Crl.M.C. No.1187 of 2008 & Crl.R.P.No.3991 of 2007, High Court of Kerala

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR. JUSTICE A.HARIPRASAD THURSDAY, THE 17TH DAY OF JULY 2014/26TH ASHADHA, 1936 Crl.MC.No. 1187 of 2008 ( ) ---------------------------CC 176/2007 of CHIEF JUDICIAL MAGISTRATE COURT, ERNAKULAM PETITIONER(S)/ACCUSED NO.1: ------------------------------------------ SHRI.ANTONY VINCENT, AGED 32 YEARS., S/O.VINCENT MATHEW, 205 PVM NILAYA, DHUPAN HALLI, HAL IIND STREET BANGALORE. BY ADV. SRI.MILLU DANDAPANI RESPONDENT(S)/COMPLAINANT: ---------------------------------------------------- STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR HIGH COURT OF KERALA, ERNAKULAM. BY DIRECTOR GENERAL OF PROSECUTION SHRI ASAF ALI THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON 17-07-2014, ALONG WITH CL.RRP. 3991/2007, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: CRL.MC NO.1187/2008 APPENDIX PETITIONER'S EXHIBITS: ANNEXURE-A TRUE COPY OF THE FIR IN CRIME NO.847/2007 ON THE FILE OF CENTRAL POLICE STATION, ERNAKULAM ANNEXURE-B CERTIFIED COPYU OF THE FINAL REPORT -CUM-CHARGE SHEET SUBMITTED BEFORE THE CHIEF JUDICIAL MAGISTRATE, ERNAKULAM ANNEXURE-C TRUE COPY OF THE ORDER DATED 19.07.2007 IN CC NO.176/2007 ISSUED BY THE CHIEF JUDICIAL MAGISTRATE COURT, ERNAKULAM ANNEXURE-D TRUE COPY OF THE PROCEEDINGS OF CHIEF JUDICIAL MAGISTRATE ERNAKULAM IN CC NO.176/2007 ANNEXURE-E TRUE COPY OF THE ORDER DATED 13.11.2007 IN CRL.RP NO.3991/2007 OF THIS COURT RESPONDENT'S EXHIBITS: NILAYA //TRTUE COPY// **“C.R.”** ## **A.HARIPRASAD, J.** **-------------------------------------Crl.M.C. No.1187 of 2008 & Crl.R.P.No.3991 of 2007 -------------------------------------Dated this the 17[th] day of July, 2014.** ## **COMMON ORDER** Petitioner in Crl.M.C.No.1187 of 2008 is the 1[st] accused in C.C.No.176 of 2007 on the file of the Chief Judicial Magistrate Court, Ernakulam. The case was registered by the Central Police, Kochi City as Crime No.847 of 2007 under Sections 3, 4 and 7 of the Immoral Traffic (Prevention) Act, 1956 (in short, “the Act”). Petitioner in Crl.R.P.No.3991 of 2007 is the 5[th] accused in the crime. 2. The allegations in common against the accused persons, in nut-shell, are as follows: A Police Officer got an information on 05.06.2007 at about 5.30 p.m. that prostitution was going on in Kerala Ayurveda Chikilsakendram, housed in building No.39/1440 of Cochin Corporation. On receiving the information, the City Police Commissioner, Kochi authorised the Circle Inspector of Police, Ernakulam Town South Police Station to conduct a raid. He prepared a search memo and forwarded it to the concerned court. In the raid conducted thereafter, it was found that Crl.MC No.1187/2008 & Crl.RP No.3991/2007 2 accused 1 and 2 were engaged in prostitution and accused 3 and 4 were conducting the brothel. 5[th] accused was waiting for his chance of prostitution. With these allegations, the crime was registered. 3. Heard Shri Millu Dandapani, learned counsel for the petitioner in Crl.M.C.No.1187 of 2008 and Shri Martin Jose, learned counsel for the petitioner in Crl.R.P.No. 3991 of 2007 and Shri T.Asaf Ali, learned Director General of Prosecution. 4. At the outset, Shri Millu Dandapani and Shri Martin Jose raised a contention that the offences under Sections 3 and 4 of the Act are not attracted in this case even going by the allegations in the first information report. The challenge in the Crl.R.P. is relating to Annexure-3 order, whereby the learned Magistrate took the case on file under Sections 3, 4 and 7 of the Act and issued process to the accused. In the Crl.M.C., the subject matter of challenge is Annexure-A, the first information report and Annexure-B, the final report. Section 3 of the Act prescribes the punishment for keeping a brothel or allowing the premises to be used as a brothel. In order to scrutinize the contentions, following definitions under the Act are relevant. Section 2(a) of the Act defines ‘brothel’ in the following terms: _““brothel” includes any house, room, conveyance or place or any portion of any house,_ 3 Crl.MC No.1187/2008 & Crl.RP No.3991/2007 _room, conveyance or place, which is used for purposes of sexual exploitation or abuse for the gain of another person or for the mutual gain of two or more prostitutes.”_ We find the definition for ‘prostitution’ in Section 2(f) of the Act, which reads as follows: _““prostitution” means the sexual exploitation or abuse of persons for commercial purposes, and the expression “prostitute” shall be construed accordingly.”_ 5. The essential ingredients required in Section 3 of the Act are that the accused must keep or manage or act or assist in the keeping or management of a brothel. There is no allegation either in the first information report or in the final report that the petitioners were found keeping a brothel or managing a brothel or acting or assisting in the keeping or management of a brothel. Therefore, the basic ingredients in Section 3 of the Act are not attracted against the petitioners in the cases. Section 4 of the Act deals with punishment for living on the earnings of prostitution. In order to attract this provision, it must be alleged and established that the accused, who is over the age of 18 years knowingly lives, wholly or in part, on the earnings of prostitution of any other person. Considering the whole case of the prosecution, it cannot be held that the Crl.MC No.1187/2008 & Crl.RP No.3991/2007 4 petitioners ever indulged in the acts prohibited by Section 4 of the Act. Therefore, this provision also is not attracted in this case. 6. What remains for consideration is the application of Section 7 of the Act. For clarity, Section 7(1) of the Act is re-produced hereunder: _“_ _**Prostitution in or in the vicinity of public places** .- (1) Any person, who carries on prostitution and the person with whom such prostitution is carried on, in any premises,-_ _(a) which are within the area or areas, notified under sub-section (3), or_ _(b) which are within a distance of two hundred metres of any place of public religious worship, educational institution, hostel, hospital, nursing home or such other public place of any kind as may be notified in this behalf by the Commissioner of Police or magistrate in the manner prescribed,_ _shall be punishable with imprisonment for a term which may extend to three months.”_ Rest of the provisions are not applicable to our case. 7. Learned counsel for the petitioners submitted that the case should fall on the ground on the inherent defect that the vital part of the investigation was done by an incompetent officer. Section 13 of the Act says that there shall be for each area to be specified by the State 5 Crl.MC No.1187/2008 & Crl.RP No.3991/2007 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. Sub-section (2) of Section 13 of the Act says that the Special Police Officer shall not be below the rank of an Inspector of Police. In this case, the first information report was registered by a Sub Inspector. Section 14 of the Act prescribes that the offences punishable under the Act shall be deemed to be cognizable within the meaning of the Code of Criminal Procedure (in short, “Cr.P.C.”). According to the prosecution case, the incident happened within the territorial limits of Central Police Station, Kochi City. Learned Director General of Prosecution produced proceedings of the Commissioner of Police, Kochi City vide order No.27424/Camp/2007-EC dated 05.06.2007 authorising the Circle Inspector of Police, Ernakulam Town South Police Station for conducting search under the relevant provisions of the Act at Kerala Ayurveda Chikilsakendram, near Ernakulam South Over Bridge, Kochi. Learned counsel for the petitioners submitted that this document came to light for the first time only at the time of hearing this petition. Therefore, no value can be attached to it, as it was not produced along with the final report. It is further contended that even if this order is taken into consideration, it falls short of the legal requirements for the following reasons. Learned 6 Crl.MC No.1187/2008 & Crl.RP No.3991/2007 counsel for the petitioner submitted that the Commissioner of Police has no authority to confer power of a Special Police Officer under the Act on an Officer, who is working outside the limits of the Police Station wherein the offence allegedly occurred. In order to buttress this contention, a decision rendered by a learned Single Judge in **Sourabhan v. State of Kerala (2012 (3) KLT 583)** was relied on. After considering the scope of Section 36 Cr.P.C. and Section 18(1) of the Police Act, it has been held that in order to entrust the investigation to a superior Police Officer, it has to be shown that he has jurisdictional authority to conduct such investigation. Learned Director General of Prosecution would submit that the State has taken up that matter before the Apex Court and the same is now pending. 8. Next contention raised is that in the absence of fulfilling the conditions in Section 14(ii) of the Act, it cannot be stated that the order passed by the Commissioner of Police is legally sustainable. What is required under Section 14(ii) of the Act is that the person to be arrested and the offence for which the arrest is being made should be indicated in the written authorisation, contended the learned counsel for the petitioners. To support this view, decision rendered by another learned Single Judge of this Court in **Joseph v. State of Kerala (2011 (3) KLT 292)** is cited. This Court in **Sainudeen v. Sub Inspector of Police (2002 (1) KLT 693)** has 7 Crl.MC No.1187/2008 & Crl.RP No.3991/2007 taken an extreme view that an order in writing can be given by a Special Police Officer to another specifying the person to be arrested only after the former seeing that a particular person has committed the offence. In respect of this view, the learned Single Judge in **Joseph** ’s case (supra) expressed His Lordships reservations. I also have the same feeling that the said observations in **Sainudeen** 's case are too rigid and almost an impossibility to fulfil. However, in **Joseph** ’s case, it has been held that the authorisation order by the Special Police Officer under Section 14(ii) of the Act sans the name of the persons to be arrested is invalid. 9. Per contra, Shri T.Asaf Ali submitted that the Commissioner of Police is exercising jurisdiction throughout the City limits and that Ernakulam Central Police Station, as well as Ernakulam Town East Police Station, come under his jurisdiction. Therefore, he is competent to issue authorisation to the Circle Inspector of Police, Ernakulam Town South Police Station to detect an offence under the Act, committed in the jurisdiction of Central Police Station, Ernakulam. Besides, it is further contended by the learned Director General of Prosecution that the Commissioner of Police has issued authorisation to another Special Police Officer, even though he is not attached to that particular area where the offence had been committed. I am afraid, I cannot accept this argument Crl.MC No.1187/2008 & Crl.RP No.3991/2007 8 because the officer authorised by the Commissioner of Police, though he may be a Special Police Officer within his jurisdiction, will not ipso facto become a Special Police Officer out side his territorial jurisdiction. There is no case for the prosecution, even going by the authorisation produced by the learned Director General of Prosecution, that the Circle Inspector of Police, Ernakulam Town South Police Station was given an additional charge of the Ernakulam Central Police Station during the absence of the officer concerned. In other words, though the authorisation says that on that particular day, the Circle Inspector of Police, Ernakulam Central Police Station was on leave, it does not show that the Officer authorised by the Commissioner was put in additional charge of the Circle Inspector of Police, Ernakulam Central Police Station. I am of the view that the Commissioner of Police is not competent to grant a special power conferred by any statute to an Officer beyond his jurisdiction, thereby permitting him to exercise powers beyond his limits. Therefore, on this score, the prosecution has to fail. Learned counsel for the petitioners placed reliance on another decision of this Court rendered by a learned Single Judge in **Abdul Rasheed v. State of Kerala (2012 (4) KLT 502)** . Considering the various aspects of the Act, it has been held that even if the raid is conducted under the direction of a superior Officer, the same will be Crl.MC No.1187/2008 & Crl.RP No.3991/2007 9 illegal if the Officer, who conducted the raid was not a Special Police Officer as there is no provision empowering the Special Police Officer or an officer superior to the Special Police Officer to authorise any subordinate officer for conducting a search without a warrant. 10. Petitioners placed reliance on the following decisions: **Joseph v. Sub Inspector of Police (2003 (3) KLT 718), Radhakrishnan v. State of Kerala (2008 (2) KLT 521)** and **X v. State of Kerala (2009 (2) KLT 7)** . In **Joseph v. Sub Inspector of Police** (supra), a learned Single Judge of this Court held as follows: _“ ........... In Delhi Administration v. Ram Singh (AIR 1962 SC 63) the Supreme court held that the expression “dealing with offences” in S.13 (1) of Suppression of Immoral Traffic in Women and Girls Act will include any act which the police has to do in connection with the offences under the Act. The expression “function in relation to offences” in S.13(3) also includes its functions connected with the investigation of the offences. What has to be understood in the light of what is said in the above decision is that the expression “dealing with offences under the Act” includes detection, registering of the crime and investigation of the crime. S.13 provides for appointment of special police officer for each area_ 10 Crl.MC No.1187/2008 & Crl.RP No.3991/2007 _to be specified by the State Government and in that section it is said that the appointment of special police officer is for dealing with offences under the Act. A plain reading of S.13 would go to show that the detection, registering and investigation of the crime have to be done by the special police officer.”_ In **Radhakrishnan** 's case, learned Single Judge of this Court has considered various aspects under the Act, especially the expression 'carrying on prostitution' occurring in Section 7 of the Act. In the context of the definition of 'prostitution' in Section 2(f) of the Act, it has been held that only if plural and indiscriminate sexuality is proved, it could be said that a person is carrying on prostitution. This Court again in **X v. State of Kerala** (supra) held that the activity carried on in a given premise will amount to “prostitution” within the meaning of S.2(f) of the Act only if sexual abuse or exploitation of a person is done for a commercial purpose. In the absence of any allegation to that effect, the offence under Section 7 of the Act is not attracted. There is no allegation in this case raised by the prosecution that the petitioners were engaged in carrying on prostitution. Learned counsel for the petitioners contended that it is important to note that only `1,000/was recovered from the possession of the 2[nd] accused as the amount paid to her as reward for prostitution. It is highly improbable, contended the Crl.MC No.1187/2008 & Crl.RP No.3991/2007 11 learned counsel, when the case of the prosecution is that both accused 1 and 5 had paid `1,000/- each to the 2[nd] accused. Recovery of only `1,000/against their own case is an indication to suspect the bonafides of the prosecution case, contended the learned counsel for the petitioners. 11. Learned counsel for the petitioner in Crl.M.C. strongly relied on a decision of the Supreme Court in **Delhi Administration v. Ram Singh (AIR 1962 SC 63)** . There, the view taken is as follows: _“Further, the expression 'dealing with offences' in Sec. 13(1) is of wide import and will include any act which the police has to do in connection with the offences under the Act. The expression 'function in relation to offences' in Sec. 13(3) also includes his functions connected with the investigation of the offences. There is no reason to exclude such functions from the functions contemplated by sub-s. (3)._ _It is thus clear that the special police officer is competent to investigate and that he and his assistant police officers are the only persons competent to investigate offences under the Act and that police officers not specially appointed as special police officers cannot investigate the offences under the Act even though they are cognizable offences.”_ Crl.MC No.1187/2008 & Crl.RP No.3991/2007 12 On the basis of the above reasoning, it has been argued by the learned counsel for the petitioners that the prosecution is an abuse of process of the court. 12. Learned Director General of Prosecution relying on **State of Bihar and another v. MD.Khalique and another ((2002) 1 SCC 652)** and **Amit Kapoor v. Ramesh Chander and another (2012 (2) KLD 719)** contended that the power of this Court under Sections 397 and 482 Cr.P.C. can only be exercised with great care and circumspection. There cannot be a dispute to that proposition of law. But, it is well settled that the power of this Court under Section 482 Cr.P.C. should be invoked in a given case, if it is established that the legal foundation of the prosecution is completely shaky and continuation of the prosecution will be an abuse of the process of court. This Court finds from totality of materials that the offences under Sections 3 and 4 of the Act will never get attracted even going by the allegations in the materials relied on by the prosecution. Further, the offence under Section 7 of the Act is also not made out for the reasons deducible from the authorities mentioned above. Hence, I am of the view that continuation of the prosecution is an unwanted exercise and in the interest of justice, it has to be terminated. In the result, both the Crl.M.C. and Crl.R.P. are allowed. Crl.MC No.1187/2008 & Crl.RP No.3991/2007 13 Annexure-III order in C.C.No.176 of 2007 passed by the Chief Judicial Magistrate Court, Ernakulam taking cognizance of the offences and Annexures-A and B (first information report and final report in Crime No.847 of 2007 of Central Police Station, Ernakulam) insofar as they relate to the petitioners are hereby quashed. All pending interlocutory applications will stand dismissed. ## **A. HARIPRASAD, JUDGE.** **cks**