Dilip Varghese vs State of Kerala

Thomas P. Joseph, J.—Petitioners are accused 6 and 5, respectively in Crime No. 616 of 2009 of Thenmala Police Station and C.C. No. 1724 of 2010 of the court of learned Judicial First Class Magistrate, Punalur for offences punishable under Sections 3, 4, 5 and 7 of the Immoral Traffic (Prevention) Act (for short, "the Act"). Petitioners seek to quash the final report and proceeding to the extent it concerned them on the contention they have not committed offences referred to above. Learned Counsel has placed reliance on the decisions in State of Kerala v. Pathumma 1968 KLT 453, K. Radhakrishnan Vs. State of Kerala, and X v. State of Kerala 2009 (2) KLT 7 to contend that none of the offences attributed to the Petitioners would stand legal scrutiny. Learned Counsel requests proceeding against Petitioners may therefore be quashed. It is also pointed out by the learned Counsel that in respect of accused 7 and 8 this Court by Annexure-3, order dated 19.01.2011 has accepted similar contention and quashed proceeding against those accused. I have heard learned Public Prosecutor also. Learned Public Prosecutor contended that reading the decision in State of Kerala v. Pathumma (supra) contention of the Petitioners cannot stand. Crl.MC Nos. 930 & 939/2011

Case is that on 13.12.2009 at about 10 a.m., the Circle Inspector, Kulathupuzha on getting information about certain persons engaged in prostitution in the lodge attached to Green Vally Hotel at Thenmala reached the place and found, among others Petitioners lodged in room No. 201 of the said lodge. Certain other persons were found in room Nos. 102 and 202. All those persons and accused 1 and 2 who were managing the lodge were taken to custody. Accused 7 and 8 approached this Court with a request to quash proceeding against them in Crl.M.C. No. 4331 of 2010 and 4429 of 2010 and this Court by order dated 19.01.2011 allowed the request and quashed proceeding against them. This Court observed that on the facts of the case there was nothing to show that seventh accused was carrying on prostitution as defined in Section 2(f) of the Act so that Section 7 of the Act is attracted. This Court also observed that offences under Sections 3, 4 and 5 of the Act cannot be attributed to accused 7 and 8 and accordingly proceeding against them was quashed.

Point for consideration is whether proceeding against Petitioners/accused 5 and 6 could be quashed. The allegation is that fifth accused was carrying on prostitution with the sixth accused. Statement of the Detecting Officer is that on his reaching room No. 201 it was seen locked from inside, he knocked on the door and thereon the sixth accused opened the door. The Detecting Officer found the sixth accused wearing a kaily and the fifth accused wearing the top of a churidar. She was in a half naked condition. Rs. .450/- found in the hands of the sixth accused was taken to custody. Crl.MC Nos. 930 & 939/2011

Obviously, Sections 3, 4 and 5 of the Act cannot be attributed to the Petitioners/accused 5 and 6 for, Section 3 deals with punishment for keeping a brothel or allowing premises to be used as a brothel. Section 4 of the Act deals with punishment for living on the earnings of prostitution and going by the said Section it is revealed that the said provision applies not against the alleged prostitute but against the person living on the earning of prostitution. Section 5 of the Act deals with procuring, inducing or taking person for the sake of prostitution which also cannot prima facie be attributed to the Petitioners.

What remained is whether Section 7 of the Act could be attributed to the Petitioners prima facie, so that they should be asked to face trial. Section 7 of the Act says that "any person who carries on prostitution and the person with whom such prostitution is carried on" in any premises referred to in Clauses (a) and (b) shall be punishable with imprisonment as stated therein. The question is whether the fifth accused (Petitioner in Crl.M.C. No. 939 of 2011) could be said to have been carrying on prostitution with the sixth accused (Petitioner in Crl.M.C. No. 930 of 2011). The expression ''prostitution'' is defined in Section 2(f) of the Act as of the meaning sexual exploitation or abuse of persons for commercial purposes and the expression ''prostitute'' shall be construed accordingly. Referring to the expression ''prostitution'' this Court in X v. State of Kerala (supra) held that activity carried on in a given premises will amount to ''prostitution'' within meaning of Section 2(f) of the Act only if sexual intercourse or exploitation of a person is done for a commercial purpose. It is also held that in order to become prostitution there should be offering of her body Crl.MC Nos. 930 & 939/2011 by a female for promiscuous sexual intercourse for hire and that ''promiscuous'' means indiscriminate i.e, a woman or girl offering her body for hire to anyone who desires her body for sexual intercourse. The expression ''carrying on prostitution'' came up for consideration before the same Bench in Radhakrishnan v. State of Kerala (supra). It is held that it is only if plural and indiscriminate sexuality is proved that it could be said that a person is carrying on prostitution. Here, it is true that there is no allegation of plurality of sexual intercourse (indulged in the fifth accused - Petitioner in Crl.M.C. No. 939 of 2011). But going by the decision in State of Kerala v. Pathumma (supra) that is a matter for inference.

In the case on hand, prosecution has no case that Petitioners had indulged in sexual intercourse. Petitioners have produced photocopies of certificates of their medical examination done immediately after detection of the offence. The Medical Officer has opined that there was no evidence of recent sexual intercourse. The Detecting Officer also has not seen Petitioners in any compromising position in room No. 201. Instead, what is stated is only the room was seen locked inside, Petitioner in Crl.M.C. No. 930 of 2011 (sixth accused) was found wearing a kaily and the lady (fifth accused - Petitioner in Crl.M.C. No. 939 of 2011) was found in a half nakes position wearing top of a churidar. From these circumstances no inference is possible that Petitioners had indulged in sexual intercourse. In otherwords, there is no evidence of sexual intercourse, much less prostitution or carrying on prostitution. If that be so proceeding against Petitioners is liable to be quashed. On similar ground this Court quashed proceeding against accused 7 and 8 vide order dated 19.01.2011 in Crl.M.C. Nos. 4331 of 2010 and 4429 of 2010. I do not find reason to take a different stand so far as these Petitioners are concerned.

Resultantly, these Criminal Miscellaneous Cases are allowed. Final report in Crime No. 616 of 2010 of Thenmala Police Station, cognizance taken and entire proceedings in C.C. No. 1724 of 2010 of the court of learned Judicial First Class Magistrate, Punalur to the extent it concerned Petitioners/accused 5 and 6 are quashed.