Honey Thankachan and Others Vs State of Kerala and Another

@JUDGMENTTAG-ORDER

S.S. Satheesachandran, J.@mdashChallenge 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 u/s 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 u/s 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 u/s 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 u/s 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 u/s 6 of the Act, according to the counsel. The offence imputed u/s 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) KLT 809 and Abdul Rasheed Vs. State of Kerala, , 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 u/s 292(2)(a) of the Penal Code. The learned senior counsel has also relied on K. Radhakrishnan Vs. State of Kerala, and "X v. State of Kerala", 2009 (2) KLT 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 u/s 6(b) against the accused. The learned counsel also relied on S. Khushboo Vs. Kanniammal and Another, 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 u/s 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 Vs. Union of India and others, 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-''

In order to establish ''prostitution'' evidence of more than one customer is not always necessary. All that is essential to prove that a girl/lady should be a person offering her body for promiscuous sexual intercourse for hire. Sexual intercourse is not an essential ingredient. The interference of prostitution would be drawn from diverse circumstances established in a case. Sexuality has got to be established, but that does not require the evidence of more than one customer and no evidence of actual intercourse should be adduced or proved.

4. Though the aforesaid dilation has been made by the Apex Court, in relation to the operation of a brothel it applies with equal force and no doubt has to be considered as decisive in examining and understanding what is ''prostitution''. When such be the interpretation given by the Apex Court to ''prostitution'' and also, having regard to its definition u/s 2(f), that ''prostitution'' means sexual exploitation or abuse of a persons for commercial purposes, the decision rendered in Radhakrishnan v. State of Kerala, 2009 (2) KLT 521 and also X v. State of Kerala, 2009 (2) KLT 7 have necessarily to be understood in the contextual facts of those cases alone, and in case there is any expression in the decision contrary to the views expressed by the Apex Court that cannot be given much significance. The Apex Court in the decision referred to above held that even to establish that a place is being used as a ''brothel'' and the person alleged was so keeping it, a single instance with the surrounding circumstances may be sufficient. Plural and indiscriminate sexuality is not to be proved, but, to construe the place as a brothel, it has been stated that what is only to be proved is that a female indulges in an act offering her body for promiscuous sexual intercourse for hire. When that be so, from the diverse facts and circumstances presented in the case on the materials to be placed the question whether there was ''prostitution'' as covered under the Act and also specific offences imputed thereunder against the accused have to be examined and decided upon.

5. Challenges canvassed in support of the plea of discharge with reference to the word ''detain'' on the premise that even the prosecution has no case that the girl, the 2nd accused, was there under any restraint and also absence of recovery of money other than cassettes from the room in the hotel are not relevant matters in determining whether there is reasonable ground to presume the guilt of the offences imputed against the accused as falling under the Act. On the materials placed by the prosecution so far as the offences under Sections 4 and 6(b) of the Act after considering various challenges raised by the petitioners in Crl.M.C. No. 2116/07 this court has held that it cannot be stated that no offences under those Sections have not been made out on the materials placed in the case. Adverting particularly to the word ''detain'' u/s 6 of the Act the challenge raised thereof to impute the charge thereunder was considered by this court observing that the prosecution has a strong and arguable case. It was further observed that the disputed questions thereof have to be considered in trial. Similarly challenge mooted that from mere recovery of the cassettes containing obscene material no offence u/s 292(2) of the IPC would lie was also repelled by this court observing that the question whether an offence would fall thereunder has to be determined on the basis of the evidence let in the case. In the context, it is also of significance to take note that Section 292(2) of the IPC takes in not only sale or hire or distribution, public exhibition or any manner of putting in circulation, but also making or production or keeping in possession any obscene object whatsoever for purpose of sale, hire, distribution, public exhibition or circulation. So, on the allegations imputed in the present case that in the room where sexual activity carried on by the accused was videographed and cassettes containing obscene objects were seized, whether the accused had the requisite mensrea constituting the offence is a matter that can be decided only on the evidence let in the case; and, by no stretch of imagination it can be stated that the indictment levelled of such offence on the facts and circumstances presented and materials placed would not lie against the accused.

6. The decision relied by the learned counsel S. Khushboo Vs. Kanniammal and Another, in which the prosecution launched against a film actress on account of the statements made by her over pre-marital sex as to constituting of offences u/s 499,500 and 505 of the IPC and some provisions under the Indecent Representation of Women (Prohibition) Act, 1986 arose for consideration, the observations made by the Apex Court that obscenity has to be determined in accordance with the contemporary community standards reflecting sensibilities as well as tolerance level of average reasonable person, prima facie, cannot be jettisoned into, to consider the scope of ''obscenity'' covered for the offence u/s 292 of the IPC. The observations made by the Apex Court with respect to ''obscenity'' in the decision cited above is not at all decisive nor even a relevant factor, at the present stage, where the magistrate has to form an opinion on the materials placed whether an offence u/s 292(2)(b) of the IPC would lie against the accused to proceed with the trial against them for such offence especially where the prosecution alleges of videographing of sexual activities by the accused in a room and seizure of cassettes containing obscene sexual acts, from such place. Whatever defences available to impute such offence based on the interpretation to be placed on the word ''obscenity'', no doubt, can be canvassed by the accused at the stage of trial. But, at this stage, the reliance placed on the above reported decision as to what would amount, to obscenity cannot be given much significance in the enquiry by the magistrate u/s 239 of the Code, where forming of an opinion whether there is reasonable ground to proceed with the trial of the accused for the offences imputed on the materials tendered by the prosecution emerge for consideration.

7. In the given facts of the case where similar challenges for quashing the criminal proceedings against the petitioners were canvassed earlier after cognizance was taken of the offences by the court below, and that having been turned down by this court, how far the same challenges could be raised in the enquiry u/s 239 of the Code is very much doubtful. In an enquiry u/s 239 of the Code, the magistrate is concerned only with the question whether there is ground to presume the guilt of the accused for the offences triable as a warrant case, which he has competency to try and could be adequately punished. At that stage, the truth, veracity and effect of the materials, which is proposed to be adduced by the prosecution is not to be meticulously adjudged. Further, no weight could be attached to the probable defence of the accused. The judge or magistrate, then, is not expected to consider in any detail and weigh in a sensitive balance whether the facts, if proved, would be incompatible with the innocence of-the accused or not. The standard of test and judgment, which is to be finally applied before recording a finding regarding the guilt or otherwise of the accused is not exactly to be applied at the stage of deciding the matter u/s 239 of the Code. At that stage, the court is not expected to examine whether there is sufficient ground for conviction of the accused or whether the trial is sure to end in his conviction, but only whether there is ground to presume the guilt of the accused for the offences imputed, which he is competent to try and adequately punish with. When such be the case, I find, there is absolutely no merit in the challenges canvassed by the petitioners/accused 2 to 4 to impeach the order of the learned magistrate declining their request for discharge. The case arises from a crime registered in 2005, but the trial is yet to commence. The learned magistrate is, therefore, directed to give the case top priority to have its trial expeditiously, and it shall be disposed or after affording reasonable opportunity to the prosecution and also the accused, within a period of six months from the date of receipt of the records.

Revision is dismissed. Send back the records forthwith.