IN THE HIGH COURT OF KERALA AT ERNAKULAM
Crl MC No. 3222 of 2004(C)
1. MINI, D/O.LATE SOLOMON, AGED 28 YEARS,
... Petitioner
Vs
1. THE SUB INSPECTOR OF POLICE,
... Respondent
2. THE STATE OF KERALA, REP. BY THE
For Petitioner :SRI.C.K.PAVITHRAN
For Respondent :PUBLIC PROSECUTOR
The Hon'ble MR. Justice R.BASANT
Dated :22/02/2007
O R D E R
R.BASANT, J
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Crl.M.C.No.3222 of 2004
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Dated this the 22nd day of February, 2007
ORDER
The petitioner, a woman, faces prosecution as the 2nd accused
for offences under Sections 3 and 4 of the Immoral Traffic
(Prevention) Act, 1956. Cognizance has been taken by the learned
Magistrate on the basis of a final report submitted by the police. The
petitioner, it is submitted, has already entered appearance before the
learned Magistrate. She has come to this Court with this petition
under Section 482 Cr.P.C with a prayer that the prosecution against
her may be quashed invoking the powers under Section 482 Cr.P.C.
2. The crux of the allegations against the petitioner is that
she along with the 1st accused were found engaged in prostitution on
07.01.2003 at 8.20 p.m in a room taken on rent by the 1st accused in
Kollam Lal Bahadur Stadium Complex, where the 1st accused runs
M/s.Raja Finance.
3. It is the case of the prosecution that the Sub Inspector of
Police, Kollam East Police Station received information about the
commission of the offence at the scene of the crime. He allegedly
informed the Deputy Superintendent of Police. The said Deputy
Superintendent of Police allegedly authorised the Sub Inspector of
Police in writing to take the necessary further steps and the Sub
Crl.M.C.No.3222 of 2004 2
Inspector of Police along with police party and witnesses went to the
room in question where police party allegedly found the accused
persons indulging in the commission of the alleged offences. Search
was conducted by the Sub Inspector of Police. The accused persons
were arrested. Investigation was conducted and it is thereafter that
the final report was filed by the Sub Inspector of Police, Kollam East
Police Station.
4. The learned counsel for the petitioner submits that the
proceedings are liable to be quashed and continuation of the
proceedings will amount to abuse of processes of the court. The
counsel relies on two decisions of this Court in Sinu Sainudheen v.
Sub Inspector of Police [[2002(10 KLT 693] and Joseph v. S.I of
Police [2003(3) KLT 718].
5. The contention s are based on Sections 13, 14 and 15 of
the Immoral Traffic (Prevention) Act. The Sub Inspector of Police is
not a special police officer. The law as it stood on the relevant date is
that only a Deputy Superintendent of Police can function as a special
police officer. In as much as the Sub Inspector of Police was not a
special police officer, he cannot deal with the offences punishable
under the Immoral Traffic (Prevention) Act. The counsel particularly
relies on Section 13(1) of the Immoral Traffic (Prevention) Act, 1956,
which reads as follows:
“Section 13(1): Special police officer and advisory
body – (1) There shall be for each area to be specified by
Crl.M.C.No.3222 of 2004 3
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.
(emphasis supplied)
To “deal with the offences” which include search, arrest and all steps
in investigation, the officer has to be appointed as the special police
officer and in as much as the Sub Inspector of Police has not been so
appointed, the prosecution is bad, contends the learned counsel for
the petitioner.
6. It is further submitted that under Section 14 of the Act,
the special police officer can authorise and direct arrest by the
subordinate officers only after the offender is identified. That
provision in Section 14 cannot authorise the special police officer to
abdicate his powers in favour of his subordinate officer.
7. The learned counsel for the petitioner submits that under
Section 15 of the Act, the search can be conducted only by a special
police officer or a Trafficking Police officer and the Sub Inspector of
Police, who allegedly conducted the raid, arrest, investigation and the
filing of final report, is admittedly not a special police officer or a
trafficking police officer.
8. The learned Public Prosecutor does not make any attempt
to contend that the Sub Inspector of Police has the requisite legal
authority to conduct the raid/search or conduct the investigation or
file the final report.
Crl.M.C.No.3222 of 2004 4
9. Following the decisions in Joseph and Sinu Sainudheen,
it follows that the prosecution against the petitioner is liable to be
quashed.
10. In the result, this Crl.M.C is allowed. C.C.122 of 2003
pending before the Chief Judicial Magistrate, Kollam in so far as it
relates to the petitioner is hereby quashed.
(R.BASANT, JUDGE)
rtr/-