Kerala High Court
Sinu Sainudheen vs Sub Inspector Of Police on 12 February, 2002
Equivalent citations: 2002CRILJ3205
ORDER G. Sasidharan, J.
1. This petition is filed by accused numbers 4 and 5 in Crime No. 312 of 2001 of Thrikkakkara Police Station registered under Sections 3, 4(1) and 5 of the Immoral Traffic (Prevention) Act, 1956 (hereinafter referred to as "the Act"). The Sub Inspector of Police, Thrikkakkara conducted a raid in the house of the first accused where the petitioners were also present and alleging that they were conducting prosecution, arrested them. Crime was registered by the Sub Inspector of Police, Thrikkakkara.
2. The learned Public Prosecutor submits that before conducting raid in the house of the first accused, the Sub Inspector of Police, Thrikkakkara informed the Assistant Commissioner of Police, Thrikkakkara about the information he got that prostitution was going on in the house of the first accused. The Sub Inspector of Police, Thrikkakkara sent a letter to the Assistant Commissioner of Police for giving sanction for raiding the house of the first accused and according to the learned Public Prosecutor, sanction was given by the Assistant Commissioner of Police, Thrikkakkara. It was after getting sanction from the Assistant Commissioner, who as per the notification issued by the Government of Kerala is a Special Police Officer under the Act, the Sub Inspector of Police and the party, which included two women Police Constables went to the house of the first accused and conducted raid in that house.
3. At the time when the Police party reached the house of the first accused, accused No. 2 who is the wife of the first accused and the second petitioner were sitting in the dining hall in the house and from them the Sub Inspector of Police got information that the first petitioner (4th accused) and the third accused were in the first floor of the building. Then the Sub Inspector of Police went to the first floor and found that the first petitioner and the 3rd accused were in a room locked from inside. It is stated that accused 1 and 6 were seen in another room. All the accused were arrested from there and they were taken to the Police Station.
4. According to the petitioners, the statement in the First Information Report will not disclose the commission of offences under Sections 3, 4(1) and 5 of the Act. It is also stated that the arrest of the petitioners and the other accused and search of the house were not properly conducted by the Sub Inspector of Police, Thrikkakkara. It is maintained that the search of the house and also the arrest were not done as provided in the Act.
5. Section 14 of the Act says that notwithstanding anything contained in the Code of Criminal Procedure, any offence punishable under the Act shall be deemed to be a cognizable offence within the meaning of that Code. The proviso to the above Section says that notwithstanding anything contained in the Criminal Procedure Code, arrest without warrants may be made only by the special police officer or under his direction or guidance or subject to his prior approval. The second proviso to the Section enjoins that when the Special Police Officer requires any Officer subordinate to him to arrest without warrant otherwise then in his presence any person for an offence under the 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.
6. Here what is said is that before conducting the raid of the house of the first accused, the Sub Inspector of Police, Thrikkakkara sought permission of the Assistant Commissioner of Police, Thrikkakkara for conducting raid. The submission made by the learned Public Prosecutor is that the order made by the Assistant Commissioner of Police in the written request made by the Sub Inspector of Police was that sanction was given to the Sub Inspector of Police for taking suitable legal action after raiding the premises.
7. What is said in the second proviso to Section 14 is that for the purpose of arresting any person, an order in writhing specifying the person to be arrested has to be given to the subordinate officer by the special police officer. Such an order in writing can be given by the special police officer specifying the person to be arrested only after seeing that a particular person has committed an offence. There is also provision in the proviso which says that in the order in writing given by the special police officer the offence for which the arrest is being made also has to be mentioned. That also would indicate that the special police officer can give an order in writing to a subordinate officer for arresting a person only after he is being convinced that there are reasons to believe that a particular person has committed an offence. Here the sanction govern by the Assistant Commissioner of Police who is the special police officer cannot at all be said to be a sanction given for effecting arrest by a subordinate officer as is said in the second proviso to Section 14 since the sanction order was made even before the raiding of the house of the first accused. For the reason it cannot be said that there was sufficient authorisation given by the special police officer to the Sub Inspector of Police for effecting arrest as mentioned in Section 14 of the Act.
8. Section 15 of the Act is the provision which deals with search without warrant. The above Section says that notwithstanding anything contained in any other law for the time being in force, whenever the special police officer or the trafficking police officer, as the case may be, has reasonable grounds for believing that an offence punishable under the Act has been or is being committed in respect of a person living in any premises and that search of the premises with warrant cannot be made without undue delay, the special police officer may after recording the grounds of his belief enter and search such premises without a warrant. There is no provision which says that the special police officer or the trafficking police officer can authorise any of the subordinate officers for conducting search without warrant.
9. Section 15(2) envisages that before making a search under Sub-section (1), the special police officer or the trafficking police officer shall call upon two or more respectable inhabitants (at least one of whom shall be a woman) of the locality in which the place is to be searched is situate, to attend and witness the search. Section 15(6A) of the Act says that special police officer or the trafficking police officer as the case may e, making a search under this section shall be accompanied by at least two women police officers. It is pointed out that there were two women Police Officers in the police party which raided the house. Coming go Sub-section (2) of Section 5, the submission made by the learned counsel appearing for the petitioners is that at the time of conducting the search there was no respectable woman inhabitant of the locality where the house in which the search was conducted is situated. It is not in dispute that there was no woman inhabitant of the locality present at the time of search to attend and witness the search. It is maintained by the learned counsel for the petitioners that the requirement under Sub-section 2 of Section 14 is mandatory.
10. In T. Jacob v. State of Kerala (AIR 1971 Ker. 166), this Court had occasion to consider the question whether the requirement in Section 15(2) of the Act is mandatory. In paragraph 7 of the judgment, this Court said that the provision which requires that at least one woman has to be there to witness the search is a mandatory provision. In Public Prosecutor, Andhra Pradesh v. Uttaravalli Nageswararao (1965 (1) Crl. L.J. 543) the High Court of Andhra Pradesh considered the question whether the requirement in Sub-section (2) of Section 15 of the Act that at least a woman has to be there for attending and witnessing the search is mandatory. In paragraph 6 of the judgment, the Court said that all the directions contained in Sub-section (2) of Section 15 are mandatory. The same question was consideration Laxmi Maruthi Yelkeri and Ors. v. State (1980 Crl. L.J. 28). Relying on the decision in AIR 1971 Ker. 116 (supra) it was stated in the above decision that the provision that at least one of the witnesses should be a female from the locality is a mandatory provision and the failure to comply with the essential requirement vitiates the entire proceedings. In Bai Radha v. State of Gujarat (AIR 1970 SC 1396) the Supreme Court had the occasion to consider the effect of non-compliance of the requirement under Section 15(2) of the Suppression of Immoral Traffic in Women and Girls Act, 1956. The Act was having the short title 'The Suppression of Immoral Traffic in Women and Girls Act' till 26.1.1987 and the title was changed from that day as "The Immoral Traffic (Prevention) Act'. In the above case, the Supreme Court said that investigating agencies cannot and ought not to show complete disregard of the provisions contained in Sub-section (1) and (2) of Section 15 of the Act and that the legislature in its wisdom provided special safeguards owning to the nature of the premises which have to be searched involving in roads on the privacy of citizens and handling of delicate situations in respect of females. The Supreme Court proceeded on to observe that the entire proceeding and the trial do not become illegal and vitiated owing to the non-observance of or non-compliance with the directions contained in the aforesaid provisions. So, it is not correct to say that the proceedings have to be quashed for the reason that the requirement under Section 15(2) has not been complied at the time of search.
11. The Sub Inspector of Police is not an Officer competent to conduct search under Section 15 of the Act because the Section specifically provides that the special police officer or the trafficking police officer is to conduct search. Illegality in conducting search and arrest can be ground for quashing the proceedings, if it is found that search and arrest were done by the officer not in accordance with the provisions of law and the possibility of the case ending in a conviction is not there. If the proceedings are allowed to go on even after it is found that the search and arrest were not conducted on observing the mandatory provision of law, that will be an abuse of process of court. Under Section 482 of the Criminal Procedure Code, the Court will be justified in quashing the proceedings to prevent the abuse of process of court or otherwise to secure the ends of justice. In Roy v. State of Kerala (2001 (1) KLT 86 (SC)), the Supreme Court considered what would be the effect of search and arrest which are per se illegal. That was a case in which it was found by the Supreme Court that the search and arrest made under the provisions of the Narcotic Drugs and Psychotropic Substances Act were not in accordance with the provisions of the Act. Here also search as well as the arrest made by the Sub Inspector of Police, Thrikkakkara are per se found to be illegal. In the decision of the Supreme Court, it is observed that the power under Section 482 of the Criminal Procedure Code has to be exercised by the High Court to prevent abuse of process of Court or otherwise to secure the ends of justice. The further observation made by the Supreme Court is that where criminal proceedings are initiated based in illicit material collected on search and arrest which are pere se illegal and vitiate not only a conviction ad sentence based on such material, but also the trial itself, the proceedings cannot be allowed to go on as it cannot but amount to abuse of process of court. In this case, it is seen that search conducted and arrest made are illegal and if the proceedings are not quashed and are allowed to continue that would certainly perpetuate abuse of process of court resulting in injustice to the persons who are alleged to have committed the offence. Hence I find that there is sufficient ground for quashing the First Information Report, Annexure I and further proceedings.
This Criminal Miscellaneous Case is allowed on quashing the First Information Report and all further proceedings.