Kerala High Court
Abdul Salam vs State Of Kerala on 5 March, 2019
Author: V Raja Vijayaraghavan
Bench: V Raja Vijayaraghavan
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE RAJA VIJAYARAGHAVAN V
TUESDAY, THE 05TH DAY OF MARCH 2019 / 14TH PHALGUNA, 1940
Crl.MC.No. 5859 of 2016
IN CC 398/2016 OF JUDICIAL MAGISTRATE OF FIRST CLASS -II,
PEERUMEDU
CRIME NO. 86/2016 OF KUMILY POLICE STATION, IDUKKI
PETITIONERS/ACCUSED:
1 ABDUL SALAM, AGED 62 YEARS,
S/O. MUHAMMED SHAREEF, OTTAPLAKKAL VEEDU,
PERUVANTHANAM VILLAGE, IDUKKI DISTRICT.
2 ANIL KUMAR, AGED 57 YEARS,
S/O.MOHANAN, PARAKETTIL VEEDU, KUTTUCHANTHA,
PEROOR KARA, VELLALLOOR VILLAGE,
THIRUVANANTHAPURAM DISTRICT.
3 THAHA, AGED 45 YEARS,
S/O.MUHAMMED KUNJU, K.K.HOUSE, KUTTUCHANTHA,
PEROOR KARA, VELLALLOOR VILLAGE,
THIRUVANANTHAPURAM DISTRICT.
4 ABDUL KALAM, AGED 45 YEARS,
S/O.IBRAHIM, SHIJIN MANZIL,
MANANAKKU, PERUMKUNNAM KARA,
KEEZHATTINGAL VILLAGE,
THIRUVANANTHAPURAM DISTRICT.
5 ABDUL GAFOOR, AGED 32 YEARS,
S/O.MUHAMMED MUSTHAFA,
RAHMATH MANZIL, THALAVILA MUKKU,
PEROOR KARA, KARAVARAM VILLAGE,
THIRUVANANTHAPURM DISTRICT.
6 THOMAS KURIAN, AGED 59 YEARS
S/O.KURIAN, IDIYATTU VEEDU(KOTTARM ROSE),
KUTTIKKANAM KARA, PEERUMEDU VILLAGE,
IDUKKI DISTRICT.
BY ADVS.SRI.K.SIJU
SMT.S.SEETHA
SRI.S.ABHILASH
Crl.MC.No. 5859 of 2016
2
RESPONDENT/DE FACTO COMPLAINANT & STATE:
STATE OF KERALA,
THROUGH THE INSPECTOR OF POLICE,
KUMALI POLICE STATION, REPRESENTED BY THE PUBLIC
PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM.
BY SR. PUBLIC PROSECUTOR SRI. M. S. BREEZ
THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON
05.03.2019, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:
Crl.MC.No. 5859 of 2016
3
ORDER
This petition is filed under Section 482 of the Cr.P.C.
2. The petitioners herein are the accused in C.C. No. 398/2016 on the file of Judicial First Class Magistrate Court-II, Peermade. In the aforesaid case, they face indictment under Sections 3, 4(2)(c), 5 and 7 of the Immoral Traffic (Prevention) Act, 1956 (hereinafter referred to as 'the Act' for short).
3. The case of the prosecution as borne out from the final report can be succinctly stated as follows:
The 1st accused was running a lodge by name "Eco-Inn" at Kumaly. Based on a source information, the Additional Sub Inspector of Police, Kumaly conducted a search in the resort on 01.02.2016 at 8.45 p.m. Accused Nos.2 to 5 were found engaged in prostitution and a lady, who is arrayed as the 6th accused, was found with them. They were arrested and Crime No. 86/2016 was registered at the Kumaly Police Station. Investigation was initially conducted by the detecting officer himself and later it was made over to the Inspector of Police, Kumaly, who submitted the final report before the jurisdictional court. Crl.MC.No. 5859 of 2016 4
4. The short ground on which the proceedings are sought to be quashed by the petitioners is the incompetence of the Additional Sub Inspector of Police. who detected the offence and conducted substantial part of the investigation.
5. I have heard the learned counsel appearing for the petitioners and the learned Public Prosecutor.
6. The learned counsel appearing for the petitioners would contend that the provisions of the Act are self contained and only the Special Police Officer empowered as per Section 13(1) is entitled to carry out the detection, arrest and investigation of a crime committed under the Act. It is further asserted that only the Circle Inspector of Police, Kumaly Police Station has the competence for dealing with the offence under the said Act in his respective area of jurisdiction. Relying on Joseph v. State of Kerala (2011 (3) KLT 292), Antony Vincent v. State of Kerala (2014 (3) KHC 542), and Raju C.P. v. State of Kerala and Another (2014 (2) KLD 95), it was persuasively argued by the learned counsel that this Court has taken a consistent stand that detection and investigation conducted by a person, who is not a Special Police Officer, within the local limits of the area where the offence was committed, would violate the spirit of Section 13 of the Crl.MC.No. 5859 of 2016 5 Act and if that be the case, the continuance of prosecution is nothing but an abuse of process of court.
7. It is also submitted by the learned counsel appearing for the petitioners that Sections 3 , 4, 5 and 7 of Act 44 of 1986 will not be attracted in the facts of the instant case. To substantiate the said contention, the learned counsel referred to Mr. X. Central Kerala v. State of Kerala (2009 (2) KHC 5) and Radhakrishnan v. State of Kerala (2008 (2) KHC 460). According to the learned counsel, the whole edifice of the prosecution case is therefore, shaky and it would not be in the interest of justice to permit the prosecution to continue.
8. The learned Public Prosecutor would oppose the prayer of the learned counsel for the petitioners and contend that though the case was detected by the Additional Sub Inspector, the final report was laid by a competent officer.
9. I have considered the rival submissions.
10. To understand the submissions advanced, a reference to the statutory provisions is necessary.
11. Section 13 of the Act deals with the appointment of a Crl.MC.No. 5859 of 2016 6 Special Police officer and an advisory body, which reads as follows:
"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.
(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 Crl.MC.No. 5859 of 2016 7 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."
12. In exercise of powers under Section 13 of Act 44 of 1986, the Government of Kerala had issued notification which was published as SRO.No.344/02 dated 24.04.2002, as per which only the Circle Inspector of Police, Kumaly Police Station is empowered to deal with offences under the Act within his jurisdiction. As per the explanatory note appended to the notification, it is further specified that the Special Officer shall not be below the rank of the Inspector of Police.
13. The meaning of the expression "dealing with offences"
appearing in Section 13 of the Act came up for consideration before the Apex Court in Delhi Administration v. Ram Singh (AIR 1962 SC
63). It was in respect of in pari materia provisions contained in the Suppression of Immoral Traffic in Women and Girls Act, 1956. It was held that the expression "dealing with offences" in Section 13(1) of Crl.MC.No. 5859 of 2016 8 Suppression of Immoral Traffic in Women and Girls Act will include any act which the police has to do in connection with the offences under the Act. What has to be understood in the light of what is said in the above decision is that the expression "dealing with offences under the Act" includes detection, registering of the crime and investigation of the crime. It was also held that a plain reading of Section 13 would go to show that the detection, registering and investigation of the crime are to be carried out exclusively by the Special Police Officer.
14. Section 14 provides that the offence under the Act is cognizable and provides for the powers of arrest and detection. It reads as follows "Section 14 - Offences to be cognizable Notwithstanding anything contained in1[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 Crl.MC.No. 5859 of 2016 9 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."
15. In other words, arrest without warrant is to be made only by the Special Police Officer or under his direction or guidance, or subject to his prior approval. In a particular case, 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 is expected to specifically authorise him by an order in writing specifying the person to be arrested and the offence for which the arrest is being made. The subordinate officer before arresting the person is mandatorily bound to inform him of the substance of the order and, on being required by such person, show him the order. In the case on hand, it was the Additional Sub Inspector of Police, who detected the offence, arrested the accused, registered the crime and conducted a lions share of the investigation. Though it is alleged that it was based on an authorisation given by the Special Police Officer, no material has been produced along with the final report to substantiate the said fact. This Court in Joseph v. State of Crl.MC.No. 5859 of 2016 10 Kerala [2011 (3) KLT 292], had occasion to hold that the investigation conducted by an Officer, who is not a Special Officer in terms of the provisions of law, cannot be sustained under law. It was held that the investigation conducted by an Officer other than the Special Police Officer will violate the provisions of the statute and the prosecution was quashed.
16. In Raju C.P. v. State of Kerala (2014 (2) KLD 95), it was held, basing on a catena of decisions that the provisions of the Immoral Traffic (Prevention) Act, 1956, is a complete code in itself and a non - empowered officer has no power to investigate or detect or prevent such acts in view of the mandate contained in Section 13 of the Act. It was held that the investigation conducted by a Sub Inspector of Police is invalid.
17. The Apex Court in State of Punjab v. Baldev Singh (AIR 1999 SC 2378), had observed as follows:-
"Indeed in every case, the end result is important but the means to achieve it must remain above board. The remedy cannot be worse than the disease itself. The legitimacy of the judicial process may come under a cloud if the Court is seen to condone acts of lawlessness conducted by the investigating agency during search operations and may also undermine respect for the law and may Crl.MC.No. 5859 of 2016 11 have the effect of unconscionably compromising the administration of justice. That cannot be permitted".
18. In view of the above fact, though the consideration of other allegations are unnecessary, after having gone through the prosecution materials, I am of the considered view that the offences under Sections 3, 4, 5 and 7 of the Immoral Traffic (Prevention) Act will also not be attracted against the petitioners.
19. Section 3 of the Act deals with the punishment for keeping a brothel or allowing premises to be used, as a brothel. Section 4 of the Act deals with the punishment for living on the earnings of prostitution and Section 5 deals with procuring, inducing or taking person for the sake of prostitution. Clause (a) of Section 7(1) is attracted only if any person "carries on prostitution" within an area notified by the State Government in the official Gazette under sub- section (3) of Section 7. Clause (b) of Section 7(1) is attracted if any person "carries on prostitution" in a premises within a distance of two hundred metres 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 that behalf either Commissioner of Police or by a District Magistrate in the manner prescribed. No such Crl.MC.No. 5859 of 2016 12 allegation is raised in the final report. Furthermore, in Radhakrishnan (supra), a learned Single Judge of this Court has considered various aspects under the Act, especially the expression 'carrying on prostitution' occurring in Section 7 of the Act. In the context of the definition of 'prostitution' in Section 2(f) of the Act, it has been held that only if plural and indiscriminate sexuality is proved, it could be said that a person is carrying on prostitution. This Court again in X v. State of Kerala (supra) held that the activity carried on in a given premise will amount to "prostitution" within the meaning of Section 2(f) of the Act only if sexual abuse or exploitation of a person is done for a commercial purpose.
20. In view of the above, I am unable to accept the case of the prosecution that the offences under Sections 3 , 4 and 5 of the Act will be attracted even going by the allegations in the materials relied on by the prosecution. Furthermore, the offence under Section 7 of the Act cannot be said to be made out. For the aforementioned reasons, the continuation of the proceedings against the petitioners would amount to a clear abuse of process.
Crl.MC.No. 5859 of 201613
In the result, this petition is allowed. Annexure-A3 final report and all further proceedings pursuant thereto against the petitioners now pending as C.C.No.398 of 2016 of the Judicial First Class Magistrate Court-II, Peermade are quashed.
Sd/-
RAJA VIJAYARAGHAVAN V., JUDGE avs Crl.MC.No. 5859 of 2016 14 APPENDIX PETITIONER'S/S EXHIBITS:
ANNEXURE 1 THE CERTIFIED COPY OF SEARCH LIST PREPARED BY THE ADDL.SUB INSPECTOR OF POLICE,KUMALI POLICE STATION DATED 1.2.2016 ANNEXURE 2 THE CERTIFIED COPY OF FIR WITH FIS IN CRIME NO.86/2016 OF KUMALI POLICE STATION ANNEXURE 3 THE CERTIFIED COPY OF FINAL REPORT IN CRIME NO.86/2016 OF KUMALI POLICE STATION DATED 6.4.2016.
RESPONDENT'S/S EXHIBITS:
NIL avs //TRUE COPY// P.A TO JUDGE