Shijas and Shihab v. State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR.JUSTICE ZIYAD RAHMAN A.A.** **TUESDAY, THE 25[TH] DAY OF JANUARY 2022 / 5TH MAGHA, 1943** ## **CRL.MC NO. 2850 OF 2019** ## **AGAINST THE ORDER IN CC 409/2014 OF JUDICIAL MAGISTRATE OF FIRST CLASS -I,** ## **ALUVA** ## **PETITIONERS:** 1 SHIJAS,AGED 39 YEARSS/O.ABDUL KHADER, KUTTIKKATTIL PADAKKULAM HOUSE, EAST OF CARBON COMPANY, PUTHENCRUZ VILLAGE, ERNAKULAM. 2 SHIHAB,AGED 37 YEARSS/O.PAREEKUNJU, VADAYATH HOUSE, EDACHIRA, THENGODU P.O., ERNAKULAM. BY ADV V.VINAY ## **RESPONDENT:** **==> picture [79 x 53] intentionally omitted <==** STATE OF KERALA,REP. BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM - 682 031 (CRIME NO.2731/2010 OF ALUWA POLICE STATION, ERNAKULAM DISTRICT). ADV SUDHEER GOPALAKRISHNAN -PP THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 25.01.2022, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: **CRL.MC NO. 2850 OF 2019** 2 **ORDER** Petitioners are accused Nos. 3 and 4 in C.C.No.409/2014 on the files of Judicial First Class Magistrate Court-I, Aluva. The aforesaid case arises from Crime No.2731/2010 of Aluva Police Station, and it was registered for the offences punishable under Section 3, 4,5,6 and 7 of the Immoral Traffic (Prevention) Act, 1956 ( in short ‘the Act’). 2. The prosecution case is as follows, on 02.10.2010 about 4.30 PM, on the basis of secret information received, the Circle Inspector of Police conducted an inspection in House No.14/225 in Aluva East Village. During the said inspection, it was found that the accused Nos.2 and 6 were indulging in physical relationship with the third accused and accused Nos. 7 and 8 were indulging in physical relationship with the 4[th] accused. The aforesaid crime was registered for the offences mentioned above in such circumstances and Annexure-AI is the FIR registered. After completing the investigation, Police filed Annexure-AII final report against 8 accused persons. This Crl.M.C. is filed by the petitioners seeking to quash the aforesaid proceedings. ## **CRL.MC NO. 2850 OF 2019** 3 3. Heard Sri.V.Vinay, the learned counsel for the petitioners and Sri.Sudheer Gopalakrishnan, the learned Public Prosecutor. 4. The learned counsel for the petitioner contends that, none of the offences alleged against the petitioners are attracted and the entire prosecution as against them are unsustainable. The learned counsel contends that, even according to the prosecution, petitioners were only customers who visited the place where the prostitution allegedly was taking place. As far as the offences under Sections 3, 4, 5, 6 of the Act are concerned, those are not applicable to a person who is visiting a brothel or any kind of place of prostitution, as a customer. Section 3 of the Act deals with punishment for keeping a brothel or allowing premises to be used as a brothel. Section 4 of the Act provides for punishment for living on the earnings of prostitution. Section 5 deals with punishment for procuring, inducing or taking person for the sake of prostitution. Section 6 of the Act deals with a situation where the accused detains any person in premises where prostitution is carried on. On going through the contents of AnnexureA2 final report, it can be seen that none of the allegations which constitutes the offences under Section 3, 4, 5, and 6 are made against ## **CRL.MC NO. 2850 OF 2019** 4 the petitioners herein. The only allegation is that the petitioners were found engaged in physical relationship with some of the other accused persons. In such circumstances, the offences punishable under Section3, 4, 5 and 6 of the Act are not attracted against that the petitioners herein. Another offence is under Section 7 of the act. Section 7 of the Act reads as follows: ## _“7._ _**Prostitution in or in the vicinity of public places.**_ _(1) Any person, who carries on prostitution and the person with whom such prostitution is carried on, in any premises,-_ _(a). which are within the area or areas, notified under subsection(3),or_ _(b). which are within a distance of two hundred metres of any place of public religious worship, educational institution, hostel, hospital, nursing home or such other public place of any kind as may be notified in this behalf by the Commissioner of Police or Magistrate in the manner prescribed, shall be punishable with imprisonment for a term which may extend to three months]._ _(1A) Where an offence committed under sub-section (1) is in respect of a child or minor, the person committing the offence shall be punishable 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_ **CRL.MC NO. 2850 OF 2019** 5 _special reasons to be mentioned in the judgement impose a sentence of imprisonment for a term of less than seven years._ _(2) Any person who-_ _(a) being the keeper of any public place knowingly permits prostitution for purposes of their trade to resort to or remain in such place; or_ _(b) being the tenant, lessee, occupier or person in charge of any premises referred to in sub-section (1) knowingly permits the same or any part thereof to be used for prostitution; or_ _(c) being the owner, lessor or landlord, of any premises referred to in sub-section (1) or the agent of such owner, lessor or landlord, lets the same or any part thereof may be used for prostitution, or is wilfully a party to such use, shall be punishable on first conviction with imprisonment for a term which may extend to three months or with fine which may extend to two hundred rupees, or with both, and in the event of a second or subsequent conviction with imprisonment for a term which may extend to six months and also with fine which may extend to two hundred rupees, and if the public place or premises happen to be a hotel, the license for carrying on the business of such hotel under any law for the time being in force shall also be liable to be suspended for a period of not less than three months but which may extend to one year: Provided that if an offence committed under this sub-section is in respect of a child or minor in a hotel, such license shall also be liable to be cancelled. Explanation.- For the purposes of this sub-section, "Hotel" shall have the meaning as in_ **CRL.MC NO. 2850 OF 2019** 6 _clause (6) of Section 2 of the Hotel-Receipts Tax Act, 1980 (54 of 1980)]._ _(3) The State Government may, having regard to the kinds of persons frequenting any area or areas in the State, the nature and the density of population therein and other relevant considerations, by notification in the Official Gazette, direct that prostitution shall not be carried on in such area or areas as may be specified in the notification._ _(4) Where a notification is issued under sub-section (3) in respect of any area or areas, the State Government shall define the limits of such area or areas in the notification with reasonable certainity._ _(5) No such notification shall be issued so as to have effect from a date earlier than the expiry of a period of ninety days after the date on which it is issued.”_ Thus going by the stipulation contained in Section 7 of the Act, in order to attract the aforesaid offence a notification as contemplated under sub-section (3) of the Act is necessary. The specific case of the learned counsel for the petitioners is that, the place in which the petitioners herein were found indulging in immoral activity was not an area coming within any of the notified areas as contemplated under Section 7(3) of the Act. ## **CRL.MC NO. 2850 OF 2019** 7 5. The learned Public Prosecutor upon instructions submits that, as on date, no notification as contemplated under Section 7(3) of the Act has been published by the Government. The learned counsel appearing for the petitioners also brought my attention to the Communication No.U5-124908/2018/PHQ dated 27.09.2018 issued by State Police Chief to the Director General of Prosecution and Special Public Prosecutor, High Court of Kerala, Ernakulam. In the aforesaid communication, the fact of lack of notification under section 7 of the Act has been specifically mentioned. It appears that this communication was produced as part of the records by the learned Public Prosecutor in Crl.M.C.No.1315/2017. 6. Thus, it is evident from the aforesaid documents that no notification as contemplated under Section 7(3) is published so far. In the absence of any such notification, no offence under Section 7 can be imposed upon the petitioners herein. Evidently the alleged offences have taken place in an area not notified under section 7(3) and therefore, offence under Section 7 of the Act is not attracted against the petitioners herein. The learned counsel for the petitioners also brought my attention to decision of this Court in **Radhakrishnan K. v.** **CRL.MC NO. 2850 OF 2019** 8 **State of Kerala 2008(2) KHC 416** wherein the same issue was considered and decided in favour of the accused therein. In the light of the aforesaid judgment and also due to the reasons mentioned above, I am of the view that this is a fit case in which powers of this Court under Section 482 Cr.P.C. can be invoked. Accordingly, this Crl.M.C. is allowed, and Annexure-AII final report submitted in Crime No.2731/2010 of Aluva Police Station and all further proceedings in C.C.No.409/2014 on the files of Judicial First Class Magistrate Court-I, Aluva are hereby quashed as against the petitioners herein, who are accused Nos.3 and 4 in the aforesaid crime. **Sd/-** **ZIYAD RAHMAN A.A.** **JUDGE** **AJ** 9 ## **CRL.MC NO. 2850 OF 2019** ## **APPENDIX OF CRL.MC 2850/2019** |PETITIONER ANNEXURES|| |---|---| |ANNEXURE I|TRUE COPY OF THE F.I.R. IN CRIME NO.2731 OF 2010| ||OF ALUWA POLICE STATION.| |ANNEXURE II|CERTIFIED COPY OF THE FINAL REPORT IN CRIME| ||NO.2731 OF 2010 OF ALUWA POLICE STATION.|