Kerala High Court
Abbas K.K vs State Of Kerala on 23 May, 2017
Author: Sunil Thomas
Bench: Sunil Thomas
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR. JUSTICE SUNIL THOMAS
TUESDAY, THE 23RD DAY OF MAY 2017/2ND JYAISHTA, 1939
Crl.MC.No. 7148 of 2016 ()
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AGAINST THE ORDER/JUDGMENT IN CC 1366/2015 of J.M.F.C.-I, KANNUR
CRIME NO. 823/2015 OF KANNUR TOWN , KANNUR
PETITIONER/ACCUSED:
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1. ABBAS K.K
AGED 41 YEARS, KANIUANKANDY HOUSE,
KOSAVAN VAYAL, ORATHUR, IRIKKOOR,
NEAR ORATHOOR L.P.SCHOOL, KANNUR.
2. ABDUL KHADAR P.P., S/O.KAMAL
AGED 61 YEARS, PUNNANKAI PADINHARAYIL HOUSE,
DINESH MUKKU, PONNANKAI P.O., KOTTALI,
KANNUR.
BY ADVS.SRI.G.SREEKUMAR (CHELUR)
SRI.K.ASHIS
RESPONDENT(S)/RESPONDENT/COMPLAINANT:
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STATE OF KERALA
REP. BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA.
R BY PUBLIC PROSECUTOR:SRI T R RANJITH
THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON
06.04.2017, THE COURT ON 23.05.2017 PASSED THE FOLLOWING:
Crl.MC.No. 7148 of 2016 ()
APPENDIX
PETITIONER(S)' EXHIBITS
ANNX.I CERTIFIED COPY OF THE FIR IN CRIME NO.823 OF 2015
OF KANNUR TOWN POLICE STATION
ANNX.II CERTIFIED COPY OF THE FINAL REPORT NO.1097 OF2015
IN CRIME NO.823 OF 2015 OF KANNUR TOWN POLICE STATION.
RESPONDENT(S)' EXHIBITS:NIL
True Copy / P A to Judge
SUNIL THOMAS, J.
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Crl.M.C.No.7148 of 2016
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Dated this the 23rd day of May, 2017
ORDER
Accused Nos.1 and 4 in Crime No.823 of 2015 of Kannur Town Police Station for offences punishable under sections 3, 5(1)
(a) and 7 of the Immoral Traffic Prevention Act, 1956 seeks to quash the proceedings.
2. The allegation of the prosecution was that on 10.05.2015 at 1 p.m., information was received by the prosecution that prostitution was being carried on in a lodge. On receipt of the information, CI of Police, along with the party conducted a search and intercepted the first accused who was engaged in physical relationship with accused Nos.2 and 3. It was alleged that fourth accused, who was the manager of the lodge, had facilitated the commission of offence. Crime was registered as Annexure-I and final report was laid as Annexure-II for offences punishable under sections 3, 5(1)(a) and 7 of the ITP Act against the first accused and under sections 3 and 7 of the ITP Act against the fourth accused. Both the accused, contending that the allegations against them are absolutely false and that even from the material facts, offences alleged against them are not made out, has approached this Court seeking reliefs. It was contended by the learned counsel for the Crl.M.C.7148/17 2 petitioners that from the available materials, offences punishable under sections 3, 5 and 7 are not made out. It was also contended that though accused 2 and 3 have allegedly pleaded guilty, that will not take away the legal right of the petitioners to challenge the criminal proceedings.
3. The specific contention of the learned counsel for the petitioners is that the offence under section 3 of the ITP Act is not sustainable, since the incident happened in a room in a tourist home. It was contended that to attract section 3, the premises should be used as a brothel or used as such. Brothel is defined under section 2(a) of the ITP Act to include 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. Learned counsel, with the aid of the decisions in Radhakrishnan v. State of Kerala (2008(2) KLT 521) and X v. State of Kerala (2009(2) KLT 7) contended that the room in a hotel will not fall within the definition of Section 2(a) of the said Act. In X v. State of Kerala, this Court had held that a room in a guest house will not answer definition of brothel, if it was used for sexual exploitation only once. It appears that the law laid down in the Crl.M.C.7148/17 3 above case applies to the facts of this case also.
4. Regarding the application of section 5 of the ITP Act, it was contended by the learned counsel for the petitioner that the above provision cannot obviously apply to the case since the legal provision presupposes the procuring, inducing or taking any person for sexual exploitation. To constitute prostitution under section 2(f) of the Act, it is essential that it must involve a sexual abuse or exploitation of a person for a commercial purpose. For the activity to become one with a commercial purpose, it should partake the character of a business or one carried on for profit as provided by this Court in Radhkrishnan's case (supra). The same was reiterated in X v. State of Kerala also. It was held in both cases that in the absence of any material to show that accused 2 and 3 are prostitutes within the meaning of section 2(f) of the Act and that the remaining accused were living on the running of prostitution of the women, invocation of the Act was unjustifiable.
5. It was also contended that both the decisions have uniformly held that to become prostitution, there must be 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 Crl.M.C.7148/17 4 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.
6. To attract section 7 of the Act, it was essential that the Act should take place in or in the vicinity of public places. It was held that section 7 of the ITP Act makes the carrying of prostitution by one women and the person with whom such prostitution is carried on is liable for punishment. In Radhakrishnan's case , it was held that the words "carrying on prostitution" have a definite meaning and impact. It will apply only if it was plural. Such a factor is not available in the facts of this case. There is absolutely nothing to show that the activity was done for a commercial purpose as contemplated under section 7 of the Act. The mere finding of money from the possession of the accused will not be sufficient to lead to a conclusion of such activity.
7. Having considered the legal propositions laid down by this Court in Radhakrishnan's case as well as in X v. State of Kerala, I am satisfied that the ingredients to invoke sections 3, 5 and 7 are not present in the case at hand. Necessarily, the Crl.M.C.7148/17 5 prosecution under the above provisions has to fail. Crl.M.C is accordingly liable to be allowed.
In the result, Crl.M.C. is allowed. All further proceedings in C.C.No.1366 of 2015 of Judicial First Class Magistrate Court-I, Kannur as against the petitioners herein stand quashed.
Sd/-
SUNIL THOMAS Judge Sbna/ True Copy / P A to Judge