Important points:
" Section 5(1)(b) of the Act would be attracted only if the prosecution has a case that the accused induced 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 brothel. There is no such allegation made against the petitioner.
" It is only if a person keeps or manages a brothel or acts or assists in the keeping or management of a brothel that he commits an offence under Section 3(1) of the Act.
" When the police conducted a raid in a home stay, two ladies and some men were found in a room. Accused 1 and 2 in that case were conducting the home stay. The case was registered against them under Sections 3, 4(1), 5 and 7 of the Act. This court found that even if the allegation against the accused is taken at its face value, it cannot be found that they had committed any of the aforesaid offences and quashed the first information report by invoking the power under Section 482 of the Code.

1. The petitioner is the first accused in the case C.C. No. 1381 of 2014 on the file of the Court of the Judicial First Class Magistrate-1, Attingal. He is accused of committing the offences punishable under Sections 3(1) and 5(1)(b) of the Immoral Traffic (Prevention) Act, 1956 (hereinafter referred to as the Act).

2. On 12.10.2013, the Inspector of Police, Attingal got information that the petitioner and another man and two women had reached house No. V/1252 of Kizhuvilam Panchayat for prostitution. The Inspector prepared memorandum to search the aforesaid house and sent it to the court concerned. Thereafter, he reached that house at about 13.45 hours and conducted search of the house. He saw accused 2 to 4 in a bedroom, making preparation to conduct prostitution. He arrested them and registered Crime No. 1145 of 2013 of Attingal police station in the matter. After completing the investigation of the case, Annexure-B final report was filed against the petitioner and accused 2 to 4 for the offences punishable under Sections 3(1) and 5(1)(b) of the Act.

3. The charge against the petitioner is that he had taken on rent house No. V/1252 of Kizhuvilam Panchayat and that he used that house as a brothel. The Judicial First Class Magistrate-1, Attingal has taken cognizance of the aforesaid offences and the case is pending in that court as C.C. No. 1381 of 2014. The petitioner seeks to quash the proceedings against him in the case by invoking the power of this Court under Section 482 of the Code of Criminal Procedure, 1973 (hereinafter referred to as the Code).

4. Heard learned counsel for the petitioner and the learned Public Prosecutor.

5. One of the main contentions urged by the learned counsel for the petitioner is that the police officer who conducted the search of the house had failed to comply with the mandatory requirement under Section 15(2) of the Act. Learned counsel has submitted that there was no woman present as a witness to the search as required under Section 15(2) of the Act. Learned counsel would contend that the requirement under Section 15(2) of the Act is mandatory and non-compliance with that provision would vitiate the entire proceedings.

6. Section 15(2) of the Act reads as follows:

“(2) Before making a search under sub-section (1), the special police officer or the trafficking police officer, as the case may be shall call upon two or more respectable inhabitants (at least one of whom shall be a woman) of the locality in which the place to be searched is situate, to attend and witness the search, and may issue an order in writing to them or any of them so to do.”

7. In the instant case, when the police officer conducted search of the house, he had not called upon any woman to attend and witness the search. No woman was present as a witness at the time of the search. Therefore, there was noncompliance with the requirement under Section 15(2) of the Act.

8. In Bai Radha vs. State of Gujarat, AIR 1970 SC 1396, the Apex Court has considered the requirement under Section 15(2) of the Act and held as follows:

“The principles which have been settled with regard to the effect of an irregular search made in exercise of the powers under Section 165 of the Code of Criminal Procedure would be fully applicable even to a case under the Act where the search has not been made in strict compliance with its provisions. It is significant that there is no provision in the Act according to which any search carried out in contravention of Section 15 would render the trial illegal. In the absence of such a provision we must apply the law which has been laid down with regard to searches made under the provisions of the Criminal Procedure Code.”

The Apex Court proceeded to hold as follows:

“The investigating agencies cannot and ought not to show complete disregard of such provisions as are contained in sub-sections (1) and (2) of Section 15 of the Act. The legislature in its wisdom provided special safeguards owing to the nature of the pr