DILIP VARGHESE Vs. STATE OF KERALA

JUDGEMENT

(1.) 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), Radhakrishnan v. State of Kerala (2008 (2) KLT 521) 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.

(2.) 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.

(3.) 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 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.