IN THE HIGH COURT OF KERALA AT ERNAKULAM
Bail Appl No. 656 of 2008()
1. SAMEER @ BAVA, S/O.YOOSAF,
... Petitioner
2. SHIHAB, S/O.HAMZA, CHANDRAKUZHIYIL
Vs
1. THE STATE OF KERALA, REPRESENTED
... Respondent
For Petitioner :SRI.BABU S. NAIR
For Respondent :PUBLIC PROSECUTOR
The Hon'ble MR. Justice R.BASANT
Dated :04/02/2008
O R D E R
R.BASANT, J
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B.A.No.656 of 2008
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Dated this the 4th day of February, 2008
ORDER
Application for anticipatory bail. Petitioners are accused 5
and 6. When the defacto complainant/informant/Circle Inspector
inspected a premises on 08.01.08, the petitioners herein were
allegedly seen engaged in the activity of running a brothel.
Accused 1 to 4 are women who were allegedly employed by the
petitioners as sex workers in such brothel. The premises have
been taken on lease by the 5th accused. Petitioners who were
available at the scene had allegedly taken to their heels on seeing
the detecting police party. Accused 1 to 4 were arrested and
enlarged on bail. Investigation is in progress. The petitioners
apprehend imminent arrest.
2. The learned counsel for the petitioners submits that
the allegations are totally incorrect and unsustainable. Even
assuming the allegations to be correct, the detection and the
consequent proceedings are without any authority as the
detecting officer, a Sub Inspector, is not notified under the
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relevant provisions of the Immoral Traffic Preventiuon Act and he
is hence not competent to conduct such a raid/search, it is
submitted.
3. The learned Public Prosecutor opposes the application. The learned Public Prosecutor submits that the
argument is built on a wrong and factually incorrect premise.
The detecting Officer is not a Sub Inspector of Police, but is a
Circle Inspector of Police, who, as per the notification, is legally
competent to conduct search/raid of the premises while taking
action under the Immoral Traffic (Prevention) Act.
4. I have considered all the relevant inputs. The learned
Public Prosecutor confirms from the case diary and the F.I.R
that the detecting officer was not a S.I, but was a C.I of the area
concerned. In these circumstances, I do not find any merit in
that contention regarding the competence of the detecting officer
who detected the crime.
5. Though it is contended that there is no worthwhile and
sustainable allegations against accused 5 and 6, I take note of
the submission of the learned Public Prosecutor that accused 5
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had taken the building on lease as per a written agreement and
that accused 5 and 6, who were present at the scene and were
actually running the illegal activity, had taken to their heels when
the detecting officer reached the scene. I am, in any view of the
matter, not satisfied that there are any features which can justify
or warrant the invocation of the extraordinary equitable
discretion under Section 438 Cr.P.C. This, I agree with the
learned Public Prosecutor, is a fit case where the petitioners
must appear before the Investigating Officer or the learned
Magistrate having jurisdiction and then seek regular bail.
6. This application is, in these circumstances, dismissed,
but I may hasten to observe that if the petitioners surrender
before the Investigating Officer or the learned Magistrate and
apply for bail after giving sufficient prior notice to the Prosecutor
in charge of the case, the learned Magistrate must proceed to
pass appropriate orders on merits and expeditiously.
(R.BASANT, JUDGE)
rtr/-
B.A.No.656 of 2008 4