Sindhu and Omana v. State of Kerala

## `IN THE HIGH COURT OF KERALA AT ERNAKULAM` ## `PRESENT` ``` THE HONOURABLE MR.JUSTICE ZIYAD RAHMAN A.A. ``` ``` FRIDAY, THE 1[ST] DAY OF JULY 2022 / 10TH ASHADHA, 1944 ``` ``` CRL.MC NO. 3868 OF 2022 ``` ``` [AGAINST THE PROCEEDINGS NOW PENDING AS C.C.NO.552/2018 ON THE FILE OF THE ADDITIONAL CHIEF JUDICIAL MAGISTRATE COURT, ERNAKULAM IN CRIME NO.198/2007 OF ERNAKULAM TOWN NORTH POLICE STATION] ``` ## `PETITIONERS/ACCUSED NOS.2 & 8:` ``` 1SINDHU AGED 50 YEARS,W/O RAVI, KAVILL HOUSE, MANNUTHY, OLLOORKARA VILLAGE, THRISSUR DISTRICT, PIN - 680655 2OMANA AGED 64 YEARS,W/O RAMAN, CHERIMATTOM PARAMBIL HOUSE, OKKAL, CHELAMATTOM VILLAGE, PERUMBAVOOR, ERNAKULAM, PIN - 683550 ``` ``` BY ADV P.A.MUJEEB ``` ## `RESPONDENT/COMPLAINANT:` ``` STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM, PIN - 682031 ``` ``` BY SRI.SUDHEER GOPALAKRISHNAN, PP ``` ``` THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 01.07.2022, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: ``` ``` CRL.MC NO. 3868 OF 2022 ``` ``` 2 ``` ## **ORDER** The petitioners are the accused Nos.2 & 8 in Crime No.198/2007 of Ernakulam Town North Police Station, which is now pending as C.C.No.552/2018 before the Additional Chief Judicial Magistrate Court, Ernakulam. The offences alleged against the petitioners and other accused are under Sections 3, 4, 5 & 6 of the Immoral Traffic (Prevention) Act, 1956 (hereinafter referred to as ‘the Act’). 2. The prosecution case is that, on 27.03.2007 at 5.30 pm, CW10, who is the Additional Sub Inspector of Police, Ernakulam Town North Police Station, conducted a search in house No.37/262, Sreeramkrishna Lane, Azad Road, as authorized by the Circle Inspector of Police, Ernakulam Town South Police Station, who is the Special Police Officer notified under section 13 of the Act. During such search, they found accused Nos.1 & 2 conducting a brothel wherein accused Nos.3, 4, 5, 6, 7 and 8 were engaged in sexual activities. Annexure-A1 is the FIR and Annexure-A2 is the final report submitted by the Police. This Crl.M.C is filed for quashing all further proceedings pursuant to Annexure-A2 as against the petitioners herein. 3. Heard Sri.P.A.Mujeeb, the learned counsel appearing for ``` CRL.MC NO. 3868 OF 2022 ``` `3` the petitioners and Sri.Sudheer Gopalakrishnan, the learned Public Prosecutor appearing for the State. 4. The specific contention put forward by the learned counsel for the petitioners is that, in this case, the search and arrest of the accused was conducted not in the manner as contemplated under section 14 and 15 of the Act and therefore the entire prosecution is vitiated. According to the learned counsel for the petitioners, the Sub-inspector of Police is not a competent officer either to conduct a search or arrest the accused. The aforesaid contention was placed by relying upon the stipulation contained in Sections 13, 14 and 15 of the Immoral Traffic (Prevention) Act, 1956. Reliance was also placed on the decision rendered by this Court in _**Sinu Sainudheen v. Sub Inspector of Police (2002 (1) KLT 693).**_ 5. On perusal of the records and hearing the arguments of the learned counsel on either side, I find some force in the contentions of the learned counsel for the petitioners. This is because, Section 13 of the Immoral Traffic (Prevention) Act, 1956 contemplates the qualification of a Special Police Officer, and it is provided that he shall not be below the rank of an Inspector of Police. The power for conducting search and investigation are vested upon the Special Police Officer notified in this regard. ``` CRL.MC NO. 3868 OF 2022 ``` ``` 4 ``` Section 14 of the the Act makes the offences conginzable. As per the proviso to section 14, notwithstanding anything contained in the Cr.P.C, the arrest can be made by the special police officer or under his direction or guidance, or subject to his prior approval. As per clause (ii) of the proviso to section 14, when the special police officer requires any officer subordinate to him to arrest any person without warrant otherwise than in his presence, 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 subordinate officer shall before arresting the person, inform him of the substance of the order and on being required by such person, show him the order. Therefore, for fulfilling the said statutory mandate for arresting a person on the basis of the authorization of the special police officer, in his absence, the following requirements are to satisfied i.e (1) there must an order in writing authorizing the subordinate officer, who shall be an officer not below the rank of Sub Inspector ( _as per clause (iii) of the proviso to section 14_ ), (2) such order must specify the person to be arrested, (3) the said order should contain the offence for which arrest is being made, (4) while arresting the person, the subordinate officer should inform the substance of order to the person arrested and (5) if the person going to be arrested ``` CRL.MC NO. 3868 OF 2022 ``` ``` 5 ``` requires, the order passed by the special police officer authorizing the subordinate officer, should be shown to him. 6. When examining the materials in this case, it can be seen that, the said procedure has not been complied with. In this case, the case of the prosecution is that, the search was conducted as authorized by the special police officer, but there is noting to show that, the details of the person who was to be arrested was specified in the order. A careful reading of the FIR and FIS would reveal that the identity of the accused came to light only after conducting the search in the premises and therefore, it was not possible for the special police officer to specify the person to be arrested in the order of authorization. Therefore, it can be safely concluded that, the procedure as contemplated under the proviso to section 14 has not been complied with. In **Sinu Sainudheen’s case** (supra) this court considered the impact of non compliance of the said procedure and held that, failure to fulfil the statutory procedure can be a ground for quashing the proceedings. 7. There is yet another aspect which makes the entire prosecution unsustainable. Even according to the prosecution, the search was conducted in the absence of the special police officer, but it was with the authorization of the special police officer. Section 15 of the Act deals with the manner in which search ``` CRL.MC NO. 3868 OF 2022 ``` `6` without warrant has to be conducted. As per the said provision, the said power is vested only upon the special police officer or the trafficking police officer. There is no stipulation in the said provision, enabling the special police officer to authorize any other police officer to conduct the search. Therefore the legal requirement is that, the search should be conducted by special police officer or trafficking police as the case may be and no other officer is competent for the same. In this case, admittedly the search is conducted without the presence of the special police officer. Though it is claimed to have been conducted on the authorization of the special police officer, in the absence of any provision enabling the special police officer to authorize any person, for conducting search, such authorization cannot provide any legal sanctity to the search conducted by the Additional Sub Inspector of Police. Even though Section 14 deals with authorization by the special police officer to the subordinate officer, the said power is confined to the power of arrest. This view is fortified as per the principles laid down **Sinu Sainidheen’ case (supra).** 8. The Immoral Traffic (Prevention) Act, 1956 is a special enactment, and it provides for a specific and special procedure for conducting the search in respect of the offences punishable under ``` CRL.MC NO. 3868 OF 2022 ``` `7` the said Act. It can be seen that the said Act provides for several safe guards in the matters of search, arrest, prosecution etc. Considering the fact that, the offences contemplated under the Act are touching upon the privacy of an individual, adherence of such procedure and safeguards are matters of utmost importance. Sexual intercourse between two adults with mutual consent is not an offence, and it is the personal choice of the parties. To translate the same into an offence, the requirement is that, such sexual intercourse must have been for monetary consideration. What is sought to be prevented by the Act is ‘prostitution’. The expression ‘prostitution” is defined in Section 2(f) of the Act, as _‘sexual exploitation or abuse of persons for commercial purposes_ ’. Only when commercial element comes in, it becomes an offence, and in the absence of the same, it is a person’s individual choice and is legally permissible, except under certain circumstances such as the case of adultery. Therefore, since the search under the Act may result in interference with the personal preferences of individuals who are engaging in sexual relationships falling within the parameters of law, safeguards contemplated under the Immoral Traffic (Prevention) Act, 1956 have to be scrupulously followed. Any violations of the same have to strictly viewed and should lead to termination of prosecution or acquittal of the accused. ``` CRL.MC NO. 3868 OF 2022 ``` `8` 9. When the materials placed before me in connection with this case are taken into consideration, it can be seen that the mandatory requirements as contemplated under section 14 and 15 of the Act are not complied with and such non compliance would vitiate the prosecution, warranting interference in the proceedings by this court under section 482 of Cr.P.C. In such circumstances, this Crl.M.C is allowed, Annexure-A2 final report submitted in Crime No.198/2007 of Ernakulam Town North Police station and further proceedings in C.C.No.552/2018 on the files of Additional Chief Judicial Magistrate Court, Ernakulam as against the petitioners are hereby quashed. Sd/- **ZIYAD RAHMAN A.A. JUDGE** **bng** ``` CRL.MC NO. 3868 OF 2022 ``` ``` 9 ``` ## `APPENDIX OF CRL.MC 3868/2022` ``` PETITIONER’S ANNEXURES ``` ``` Annexure A1THE CERTIFIED COPY OF THE F.I.R IN CRIME NO. 198/2007 OF ERNAKULAM TOWN NORTH POLICE STATION, ERNAKULAM DISTRICT Annexure A2CERTIFIED COPY OF THE CHARGE SHEET IN C.C.NO. 552/2018 OF ADDITIONAL CHIEF JUDICIAL MAGISTRATE COURT, ERNAKULAM ```