Muhammed Remis and Ameer Ahsan v. State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** ## **THE HONOURABLE MR. JUSTICE RAJA VIJAYARAGHAVAN V** ## **THURSDAY, THE 24TH DAY OF NOVEMBER 2016/3RD AGRAHAYANA, 1938** ## **Crl.MC.No. 7009 of 2016 ()** **---------------------------** **CRIME NO. 1279/2016 OF MATTANCHERRY POLICE STATION , ERNAKULAM** ## **PETITIONERS/ACCUSED NOS.2 & 3:** **-------------------------------** ## **1. MUHAMMED REMIS** **AGED 19 YEARS, S/O.HUSSAIN, SAINABA MANZIL, UNION TERRITORY OF LAKSHADWEEP** **2. AMEER AHSAN** **AGED 19 YEARS, S/O.MUHAMMED KOYA, KWAJA MANZIL, AGATTI ISLAND, UNION TERRITORY OF LAKSHADWEEP.** ## **BY ADV. SRI.M.H.HANIS** ## **RESPONDENT/STATE:** **---------------------------** **STATE OF KERALA REPRESENTED BY THE PUBLIC PROSECUTOR HIGH COURT OF KERALA, KOCHI 682 031.** **BY PUBLIC PROSECUTOR SRI.AMJAD ALI** **THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 24-112016, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** ## **Crl.MC.No. 7009 of 2016 ()** **---------------------------** ## **APPENDIX** ## **PETITIONER(S)' ANNEXURES** **----------------------ANNEXURE A CERTIFIED COPY OF THE FINAL CHARGE IN CRIME 1279/2016 OF MATTANCHERY POLICE STATION** ## **RESPONDENT(S)' ANNEXURES** **-----------------------** ## **NIL** **/TRUE COPY/** **VPS PS TO JUDGE** **RAJA VIJAYARAGHAVAN.V, J ---------------------------------------Crl.M.C. No.7009 of 2016 ----------------------------------------Dated this the 24[th] day of November, 2016** ## **O R D E R** - 1.The petitioners herein are the accused Nos.2 and 3 in Crime No.1279 of 2016 of Mattancherry Police Station. They stand indicted under sections 3, 4, 5 and 7 of the Immoral Traffic (Prevention) Act, 1956 (hereinafter referred to as 'the Act' for short). - 2.The case of the prosecution as borne out from the final report can be succinctly stated as follows: The 1[st] accused in the instant case is the husband of CW2. With intent to make money by facilitating prostitution, the 1[st] accused is alleged to have distributed the mobile number of CW2 to various persons. The 2[nd] petitioner is alleged to have called CW2 in the said number and the 1[st] accused arranged a rendezvous at the rented premises Crl.M.C.7009/2016 2 where they reside. On 15.8.2016, based on reliable information, the Circle Inspector of Police, Mattancherry conducted a raid in the house and it is alleged that the petitioners and CW2 were found in a compromising position. Both the petitioners are said to be in their late teens. They were arrested and the aforesaid crime was registered alleging various offences. After the offence was detected, on the next day itself, by orders of the Assistant Commissioner of Police, Mattancherry, investigation was handed over to the C.I. of Police, Fort Kochi. The said officer conducted the investigation and laid the final report before Court . - 3.I have heard the learned counsel appearing for the petitioner and also the learned Public Prosecutor. - 4.The main contention canvassed by the learned counsel appearing for the petitioner is that the final report laid against the petitioners cannot be sustained as the Crl.M.C.7009/2016 3 investigation was conducted by an officer who was not authorised to deal with the offence. According to the learned counsel, the provisions of the Act are self contained and only the Special Police Officer empowered as per Section 13 (1) is entitled to carry out the detection, arrest and investigation of a crime committed under the Act. It is further asserted that the Assistant Commissioner of Police has no jurisdiction to empower an incompetent officer to investigate an offence under the Act . Relying on **Joseph v. State of Kerala** (2011 (3) KLT 292), **Antony Vincent v. State of Kerala** (2014 (3) KHC 542), and **Raju C.P. v. State of Kerala and Another** (2014 (2) KLD 95), it was persuasively argued by the learned counsel that this Court has taken a consistent stand that investigation conducted by a person who is not a Special Police Officer within the local limits of the area where the offence was committed would violate the spirit of Section 13 of the Act and if that be the case, the continuance of 4 Crl.M.C.7009/2016 prosecution is nothing but an abuse of process of court. 5.It is also submitted by the learned counsel appearing for the petitioners that Sections 3 , 4, 5 and 7 of Act 44 of 1986 will not be attracted in the facts of the instant case. To substantiate the said contention, the learned counsel referred to **Mr. X. Central Kerala v. State of Kerala** (2009 (2) KHC 5) and **Radhakrishnan v. State of Kerala** (2008 (2) KHC 460). It is urged by the learned counsel that the report of examination of the victim revealed that there was no evidence of sexual act and merely because CW2 was found in the room with the petitioners, the provisions of the Act will not be attracted. According to the learned counsel, the whole edifice of the prosecution case is therefore, shaky and it would not be in the interest of justice to permit the prosecution to continue. - 6.The learned Public Prosecutor would oppose the prayer of 5 Crl.M.C.7009/2016 the learned counsel and contend that the case was detected by the Special Police officer and the final report was also laid by a Special Police Officer, though of a different territorial jurisdiction. According to the learned Public Prosecutor, no prejudice can be said to have been caused and that in view of the matter, it cannot be said that the provisions of Section 13 of Act 44 of 1986 has been violated. According to the learned Prosecutor, the foundation has been laid by the prosecution and it would not be in the interest of justice to terminate the case at the threshold itself on the grounds raised by the petitioner. - 7.I have considered the rival submissions. - 8.It was in exercise of powers under Section 13 of Act 44 of 1986, that the Government of Kerala had issued notification which was published as SRO.No.344/02 dated 24.04.2002. As per the said notification, only the Circle Crl.M.C.7009/2016 6 Inspector of police, Mattancherry Police Station is empowered in dealing with offences under the Act within his jurisdiction. As per the explanatory note appended to the notification, it is further specified that the Special Officer shall not be below the rank of Inspector of police. It is the admitted case of the prosecution that investigation was conducted by the Circle Inspector of Police, Fort Kochi Police Station. Though he is special police officer within the local limits of his jurisdiction, he cannot be said to be a Special police officer empowered to deal with the offence under the Act. - 9.The meaning of the expression “dealing with offence” appearing in Section 13 of the Act came up for consideration before the Apex Court in **Delhi Administration v. Ram Singh (AIR 1962 SC 63)** . It was held that the expression "dealing with offences" in Section 13(1) of Suppression of Immoral Traffic in Women and Girls Act will include any act which the police has to Crl.M.C.7009/2016 7 do in connection with the offences under the Act. 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. It was also held that a plain reading of Section 13 would go to show that the detection, registering and investigation of the crime is to be carried out exclusively by the Special Police Officer. - 10.This Court in **Joseph v. State of Kerala** [2011 (3) KLT 292], had occasion to hold that the investigation conducted by an Officer, who is not a Special Officer in terms of the provisions of law cannot be sustained under law. It was held that the investigation conducted by an Officer other than the Special Police Officer will violate the provisions of the statute and the prosecution was quashed. - 11.In **Raju C.P. v. State of Kerala** (2014 (2) KLD 95) it Crl.M.C.7009/2016 8 was held, basing on a catena of decisions that the provisions of the Immoral Traffic (Prevention) Act, 1956, is a complete code in itself and a non - empowered officer has no power to investigate or detect or prevent such acts in view of the mandate contained in Section 13 of the Act. It was held that the investigation conducted by a Sub Inspector of Police is invalid. 12. **In Antony Vincent v. State of Kerala** (2014 (3) KHC 542) it was held that the Commissioner of Police is not competent to grant a special power conferred by the Statute to an Officer beyond his jurisdiction, thereby permitting him to exercise powers beyond his limits. It was held that the prosecution will have to fail on that score. - 13.The Apex Court in **State of Punjab v. Baldev Singh** (AIR 1999 SC 2378), had observed as follows:- “Indeed in every case, the end result is important but the means to achieve it must Crl.M.C.7009/2016 9 remain above board. The remedy cannot be worse than the disease itself. The legitimacy of the judicial process may come under a cloud if the Court is seen to condone acts of lawlessness conducted by the investigating agency during search operations and may also undermine respect for the law and may have the effect of unconscionably compromising the administration of justice. That cannot be permitted”. 14. There can therefore be no doubt that the investigation conducted by the Inspector of Police, Fort Kochi was an incompetent officer and I find merit in the submission that the final report laid by the said officer violating the provisions of the Act cannot be sustained. - 15.In view of the above fact, though the consideration of other allegations are unnecessary, after having gone through the prosecution materials, I am of the considered view that the offences under Sections 3, 4, 5 and 7 of the Immoral Traffic (Prevention) Act will also not be attracted against the petitioners. - 16.Section 3 of the Act deals with the punishment for Crl.M.C.7009/2016 10 keeping a brothel or allowing premises to be used, as a brothel. S.4 of the Act deals with the punishment for living on the earnings of prostitution and S.5 deals with procuring, inducing or taking person for the sake of prostitution. Clause (a) of Section 7(1) is attracted only if any person "carries on prostitution" within an area notified by the State Government in the official Gazette under subsection (3) of Section 7. Clause (b) of Section 7(1) is attracted if any person "carries on prostitution" in a premises 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 that behalf either Commissioner of Police or by a District Magistrate in the manner prescribed. No such allegation is raised in the final report. Further, as held in **Mr. X. Central Kerala v. State of Kerala** (2009 (2) KHC 5) and **Radhakrishnan v. State of Kerala** (2008 (2) KHC 460), I am of the Crl.M.C.7009/2016 11 considered view that the allegations raised will not make out an offence under the Act. In the result, this petition is allowed. Annexure-A final report and all proceedings as against the petitioners in Crime No.1279 of 2016 of Mattancherry Police Station are quashed. **Sd/RAJA VIJAYARAGHAVAN.V. JUDGE** vps