Subaida v. State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE ASHOK MENON** **WEDNESDAY, THE 15TH DAY OF JANUARY 2020 / 25TH POUSHA, 1941** ## **Crl.MC.No.1856 OF 2019(B)** **AGAINST THE ORDER/JUDGMENT IN CC 1223/2011 OF JUDICIAL MAGISTRATE OF FIRST CLASS ,VADAKARA** **CRIME NO.222/2010 OF CHOMBALA POLICE STATION , Kozhikode** ## **PETITIONER/ACCUSED NO.1:** **SUBAIDA AGED 45 YEARS D/O.KUNJABDULLA, KALLERI HOUSE, ONCHIYAM, KANNORKARA.P.O., KOZHIKODE.** **BY ADV. SRI.C.BHASKARAN** ## **RESPONDENT/STATE & COMPLAINANT:** **STATE OF KERALA** **REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM THROUGH THE CIRCLE INSPECTOR OF POLICE, ERNAKULAM TOWN, SOUTH POLICE STATION, ERNAKULAM,** ## **OTHER PRESENT:** **SRI.C.S.HRITHWIK, SR PP** **THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON 19.11.2019, THE COURT ON 15.01.2020 PASSED THE FOLLOWING:** Crl.MC1856/2019 2 ASHOK MENON, J. -----------------------------------Crl.MC No.1856 of 2019 ------------------------------------Dated this the 15[th] day of January, 2020 O R D E R The first accused in CC 1223/2011 on the files of the Judicial First Class Magistrate's Court, Vadakara is the petitioner herein, Who had been implicated in the aforesaid case for offences punishable under Sections 3, 4 and 7 of Immoral Traffic (Prevention) Act 1956 ('ITP Act', for short). 2. The prosecution case in brief is thus: On 23.4.2010 at about 2 pm, the Circle Inspector of Police, Vadakara got a telephonic message that the petitioner is keeping a brothel on the backyard of her house bearing No.OP III/423 of Onchiam Panchayat. Consequent to that, he along with his party consisting of Chombala Sub Inspector, Police Constables and Women Constables reached the scene of occurrence at about 2.30 p.m. and approached the house on foot after parking the jeep at a distance of 25 metres away from Crl.MC1856/2019 3 the house and saw that a portion of the house which was under construction was being used by the petitioner and another lady named Jesna (A2) for having sexual intercourse with accused 3 and 4, respectively. They surrounded the house and apprehended accused 1 to 3, while the 4[th] accused fled from there. Thereafter, an FIR was registered at Chombala Police Station for the offences as above. 3. The petitioner contends that offences under Sections 3, 4 and 7 of the ITP Act is not attracted for the reason that no specific act of prostitution as defined in the ITP Act had taken place and that there was also no plurality of relationship relied upon by the prosecution so as to bring it within the definition of a brothel house or to prove an act of prostitution. It is also pointed out that the prosecution has not been successful in pointing out that the petitioner was carrying on the alleged act of prostitution within the area notified under sub-Section (2) of Section 7 so as to attract the provisions of the Act. Lastly, it is pointed out that the investigation was conducted and Crl.MC1856/2019 4 the final report filed by the Sub Inspector of Police, Chombala Police Station and that he is not an empowered officer as defined under the Act. For the reasons stated above, the proceedings against the accused needs to be quashed under Section 482 Cr.PC, submits the learned counsel for the petitioner. 4. Heard the learned counsel for the petitioner and the learned Senior Public Prosecutor. Records perused. 5. A perusal of Sections 3 and 4 of the ITP Act indicates that in order to attract an offence punishable under Sections 3, 4 and 7, it is incumbent upon the prosecution to establish that the petitioner was keeping a brothel or allowing a portion of her house to be used as a brothel. There is also no evidence gathered to show that the house or the portion of the house where the alleged activity of prostitution was taking place belongs to the petitioner as a tenant, lessee, occupier or person in charge of any premises uses. There is no such document produced. There is a vague allegation that the house belongs to her mother Crl.MC1856/2019 5 and she was residing there. To attract the provisions of Section 4, it must be indicated that the petitioner was living with the earnings of prostitution. There is no such material relied upon by the prosecution in order to prove the said fact. Lastly, to attract an offence punishable under Section 7, it must be proved that the prostitution was taking place in the vicinity of public places notified by the Commissioner of Police or Magistrate. Admittedly, there is no proof that the alleged act of prostitution was committed in an area notified by the State Government. There is also no allegation that the petitioner was involved in plurality and indiscriminate sexual activity, apart from the alleged act of sexual intercourse witnessed by the detecting officer and his party. 6. It has been held by the Court in Radhakrishnan v. State of Kerala [2008 (2) KLT 521] that detection and investigation has to be conducted by a notified officer of a specified rank by the Government under Sections 13 and 14 of the ITP Act, who is the Circle Inspector of Police of a particular area. Crl.MC1856/2019 6 In the instant case, though the detection was made by the Circle Inspector of Police, Vadakara who may be a notified officer, the investigation is conducted by the Sub Inspector of Police, who definitely is not an officer empowered to conduct the investigation and file final report. In Abdul Rasheed v. State of Kerala [2012 (4) KLT 502] , it is held that even if the raid is conducted under the direction of a superior officer, investigation conducted and final report filed by an officer not empowered to do the same, is illegal and the proceedings will have to be quashed invoking the powers under Section 482 Cr.PC. I also rely on the decision of this Court in Shajahan v. State of Kerala [2014 (2) KLT Suppl. 100 (Ker)] . Even though the final report indicates that the house of the petitioner is situated within 100 metres of a school, so as to bring it within the ambit of Section 7, it would attract the provisions only if it is shown that the petitioner was “carrying on prostitution” in that particular portion of her house and definitely, the said activity will amount to prostitution only if sexual abuse or Crl.MC1856/2019 7 exploitation of persons is done for commercial purpose. There is no such indication that the petitioner and others were involved in promiscuous sexual intercourse for hire or for money or in kind. For the foregoing reasons, the prosecution as against the petitioner is not sustainable. Accordingly, the proceedings as against the petitioner herein in CC 1223/2011 on the files of the Judicial First Class Magistrate's Court, Vadakara shall stand quashed under Section 482 Cr.PC and the petitioner/accused is discharged. ## **Sd/-** **ASHOK MENON** **JUDGE** jg Crl.MC1856/2019 8 ## **APPENDIX** **PETITIONER'S/S EXHIBITS:** **ANNEXURE A1 THE TRUE COPY OF THE FIRST INFORMATION REPORT IN CRIME NO.222/10 OF CHOMBALA POLICE STATION.** ## **ANNEXURE A2** **THE CERTIFIED COPY OF THE FINAL REPORT/CHARGE IN CC.NO.1223/2011 IN THE FILE OF JUDICIAL FIRST CLASS MAGISTRATE COURT, VATRAKARA.**