HONEY THANKACHAN Vs. STATE OF KERALA

JUDGEMENT

(1.) Challenge in the revision is against the order dated 14-10-2011 in C.M.P No. 3020/2010 in C.C No. 61/2006 passed by the Judicial First Class Magistrate-III, Thiruvananthapuram. Petitioners are accused numbers 2 to 4 in the above case, in which they are being prosecuted for offences punishable under Sections 4 and 6(b) of The Immoral Traffic (Prevention) Act, 1956 (for short, 'the Act') and Section 292 r/w Section 34 of the Indian Penal Code {for short 'the IPC'} on a report filed by the Circle Inspector of Police, Thampanoor Police Station. Petitioners moved an application, the above numbered C.M.P., seeking their discharge under Section 239 of the Code of Criminal Procedure (for short, 'the Code'), and, the learned magistrate dismissed that application vide the impugned order. Propriety, legality and correctness of that order is assailed in this revision. Prosecution case in short is that on 09-03-2005, getting information that three persons were indulging in sexual activities in Room No. 101 of Hotel Blue Nest, within the limits of Thampanoor Police Station, Thiruvananthapuram, a police party headed by the Circle Inspector of Police of the above Police Station, after complying with the formalities, conducted a raid, and, then found a lady and two men (petitioners - A2 to A4), in the hotel room indulging in sexual activities. They were found naked and the sexual activities carried on by them were being video graphed. Video cassettes and also videographs containing obscene sexual activities were also found in the room and the petitioners were arrested. A crime was registered with the Manager of the hotel as the 1st accused and the petitioners as the other accused for offences under Section 3, 4 and 6(b) of The Immoral Traffic (Prevention) Act, 1956, Section 292(2)(a) r/w Section 34 of the Indian Penal Code and Section 67 of the Information Technology Act {for short 'the IT Act'}. After completion of the investigation of the crime, final report was laid indicting one Sumith, the receptionist of the hotel, in the place of the Manager of the hotel as the 1st accused, and the petitioners as accused No. 2 to 4, for the aforesaid offences. In Crl.M.C No. 1616/2006 moved by the above named Sumith, the 1st accused, the criminal proceedings against him were quashed by this court by order dated 02-11-2006. The petitioners, accused number 2 to 4 had also moved for quashing the proceedings against them. That Crl.M.C. No. 2116/2007 was disposed by order dated 23-09-2009, by which the proceedings against them for the offences under Section 3 of the Act and 67 of the IT Act imputed under the report were quashed and the challenges canvassed by them for quashing the proceedings against the other offences imputed were negatived. Petitioners thereafter moved the above C.M.P. seeking their discharge contending that no offence under any of the Sections of the Act or of the offence imputed under Section 292(2)(a) of the IPC will lie against them. The learned magistrate has turned down that plea under the impugned order.

(2.) I heard the learned senior counsel for the petitioners and also the learned Public Prosecutor. Even on the prosecution allegations the offences imputed under the Act and also that under the IPC would not lie and, as such, the petitioners, A2 to A4, are entitled to a discharge, is the submission of their counsel. Section 4 of the Act is not attracted to the facts of the case as even the prosecution has no case that any of the accused was living on earnings of the prostitution. Similarly, even the prosecution has no case that there was any detention of any person to have an intercourse with the person who is not the spouse of such person, to attract the offence covered under Section 6 of the Act, according to the counsel. The offence imputed under Section 292(2)(a) of the Penal Code, in the given facts of the case, where the prosecution has not even any allegation of sale of or exhibiting of any obscene objects whatsoever, other than that of carrying out the video graphing of the sexual activities in the hotel room, will not lie against any of the accused, is the submission of the counsel. Placing reliance on "Moidu v. State of Kerala",1989 2 KerLT 809 and "Abdul Rasheed v. State of Kerala", 2008 3 KerLT 150, it is submitted that mere videographing of the sexual activities carried out or possession of such cassettes is not sufficient to attract the provisions of the offence under Section 292(2)(a) of the Penal Code. The learned senior counsel has also relied on "Radhakrishnan v. State of Kerala",, 2008 2 KerLT 521 and "X v. State of Kerala", 2009 2 KerLT 7 to contend that sexual activity carried on in a given premises to constitute prostitution as contemplated under the Act, to give rise to the offence thereunder, should show that the activity carried out was sexual abuse or exploitation of a person for commercial purposes. No money was recovered other than some video cassettes from the room even on the allegations raised and prosecution has no case that A2, the lady, was detained for the purpose of carrying on prostitution or sexual exploitation, is the submission of the counsel to contend that none of the offences covered by the Act will lie against the accused. Reference is also made to the meaning of the word 'detain' in Black's Law Dictionary by the counsel to contend that there is not even any whisper of allegation to sustain the offence imputed under Section 6(b) against the accused. The learned counsel also relied on "Khushboo v. Kanniammal and another", 2010 5 SCC 600 to contend that obscenity has to be determined in accordance with contemporary community standards and, as such, where on the allegations imputed by the prosecution no offence is made out under the Act or the Penal Code the videographing of sexual activities imputed in a closed room in a hotel, by itself, even if it is accepted as true, is not sufficient to proceed against them for the offences imputed, for their trial on the indictment made. In such circumstances the application moved by the petitioners for their discharge has to be allowed in reversal of the order of the magistrate, is the submission of the learned Senior Counsel.

(3.) Challenges canvassed to assail the order of the learned magistrate negativing the plea of discharge canvassed by the petitioners/accused 2 to 4 deserve to be appreciated with reference to the previous proceedings for quashing the criminal proceedings at the instance of the petitioners and the orders passed thereon. After the learned magistrate took cognizance of the offences imputed against accused 2 to 4 on the basis of the final report laid after investigation of the crime indicting them of the offences under Sections 3, 4 and 6(b) of the Act, Section 292(2) and Section 34 of the IPC and Section 67 of the Information Technology Act (IT Act) the petitioners had filed Crl.M.C. No. 2116/07 before this court for quashing the criminal proceedings against them. That petition numbered as Crl.M.C. No. 2116/07 was disposed of vide order dated 23.09.2009 by which, after considering the challenges set forth to impeach the indictment levelled against them under the final report laid before the court, this court held that the offences under Section 3 of the Act and Section 67 of the IT Act would not lie against them, but with respect to the other offences covered under Sections 4 and 6(b) of the Act and Section 292(2) read with Section 34 of the IPC, their challenges to quash the criminal proceedings were unsustainable. Going through the order in the aforesaid Crl.M.C., it is noticed that similar challenges which are now canvassed to seek discharge have been raised for quashing the criminal charges, but they have been found to be unworthy of any merit. I shall advert to later, some of the observations made in the aforesaid Crl.M.C., hereunder, with reference to the challenges canvassed relating to the offences in particular by the learned Senior Counsel. However, before proceeding to consider that aspect, it is worthwhile and appropriate to take note of the decision rendered by the Apex Court in Gaurav Jain v. Union of India, 1997 8 SCC 114 to understand what is the meaning to be attached to the word 'prostitution' and sufficiency of proof that is required from the prosecution to establish 'prostitution'. The Apex Court, in the aforesaid decision has held thus-'