Kerala High Court
Sreejith @ Ayyappan Aged 34 Years vs State Of Kerala on 1 March, 2012
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR. JUSTICE P.UBAID
THURSDAY, THE 20TH DAY OF MARCH 2014/29TH PHALGUNA, 1935
Crl.MC.No. 4994 of 2013 ()
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AGAINST THE ORDER IN CC 326/2012 of J.M.F.C. - I, KARUNAGAPPALLY
IN CRIME NO. 2973/2011 OF KARUNAAGAPALLY POLICE STATION ,
KOLLAM
PETITIONER(S)/ACCUSED 4 & 5:
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1. SREEJITH @ AYYAPPAN AGED 34 YEARS
SON OF SREEKUMAR, MULLASSERIL HOUE
PADA - SOUTH KARUNAGAPPALLY P.O, 690 518
KOLLAM DISTRICT.
2. SANJEEV S. AGED 29 YEARS
SON OF LATE SARASAN PILLAI, AKKANATTU HOUSE
PADA - SOUTH KARUNAGAPPALLY P.O, 690 518
KOLLAM DISTRICT.
BY ADVS.SRI.ALAN PAPALI
SRI.J.VIMAL
COMPLAINANT(S)/RESPONDENT:
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STATE OF KERALA
(CRIME NO.2973/2011 OF KARUNAGAPPALLY POLICE STATION - CIRCLE
INSPECTOR OF POLICE, KARUNAGAPPALLY)REPRESENTED BY THE
PUBLIC PROSECUTOR HIGH COURT OF KERALA
ERNAKULAM, KOCHI-682 031.
BY PUBLIC PROSECUTOR SMT. SEENA RAKARISHNAN
THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON
20-03-2014, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:
Crl.MC.No. 4994 of 2013 ()
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APPENDIX
PETITIONER(S)' EXHIBITS
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ANNX.I: CERTIFIED COPY OF THE FINAL REPORT DATED 01-03-2012 IN
CRIME NO.2973/2011 OF KARUNAGAPPALLY POLICE STATION.
ANNX.II - TRUE COPY OF THE PHYSICAL EXAMINATION REPORT DATED
14-12-2011 OF THE 6TH ACCUSED ISSUED BY THE
GYANECOLOGIST, TALUK HEADQUARTERS HOSPITAL
KARUNAGAPPALLY.
ANNX.III - TRUE COPY OF THE PHYSICAL EXAMINATION REPORT DATED
14-12-2011 OF THE 7TH ACCUSED ISSUED BY THE
GYANECOLOGIST, TALUK HEADQUARTERS HOSPITAL
KARUNAGAPPALLY.
ANNX.IV - TRUE COPY OF THE PHYSICAL EXAMINATION REPORT DATED
14-12-2011 OF THE 8TH ACCUSED ISSUED BY THE
GYANECOLOGIST, TALUK HEADQUARTERS HOSPITAL
KARUNAGAPPALLY.
RESPONDENT(S)' EXHIBITS
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P.UBAID, J.
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Crl.M.C No.4994 of 2013
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Dated this the 20th March, 2014
O R D E R
The petitioners herein are the accused Nos.4 and 5 in C.C.No.326 of 2012 before the Judicial First Class Magistrate Court, Karunagappally involving the offences under Sections 3, 4, 5 and 7(2)(c) of the Immoral Traffic (Prevention) Act, 1956 (hereinafter referred to as 'the Act' for short).
2. The prosecution case is that when the police conducted a search in a building at Karunagappally belonging to the 1st witness in the case, the accused Nos.1 to 3 and 6 to 8 were found indulging in promiscuous sexual intercourse, and these two petitioners were found just sitting there inside the building. It is not known whether these two petitioners had in fact indulged in such a sexual intercourse or whether anybody had seen them involving in such activities. Anyway along with other accused, these petitioners were also arrested by the police and crime was registered under the above sections. After investigation, Crl.M.C No.4994 of 2013 2 the police submitted final report in the Court of the learned Magistrate, under the above Sections of the Act. Now the accused Nos.4 and 5 are before this Court under Section 482 of the Code of Criminal Procedure, to quash the prosecution as against them, on the ground that prosecution under any of the Sections in the Act will not lie against them on the allegations made in the F.I.R or in the final report .
3. The prosecution has no case that these petitioners are the persons having control or dominion over the alleged place of incident or building in any manner, or that they were found keeping a brothel, or allowing their premises to be used as a brothel. The prosecution has also no case that these petitioners are persons living on the earning of prostitution. There is also no allegation that the ladies found in the premises were brought or procured by these petitioners for the purpose of prostitution. In such a circumstance, a prosecution under Sections 3, or 4, or 5 of the Act will not lie against these petitioners. The other Section quoted by the police in the final report is Section 7 (2) (c) of the Act. Even to attract the said Sub-section, the Crl.M.C No.4994 of 2013 3 accused must be the keeper of any public place, or the tenant or lessee or occupier or person-in-charge of any premises referred to in Sub-section (1), or the owner or lessee or landlord of any premises referred to in Sub-section (1) of Section 7 of the Act. These petitioners will not come under any of these categories. Even as per the allegations in the final report, they were found simply sitting inside the building, either waiting for their turn, or after their purpose was over. If at all, the allegation is that these petitioners had indulged in promiscuous sexual intercourse in the alleged place of incident, they can be prosecuted only under Section 7 (1) of the Act, as the persons with whom the other ladies who carried on prostitution indulged in sexual intercourse. But even to apply that Section, some conditions will have to be satisfied. One is that the alleged place of incident is an area notified under Sub Section (3) of the Act, and the other condition is that the place of incident is within a distance of two hundred meters from any place of worship or educational institution or hostel or hospital, nursing home or other public place notified in this behalf by the Crl.M.C No.4994 of 2013 4 Commissioner of Police or the Executive Magistrate in the manner prescribed.
4. In this case, the prosecution has no allegation or case that the place of incident in this case is within any notified area or within a distance of 200 meters of any public place or public institution. The decision of this Court in Radhakrishnan v. State of Kerala [2008 (2) KLT 521] is exactly on the point.
5. As discussed above, this Court finds that the prosecution now brought against these petitioners by the police cannot be legally sustained under any of the provisions in the final report, or even under Section 7 (1) of the Act. I find that continuance of this prosecution in such a circumstance against them will be mere abuse of legal process. I also find that the prosecution as against these petitioners is liable to be quashed on the finding that such a prosecution cannot be legally sustained.
In the result, this petition is allowed. Prosecution against against these petitioners as accused Nos.4 and 5 in C.C. No.326 of 2012 of the Judicial Magistrate First Class Crl.M.C No.4994 of 2013 5 Magistrate Court, Karunagappally is hereby quashed under Section 482 of the Code of Criminal Procedure. The petitioners will stand released from prosecution, and the bail bond, if any, executed by them will stand discharged.
Sd/-
P.UBAID JUDGE ma /True copy/