Kerala High Court
Sanoj @ Nishath vs Circle Inspector Of Police on 12 August, 2025
2025:KER:59992
Crl.M.C.No.5904/2025
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IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE G.GIRISH
TUESDAY, THE 12TH DAY OF AUGUST 2025 / 21ST SRAVANA, 1947
CRL.MC NO. 5904 OF 2025
CRIME NO.193/2016 OF ETTUMANOOR POLICE STATION, KOTTAYAM
IN CC NO.827 OF 2024 OF JUDICIAL MAGISTRATE OF FIRST
CLASS - I, ETTUMANOOR
PETITIONER/ 3RD ACCUSED:
SANOJ @ NISHATH,
AGED 47 YEARS
S/O.MUHAMMAD ALI,
KAITHAMALATHAZHE HOUSE,
ETTUMANOOR VILLAGE,
ATHIRAMPUZHA P.O,
KOTTAYAM DISTRICT.,
PIN - 686562
BY ADV SHRI.BLESSEN GEORGY MATHEWS
RESPONDENT/ DE FACTO COMPLAINANT & STATE:
1 CIRCLE INSPECTOR OF POLICE,
ETTUMANOOR POLICE STATION,
POLICE STATION ROAD,
ETTUMANOOR, KOTTAYAM DISTRICT.,
PIN - 686631
2 STATE OF KERALA
REPRESENTED BY PUBLIC PROSECUTOR,
HIGH COURT OF KERALA,
ERNAKULAM., PIN - 682031
SMT PUSHPALATHA M.K., SR. PUBLIC PROSECUTOR
THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON
01.08.2025, THE COURT ON 12.08.2025 PASSED THE FOLLOWING:
2025:KER:59992
Crl.M.C.No.5904/2025
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ORDER
The petitioner is the fourth accused in Crime No.193/2016 of
Ettumanoor Police Station, Kottayam. The allegation against him is that,
in a search conducted by the Inspector of Police, Ettumanoor, in a
building by name Nava Chaitanya Guest House belonging to the first
accused, the petitioner was found to have been involved in sexual
relationship for remuneration with the fifth accused in a room in that
building. The offence is said to have been detected at about 11:20 a.m,
on 31.01.2016. In addition to the petitioner, accused Nos.2, 6 & 10, were
also said to have been indulged in prostitution with three other ladies in
the other rooms of that building.
2. The case was initially taken to files by the Judicial First Class
Magistrate Court, Ettumanoor, as C.C.No.754/2016. However, the case
against the first accused was quashed by this Court as per order dated
11.07.2024 in Crl.M.C.No.3010/2016. Thereafter, the case was refiled and
renumbered as C.C.No.827/2024. After renumbering the case as above,
the petitioner has been arraigned as the third accused in that case.
3. In the present petition, the petitioner would contend that he
is totally innocent, and that he has been falsely implicated in the case. It
is further contended that even if the entire allegations in the final report
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are accepted as such, no offence is made out as against the petitioner
herein.
4. Heard the learned counsel for the petitioner and the learned
Public Prosecutor representing the State of Kerala.
5. As already stated above, the allegation against the petitioner
is that, in a search conducted in a building near Carithas junction in
Ettumanoor, the petitioner was found to have been indulged in sexual
relationship with a lady, with the payment of remuneration to her. Thus,
the relevant penal provision of the Immoral Traffic (Prevention) Act,
1956, (hereafter referred as 'the Act') which is applicable for the
aforesaid act alleged to have been committed by the petitioner, is Section
7(1). However, going by Clauses (a) & (b) of Section 7 (1) of the said
Act, for the applicability of the above Section, it has to be shown that the
building where the petitioner was involved in the act of sexual
relationship for remuneration was within an area notified under
Sub-Section 3 of Section 7, or in the alternative, it has to be shown that
the above said building was situated at a place within a distance of 200
meters from 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 that behalf, by the Commissioner of Police or the
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Magistrate concerned, in the manner prescribed. As far as the present
case is concerned, the building by name Nava Chaitanya Guest House,
where the prostitution was allegedly being carried on, is not shown to be
coming within any area as notified under Section 7(3) of the Act, or at a
place within a distance of 200 meters from any place of public religious
worship, educational institution, hostel, hospital, nursing home or such
other public places of any kind, as notified in that behalf by the
Commissioner of Police or the Magistrate concerned. The prosecution has
not brought on record any notification issued by the Government under
Section 7(3) of the Act, or any notification issued by the Commissioner of
Police or the Magistrate concerned, which would go to show that the
building involved in this case stood within a distance 200 meters from
any place of public religious worship, educational institution, hostel,
hospital, nursing home or such other public places of any kind. In that
view of the matter, it cannot be said that the offence under Section 7(1)
of the Act is attracted in the facts and circumstances of the case.
6. However, the offence under Section 5 of the Act would be
attracted, if it is shown that the petitioner had procured, induced or
taken persons for the purpose of prostitution. While dealing with the
scope and applicability of the word 'procures', a learned Single Judge of
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this Court had held in Abhijith v. State of Kerala [2023 KHC 9425],
that a customer who indulges in prostitution at a brothel, is liable to be
charged with the offence under Section 5, since he could be termed as a
person who has procured a person for the purpose of prostitution. It has
been held in the aforesaid decision that the word 'procure' is to be
understood in the context of the objective of the statute and that the
person who gets or obtains domain over a person for the purpose of
prostitution has to be said to procure a person for the purpose of
prostitution. Thus, it has been held in the aforesaid decision that a
customer also comes within the purview of Section 5 of the Act. Hence
there is absolutely no illegality or impropriety in the act of the
Investigating Agency proceeding against the petitioner for the
commission of offence under Section 5 of the Act.
7. Thus, it could be seen that the prosecution against the
petitioner/third accused for the commission of offence under Section 5 of
the Act is perfectly in order since he is liable to be proceeded against as
the person who procured the lady with whom he was found to be
indulging in sex at the time when the search was conducted by the
Investigating Agency in that building. Needless to say, the prayer to
quash the proceedings against the petitioner/third accused in C.C
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No.827/2024 of the Judicial First Class Magistrate Court-I, Ettumanoor,
cannot be allowed.
In the result, the petition is hereby dismissed.
(sd/-)
G. GIRISH, JUDGE
DST
2025:KER:59992
APPENDIX
PETITIONER ANNEXURES
ANNEXURE A1 THE CERTIFIED COPY OF THE FIR DATED
31.01.2016 OF ETTUMANOOR POLICE STATION
ANNEXURE A2 THE CERTIFIED COPY OF THE FINAL REPORT
DATED 25.03.2016 OF JFCM ETTUMANOOR
ANNEXURE A3 THE TRUE COPY OF THE JUDGMENT IN CRL.M C
NO: 3010/2016 DATED 11.07.2024 OF THIS
HON'BLE COURT.
