O RDER

This Criminal Original Petition is filed under Section 482 of Cr.P.C. seeking for quashment of C.C.No.540 of 2021 pending on the file of the learned Judicial Magistrate No.II, Madurai.

2. The facts and brief as per the records would go to show that, on 16.09.2019, when the respondent Police has searched the Cosmopolitan Hotel situated near the Madurai Railway Station, they found that the petitioner along with the sex workers committed immoral trafficking activities. The respondent Police seized a sum of Rs.57,200/-, cell phones and swiping machine from the accused, basing on which, a case has been registered in Crime No.731 of 2019 and the respondent Police have filed a charge sheet in C.C.No.540 of 2021 on the file of learned Judicial Magistrate No.II, Madurai, against the petitioners and others, which has taken cognizance for the offence under Sections 3 (1), 4(1), 4 (2) (a), 4(2) (c), 5(1) (a) and 5(1) (c) of the Immoral Traffic (Prevention) Act, 1956.

3. Learned counsel for the petitioner submits that the petitioner is an innocent and in order to perform the marriage of his brother on 08.12.2019, he was looking for accommodation in various hotel and he came to that Cosmopolitan Hotel and enquired with the hotel management, at that time, the respondent Police have searched the hotel and a case has been registered against him alleging that he has committed immoral trafficking activities. It is further submitted that he has no nexus with the offence alleged against other accused. 4. Learned Additional Public Prosecutor for the State supporting the charge sheet filed by the respondent Police.

5. Section 3 (1) of the Immoral Traffic (Prevention) Act, 1956, (hereinafter referred as “the above said Act”) deals with the punishment for keeping a brothel or allowing the premises to be used as a brothel. Section 4 (1) of the above said Act deals with the punishment for living on the earnings of the prostitution. Section 4 (2) (a) of the above said Act deals with the punishment, in case, if a person, who is aged 18 years is living with or a habitually in the company of a prostitute. Section 4 (2) (c) of the above said Act speaks about a punishment to be acting as a tout or pimp. Section 5 (1) (a) of the above said Act speaks about whoever procures or attempts a person with or without a consent for the purpose of prostitution. Section 5 (1) (d)

speaks about the punishment knowing for the person whom induces the person to carry prostitution.

6. In the case on hand, according to the prosecution version, on 16.09.2019, the petitioner was found along with a prostitute in Room Nos.234 and 235 at a Cosmopolitan Hotel near Madurai Railway Station. It is not the case of the petitioner that he is running a brothel house or he has been living in the brothel house. There is no allegation against him that he has procured or attempted to procuring the persons for the sake of prostitution. According to the prosecution version, the petitioner is a customer. It is the settled legal position that the customer cannot be prosecuted for any of the offence under Sections 3 (1), 4(1), 4 (2) (a), 4(2) (c), 5(1) (a) and 5(1) (c) of the Immoral Traffic (Prevention) Act, 1956. As there is no provision under the Immoral Traffic (Prevention) Act, punishing the customer, on this ground, therefore, that a case registered against the petitioner whom stated to be committed will not sustain.

7. According to the prosecution version, the Inspector of Police, Madurai, has received the information about the prostitution being done in the Cosmopolitan Hotel. The Police without obtaining permission from the learned Judicial Magistrate No.II, Madurai, has conducted search at 12.40 P.M at the Cosmopolitan Hotel. As per Section 15 of the above said Act, the Special Police Officer alone empowered to take up the search. It is also required to take two respectable persons along with him. In the case on hand, the Special Sub Inspector of Police is also required to take two wome