Sajitha vs State of Kerala

A. Hariprasad, J.—Petitioners are accused in a case registered under Sections 3, 4 and 5 of the Immoral Traffic (Prevention) Act, 1956 (in short, "Act of 1956") and Section 6 of the Indecent Representation of Women (Prohibition) Act, 1986 (in short, "Act of 1986"). They separately approached this Court u/s 482 of the Code of Criminal Procedure (in short, "Cr.P.C.") with a prayer to quash the final report and all further proceedings pursuant thereto, initiated by the concerned Police and pending as Calendar Case No. 8 of 2009 on the file of the Chief Judicial Magistrate Court, Kollam. Brief facts relevant for our purpose, as borne out from the final report, are the following: 1st accused intended to make profit by prostitution. With that end, she took a building belonging to one of the witnesses in the case on rent. On 06.11.2008, at 16:30 hours the 1st accused was found indulging in sex with the 2nd accused in a room in the house. Rs. 200/- was the consideration paid for the prostitution. This offensive act was detected by the Special Police Officer empowered in this behalf. After investigation, final report in the case was submitted.

Heard the learned counsel for the petitioners and the learned Public Prosecutor.

Legal questions arising for consideration are the following:

i. Whether the allegations made in the final report are sufficient to hold that the house occupied by the 1st accused falls within the definition of "brothel" in Section 2(a) of the Act of 1956?

ii. Whether the allegations against the 1st accused will tend to establish that she was living on the earning of prostitution?

iii. Whether the allegations against the accused, if taken in its entirety, will establish procurement, inducement or taking a person for the sake of prostitution?

iv. Whether the requirements to attract the offence of indecent representation of women punishable u/s 6 of the Act of 1986 have been satisfied?

Learned counsel for the petitioners submitted that the 1st accused is a widow and she took the residential building on lease as per Annexure-3, lease deed, for the convenience of her two school going children. 1st accused at the material time was working as Grade II Draftsman in the revenue department. 2nd accused is her late husband''s first cousin. According to the averments made by the 2nd accused he is a businessman by profession. The entire allegations of illicit sexual relationship between the accused are stoutly denied by them. Before venturing to analyse the factual allegations borne out from the final report, it will be profitable to go through the various provisions under the respective Acts.

Section 2(a) of the Act of 1956 defines "brothel" in the following words:

(a) "brothel" includes 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.

Going by the definition of "brothel", it is clear that the premises must be used for the purpose of prostitution for the gain of another person or for the mutual gain of two or more prostitutes. The Madras High Court In Re: Ratnamala and Another, considered the various provisions of the Act in extenso. This decision has been quoted with approval in subsequent decisions rendered by this Court. It was held therein that the purpose of the Act is to inhibit or abolish commercialised vice namely, the traffic in women and girls for the purpose of prostitution as an organised means of living. The idea is not to render prostitution per se a criminal offence or to punish a woman merely because she prostitutes herself as is clearly indicated by the last part of the definition of "brothel" in Section 2(a) of the Act of 1956. It is discernible that where a single woman practices prostitution for her own livelihood without some other person being involved in the maintenance of such premises, her residence will not amount to a "brothel". What is required is that the structure or conveyance or any place referred to in Section 2(a) of the Act of 1956 should have been used for the purpose of sexual exploitation for the gain of another person or for the mutual gain of two or more prostitutes. Learned counsel for the petitioners submitted that the allegations in the final report fall well below the requirement of definition in the Act of 1956.

Now I may refer to the definition of "prostitution" and "prostitute" in Section 2(f) of the Act of 1956, which reads as follows:

(f) "prostitution" means the sexual exploitation or abuse of persons for commercial purpose, and the expression "prostitute" shall be constructed accordingly.

Prostitution may attract punishment, only if the provisions of Section 7 or 8 of the Act of 1956 is violated. This Court in T. Jacob Vs. State of Kerala, following the decision in In re Ratnamala''s case (supra) held the following: Prostitution in itself is no offence save in the manner given in Section 7 or 8. Section 4 of the Act of 1956 provides punishment for living on the earning of prostitution. Sub-section (1) of Section 4 shows that any person over the age of eighteen years who knowingly lives, wholly or in part, on the earning of the prostitution of any other person shall be punishable with imprisonment and fine as prescribed thereunder. Sub-section (2) of Section 4 deals with the presumptions that can be drawn under certain circumstances. Prosecution miserably failed to show any legally acceptable logic to implicate the accused persons in this offence.

Section 5 of the Act of 1956 deals with punishment for procuring, inducing or taking person for the sake of prostitution. Allegations in the first information report and final report put together will not show that the accused has done any act falling within the contours of Section 5 of the Act of 1956 to attract any criminal liability.

It is the case of petitioners that the 1st accused took a building on rent for the sake of her school going children. Even if one assumes that the prosecution allegation of illicit sexual relationship between the accused persons is true, it certainly will not come under the definition of prostitution or the place where the 1st accused resides will not come within the definition of brothel. There is no allegation that the 1st accused was keeping a brothel or allowing the premises to be used as a brothel. Therefore, charge u/s 3 of the Act of 1956 is not maintainable against both the accused. As mentioned earlier, to attract an offence u/s 4 of the Act of 1956, there must be an allegation prima facie justifiable to find that any person over the age of eighteen years knowingly lives, wholly or in part, on the earnings of the prostitution of any other person. Here, there is no allegation that the 1st accused is indulging in prostitution for the benefit of the 2nd accused. Hence charge u/s 4 of the Act of 1956 is also not maintainable. Section 5 of the Act of 1956 is not attracted because there is no case for the prosecution that anybody was procured or induced for the sake of prostitution. Hence, charge under all these heads are totally unsustainable.

Act of 1986 is intended to prohibit indecent representation of women through advertisements or in publications, writings, paintings, figures or in any other manner. Section 2(c) of the Act of 1986 defines "indecent representation of women" in the following words:

(c) "indecent representation of women" means the depiction in any manner of the figure of a woman, her form or body or any part thereof in such a way as to have the effect of being indecent, or derogatory to, or denigrating women, or is likely to deprave, corrupt or injure the public morality or morals.

Section 3 of the Act of 1986 prohibits advertisements containing indecent representation of women. Section 4 of the Act of 1986 prohibits publication or sending by post of books, pamphlets, etc., containing indecent representation of women. It is the allegation in the final report that in the mobile phone recovered from the 2nd accused indecent pictures of the 1st accused was retrieved. There is no allegation by the prosecution that such pictures were published by the 2nd accused with a view to denigrate the 1st accused.

Learned counsel for the petitioners submitted that the search and seizure was illegal. The detecting officer himself conducted investigation and using his computer the alleged indecent representation of women was decoded. According to the learned counsel for petitioners, tampering of evidence to suit the convenience of the Investigating Officer, who himself is the detecting officer, cannot be ruled out. It is true that the proper procedure would have been to produce the mobile phone in court and then seek the permission of the court to decode the information therein. Therefore, the alleged recovery itself is illegal. Considering the entire facts and circumstances, I find that the final report in Crime No. 1249 of 2008 of the Kollam East Police Station now pending as C.C. No. 8 of 2009 on the file of the Chief Judicial Magistrate Court, Kollam is legally unsustainable and therefore, it is quashed.

Petitions are allowed.

All pending interlocutory applications will stand dismissed.