Vedaprakash vs State

A-3 in S.T.C. No. 767 of 1987 on the file of the Chief Judicial Magistrate, Madurai, is the petitioner. This is a petition under S. 482, Cr.P.C.

praying to call for the records in S.T.C. 767 of 1987 on the file of the Chief Judicial Magistrate, Madurai, and to quash the proceedings in the

case.

The Inspector of Police has filed the charge-sheet against the petitioner and two others under S. 4(2)(c) and S. 7(1)(b) of the Suppression of

Immoral Traffic Act, 1956, hereinafter referred to as the Act, before the learned Chief Judicial Magistrate and it has been taken on file and

numbered as S.T.C. 767 of 1987. According to the petitioner, the entire documents filed in the case under S. 173, Cr.P.C. did not disclose any

offence u/s 7(1)(b) of the Act, and u/s 7(1)(b) any woman or girl, so carries on prostitution and the person with whom such prostitution is carried

on, in any premises (a) which are within the area or areas, notified under sub-section (3) or (b) which are within a distance of two hundred meters

of any place of public religious worship, educational institution, hostel, hospital, nursing home or such other public place of any kind as may be

notified in this behalf by the Commissioner of Police or Magistrate in the manner prescribed, shall be punishable with imprisonment for a term

which may extend to three months etc.

Four witnesses have been cited and they have been shown to have been examined during investigation and none of them say that the premises of

the petitioner in which the alleged offence has been committed is within a distance of two hundred metres of any place mentioned in S. 7(1)(b) of

the Act. Further according to the petitioner he has been falsly implicated by the Sub-Inspector of Police due to prior enmity and the petitioner is a

reputed businessman in Madurai and he has been falsely implicated due to business rivalry and hence the petition.

It is to be pointed out that as stated by the petitioner he is shown to be the third accused along with one Pichai and Nazeema. They have been

charged for the offence under Sections 4(2)(a) and 7(1)(b) of the Act. The first accused Pichai is shown to have induced Nazeem second accused

to have sexual intercourse with the petitioner third accused and according to the first information report the petitioner was in the upstairs of door

No. 266-A East Veli St. Melpattai. As induced or instigated by A-1, A-2 went there and had sexual intercourse with A-3 and thereby A-2 and

A-3 committed the offence punishable u/s 7(1)(b) of the Act, the Inspector of Police, Central, Madurai had been appointed by the Government for

dealing with the offences under S. 13 of the Act and as he was engaged otherwise, he had authorised one Stalin Michael Sub-Inspector of Police,

B-1 Police station, to search the premises and effect the arrest of the person concerned. Thereupon the said Sub-Inspector of Police is shown to

have effected the arrest of the accused persons and had given the first information report. It is to be pointed out even at the outset that though it has

been stated that the premises No. 266-A is that of the petitioner there is no indication whatsoever in the records that it belongs to him or he is an

occupant or a tenant of the premises. Learned counsel for the petitioner also placed reliance on the decision reported in Chandrasekharan v. State

1987 MLW 389, rendered by David Annussamy J. and contended that there should be a proof with regard to the distance between the place of

occurrence and the place of religious worship, etc., and in this case, the records furnished as such did not contain any such evidence and therefore

the proceedings are liable to be quashed. The Sub-Inspector of Police who had given the report has submitted a counter-affidavit mentioning about

the details of the facts of the case and has further stated that the scene place is within two hundred yards from Karimee Pallivasal, Hotels, School,

Hospital etc., and though the 161 statements of the witnesses did not mention about it, the investigation officer who laid the charge-sheet will speak

about it and the court can take judicial notice regarding the location of the hospital, mosque etc., Along with the counter a sketch also had been

filed showing the distance between the place of occurrence and Karimee Pallivasal, one hotel a small road side temple, a private clinic etc. In this

connection it is to be pointed out that even taking into consideration the counter-affidavit and the sketch I fail to understand as to why the Sub-

Inspector of Police who had been authorised by the Inspector of Police has failed to mention about the location of the place even in the first

information report and it is also rather strange that even in the charge the said facts have been failed to be mentioned. Apart from that, as

contended by the learned counsel for the petitioner in this case the records available cannot be said to be establishing the charge u/s 7(1)(b) of the

Act having regard to the decision relied on by the learned counsel mentioned earlier. In the said decision David Annoussamy J. has pointed out that

one essential ingredient of the offence is promiscuous sexual intercourse, that is to say, proof of one sexual intercourse is not enough. It should be

proved that the person concerned indulges in indiscriminate sexual intercourse with several persons. Even if the several acts of intercourse are not

directly and fully proved there should be material to show that the person is in the habit of having indiscriminate sexual intercourse. In that case it

has been pointed out that A-5 was alleged to have engaged in prostitution in a place within 200 yards of a temple and a school and David

Annoussamy J. pointed out that there was nothing in the evidence in that case to show that A-5 was a person who was in the habit of promiscuous

sexual intercourse and therefore, the ingredients to the offence is not clearly proved. The facts as disclosed from the records in the case may not be

said to be disclosing promiscuous sexual intercourse as contended by the learned counsel for the petitioner since in the said decision it has been

laid down that proof of one sexual intercourse is not enough. Apart from that there is nothing on record to show that any money was recovered

from anyone of the accused during the occurrence. Learned counsel for the petitioner also placed reliance in the decision reported in Bai Shanta

Vs. State of Gujarat, .

Thus on a careful consideration of the contention put forward by the learned counsel for the petitioner and the principle laid down in the

decisions relied on by the learned counsel for the petitioner. I find that the proceedings against the petitioner as well as the other accused in S.T.C.

767 of 1987 on the file of the Chief Judicial Magistrate. Madurai are liable to be quashed. In the result this petition is allowed and the proceedings

against the petitioner herein are as well as the other accused in S.T.C. 767 of 1987 on the file of the Chief Judicial Magistrate, Madurai, are

quashed.

Petition allowed.