Sandhya and Abdul Kareem v. State of Kerala and Sub-Inspector of Police, Kottakkal

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** ## **THE HONOURABLE MR. JUSTICE A.M.BABU** ## **TUESDAY, THE 30TH DAY OF MAY 2017/9TH JYAISHTA, 1939** **Crl.MC.No. 1763 of 2013 () ---------------------------** **AGAINST THE ORDER/JUDGMENT IN CC 1016/2005 OF THE JUDICIAL FIRST CLASS MAGISTRATE,MALAPPURAM DATED 27-10-2010 CRIME NO. 357/2004 OF KOTTAKKAL POLICE STATION , MALAPPURAM** ## **PETITIONER(S)/ACCUSED 2 AND 3:** **-----------------------------** ## **1. SANDHYA** **D/O. SIVAN, CHERVAYOOR AMSOM, VRINDAVAN COLONY, KOZHIKODE.** **2. ABDUL KAREEM,** **S/O. KUNHIMUHAMMED, KOLAKKATTIL HOUSE, PONMALA AMSOM KIZHAKKETHAKLA, CHAPPANANGADI, MALAPPURAM DISTRICT.** **BY ADV. SRI.K.M.SATHYANATHA MENON** **RESPONDENT(S):** **--------------** **1. STATE OF KERALA REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM, KOCHI-682031.** **2. THE SUB INSPECTOR OF POLICE KOTTAKKAL POLICE STATION, KOTTAKKAL, MALAPPURAM DISTRICT-676503.** ## **R BY ADV.MAYA M.N, PUBLIC PROSECUTOR** **THIS CRIMINAL MISCELLANEOUS CASE HAVING BEEN FINALLY HEARD ON 24.1.2017, THE COURT ON 30.5.2017 PASSED THE FOLLOWING:** ## **Crl.MC.No. 1763 of 2013 ()** **---------------------------** ## **APPENDIX** **PETITIONER(S)' EXHIBITS** **-----------------------** **ANX.I TRUE COPY OF THE JUDGMENT DATED 27-10-10 IN C.C. NO. 1016/2005 ON THE FILE OF THE JUDICIAL FIRST CLASS MAGISTRATE COURT, MALAPPURAM.** **ANX.II CERTIFIED COPY OF THE FINAL REPORT IN CRIME NO. 357/2004 OF KOTTAKKAL POLICE STATION SUBMITTED BY THE 1ST RESPONDENT BEFORE THE JUDICIAL FIRST CLASS MAGISTRATE COURT, MALAPPURAM.** **RESPONDENT(S)' EXHIBITS** **-----------------------** **NIL** **TRUE COPY** **SKS** **P.A TO JUDGE** **“CR”** ## **A.M.BABU, J.** -----------------------------Crl.M.C.No. 1763 OF 2013 -----------------------------Dated 30[th] May, 2017 ## **ORDER** A criminal prosecution is sought to be quashed. The relief is sought under Sec.482 of Cr.P.C. 2. Petitioners 1 and 2 were accused 2 and 3 respectively in C.C.1016/2005. That was a case on the file of the court of the Judicial Magistrate of the First Class, Malappuram. The accused persons were charged under the provisions of the Immoral Traffic (Prevention) Act, 1956 (for short 'the Act'). The first accused died. The petitioners absconded just before they were to be examined under Sec.313 of Cr.P.C. The fourth accused was acquitted. The case against the petitioners was refiled as C.C.1230/2010. All further proceedings therein are sought to be quashed. 3. Heard the learned counsel for the petitioners. Heard the learned public prosecutor. 4. Altogether there were four accused persons. One died. Others were tried. The petitioners absconded pending trial. The fourth accused stood trial till the end. He was acquitted. Acquittal of a co-accused by itself is not a ground to quash the proceedings against any other accused. 2 Crl.M.C.No. 1763 OF 2013 ## 5. **Moosa vs. Sub Inspector of Police (ILR 2006(1)** **Ker 237).** It is a full bench decision of this court. The decision holds that the judgment rendered in the case of a co-accused is not to be taken into account when another accused seeks to quash the proceedings against him. The full bench holds that the said general rule is subject to an exception. The exception is held to apply where the very substratum of the case is lost. Is this such a case is the question. 6. The petitioners and others were charged under Secs 3, 4, 5 and 7 of the Act. The first petitioner is a woman. The petitioners and the first accused allegedly occupied a room in a lodge for prostitution. They were allegedly seen by the police half-naked and engaged in embracing and kissing. The search in the lodge was conducted and the accused persons were arrested by the sub-inspector of Kottakkal police station. The fourth accused was acquitted by the learned magistrate holding that a sub-inspector was incompetent to conduct any search and detect commission of any offence under the Act. The relevant provisions of the Act are to be considered. 7. A police officer appointed by the central government 3 Crl.M.C.No. 1763 OF 2013 under Sec.13 (4) of the Act is a trafficking police officer as defined in Sec.2(j) . The central government appoints trafficking police officers under Sec.13(4) for the purpose of investigating offences committed in more than one state. The present case does not relate to any offence committed in more than one state. Hence Secs 2(j) and 13(4) are not relevant in the present case. The powers of the trafficking police officers are also not relevant here. 8. The provisions to be read are Secs 2 (i), 13, 14 and 15 of the Act. Sec.2 (i) defines a special police officer. Special police officer means a police officer appointed by or on behalf of a state government to be in charge of police duties within a specified area for the purpose of the Act. Sec.13(1) insists on the appointment of special police officers by or on behalf of every state government for dealing with offences under the Act in the respective areas to be specified by that government. The special police officer shall not be below the rank of an inspector of police as provided in Sec.13 (2). All offences punishable under the Act shall be deemed to be cognizable offences within the meaning of Cr.P.C as Sec.14 of the Act declares. But every police officer is 4 Crl.M.C.No. 1763 OF 2013 not competent to arrest without warrant a person committing or alleged to have committed an offence under the Act. Every police officer is not authorised to conduct searches also. The proviso to Sec.14 states who can arrest an offender without a warrant. Sec.15 states who can conduct a search without a warrant and when. Sec.15 and the proviso to Sec.14 give the respective powers to the special police officer. The proviso to Sec.14, of course, authorises a non-special police officer to effect arrest in certain circumstances. 9. The government of Kerala has appointed circle inspectors of police to be special police officers for dealing with offences under the Act within their respective areas of jurisdiction (vide GO(MS) 131/87/Home dated 28.10.1987-SRO No.1451/1987). In the instant case the search was conducted, the offence was detected and the arrest was effected by the subinspector of Kottakkal police station. The sub-inspector was not only not a designated special police officer, but also ineligible to be appointed a special police officer. That means the very foundation of the prosecution against the petitioners is lost. There was, however, an attempt to repair it. 5 Crl.M.C.No. 1763 OF 2013 10. The prosecution attempted to explain the search conducted and the arrest effected by the sub-inspector. The explanation is that the sub-inspector searched the lodge and arrested the accused persons with the permission of the Dy.S.P, Tirur. The Dy.S.P was not a special police officer within the meaning of the Act. The Dy.S.P therefore had no power to give the power to any police officer to search any premises or to arrest any person. 11. Sec.15(1) of the Act reads thus: Notwithstanding anything contained in any other law for the time being in force, whenever the special police officer or the trafficking police officer, as the case may be, has reasonable grounds for believing that an offence punishable under this Act has been or is being committed in respect of a person living in any premises, and that search of the premises with warrant cannot be made without undue delay, such officer may, after recording the grounds of his belief, enter and search such premises without a warrant. In a case like the present one where the offence is not committed in more than one state, the special police officer alone has the authority to conduct search. Sec.15 does not confer any 6 Crl.M.C.No. 1763 OF 2013 authority on the special police officer to delegate his authority to any other authority under any circumstances. Thus, even with the permission of the special police officer, the sub-inspector or any other police officer cannot conduct search in any premises to detect any offence punishable under the Act. The search conducted by the sub-inspector of Kottakkal police station was without any authority and was per se illegal. Therefore the prosecution against the petitioners cannot at all stand. 12. The search conducted by the sub-inspector was attempted to be justified by the prosecution on the ground that the sub-inspector had the power to arrest the accused persons. The proviso to Sec.14 authorises a police officer, even if he is not a special police officer, to arrest an offender in certain circumstances. Sec.14 is extracted below: Notwithstanding anything contained in the Code of Criminal Procedure, 1973, any offence punishable under this Act shall be deemed to be a cognizable offence within the meaning of that Code: Provided that, notwithstanding anything contained in that Code, (i) arrest without warrant may be made only by the special police officer or under his direction or guidance, or 7 Crl.M.C.No. 1763 OF 2013 subject to his prior approval; (ii) when the special police officer requires any officer subordinate to him to arrest without warrant otherwise than in his presence any person for an offence under this Act, he shall give that subordinate officer an order in writing, specifying the person to be arrested and the offence for which the arrest is being made; and the latter officer before arresting the person shall inform him of the substance of the order and, on being required by such person, show him the order; (iii) any police officer not below the rank of sub-inspector specially authorized by the special police officer may, if he has reason to believe that on account of delay involved in obtaining the order of the special police officer, any valuable evidence relating to any offence under this Act is likely to be destroyed or concealed, or the person who has committed or is suspected to have committed the offence is likely to escape, or if the name and address of such a person is unknown or there is reason to suspect that a false name or address has been given, arrest the person concerned without such order, but in such a case he shall report, as soon as may be, to the special police officer the arrest and the circumstances in which the arrest was made. 13. The proviso to Sec.14 has three clauses. Clause (iii) of the proviso has no application here inasmuch as the arrest was made not in any of the circumstances mentioned in the said 8 Crl.M.C.No. 1763 OF 2013 clause. 14. Clause (ii) of the proviso to Sec.14 authorizes a special police officer to require any officer subordinate to him to arrest without warrant other than in his presence any person for an offence under the Act. But clause (ii) does not permit the special police officer to give a general authorisation to arrest any person who commits an offence under the Act. The special police officer should give an order in writing to an officer subordinate to him specifying the person to be arrested and the offence for which the arrest is to be made. The substance of the order shall be informed to the person whose name is shown in the order and, if so required by him, the order shall be shown to him by the arresting officer. Admittedly there was no such order mentioning the name of the petitioners as the persons to be arrested. Hence clause (ii) is also not attracted here. 15. Under clause (i) of the proviso to Sec.14, arrest without warrant may be made only by the special police officer or under his direction or guidance, or subject to his prior approval. An arrest without warrant by a police officer other than a special police officer can be made under the direction or guidance or 9 Crl.M.C.No. 1763 OF 2013 subject to the prior approval of the special police officer only in the presence of the special police officer. It is true that clause (i) does not specifically state that such arrest can be made only in the presence of the special police officer. But clause (i) cannot be read in isolation. Arrest without warrant otherwise than in the presence of the special police officer is covered by clause (ii) of the proviso. Therefore it goes without saying that arrest by any other officer can be made under clause (i) only in the presence of the special police officer. If that is not the interpretation, clause (ii) would be a surplus. Clause (i) of the proviso is also not attracted in the present case. 16. The proviso to Sec.14 will not come to the rescue of the prosecution in any case. For, in the instant case, the Dy.S.P who permitted the arrest was not a special police officer. 17. The prosecution against the petitioners cannot stand. The Crl.M.C should be allowed. I have not seen any judicial pronouncement interpreting clause (i) of the proviso to Sec.14 of the Act. I was guided by the following decisions to reach the other conclusions I had. **Sinu Sainudheen vs Sub-Inspector of Police (2002 (1) KLJ 298). Joseph vs Sub-Inspector of** 10 Crl.M.C.No. 1763 OF 2013 **Police (2003 (3) KLT 718). Muhammed Ali vs Sub-Inspector of Police (2005 (2) KLD 279). Radhakrishnan vs State of Kerala (2008 (2) KHC 460). Joseph vs State of Kerala (2011 (2) KHC 958). Abdul Rasheed vs State of Kerala (ILR 2012 (4) Ker 996). Raju C.P vs State of Kerala (2014 (2) KLD 95).** 18. The criminal miscellaneous case is allowed. C.C. 1230/2010 on the file of the court of the Judicial Magistrate of the First Class, Malappuram and all proceedings therein against the petitioners stand quashed. sks/6.5.2017 **A.M.BABU Judge**