The central legal point established in the judgment is the interpretation and application of the specific sections of the Immoral Traffic (Prevention) Act to the facts of the case.

In this Revision filed under Sec. 397 read with Sec. 401 Cr.P.C. the Ist accused in Crime No. 227 of 2008 of Museum Police Station, Thiruvananthapuram registered for offences punishable under Sections 4 and 5 of the Immoral Traffic (Prevention) Act, 1956 ("the Act" for short) challenges the order dated 9-2-2009 passed by the Chief Judicial Magistrate, Thiruvananthapuram, taking cognizance of the offences punishable under Sections 3 and 4 of the Act after assigning a number to the case as C.C. No. 268 of 2008 and issuing process against accused Nos. 1 and 2 . To avoid embarrassment for the parties concerned their real names have been disguised in this order.

2. Thecase of the prosecution can be summarised as follows:- On 27-6-2008 the Ist accused (A1 for short) who is a retired Rear Admiral by name Mr. X, aged 65 years and hailing from Central Kerala, called Miss. A, the 2nd accused (A2 for short) aged 21 years, hailing from Chirayinkeezhu into his rented premises, namely, Room No. 108 of the Government Guest House, Thycaud. At about 12.20 p.m. on that day A1 and A2 were found indulging in illicit sexual intercourse. On a tip off by the Administrator of the Guest House, the Circle Inspector of Police, Museum and his Police party consisting of women police constables proceeded to the Guest House and apprehended A1 and A2 after secretly peeping into Room No. 108 through the partly open window beside the balcony. Currency notes totalling to Rs. 10,000/- and two pornographic magazines were seized from beneath the pillow in the said room. Since A1 induced and took A2 for the sake of prostitution and since A2 indulged in the act of offering her body for sexual intercourse for hire, both the accused persons have committed offences punishable under Sections 4 and 5 of the Act.

3. On9-12-2008, the learned Chief Judicial Magistrate, Thiruvananthapuram took cognizance of offences punishable under Sections 3 and 4 of the Act and issued summons to both A1 and A2. Hence, this Revision.

4. I heard the learned counsel for the revision petitioner as well as the learned Public Prosecutor.

5. While the F.I.R. was registered for offences punishable under Sections 3 and 4 of the Act, the final report says that the accused persons committed offences punishable under Sections 4 and 5 of the Act. Cognizance has been taken by the Magistrate for offences punishable under Sections 3 and 4 of the Act.

6. Sec. 3 of the Act has absolutely no application because even according to the prosecution, Room No. 108 of the Government Guest House was used only once for sexual exploitation and if so, such a place cannot be called a brothel. (See Krishnamurthy v. Public Prosecutor – 1967 Crl.L.J. 544 S.C.). It is only if a person keeps a brothel or allows the premises under his control to be used as a brothel that he commits an offence under Sec. 3 of the Act. Sec. 2 (a) defines a "brothel" as follows:-

"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".

In the light of the interpretation placed by the Apex Court, the room in the Government Guest House will not answer the definition of "brothel" if it was used for sexual exploitation only once.

Sub sections 1 and 2 of Sec. 3 of the said Act reads as follows:-

"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