Allowed

Remani v. State of Kerala

Kerala HC15 Mar 2021Crl.MC/884/2020

Case brief

AI extract

What is this about?

The High Court of Kerala allowed a Criminal Misc. Case petition seeking to quash proceedings against the petitioner under the Immoral Traffic (Prevention) Act, 1956. The Court held that the petitioner, a sweeper, lacked control over the lodge and that the alleged single instance of prostitution did not establish the premises as a brothel managed by her.

What did the court decide?

Crl.MC No.884 of 2020 allowed; All proceedings against the petitioner in S.C.No.1839 of 2014 issued from Crime No.88/2005 are quashed.

Remani Vs State of Kerala — Pension and Retirement Benefits | Kerala HC (2021)

¶1

IN THE HIGH COURT OF KERALA AT ERNAKULAM

¶2

PRESENT

¶3

THE HONOURABLE MR. JUSTICE ASHOK MENON

¶4

MONDAY, THE 15TH DAY OF MARCH 2021 / 24TH PHALGUNA, 1942

¶5

Crl.MC.No.884 OF 2020(A)

¶6

AGAINST THE ORDER/JUDGMENT IN SC 1839/2014 OF II ADDITIONAL ASSISTANT SESSIONS COURT,TRIVANDRUM

¶7

AGAINST THE ORDER/JUDGMENT IN CC 437/2005 OF JUDICIAL MAGISTRATE OF FIRST CLASS -III,TRIVANDRUM

¶8

CRIME NO.88/2005 OF Museum Police Station , Thiruvananthapuram

¶9

PETITIONER/S:

¶10

REMANI

¶11

AGED 56 YEARS W/O.JAYACHANDRAN NAIR,PERETHUVILA PUTHEN VEEDU,PUNNAMMODE,KALLIYOOR.P.O, THIRUVANANTHAPURAM-695042.

¶12

BY ADVS. SRI.D.KISHORE SMT.MINI GOPINATH SMT.MEERA GOPINATH SRI.R.MURALEEKRISHNAN (MALAKKARA)

¶13

RESPONDENT/S:

¶14

1 STATE OF KERALA REPRESENTED BY ITS PUBLIC PROSECUTOR,HIGH COURT OF KERALA, ERNAKULAM-682031.

¶15

2 THE CIRCLE INSPECTOR OF POLICE, MUSEUM POLICE STATION,THIRUVANANTHAPURAM, PIN-695033.

¶16

OTHER PRESENT:

¶17

SRI.RAMESH CHAND-PP

¶18

THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON 12.02.2020, THE COURT ON 15.03.2021 PASSED THE FOLLOWING:

Crl.MC 884/2020

ASHOK MENON, J.

Crl.MC No.884 of 2020

¶23

Dated this the 15^th day of March, 2021

¶24

O R D E R

¶25

This petition is filed under S.482 of the

¶26

Cr.P.C seeking to quash the proceedings against the petitioner in S.C.No.1839 of 2014 on the file of

¶27

the II Addl. Assistant Session’s Court, Thiruvananthapuram, emanating from Crime

¶28

No.88/2005 of Museum Police Station registered

¶29

under Sections 3,4 and 6 (b) of the Immoral Traffic (Prevention) Act, 1956 (Act 104 of 1956).

¶30

CW5 is the owner of a lodge by name "Home

¶31

Plus", situated at Kunnukuzhi in Vanchiyoor

¶32

Village, near PMG Vikas Bhavan, KSRTC Garage. The petitioner is alleged to be the caretaker of the lodge. On 13/08/2005 at about 06:00 pm, based on

¶33

Crl.MC 884/2020

¶34

¶35

source information, the CW16, the C.I. of Police, Museum Police Station, and the Police constables, Addl. Sub Inspector and Sub Inspector of the said Police Station (CWs 11 to 15), conducted a raid in

¶36

the lodge and its premises. According to the prosecution, accused Nos. 2 and 3 were found inside Room No.304 engaged in the act of coitus. The petitioner had allegedly entrusted the room to them for indulging in the flesh trade, and they were arrested. The petitioner had allegedly facilitated

¶37

the acts of the accused Nos. 2 and 3. Later, investigation was completed and final report was laid before the jurisdictional Court.

¶38

Sri. D. Kishore, the learned counsel

¶39

appearing for the petitioner, submitted with much vehemence that the offences under Sections 3, 4 and 5 of Act 104 of 1956 will not be attracted as against the petitioner. According to the learned counsel, the petitioner, as sweeper of the lodge

¶40

Crl.MC 884/2020

¶41

¶42

and was being paid Rs.50/- per day as wages, and had no reason to allot room to accused Nos.2 and 3, for which, there was a receptionist and room boys. He would urge that the prosecution had not placed any materials before Court to even prima facie conclude that accused Nos.2 and 3 had even indulged in sexual intercourse. The receptionist who had allotted the room to accused 2 and 3 and the room boys are not even made accused. The lodge which is being operated after obtaining all licenses and permissions from the authorities concerned, could not have been categorised as a brothel as defined in S.2(a) of the Act, submits the learned counsel for the petitioner. By placing reliance on State of Kerala v. Pathumma [1968 KHC 56], Radhakrishnan K. v. State of Kerala [2008 (2) KHC 460] and Mr. X, Central Kerala v. State of Kerala, [2009 (2) KHC 5] , it was contended that none of the offences attributed to the petitioners would stand legal

¶43

Crl.MC 884/2020

¶44

¶45

scrutiny. The petitioner has not gained anything by permitting the alleged act facilitating A2 and A3.

¶46

Heard the learned Public Prosecutor

¶47

Sri.Ramesh Chand, who has opposed the submissions

¶48

with all vehemence. It is urged that the allegations are grave and no interference is warranted at this stage.

¶49

I have considered the submissions advanced

¶50

by both sides and have gone through the final report.

¶51

The offences under Sections 3(1), 4 and 6(1)

¶52

(b) of the Act are alleged against the petitioner and the other accused. Section 3(1) of the Act provides that any person who keeps or manages, or acts or assists in the keeping or management of a brothel shall be punishable in the manner indicated in the said section. Section 2(a) of the Act

¶53

defines that 'brothel' includes any house, room, conveyance or place or any portion of any house,

¶54

Crl.MC 884/2020

¶55

¶56

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. It is only if a person keeps or manages a brothel or acts or assists in the keeping or management of a brothel that he commits an offence under S.3(1) of the Act.

¶57

The petitioner has raised a plea that merely

¶58

because a place was used only once for sexual exploitation, such a place cannot be a brothel. Reliance is placed upon the decision of this Court

¶59

in Mr. X v. State of Kerala ( supra ). The Apex Court in Krishnamurthy v. Public Prosecutor [1967 KHC 534

¶60

: AIR 1967 SC 567] observed as follows:

¶61

"It has been urged, however, that a solitary instance of the house of the appellant being used for the purpose of prostitution will not suffice for establishing that the house was being kept as a brothel. It may be true that a place used once for the purpose of prostitution may not be a brothel, but it is a question of fact as to what

¶62

Crl.MC 884/2020

¶63

¶64

conclusion should be drawn about the use of a place about which a person goes and freely asks for girls, where the person is shown girls to select from and where he does engage a girl for the purpose of prostitution. The conclusion to be derived from these circumstances about the place and the person 'keeping it' can be nothing else than that the place was being used as a brothel and the person in charge was so keeping it. It is not necessary that there should be evidence of repeated visits by persons to the place for the purpose of prostitution. A single instance coupled with the surrounding circumstances is sufficient to establish both that the place was being used as a brothel and that the person alleged was so keeping it."

¶65

Section 2(a) of the Act defines the term

¶66

"brothel". It 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. As per Section 2(f) "prostitution" means the sexual exploitation or

¶67

Crl.MC 884/2020

¶68

¶69

abuse of persons for commercial purpose, and the expression "prostitute" shall be construed accordingly. Section 3 provides for punishment for keeping a brothel or allowing premises to be used as a brothel.

¶70

Section 3 is extracted below.

¶71

"3. Punishment for keeping a brothel or allowing premises to be used as a brothel.-- (1) Any person who keeps or manages, or acts or assists in the keeping or management of, a brothel shall be punishable on first conviction with rigorous imprisonment for a term of not less than one year and not more than three years and also with fine which may extend to two thousand rupees and in the event of a second or subsequent conviction, with rigorous imprisonment for a term of not less than two years and not more than five years and also with fine which may extend to two thousand rupees.

¶72

(2) Any person who -

¶73

(a) being the tenant, lessee, occupier or person in charge of any premises, uses,or knowingly allows any other person to use, such premises or any part thereof as a brothel, or (b) being the owner, lessor or landlord of any premises or the agent of such owner, lessor or landlord, lets the same or any

¶74

Crl.MC 884/2020

¶75

¶76

part thereof with the

¶77

knowledge that the same or any part thereof is intended to be used as a brothel, or is wilfully a party to the use of such premises or any part thereof as a brothel,shall be punishable on first conviction with imprisonment for a term which may extend to two years and with fine which may extend to two thousand rupees and

¶78

in the event of a second or subsequent conviction, with rigorous imprisonment for a term which may extend to five years and also with fine. (2A) For the purposes of sub-section (2), it shall be presumed, until the contrary is proved, that any person referred to in clause (a) or clause (b) of that sub-section, is knowingly allowing the premises or any part thereof to be used as a brothel or, as the case may be, has knowledge that the premises or any part thereof are being used as a brothel, if, (a) a report is published in a newspaper having circulation in the area in which such person resides to the effect that the premises or any part thereof have been found to be used for prostitution as a result of a search made under this Act; or (b) a copy of the list of all things found during the search referred to in clause (a) is given to such person. (3) Notwithstanding anything contained in any other law for the time being in force, on conviction of any person referred to in clause (a) or clause (b)

¶79

Crl.MC 884/2020

¶80

¶81

of subsection (2) of any offence under that sub-section in respect of any premises or any part thereof, any lease or agreement under which such premises have been leased out or are held or occupied at the time of the commission of the offence,shall become void and inoperative with effect from the date of the said conviction."

¶82

Sections 2(a), (f) and 3 of the Act makes it clear that to brand a lodge as a brothel house, the following essential requirements are to be prima facie proved from the records that the lodge was being used for the purposes of sexual exploitation or abuse, and that such use was for gain of another

¶83

person or for the mutual gain of two or more prostitutes. Only if the petitioner had kept or

¶84

managed a brothel or acted or assisted in the

¶85

keeping or management of a brothel, it could be

¶86

found that she has committed an offence under

¶87

S.3(1) of the Act. The petitioner is employed as a

¶88

sweeper in the lodge. Therefore, it cannot be said that the Lodge is in her possession or under her

¶89

Crl.MC 884/2020

¶90

¶91

control. And, there is no allegation that the Lodge was used for sexual exploitation or abuse. The detecting officer had not found two ladies engaged in prostitution. He did not see any sexual exploitation or abuse being made or done. Even in the final report, the allegation is only that the detecting officer found accused 2 and 3 engaged in sexual intercourse. The essential ingredient that a

¶92

place being used for the purpose of sexual exploitation or abuse is absent. In these circumstances, it has to be found that the offence under Section 3(1) of the Act is not made out against the petitioner.

¶93

Section 4 penalises a person, who

¶94

knowingly lives, wholly or in part, on the earnings of prostitution of any other person. For the

¶95

reasons mentioned above, the said provision has no

¶96

application insofar as the petitioner herein is concerned. Furthermore, the prosecution has no case

¶97

Crl.MC 884/2020

¶98

¶99

that the petitioner had either procured or induced

¶100

any person to indulge in prostitution. Relevant portion of Section 6(b) of the Act reads thus:

¶101

“(1) Any person who detains any other person, whether with or without his consent,--

¶102

(a) in any brothel, or

¶103

(b) in or upon any premises with intent that such person may have sexual intercourse with a person who is not the spouse of such person,

¶104

shall be punishable on conviction, with imprisonment of either description for a term which shall not be less than seven years but which may be for life or for a term which may extend to ten years and shall also be liable to fine:

¶105

Provided that the court may, for adequate and special reasons to be mentioned in the judgment, impose a sentence of imprisonment for a term of less than seven years.”

¶106

Hence, the provisions of section 6(1)(b) of the Act

¶107

is also not attracted in the instant case against

¶108

the petitioner. In the aforesaid circumstances,

¶109

continuation of the proceedings against the

¶110

petitioner would be an abuse of process of the

¶111

Crl.MC 884/2020

¶112

¶113

Court. I am of the considered view that this is a fit case where the power of this Court under Section 482 of the Code can be exercised to quash the proceedings against the petitioner.

¶114

Consequently, the Crl.MC is allowed. All proceedings against the petitioner in S.C.No.1839 of 2014 on the file of the II Addl. Assistant Session’s Court, Thiruvananthapuram, emanating from Crime No. 88/2005 of Museum Police Station registered under Sections 3, 4 and 6(b)

¶115

of the Immoral Traffic (Prevention) Act, 1956

¶116

(Act 104 of 1956) are quashed.

Sd/-

ASHOK MENON

JUDGE

Crl.MC 884/2020

APPENDIX

PETITIONER'S/S EXHIBITS:

¶125

ANNEXURE I CERTIFIED COPY OF THE FINAL REPORT IN CRIME NO.88/2005 OF THE MUSEUM POLICE STATION

¶126

ANNEXURE II TRUE COPY OF THE JUDGMENT DATED 2.7.2009 IN CRL.M.C.NO.639/2009 OF THIS HONOURABLE COURT.

¶127

ANNEXURE A1 THE ACCUSED COPY OF THE FINAL REPORT/CHARGE SHEET IN CRIME NO.875 OF 2005 OF THE TIRUR POLICE STATION,MALAPPURAM DISTRICT.

¶128

ANNEXURE A2 THE CERTIFIED COPY OF THE JUDGMENT DATED 20.01.2009 IN S.C.NO.258 OF 2008 PASSED BY THE COURT OF COURT OF ADDITIONAL SESSIONS JUDGE,(ADHOC)NO.II, MANJERI (ADHOC-II,MANJERI,MALAPPURAM DISTRICT.

Remani v. State of Kerala

Case brief

What is this about?

What did the court decide?

Remani v. State of Kerala

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Cases cited

Statutes considered

Parties & counsel

Coram

Case details

Similar cases

Nidheesh C.R. Vs State of Kerala

Vipin Das Vs State of Kerala

P.M. Muhammed Subair Vs State of Kerala

Nabeel Vs State of Kerala

Adon Vincent Vs State of Kerala

Anil Kumar Vs State of Kerala