Kerala High Court
Rakesh vs State Of Kerala on 22 October, 2024
Author: P.V.Kunhikrishnan
Bench: P.V.Kunhikrishnan
Crl.M.C. No.7794 of 2018
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2024:KER:78627
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE P.V.KUNHIKRISHNAN
TUESDAY, THE 22ND DAY OF OCTOBER 2024 / 30TH ASWINA, 1946
CRL.MC NO. 7794 OF 2018
CRIME NO.309/2014 OF KILIKOLLOOR POLICE STATION, KOLLAM
AGAINST THE ORDER/JUDGMENT DATED IN CC NO.1084 OF
2014 OF JUDICIAL MAGISTRATE OF FIRST CLASS -I, KOLLAM
PETITIONER/2ND ACCUSED:
RAKESH
AGED 38 YEARS, S/O.MADHAVAN NAIR,
KESAVA MANDIRAM, KOTTAMKARA CHERRY,
KOTTAMKARA VILLAGE, KILIKOLLOOR,
KOLLAM DISTRICT - 691 004.
BY ADVS.
K.SIJU
SRI.S.ABHILASH
SMT.S.SEETHA
RESPONDENTS/DEFACTO COMPLAINANT & STATE:
1 STATE OF KERALA
THROUGH THE SUB INSPECTOR OF POLICE,
KILIKOLLOOR POLICE STATION, REPRESENTED BY
THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA,
ERNAKULAM - 682 031.
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2 THE INSPECTOR OF POLICE
ERAVIPURAM POLICE STATION, ERAVIPURAM.P.O,
KOLLAM - 691 011.
BY ADV.:
SRI.SANGEETHARAJ.N.R, PP
THIS CRIMINAL MISC. CASE HAVING COME UP FOR
ADMISSION ON 22.10.2024, THE COURT ON THE SAME DAY
PASSED THE FOLLOWING:
Crl.M.C. No.7794 of 2018
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P.V.KUNHIKRISHNAN, J.
----------------------------------------
Crl.M.C. No.7794 of 2018
-----------------------------------------
Dated this the 22nd day of October, 2024
ORDER
This Criminal Miscellaneous Case is filed by the
2nd accused in Crime No.309/2014 of Kilikolloor
Police Station. The above case is now pending as
CC No.1084/2014 on the file of Judicial First Class
Magistrate Court-I, Kollam. The offence alleged
against the petitioner are under Sections 3, 4, 5 and
6 of Immoral Traffic (Prevention) Act, 1956.
2. The gist of the prosecution case is that,
the 1st accused, in order to make gain from
prostitution, invited CW1 to her house having
No.607/IX in Ward No.9 of Kottamkara Grama
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Panchayath by offering employment in a pickle
company, she after collecting Rs.1,500/- from the
2nd accused introduced CW1 to him and thereafter
the 2nd accused was found in a compromising
situation with CW1 in the above house on
25.02.2014 at 11.00 AM and thereby committed the
aforesaid offences. According to the petitioner,
even if the entire allegations are accepted, no
offence is committed.
3. Heard the learned counsel appearing for
the petitioner and the learned Public Prosecutor.
4. The counsel for the petitioner submitted
that, admitted case of the prosecution is that the
petitioner was found along with CW1 and that will
not attract the offence alleged against the
petitioner. The counsel also relied the judgment of
this Court in Vijayakumar and Others v. State of
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Kerala and Others [2016 (1) KHC 698].
5. The learned Public Prosecutor submitted
that the contentions raised by the petitioner are all
matters of evidence and this Court may not
interfere with the prosecution proceedings.
6. This Court considered the contentions of
the petitioner and the Public Prosecutor. This Court
perused the final report and the supporting
documents. This Court also considered the dictum
laid down by this Court in Vijayakumar's case
(supra). It will be better to extract the relevant
portion of the above said judgment:
"7. Going by Annexure - A, First Information
Report, as rightly submitted by the learned counsel
for the petitioner, the allegation against the
petitioners is that they were found along with two
ladies in a room of home stay, conducted by accused
Nos. 1 and 2. It is also alleged that the first accused
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has collected Rs.500/- each from the petitioners.
The offences alleged the petitioners are under S.3,
S.4(1), S.5 and S.7 of the said Act.
8. S.3 deals with the punishment for keeping a
brothel or allowing premises to be used, as a brothel
and S.4 deals with the punishment for living on the
earnings of prostitution and S.5 deals with procuring,
inducing or taking person for the sake of prostitution
and S.7 deals with the prostitution in or in the
vicinity of public place. On an analysis of the
allegation against the petitioners in Annexure - A,
First Information Report, it is seen that even if, the
allegation against the petitioners are admitted at its
entirety and taken at its face value, none of the
accused have committed any of the offences under
S.3, S.4(1), S.5 and S.7 of the Act. Put it differently,
engaging in sexual activity even in brothel is not
made an offence punishable under the Act. If the
allegations in the First Information Report taken at
its face value and accepted at its entirety, that does
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not constitute the offence alleged against the
accused, I have no hesitation to hold that all further
prosecution proceedings against the accused under
such First Information Report would amount to an
abuse of the process of the Court and are liable to be
quashed, invoking the jurisdiction under S.482 of the
Code of Criminal Procedure and I do so."
7. In the light of the above dictum and also
in the light of the fact that the only case of the
prosecution is that the petitioner was found with
CW1 in a compromising position, I am of the
considered opinion that, the continuation of
prosecution against the petitioner alone can be
quashed. But, I make it clear that, this will not
stand in the way of proceeding against the 1st
accused and the case against the 1 st accused will be
considered by the jurisdictional court, in accordance
with law.
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Therefore, this Criminal Miscellaneous Case is
allowed. All further proceedings against the
petitioner alone in CC No.1084/2014 on the file of
Judicial First Class Magistrate Court-I, Kolllam are
quashed.
Sd/-
P.V.KUNHIKRISHNAN
nvj JUDGE
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PETITIONER ANNEXURES
ANNEXURE 1 A COPY OF FIR ALONG WITH COPY OF
SEARCH LIST IN CRIME NO.309/2014 OF
KILIKOLLOOR POLICE STATION,PREPARED
BY THE 2ND RESPONDENT.
ANNEXURE 2 TRUE COPY OF FINAL REPORT DATED
4.6.2014 IN CRIME NO.309/2014 OF
KILIKOLLOOR POLICE STATION.
RESPONDENTS EXHIBITS : NIL
//TRUE COPY// PA TO JUDGE
