Kuriakose v. State of Kerala

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR. JUSTICE K.RAMAKRISHNAN MONDAY, THE 7TH DAY OF JULY 2014/16TH ASHADHA, 1936 Crl.MC.No. 3037 of 2014 () --------------------------- IN CC 246/2012 of THE JUDICIAL FIRST CLASS MAGISTRATE COURT-1, ERNAKULAM PETITIONER/IST ACCUSED: ---------------------------- KURIAKOSE, AGED 54 YEARS S/O VARGHESE, SANKARIKKAL HOUSE, PUTHUKALAVATTOM ELAMAKARA, EDAPPALLY NORTH VILLAGE, ERNAKULAM. BY ADV. SRI.LINDONS C.DAVIS RESPONDENT/STATE: ----------------------- STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR HIGH COURT OF KERALA, ERNAKULAM. BY PUBLIC PROSECUTOR SMT.P.MAYA THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 07-07-2014, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: Crl.MC.No. 3037 of 2014 () --------------------------- ## APPENDIX PETITIONER(S)' EXHIBITS ---------------------------- ANNEXURE A: TRUE COPY OF THE FIR NO.250/2006 OF PALARIVATTOM POLICE STATION. ANNEXURE B: CERTIFIED COPY OF THE FINAL REPORT 364/2006 FILED BEFORE THE JFCM-I, ERNAKULAM. ANNEXURE C: CERTIFIED COPY OF THE LETTER OF CIRCLE INSPECTOR OF POLICE, ERNAKULAM TOWN NORTH DATED 15.6.2006. ANEXURE D: TRUE COPY OF THE GO(MS)NO.56/2002/HPOME DATED 24.4.2002. ANNEXURE E: CERTIFIED COPY OF THE MEDICAL REPORT OF THE 2ND ACCUSED. RESPONDENT(S)' EXHIBITS; NIL. //TRUE COPY// P.A. TO JUDGE dlk ## **K. Ramakrishnan, J. ============================== Crl.M.C.No.3037 of 2014 ============================== Dated this, the 07[th] day of July, 2014.** ## **O R D E R** This is an application filed by first accused in C.C.No.246/2012 pending before Judicial First Class Magistrate Court, No-I, Ernakulam to quash the proceedings under Section 482 of Code of Criminal Procedure. 2. It is alleged in the petition that the petitioner was arrayed as first accused in Crime No.250/2006 of Palarivattom Police Station alleging commission of the offences under Sections 3, 4, 5 & 7 of the Immoral Traffic (Prevention Act), 1956. Thereafter, investigation was conducted and Final Report was filed and it was originally taken as file as C.C.No.4979/2006. Since the accused did not appear, the case was transferred to register of long pending case as L.P.No.72/10, when the present petitioner appeared, it was refiled as C.C.No.246/2012 and he is on bail now. The second accused in still absconding. According to the petitioner, the detection was not proper and in fact it was not done by an authorized officer and investigation was also not conducted by a notified officer under the Act and as such the entire Crl.M.C.No.3037 of 2014 : 2 : proceedings is vitiated. Further, the medical report will go to show that there was no recent sexual intercourse committed and in such circumstances, the case of the prosecution that they were arrested at the time when indulged in sexual intercourse is also unbelievable. So, under the circumstances, there is no purpose in keeping the case on file and that will amount to only wastage of judicial time and abuse of process of court as well and the petitioner has no other remedy except to approach this court seeking the following relief: _“To quash Annexure A & B and all further proceeding pursuant to the same against the petitioner in CC No.246/2012 before the Files of the Judicial First Class Magistrate Court - I, Ernakulam or pass any other orders or directions that this Hon'ble Court may deems fit and proper in the facts and circumstances of the case.”_ ## 3. Heard the Counsel for the petitioner and the learned Public Prosecutor. 4. The Counsel for the petitioner submitted that the person who conducted the search has not complied with the procedure to be followed and also he is not a notified officer. Further, the person who conduct the investigation and laid the final report is not a notified officer. So, the final report is Crl.M.C.No.3037 of 2014 : 3 : without any legal basis and it is liable to be quashed. Further, the medical report will go to show that there is no evidence of intercourse with the second accused by the first accused, that also will falsify the case of the prosecution. He had relied on the decisions reported in **Abdul Rasheed and Another v. State of Kerala [2012 (4) KHC 395]** and **Shajahan & Ors v. State of Kerala [2014 (2) KLJ 239]** in support of this case. 5. On the other hand, the learned Public Prosecutor submitted that the search was conducted by a competent notified officer as directed by the Commissioner of Police and the final report was filed by a proper officer and as such it is not a case to be quashed at this stage as the validity of search etc., are matter to be considered on the basis of evidence. So, it is not a fit case where the power under Section 482 of Code of Criminal Procedure can be invoked at this stage. 6. It is an admitted fact that petitioner was arrested by the Circle Inspector of Police, Ernakulam Town South Police Station, when he was found in a Beauty Parlor along with a lady and a crime was registered as Crime No.250/06 of Palarivattom Police Station alleging offences under Sections 3, Crl.M.C.No.3037 of 2014 : 4 : 4, 5 & 7 of the Immoral Traffic (Prevention) Act, 1956. According to the prosecution, the Sub Inspector of Police, Palarivattom Police Station has received a secret information on 15.06.2006 that in the guise of Ayurvedic Rejuvenate Centres, brothels are being conducted and illegal prostitution is being going on in those areas and on the basis of that, report made by the Circle Inspector of Police, Ernakulam Town North, the Commissioner of Police, Kochi City, authorized Circle Inspector of Police, South Ernakulam Town who is the notified officer empowered to conduct search under this Act as per Annexure D notification by the Government and accordingly, he conducted search of the said beauty parlor by name Misiriya Herbal Beauty Clinic and found the petitioner along with another lady and enganged in sexual intercourse and arrested them and registered the case. It is also an admitted fact that the investigation in this case was conducted by the Circle Inspector of Police, Ernakulam Town North admittedly not a notified officer and filed the final report which is evident from Annexure B. It is seen from the Annexure C letter sent by Circle Inspector of Police, Ernakulam Town North who had laid the final report that he himself is aware of the fact that he is Crl.M.C.No.3037 of 2014 : 5 : not a notified officer to conduct search or investigation of offences committed under this Act and that was the reason why he had given a letter to Commissioner of Police, Kochi City requesting him to depute a notified officer to conduct search and it was on that basis that the Circle Inspector of Police, South Ernakulam Town who was a notified officer in respect of Ernakulam South within whose jurisdiction this place also will fall for this purpose was entrusted with the search and he conducted the search and registered the crime on the basis of the report submitted by him. In the decision reported in **Abdul Rasheed and Another v. State of Kerala [2012 (4)** **KHC 395],** this court has held that that the search and investigation including the filing of final report can be done only by a notified officer under this Act. That was the case where the search was conducted by the Circle Inspector who was not an authorized officer under this Act empowered to conduct the search and but, subsequently, the investigation was conducted by a notified officer and final report was laid by him and even in that case, it was held that it was not proper and invoking the power under Section 482 of Code of Criminal Procedure, the case was quashed. In a subsequent decision of Crl.M.C.No.3037 of 2014 : 6 : this court in **Shajahan & Ors v. State of Kerala [2014 (2) KLJ 239]** , the same view has been taken by this court that the search and the investigation and filing of report has to be done by an officer who is a notified officer empowered to do the same under Section 13 of the Act. In this case, though search was conducted by a notified officer, the investigation was conducted and final report was filed by an officer who is not a notified officer under the Act and thereby, the filing of the final report is vitiated as a person who is not competent to do the same has done it and there is no purpose in proceeding with the case as even if it is allowed to continue in view of the legal principles mentioned above, there is no possibility of conviction in this case and it will amount to wastage of judicial time and abuse of process of court. So, the final report and subsequent proceedings initiated on that basis as against the petitioner has to be quashed. But, I am not at this stage going to the question as to whether the medical report alone will be sufficient to come to the conclusion that he is indulged in sexual intercourse as completion of the sexual act is not required for that purpose. So, in view of the discussions made above, the petitioner is entitled to get the relief of quashing Crl.M.C.No.3037 of 2014 : 7 : the proceedings as against him. So, the application is allowed and further proceedings in C.C.No.246/2012 (Crime No.250/06 of Palarivattom Police Station of Kochi City) pending before Judicial First Class Magistrate Court, No-I, Ernakulam as against the petitioner is quashed. Office is directed to communicate this order to the concerned court immediately. Sd/- **K.Ramakrishnan, Judge.** Bb _[True copy]_ _P.A to Judge_