CRL.M.C. NO. 384 OF 2015 & 5684 OF 2021

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE K.HARIPAL WEDNESDAY, THE 2[ND] DAY OF MARCH 2022 / 11TH PHALGUNA, 1943 CRL.MC NO. 384 OF 2015** **CC 115/2015 OF JUDICIAL FIRST CLASS MAGISTRATE COURT - I,** **PERINTHALMANNA** **CRIME NO. 1847/2013 OF PERINTHALMANNA POLICE STATION PETITIONERS/ACCUSED NO. 4, 5 & 7:** **1 KUNHIMOIDEEN AGED 46 YEARS S/O.HAIDRU, ANCHUKANDAN HOUSE, VENGARA, MALAPPURAM DISTRICT.** **2 HASEENA AGED 26 YEARS D/O.MUHAMMED, AYANIKKADEN HOUSE, KALIKAVU, MALAPPURAM DISTRICT.** **3 NASEEMA AGED 32 YEARS D/O.ALI, NOTTATH HOUSE, CHAPPANANGADI, MALAPPURAM DISTRICT.** **BY ADV. SRI.U.K.DEVIDAS** ## **RESPONDENT/COMPLAINANT:** **STATE OF KERALA REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM.** **THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 17.12.2021, ALONG WITH Crl.M.C.NO. 5684/2021, THE COURT ON 02.03.2022 PASSED THE FOLLOWING:** CRL.M.C. NO. 384 OF 2015 & 5684 OF 2021 2 # **IN THE HIGH COURT OF KERALA AT ERNAKULAM** # **PRESENT** **THE HONOURABLE MR. JUSTICE K.HARIPAL** **WEDNESDAY, THE 2[ND] DAY OF MARCH 2022 / 11TH PHALGUNA, 1943** **CRL.MC NO. 5684 OF 2021** **CC 16/2021 OF JUDICIAL FIRST CLASS MAGISTRATE COURT - I,** ## **PERINTHALMANNA** **CRIME NO. 1847/2013 OF PERINTHALMANNA POLICE STATION** **PETITIONER/3RD ACCUSED:** **KHADEEJA AGED 37 YEARS THANKAYATHIL HOUSE, PATHAIKKARA, PERINTHALMANNA, MALAPPURAM DISTRICT** **BY ADV. U.K.DEVIDAS** ## **RESPONDENT/COMPLAINANT:** **STATE OF KERALA REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM-682 031** **THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 17.12.2021, ALONG WITH Crl.M.C.NO. 384/2015, THE COURT ON 02.03.2022 PASSED THE FOLLOWING:** CRL.M.C. NO. 384 OF 2015 & 5684 OF 2021 3 ## **ORDER** These are Miscellaneous Cases filed under Section 482 of the Code of Criminal Procedure seeking to quash the entire proceedings initiated against the petitioners in C.C. No. 115/2015 of the Judicial First Class Magistrate’s Court – I, Perinthalmanna which originated from final report in Crime No. 1847/2013 of Perinthalmanna police station. The petitioners in Crl.M.C. No. 384/2015 are accused Nos. 4, 5 and 7 whereas the third accused in the said Calendar Case has moved Crl.M.C.No. 5684/2021 for quashing the proceedings. As common questions have arisen for consideration and since the respondent is one and the same, both the M.C.s were heard together and are being disposed of by this common order. 2. Crime No. 1847/2013 of Perinthalmanna police station was registered on 11.12.2013 by the Inspector of police, Perinthalmanna police station, Jaleel. The First Information Report can be summarised as follow:- That day at 12.30 P.M, while he was engaged in official CRL.M.C. NO. 384 OF 2015 & 5684 OF 2021 4 duties in his office, got reliable information that prostitution is being taken place in P.C.M. lodge on the Perinthalmanna - Ootty road. Then, after intimating the matter to the Dy.S.P. and sending a search memorandum to the court, at 12.45.P.M. himself and the team proceeded to the said P.C.M. lodge. The team consisted of himself, SI Gireesh Kumar, ASI Abdul Rahiman, CPO Nos. 4103 and 5107, WCPO Nos. 4866 and 3838. When they reached the reception counter of the said lodge, one person was found there and he said that he is the owner of the lodge. He told that room Nos. 210, 110 and 105 are let out to couple each. At first, they proceeded to room No. 105 which was locked from inside. When it was knocked, after about five minutes a lady, accused No. 7 opened the door and her name and addresses were asked, she told that she had reached there along with Gangadharan, accused No. 6 who had gone out for procuring food. When searched the room, a packet of condom was kept on the top of the table; after retaining WCPO 4866 in front of the room, they proceeded to room No. CRL.M.C. NO. 384 OF 2015 & 5684 OF 2021 5 110. When knocked, after about ten minutes, a lady and a gentleman came out, when asked they were not husband and wife and their names and addresses were collected; there was an amount of Rs. 3,000/- and a packet of condom by name ‘Kamasutra’ was found on the table and they are accused Nos. 4 and 5. Then after retaining CPO 4103, in front of the room, they proceeded to room No. 210; when knocked, the room was opened after 15 minutes and accused Nos. 2 and 3, Abdul Nasar and Kadeeja came out; they confided that they are not husband and wife, their addresses were noticed, an amount of Rs. 5,000/- and a packet of condom was found there also. After arresting all of them, they came down to the reception and seized the admission register. Realising that accused Nos. 2 to 7 were engaged in prostitution for profit, except A6 all others were arrested at 15.00 hours and reached back police station and registered the crime alleging offence under Sections 3, 4, 5 and 7 of the Immoral Traffic (Prevention) Act, 1956, hereinafter referred to as the Act. After investigation, charge CRL.M.C. NO. 384 OF 2015 & 5684 OF 2021 6 sheet was laid by the Inspector of police, Pandikkad. On that basis, the case was taken on file as C.C.No.115/2014 against accused persons seven in number. The sixth accused, Gangadharan has not yet been arrested and an absconding charge sheet has been laid against him. It has also come out that the first accused was remanded by the court and was later released on bail whereas accused Nos. 2 to 5 and 7 were granted bail on the very day. 3. The petitioners have raised various grounds to quash the proceedings. The first and foremost ground is that the allegations are incorrect, that they have not engaged in prostitution as alleged. None of them had seen accused persons involving in sexual activities, that the charge sheet has been laid by the Inspector of police, Pandikkad, who is not an authorised officer as defined under Sections 2(i) and 13 of the Act and therefore, the charge will not lie against them. The learned counsel also relied on the decision reported in **Joseph v. State of Kerala [2011(2) KHC 958.]** CRL.M.C. NO. 384 OF 2015 & 5684 OF 2021 7 4. At the time of admission of the case, this Court had directed the respondent to file a statement as to how the Inspector of police, Pandikkad had conducted the case and laid the charge sheet. As it was stated that the case was made over to the Inspector of police, Pandikkad on specific authorisation given by the authorised officer, then the SHO was directed to produce the said authorisation before Court. But as a matter of fact, such an authorisation has not yet been produced before court. 5. I heard the learned Senior Public Prosecutor also. 6. The statement filed by the Inspector of police, Perinthalmanna indicates the circumstances in which the case was registered and the charge sheet was laid. According to him, the contentions of the petitioners are baseless and unjustifiable, if the case is quashed, there will be a tendency to the accused to repeat this type of bad activities and will send a bad message to the society. Therefore, the Inspector of police has sought to dismiss the application. CRL.M.C. NO. 384 OF 2015 & 5684 OF 2021 8 7. As stated earlier, the prime consideration in which the proceedings are sought to be quashed is that the charge sheet has been laid by Inspector of police, Pandikkad whereas the cause of action had arisen within Perinthalmanna police station limits. 8. Section 13 of the Act specifically provides that there shall be for such area to be specified by the State Government in this behalf, a special police officer appointed by or on behalf of the Government for dealing with the offences under this Act in that area. Sub-section (2) says that Special Police Officer shall not be below the rank of an Inspector of Police. Here there is no doubt that the detection was conducted by the Inspector of Police, Perinthalmanna police station whereas the charge sheet has been laid by the Inspector of Police, Pandikkad. The charge sheet contains 17 witnesses. CW1 is none other than the said E. Jaleel, Inspector of Police, who detected the offence and registered the crime. CWs 2 and 3 are one Saidalavi and one Smitha who have been shown as the CRL.M.C. NO. 384 OF 2015 & 5684 OF 2021 9 attestors to the search list, who had reportedly accompanied CW1. CW3 is Gireesh Kumar, S.I. of Police, Perinthalmanna and CWs 5 to 9 are other members of the police party, Abdu Rahiman, Assistant Sub Inspector, Perinthalmanna, WCPO 3838 Smitha, WCPO 4866 Soujath, CPO 4103 Manoj and CPO 5107 Mohammed Ashraf. CWs 10 and 11 are attestors to the scene mahazar. CW12 is the CPO who had produced the search memorandum before court. CW13 is one Mohammed Veeran who seems to be the father of the first accused, who is the owner of the PCM lodge and according to him, it is being run by his son. CW14 is the Secretary of Perinthalmanna Municipality who had issued the ownership certificate of the lodge. CWs 15 and 16 are medical officers who had examined the accused persons and issued their potency certificate and also examined the lady accused persons, respectively and CW17 is A.J. Johnson, the Police Inspector of Pandikkad who conducted investigation and laid the charge sheet. 9. That means, it is very clear that investigation was CRL.M.C. NO. 384 OF 2015 & 5684 OF 2021 10 conducted by the Inspector of Police, Pandikkad. Now the question is whether CW17 was competent to investigate the case which originated in Perinthalmanna police station limits. As indicated earlier, there was specific direction by this Court, on submission of the learned Public Prosecutor that CW17 had conducted investigation on the basis of the authorisation issued by the authorised officer. But that authorization is not forthcoming. Secondly, even assuming that the authorised officer had issued such a certificate, whether that would serve the purpose. The Government of Kerala has issued notification SRO No. 344/2002 under Section 13(1) of the Act. To be more specific, it is G.O. M.S. No. 56/2002/Home. dated 24.04.2002. A perusal of the said notification indicates that Perinthalmanna is against Serial No. 145, whereas Pandikkad is Serial No. 146. Inspectors of police of Perinthalmanna and Pandikkad are nominated as authorised officers in the respective areas in question. In other words, the Inspector of Police, Perinthalmanna is the authorised officer in respect of the area CRL.M.C. NO. 384 OF 2015 & 5684 OF 2021 11 falling under Perinthalmanna police station limits and Inspector of Police, Pandikkad is the authorised officer in respect of jurisdiction in Pandikkad limits. That means, Inspector of Police, Pandikkad is totally incompetent in matters falling within the jurisdiction of Perinthalmanna. In this connection, Section 13(1) of the Act is very clear. Special police officers have been nominated as per the notification of 2002 on behalf of the Government for dealing with offences under the Act in that area. The Hon’ble Supreme Court had occasion to consider what is meant by ‘dealing with offences’. In the decision reported in **Delhi Administration v. Ram Singh [AIR 1962 SC 63]** in a slightly different context, in the suppression of Immoral Traffic in Women and Girls Act in Delhi, the Supreme Court held that dealing with offences include any act which the police has to do in connection with offences under the Act. Section 13 of the Act provides for appointment of authorised officer for each area that has been specified by the State Government and the appointment of CRL.M.C. NO. 384 OF 2015 & 5684 OF 2021 12 special police officer is for dealing with offences under the Act. A plain reading of Section 13(1) indicates that detection, registration and investigation of the crime have to be done by the special police officer. Dealing with offences under the Act includes detection, registering the crime and investigation of the crime. In the light of the authoritative pronouncement by the Supreme Court, it can be stated in clear terms that only the special police officer authorised by the Government in the notified alone can deal with the offences including conduct of investigation. That means, the Inspector of Police, Pandikkad is an incompetent person in a case occurred in Perinthalmanna and the investigation conducted by him cannot satisfy the legal requirement and on that ground alone, the final report filed by CW17 will fall to the ground. 10. Secondly, what is there to show that the accused persons had indulged in prostitution ? In my opinion, even though there are allegations to the effect that they had indulged in the are In prostitution, allegations superfluous. CRL.M.C. NO. 384 OF 2015 & 5684 OF 2021 13 **Radhakrishnan v. State of Kerala [2008(2) KLT 521]** , this Court held that the expression ‘carrying on prostitution’ occurring Section 7 of the Act and ‘prostitution’ in Section 2(f) of the Act that if only plural and indiscriminate sexuality is proved then only it can be said that they had carried on the act of prostitution. Here, it is true that the accused persons 2 to 5 and 7 were found in suspicious circumstances in the lodge. It is not known as to how the accused no. 7 could be implicated as she was found alone in the room and there was no male partner in the room. Whatever it may be, there is no evidence that the ladies arrested from the lodge were indulging in prostitution. There is no allegation that any such crime has been registered against them in the past under the Act or they had involved themselves in indiscriminate sexual acts. Whatever it may be, the first ground alone is sufficient to quash the proceedings against the petitioners. 11. Thirdly, it is stated in the statement of fact that the first accused had filed Crl.M.C.No. 2539/2014 for quashing the CRL.M.C. NO. 384 OF 2015 & 5684 OF 2021 14 proceedings. I have verified the records and found that Crl.M.C. No. 2539/2014 stands allowed on 27.11.2020 and the first accused, who is the main culprit against whom Section 7 of the Act is alleged stands exonerated. There is no contra evidence that any appeal has been preferred and that finding has been reversed. Therefore, for parity of reasons also the petitioners are entitled to be exonerated. 12. On these considerations, entire proceedings initiated against the petitioners in C.C. No. 115/2015 pending before the Judicial First Class Magistrate’s Court – I, Perinthalmanna are quashed and the petitioners shall stand exonerated. Crl.M.C.s are allowed as above. Sd/- **K.HARIPAL** **JUDGE** **DCS/26.02.2022** CRL.M.C. NO. 384 OF 2015 & 5684 OF 2021 15 ## **APPENDIX OF CRL.MC 384/2015** |**PETITIONER'S **|**ANNEXURE**| |---|---| |**ANNEXURE A:**|**COPY OF THE FIR AND STATEMENT IN**| ||**PERINTHALMANNA POLICE STATION CRIME**| ||**NO.1847/13 DT.11-12-13.**| |**ANNEXURE B:**|**COPY OF THE FINAL REPORT IN PERINTHALMANNA**| ||**POLICE STATION CRIME 1847/2013 DT.1-1-15.**| |**ANNEXURE C:**|**COPY OF THE LIST OF WITNESSES IN**| ||**PERINTHALMANNA POLICE STATION CRIME**| ||**NO.1847/13 DT.1-1-15.**| |**ANNEXURE D:**|**COPY OF THE JUDGMENT IN CRMC 1514/2011**| ||**DT.16-6-2011.**| CRL.M.C. NO. 384 OF 2015 & 5684 OF 2021 16 ## **APPENDIX OF CRL.MC 5684/2021** ## **PETITIONER ANNEXURES** |**ANNEXURE I**|**TRUE COPY OF FIST INFORMATION REPORT AND**| |---|---| ||**STATEMENT DATED 11.12.2013 IN CRIME NO**| ||**1847/2013 OF PERINTHALMANNA POLICE STATION**| |**ANNEXURE II**|**TRUE COPY OF THE FINAL REPORT IN CRIME NO**| ||**1847 OF 2013 OF PERINTHALMANNA POLICE**| ||**STATION DATED 1.1.2014**| |**ANNEXURE III**|**TRUE COPY OF THE LIST OF PROSECUTION**| ||**WITNESSES IN CRIME NO 1847 OF 2013 OF**| ||**PERINTHALMANNA POLICE STATION DATED**| ||**1.1.2014**| |**ANNEXURE IV**|**TRUE COPY OF THE JUDGMENT IN CRL.MC NO 1514**| ||**OF 2011 DATED 16.6.2011 OF THIS HON'BLE**| ||**COURT REPORTED IN 2011(2) KHC 958**| |**ANNEXURE V**|**TRUE COPY OF THE ORDER DATED 27.11.2020 IN**| ||**CRL.MC NO 2539/2014 BY THIS HON'BLE COURT**| |**ANNEXURE VI**|**TRUE COPY OF THE PRINT OUT FROM THE**| ||**eCOURTS GOV.IN DATED 12.1.2021**|