Criminal Miscellaneous Case Nos.2480 and 3685 of 2020 (A. Muhammed Shabeer v. State of Kerala; Sulthan Siddhique v. State of Kerala)

## **`IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT`** ``` THE HONOURABLE MR. JUSTICE P.V.KUNHIKRISHNAN ``` ``` MONDAY, THE 20[TH] DAY OF NOVEMBER 2023 / 29TH KARTHIKA, 1945 ``` ``` CRL.MC NO. 2480 OF 2020 ``` ``` CRIME NO.154/2011 OF HOSDURG POLICE STATION, KASARGOD AGAINST THE JUDGMENT IN CC 125/2019 OF JUDICIAL MAGISTRATE OF FIRST CLASS -I,HOSDURG ``` ## **`PETITIONER/ACCUSED NO.5:`** ``` A. MUHAMMED SHABEER @ SHABEER AGED 31 YEARS S/O.SHAFI.P.P., ACHILLATH HOUSE, NEAR KAKA BUS STAND, THAYKKADAPPURAM, NILESHWAR VILLAGE, HOSDURG TALUK, KASARAGOD DISTRICT. BY ADV A.ARUNKUMAR ``` ## **`RESPONDENT/COMPLAINANT/STATE:`** ``` 1STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM-682 031. 2THE STATION HOUSE OFFICER, HOSDURG POLICE STATION, (CRIME NO.154 OF 2011)., HOSDURG, HOSDURG TALUK-671 315. ``` ## **`OTHER PRESENT:`** ``` SRI.RENJITH.T.R, PUBLIC PROSECUTOR ``` ``` THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 20.11.2023, ALONG WITH Crl.MC.3685/2020, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: ``` Crl.M.C.Nos.2480 & 3685 of 2020 2 ## **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ``` THE HONOURABLE MR. JUSTICE P.V.KUNHIKRISHNAN MONDAY, THE 20[TH] DAY OF NOVEMBER 2023 / 29TH KARTHIKA, 1945 CRL.MC NO. 3685 OF 2020 ``` ``` CRIME NO.154/2011 OF HOSDURG POLICE STATION, KASARGOD AGAINST THE JUDGMENT IN CC 125/2019 OF JUDICIAL MAGISTRATE ``` ## **`OF FIRST CLASS -I,HOSDURG`** ## **`PETITIONER/ACCUSED:`** ``` SULTHAN SIDHIQUE AGED 29 YEARS S/O.ABOOBACKER SIDDHIQUE,PARAMBATTA, NADUVIL,THAYKKADAPPURAM,NILESHWAR VILLAGE,HOSDURG TALUK,KASARAGOD DISTRICT. ``` ``` BY ADV A.ARUNKUMAR ``` ## **`RESPONDENTS/COMPLAINANT/STATE:`** ``` 1STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR,HIGH COURT OF KERALA,ERNAKULAM-682031. ``` - `2 THE STATION HOUSE OFFICER, HOSDURG POLICE STATION(CRIME NO.154 OF 2011),HOSDURG, HOSDURG TALUK-671315.` ``` SRI HRITHWIK C.S. PUBLIC PROSECUTOR ``` ``` THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 20.11.2023, ALONG WITH Crl.MC.2480/2020, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: ``` Crl.M.C.Nos.2480 & 3685 of 2020 3 ## **P.V.KUNHIKRISHNAN, J** **--------------------------------** Crl.M.C. Nos.2480 & 3685 of 2020 **------------------------------Dated this the 20[th] day of November, 2023 COMMON ORDER** These Criminal Miscellaneous Cases are filed under Section 482 of the Code of Criminal Procedure, 1973 (“the Code” for the sake of brevity). These two Crl.M.Cs are connected and therefore I am disposing of these cases by a common order. 2. The petitioners are the accused in C.C. No.125/2019 on the files of the Judicial First Class Magistrate-I, Hosdurg arising from Crime No.154/2011 of Hosdurg Police Station. The above case is chargesheeted against the petitioners and others alleging offences punishable under Sections 5,6 and 8(b) of Immoral Traffic (Prevention) Act. It is submitted that the second accused, 4 Crl.M.C.Nos.2480 & 3685 of 2020 who is a co-accused has already acquitted as evident by Annexure AIII judgment produced in these Crl.M.Cs. In the light of the above judgment, the continuation of the proceedings against the petitioners is an abuse of process of court is the submission. 3. Heard counsel for the petitioners and the Public Prosecutor. The counsel for the petitioner submitted that the co-accused were already acquitted by the trial court and the continuation of the trial against the petitioners will be an abuse of process of court because the substratum of the prosecution case is shattered. The Public Prosecutor submitted that the petitioner has to face trial before the lower court and this court may not invoke the powers under Section 482 of the Code. 4. This Court in **Moosa v. Sub Inspector of Police (2006 (1) KLT 552), Abbas T.K. v. State of Kerala (2013 KHC 336)** and in **Ashraf Kancheriyil v. State of** Crl.M.C.Nos.2480 & 3685 of 2020 5 **Kerala (2011(2) KHC 812)** considered the powers of this court to invoke Section 482 of the Code to quash the proceedings based on the acquittal of co-accused. The dictum laid down by this court in the above judgment is that, if substratum of prosecution case is shattered by the judgment of acquittal of the co-accused that could be taken into account while considering the request to quash the proceedings. After going through the judgment of the trial court, I am of the considered opinion that the continuation of the prosecution against the petitioners will be an abuse of process of court. It will be beneficial to extract the relevant portion of the judgment by which the co-accused is acquitted: “19. The learned counsel for accused person seriously disputed the prosecution case for want of notification prescribing the area of jurisdiction and notification regarding special officer as mandated in I.T.P act. It is submitted that no women independent witness as mandated u/s 15 of I.T.P act were made as witnesses to the search. Further more, accused persons have not been examined by registered medical practitioners also, therefore no offences Crl.M.C.Nos.2480 & 3685 of 2020 6 under any of the provision of I.T.P act will attract in this case. 20. Learned Assistant Public Prosecutor has no explanation about the absence of mandatory compliance of provisions contained in I.T.P act while making search. Admittedly prosecution has not attempted to take judicial notice of any notification prescribing the area of jurisdiction in which, place of occurrence is situated. She also unable to produce notification appointing PWI as special officer. In the absence of the same, it can only be come to a conclusion that search itself is illegal. Hon'ble High Court in **Radhakrishna V.State of Kerala** reported in 2008(2) KLT 521 held that Sec.7(1) and Sec.7(3) Cl(a) Sec. 7(1) are attracted only if any person' **carries on prostitution** ' within an area notified by state government in official gazette. It is true that sec. 15 I.T.P Act provides that search can be conducted without warrant the special officer has reasonable grounds for believing that an offence punishable under this act has been or is being committed in respect of any person. But, the section 15 (2) provide further as follows: ``` Before making a search under sub section(1), the special police officer (or the trafficking police officer, as the case may be), shall call upon two or more respectable inhabitants ( at least one of whom shall be a woman )of the locality in which the place to be searched is situate, to attend and witness the search, and may issue an order in writing to them or any of them so to do ``` ``` (Provided further that the requirement as to the respectable inhabitants being from the locality in which the place to be searched is situate shall not apply to a woman required to attend and witness the search.) ``` 21. Admittedly no woman witnesses put signature in the search list. Detecting officer flouted this provision also while Crl.M.C.Nos.2480 & 3685 of 2020 7 conducting search. Therefore apart from the aforesaid infirmities, search is vitiated by this illegality also. On the other hand, PW10 the eye witness to the search, did not support the prosecution case.” (sic) From the above, it is clear that the substratum of the prosecution case is shattered by the judgment delivered by the lower court, while acquitting the co-accused. Therefore, this court is of the view that the continuation of the prosecution will be an abuse of process of court and it will be a judicial waste of time. Therefore, this Crl.M.C can be allowed. Hence this Criminal Miscellaneous Cases are allowed. All further proceedings against the petitioners in these cases pending as C.C. No.125/2019 on the files of the Judicial First Class Magistrate Court-I, Hosdurg arising from Crime No.154/2011 of Hosdurg Police Station , are quashed. Sd/- ## **P.V.KUNHIKRISHNAN, JUDGE** rmm/20/11/2023 Crl.M.C.Nos.2480 & 3685 of 2020 8 ## **`APPENDIX OF CRL.MC 3685/2020`** ``` PETITIONER ANNEXURES ANNEXURE AIA TRUE COPY OF THE FIR IN CRIME NO.154 OF 2011 OF HOSDURG POLICE STATION,KASARAGOD. ANNEXURE AIIA TRUE THE FINAL REPORT IN CRIME NO.154 OF 2011 OF HOSDURG POLICE STATION,KASARAGOD. ANNEXURE AIIIA TRUE COPY OF THE JUDGMENT DATED 31.01.2019 IN C.C.NO.776 OF 2011 OF JUDICIAL FIRST CLASS MAGISTRATE- I,HOSDURG. ``` Crl.M.C.Nos.2480 & 3685 of 2020 9 ## **`APPENDIX OF CRL.MC 2480/2020`** ``` PETITIONER ANNEXURES ANNEXURE A1A TRUE COPY OF THE FIR IN CRIME NO.154 OF 2011 OF HOSDURG POLICE STATION, KASARAGOD. ANNEXURE AIIA TRUE COPY OF THE FINAL REPORT IN CRIME NO.154 OF 2011 OF HOSDURG POLICE STATION, KASARAGOD. ANNEXURE AIIIA TRUE COPY OF THE JUDGMENT DATED 31.01.2019 IN CC NO.776 OF 2011 OF JUDICIAL FIRST CLASS MAGISTRATE-I, HOSDURG. ```