse. The detecting officer had not found two ladies engaged in prostitution. 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 and 3 engaged in sexual intercourse. 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. **==> picture [397 x 12] intentionally omitted <==** 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 petitioner herein is concerned. Furthermore, the prosecution has no case Crl.MC 884/2020 12 that the petitioner had either procured or induced any person to indulge in prostitution. Relevant portion of Section 6(b) of the Act reads thus: “(1) Any person who detains any other person, whether with or without his consent,-(a) in any brothel, or (b) in or upon any premises with intent that such person may have sexual intercourse with a person who is not the spouse of such person, shall be punishable on conviction, with imprisonment of either description for a term which shall not be less than seven years but which may be for life or for a term which may extend to ten years and shall also be liable to fine: Provided that the court may, for adequate and special reasons to be mentioned in the judgment, impose a sentence of imprisonment for a term of less than seven years.” Hence, the provisions of section 6(1)(b) of the Act is also not attracted in the instant case against the petitioner. In the aforesaid circumstances, continuation of the proceedings against the petitioner would be an abuse of process of the Crl.MC 884/2020 13 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. Consequently, the Crl.MC is allowed. All proceedings against the petitioner in S.C.No.1839 of 2014 on the file of the II Addl. Assistant Session’s Court, Thiruvananthapuram, emanating from Crime No. 88/2005 of Museum Police Station registered under Sections 3, 4 and 6(b) of the Immoral Traffic (Prevention) Act, 1956 (Act 104 of 1956) are quashed. ## **Sd/-** ## **ASHOK MENON** **JUDGE** jg Crl.MC 884/2020 14 ## **APPENDIX** **PETITIONER'S/S EXHIBITS:** **ANNEXURE I** **CERTIFIED COPY OF THE FINAL REPORT IN CRIME NO.88/2005 OF THE MUSEUM POLICE STATION** **ANNEXURE II TRUE COPY OF THE JUDGMENT DATED 2.7.2009 IN CRL.M.C.NO.639/2009 OF THIS HONOURABLE COURT.** **ANNEXURE A1 THE ACCUSED COPY OF THE FINAL REPORT/CHARGE SHEET IN CRIME NO.875 OF 2005 OF THE TIRUR POLICE STATION,MALAPPURAM DISTRICT.** **ANNEXURE A2 THE CERTIFIED COPY OF THE JUDGMENT DATED 20.01.2009 IN S.C.NO.258 OF 2008 PASSED BY THE COURT OF COURT OF ADDITIONAL SESSIONS JUDGE,(ADHOC)NO.II, MANJERI (ADHOC-II,MANJERI,MALAPPURAM DISTRICT.**