IN THE HIGH COURT OF KERALA AT ERNAKULAM
Crl.MC.No. 2370 of 2009()
1. PREMJITH, AGED 27 YEARS, S/O.SURENDRAN,
... Petitioner
2. SHYLA , AGED 40 YEARS, W/O.PREMJITH,
Vs
1. STATE OF KERALA,
... Respondent
For Petitioner :SRI.A.C.DEVY
For Respondent :PUBLIC PROSECUTOR
The Hon'ble MR. Justice M.SASIDHARAN NAMBIAR
Dated :27/07/2009
O R D E R
M.Sasidharan Nambiar, J.
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Crl.M.C.No.2370 of 2009
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ORDER
Petitioners are the accused in C.C.No.576/2006
on the file of Judicial First Class Magistrate’s
Court, Chalakudy. Prosecution case is that on
13.2.2006, the Additional Sub Inspector of Police,
Chalakudy Police Station, along with a Probationary
Sub Inspector and two women Constables, conducted a
search in Chungath Towers Lodge and found the
petitioners in Room No.203. Alleging that they were
engaged in prostitution, they were arrested and
Crime No.78/2006 of Chalakudy Police Station was
registered for offences under Sections 3, 4, 5 and
7 of Immoral Traffic (Prevention) Act, 1956
(hereinafter referred to as ‘the Act’). After
completing the investigation, Annexure-D final
report was submitted, based on which Judicial First
Class Magistrate, Chalakudy took cognizance of the
said offences.
CRMC 2370/09 2
2. This petition is filed under Section 482 of
Code of Criminal Procedure to quash the final
report and the proceedings taken by the Magistrate
contending that even if the allegations in the
final report are accepted, no offence is made out
and therefore, it is to be quashed. It is also
contended that the search and arrest were conducted
not by a Special Police Officer as provided under
the Act and therefore, based on the said search and
arrest, petitioners cannot be prosecuted and in
such circumstances, the case is to be quashed.
3. Learned counsel appearing for the petitioners
and learned Public prosecutor were heard.
4. Learned counsel appearing for the petitioners
argued that Additional Sub Inspector of Police is
not a Special Police Officer as provided under the
Act and as per G.O.(MS)No.56/2002/Home dated
24.4.2002, only the Circle Inspector of Police,
attached to the police station is a Special Police
Officer under Section 13(1) of the Act and in such
CRMC 2370/09 3
circumstances, proceedings initiated based on the
search and arrest conducted by Additional Sub
Inspector is not legal and on that reason alone,
the case is to be quashed. It is also argued that
even if the allegations in Annexure-D final report
are accepted, none of the offences alleged is
attracted and therefore, the case is to be quashed.
5. Learned Public Prosecutor did not dispute
the fact that there is no material to prove that
petitioners were engaged in prostitution, as this
was only the solitary incident.
6. It cannot be disputed that in view of G.O.
(MS)No.56/2002/Home dated 24.4.2002, Additional Sub
Inspector of Police, who conducted the search and
arrest of the petitioners, is not a Special Police
Officer as provided under the Act. The effect of a
search and arrest conducted by a Sub Inspector of
Police, who is not a Special Police Officer as
provided under the Act, was considered by this
Court in Sinu Sainudheen v. Sub Inspector of Police
CRMC 2370/09 4
(2002 (1) KLT 693). It was held that Sub Inspector
of Police is not competent to conduct the search or
arrest and when it is found that search and arrest
were conducted not in accordance with the
provisions of law and there is no possibility of
the case ending in conviction, the proceedings is
to be quashed. The decision squarely applies to the
facts of this case also.
6. Moreover, in order to attract an offence
under Section 3 of the Act, there should be an
allegation that petitioners have been keeping or
managing or assisting in keeping or management of a
brothel. There is, absolutely, no such case.
Similarly, to constitute an offence under Section
4, petitioners must be living wholly or partially
on the earnings by prostitution. Prosecution has
no such case also. Similarly, to attract an offence
under Section 7, there should be evidence of
prostitution. On the materials produced, there is
nothing to prove that petitioners were engaged in
CRMC 2370/09 5
prostitution. Hence, even if petitioners are to be
tried, there is no likelihood of a conviction. In
such circumstances, it is not, in the interest of
justice, to continue the proceedings.
Petition is allowed. C.C.No.576/2006 on the
file of Judicial First Class Magistrate’s Court,
Chalakudy as against the petitioners is quashed.
27th July, 2009 (M.Sasidharan Nambiar, Judge)
tkv