Judgment 1. This criminal miscellaneous case is filed by accused Nos 1 to 4 in C.C. No. 1621/2009 on the file of the Judicial First Class Magistrate Court, Kattakada, to quash the proceedings under Section 482 of the Code of Criminal Procedure (hereinafter called the ‘Code’). 2. It is alleged in the petition that, the petitioners were arrayed as accused Nos.1 to 4 in C.C.No.1621/2009, pending before the Judicial First Class Magistrate Court, Kattakada, alleging offences under Section 3, 4, 5 and 7 of Immoral Traffic (Prevision) Act, 1956 (hereinafter called the 'Act'). The case of the prosecution was that on 26.10.2009 at 2.45 p.m., accused numbers 1& 4 and accused 2 & 3 were found engaged in sexual activities in a rented house with No. VP VII/248 and thereby, they have committed the above said offence. None of the ingredients of the above sections have been established in this case. Further the investigation in this case was not conducted by the authorised officer, but by Sub Inspector of Police, which is also illegal. So under the circumstances, there is no scope for any conviction in this case and this is a fit case where the power under Section 482 of the ‘Code’ has to be invoked to quash the proceedings. So the petitioners filed this application, seeking the following relief: “For these and other reasons to be urged at the time of hearing, it is most humbly prayed that this Hon'ble Court may be pleased to call for the records leading to Annexure-B final report in C.C. No.1621/2009 pending before the Judicial First Class Magistrate Court, Kattakada and quash all further prosecution proceedings of petitioners on the basis of said final report.” 3. The counsel for the petitioners submitted that, the detection itself was not done by the Circle Inspector of Police, Kattakada, but some other officer in charge of that officer. Further the investigation in this case was conducted by the Sub Inspector of Police, who is not the authorised officer to conduct the investigation. So, the entire procedure adopted is illegal and as such, the proceedings is liable to be quashed. He has also submitted that, there is no case for the prosecution that, the persons arrested were prostitutes engaged in prostitution and they have been secured for this purpose by the other accused persons. 4. So, the entire procedure adopted is illegal and as such, the proceedings is liable to be quashed. He has also submitted that, there is no case for the prosecution that, the persons arrested were prostitutes engaged in prostitution and they have been secured for this purpose by the other accused persons. 4. On the other hand, learned Public Prosecutor submitted that, it is not a case to be quashed at this stage and it can be decided only on the basis of evidence. 5. The case of the prosecution was that, on 26.10.2009, accused Nos. 1 and 4 were found engaged in sexual intercourse with accused Nos.2 and 3 in a rented house with No. VP VII/248 and the detection was done by the CW10, who was the Circle Inspector of Police Aryanadu Police Station, but in charge of Kattakada Circle, within whose jurisdiction the alleged incident happened and the investigation was conducted by CW11, who is the Sub Inspector of Police and it was he who laid Annexure-B final report. Except the fact that these persons were engaged in sexual intercourse in a rented building, there is no other material collected by the investigating agency to prove that accused Nos. 3 and 4 were really engaged in prostitution and they were secured by accused Nos.1 and 2 for the purpose of engaging accused Nos. 3 and 4 for prostitution. 6. Section 3, 4, 5, 7, 13 and 14 of the Act reads as follows: Section 3 reads as: 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. (2) Any person who - (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 part thereof with the 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 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) of sub-section (2) of any offence under that subsection 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. Section 4 reads as: 4. Section 4 reads as: 4. Punishment for living on the earnings of prostitution.- (1) Any person over the age of eighteen years who knowingly lives, wholly or in part, on the earnings of the prostitution of [any other person] shall be punishable with imprisonment for a term which may extend to two years, or with fine which may extend to one thousand rupees, or with both [and where such earnings relate to the prostitution of a child or a minor, shall be punishable with imprisonment for a term of not less than seven years and not more than ten years]. [(2) Where any person over the age of eighteen years in proved - (a) to be living with, or to be habitually in the company of, a prostitute; or (b) to have exercised control, direction or influence over the movements of a prostitute in such a manner as to show that such person is aiding, abetting or compelling her prostitution; or (c) to be acting as a tout or pimp on behalf of a prostitute, it shall be presumed, until the contrary is proved, that such person is knowingly living on the earnings of prostitution of another person within the meaning of sub-section (1).] Section 5 reads as: 5. Procuring, inducing or taking [person] for the sake of prostitution. Procuring, inducing or taking [person] for the sake of prostitution. (1) Any person who- (a) Procures or attempts to procure a [person], whether with or without [his] consent, for the purpose of prostitution; or (b) induces a [person] to go from any place, with the intent that [he] may for the purpose of prostitution become the inmate of, or frequent, a brother; or c) takes or attempts to take a [person], or causes a [person] to be taken, from one place to another with a view to [his] carrying on, or being brought up to carry on prostitution; or (d) causes or induces a [person] to carry on prostitution; [shall be punishable on conviction with rigorous imprisonment for a term of not less than three years and not more than seven years and also with fine which may extend to two thousand rupees, and if any offence under this subsection is committed against the will of any person, the punishment of imprisonment for a term or seven years shall extend to imprisonment for a term of fourteen years: Provided that if the person in respect of whom an offence committed under this sub-section.- (i) is a child, the punishment provided under this sub-section shall extend to rigorous imprisonment for a term of not less than seven years but may extend to life; and (ii) is a minor, the punishment provided under this sub-section shall extend to rigorous imprisonment for a term of not less than seven years and not more than fourteen years;] [***] (3) An offence under this section shall be triable- (a) in the place from which a [person] is procured, induced to go, taken or caused to be taken or from which an attempt to procure or take such [person] is made; or (b) in the place to which he may have gone as a result of the inducement or to which he is taken or caused to be taken or an attempt to take him is made. Section 7 reads as: 7. Section 7 reads as: 7. Prostitution in or in the vicinity of public places.- [(1) Any [person], who carries on prostitution and the person with whom such prostitution is carried on, in any premises,- (a) which are within the area or areas, notified under sub-section (3), or (b) which are within a distance of two hundred meters of 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 this behalf by the Commissioner of Police or magistrate in the manner prescribed, shall be punishable with imprisonment for a term which may extend to three months.] [(1A) Where an offence committed under subsection (1) is in respect of a child or minor, the person committing the offence shall be punishable 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: 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.] (2) Any person who- (a) being the keeper of any public place knowingly permits prostitutes for purposes of their trade to resort to or remain in such place; or (b) being the tenant, lessee, occupier or person in charge of any premises referred to in sub-section(1) knowingly permits the same or any part thereof to be used for prostitution; or (c) being the owner, lessor or landlord, of any premises referred to in sub-section (1), or the agent of such owner, lessor or landlord, lets the same or any part thereof with the knowledge that the same or any part thereof may be used for prostitution, or is wilfully a party to such use, shall be punishable on first conviction with imprisonment for a term which may extend to three months, or with fine which may extend to two hundred rupees, or with both, and in the event of a second or subsequent conviction with imprisonment for a term which may extend to six months and also with fine [which may extend to two hundred rupees, and if the public place or premises happen to be a hotel, the licence for carrying on the business of such hotel under any law for the time being in force shall also be liable to be suspended for a period of not less than three months but which may extend to one year: Provided that if an offence committed under this sub-section is in respect of a child or minor in a hotel, such licence shall also be liable to be cancelled. Explanation. - For the purposes of this sub-section, “hotel” shall have the meaning as in clause (6) of section 2 of the Hotel Receipts Tax Act, 1980 (54 of 1980).] [(3) The State Government may, having regard to the kinds of persons frequenting any area or areas in the State, the nature and the density of population therein and other relevant considerations, by notification in the Official Gazette, direct that prostitution shall not be carried on in such area or areas as may be specified in the notification. (4) Where a notification is issued under Sub-section (3) in respect of any area or areas, the State Government shall define the limits of such area or areas in the notification with reasonable certainty. (5) No such notification shall be issued so as to have effect from a date earlier than the expiry of a period of ninety days after the date on which it is issued.] Section 13 reads as: 13. Special police officer and advisory body.- (1) There shall be for each area to be specified by the State Government in this behalf a special police officer appointed by or on behalf of that Government for dealing with offences under this Act in that area. [(2) The special police officer shall not be below the rank of an Inspector of Police. [(2) The special police officer shall not be below the rank of an Inspector of Police. (2A) The District Magistrate may, if he considers it necessary or expedient so to do, confer upon any retired police or military officer all or any of the powers conferred by or under this Act on a special police officer, with respect to particular cases or classes of cases or to cases generally: Provided that no such power shall be conferred on - (a) a retired police officer unless such officer, at the time of his retirement, was holding a post not below the rank of an inspector; (b) a retired military officer unless such officer, at the time of his retirement, was holding a post not below the rank of a commissioned officer.] (3) For the efficient discharge of his functions in relation to offences under this Act- (a) the special police officer of an area shall be assisted by such number of subordinate police officers (including women police officers wherever practicable) as the State Government may think fit; and (b) the State Government may associate with the special police officer a non official advisory body consisting of not more than five leading social welfare workers of that area (including women social welfare workers wherever practicable) to advise him on questions of general importance regarding the working of this Act. [(4) The Central Government may, for the purpose of investigating any offence under this Act or under any other law for the time being in force dealing with sexual exploitation of persons and committed in more than one State, appoint such number of police officers as trafficking police officers and they shall exercise all the powers and discharge all the functions as are exercisable by special Police officers under this Act with the modification that they shall exercise such powers and discharge such functions in relation to the whole of India.] Section 14 reads as: 14. Offences to be cognizable. Offences to be cognizable. Notwithstanding anything contained in [the Code of Criminal Procedure, 1973 (2 of 1974)], any offence punishable under this Act shall be deemed to be a cognizable offence within the meaning of that Code: Provided that, notwithstanding anything contained in that Code,- (i) arrest without warrant may be made only by the special police officer or under his direction or guidance, or subject to his prior approval; (ii) when the special police officer requires any officer subordinate to him to arrest without warrant otherwise than in his presence any person for an offence under this Act, he shall give that subordinate officer an order in writing, specifying the person to be arrested and the offence for which the arrest is being made; and the latter officer before arresting the person shall inform him of the substance of the order and, on being required by such person, show him the order; (iii) any police officer not below the rank of [sub-inspector] specially authorised by the special police officer may, if he has reason to believe that on account of delay involved in obtaining the order of the special police officer, any valuable evidence relating to any offence under this Act is likely to be destroyed or concealed, or the person who has committed or is suspected to have committed the offence is likely to escape, or if the name and address of such a person is unknown or there is reason to suspect that a false name or address has been given, arrest the person concerned without such order, but in such a case he shall report, as soon as may be, to the special police officer the arrest and the circumstances in which the arrest was made. Section 2(a) reads as: (a) “brothel” 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. Section 2(f) reads as: (f) “prostitution” means the sexual exploitation or abuse of persons for commercial purposes, and the expression “prostitute” shall be construed accordingly. 7. Section 2(f) reads as: (f) “prostitution” means the sexual exploitation or abuse of persons for commercial purposes, and the expression “prostitute” shall be construed accordingly. 7. In the decision reported in Radhakrishnan v. State of Kerala ( 2008 (2) KLT 521 ), it has been held that, in order to attract an offence under Section 7 of Immoral Traffic (Prevention) Act, 1956, it must be proved that, there is plurality and undiscriminated sexuality is involved, in order to attract the definition that the person is carrying on prostitution. There is no such evidence available in this case. It is also mentioned in the same decision that, the section will be attracted, only if it is committed in a notified area by the State Government. There is no such notification issued in this case and there is no case for the prosecution that the incident happened from a notified area as mentioned in the section. Further in the same decision, it has been held that, the detection and investigation has to be conducted by a notified officer of a specified rank by the Government under Section 13 and 14 of the Act, who is the Circle of Police of a particular area and not a Sub Inspector, who is not empowered to conduct investigation and file final report. It is also held in the decision that, sexual activity will amount to prostitution, only if sexual abuse or exploitation of the person is done for commercial purpose. It is only, if sexual abuse or exploitation is carried on for mercenary motives could it be said that it is prostitution. There is no evidence also collected that, in any of the accused persons have solicited or seduced for the purpose of prostitution as well. 8. Further in the decision reported in Abdul Rasheed v. State of Kerala (2012 (4) KLT 502), it has been held that, even if the raid is conducted under the direction of a superior officer and the investigation was conducted and final report was field by an officer not empowered to do the same, then the entire thing is illegal and the proceedings will have to be quashed, invoking the power under Section 482 of the Code of Criminal Procedure. That was a case where the detection was done by an officer not an empowered officer. 9. That was a case where the detection was done by an officer not an empowered officer. 9. In this case also, the detection was done by an officer in charge of that officer, who was the notified officer for that area. In the decision reported in 2013 KHC 4444 State of Rajasthan v. Bheru Lal, it has been held that if an officer is in charge of an authorised officer or empowered officer for temporary period and then he will get the power of that officer during that period and the search conducted by that officer is valid. It was a case where another Sub Inspector of Police was in charge of Station House Officer in his absence and he detected the case under NDPS Act and it has held that it is valid. So the submission of the counsel for the petitioner that the detection itself is invalid is not sustainable. 10. But the investigation was done and final report was filed by an inferior officer in rank, namely the Sub Inspector of Police, who is not even an empowered officer to conduct the investigation of such cases. So that vitiates the final report filed. In the decision reported in 2008 (2) KLT 1047 Subash v. State of Kerala, a Division Bench of this court held that a magistrate cannot take cognizance of an offence under the Act (Abkari Act) on the basis of a report field by Assistant Sub Inspector of Police who is not an abkari officer as defined under the Act. So under the circumstances, the procedure adopted by the officials in filing the final report is against law. Since the allegation in the final report itself is not sufficient in law to attract any of the offences alleged in the report, there is no purpose in allowing the case to proceed with and chance of conviction is remote. So this is a fit case where the power under Section 482 of the Code has to be invoked to quash the proceedings against the petitioners. So the application is allowed and further proceedings in C.C.1621/2009 (Crime No.403/2009 of Malayinkizhu Police Station before the Judicial First Class Magistrate Court, Kattakada), against the petitioners is quashed. Office is directed to communicate this order to the concerned magistrate court for further action.