Suni v. State of Kerala

# **`IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT`** ``` THE HONOURABLE MR. JUSTICE P.V.KUNHIKRISHNAN THURSDAY, THE 7[TH] DAY OF DECEMBER 2023/16[TH] AGRAHAYANA, 1945 ``` ``` CRL.MC NO. 6110 OF 2022 ``` ``` CRIME NO.530/2007 OF Kalady Police Station, Ernakulam ``` ``` AGAINST THE ORDER/JUDGMENT CC 121/2021 OF JUDICIAL MAGISTRATE OF FIRST CLASS - IV, PERUMBAVOOR ``` ## **`PETITIONER/S:`** ``` SUNI , AGED 36 YEARS, D/O. GOPI, ARAKKAL VEEDU, KURIZU PARA, PALLIVASAL VILLAGE, IDUKKI DISTRICT- 685568, PIN - 685568 BY ADVS. BHANU THILAK S.R.PRASANTH VISHNU.R HARI SHANKAR PRASAD SREERAJ M.D. THASMILA.K SARUN K. IDICULA ``` ## **`RESPONDENT/S:`** ``` 1STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM, PIN - 682031 2THE CIRCLE INSPECTOR OF POLICE CHENGAMANAD POLICE STATION, ALUVA, PIN - 683578 3STATION HOUSE OFFICER , KALADY POLICE STATION, ERNAKULAM DISTRICT, PIN - 683111 ``` ## **`OTHER PRESENT:`** ``` SRI RENJITH TR, PP ``` ``` THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 07.12.2023, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: ``` -2- Crl.M.C No. 6110 of 2022 ## **P.V.KUNHIKRISHNAN, J.** ====================================================== Crl.M.C No.6110 of 2022 ============================================================= Dated this the 7[th] day of December, 2023 ## **ORDER** The petitioner is the 1[st] accused in Crime No.530 of 2007 of Kalady Police Station. The above case is registered against the petitioner and others alleging offences punishable under Sections 4 and 5 of the Immoral Traffic (Prevention), Act 1956 (for short ‘the Act, 1956’). 2. The prosecution case is that on 28.06.2007, while the Circle Inspector of Police, Chengamanad and his party were conducting patrol duty, they got an information that immoral activities are being carried on at Gimmy’s lodge. On getting information, he and his party proceeded to that lodge and conducted search at room Nos.6 and 7. In room No.6, he found accused Nos. 1 and 2 and they were doing sexual intercourse. He arrested accused Nos.1 and 2. Similarly, room No.7 accused Nos.3 and 4 were doing sexual intercourse and they were also arrested. Consequently FIR is registered and the investigation is completed. -3- Crl.M.C No. 6110 of 2022 3. The petitioner was not able to appear before the trial court and therefore, his case was split up and the trial against some of the accused were conducted and as per Annexure A4 judgment, they were acquitted. The main contention raised by the petitioner is that the Circle Inspector of Police, Chengamanad is not the Special Officer appointed as per the provisions of the Act. For that reason the trial court acquitted the other accused as per Annexure A4 judgment. The petitioner relied on Annexure A5 Government Order, in which the Officer is not notified as the Special Officer, as per the Act, 1956. Hence, it is stated that in the light of Annexure A4 judgment acquitting the co-accused, the continuation of prosecution against the petitioner is an abuse of process of court. 4. Heard counsel for the petitioner and the Public Prosecutor. The counsel for the petitioner submitted that the co-accused were already acquitted by the trial court and the continuation of the trial against the petitioner/s will be an abuse of process of court because the substratum of the prosecution case is shattered. The Public Prosecutor submitted that the petitioner has to face trial before the -4- Crl.M.C No. 6110 of 2022 lower court and this court may not invoke the powers under Section 482 of the Code. 5. This Court in **Moosa v. Sub Inspector of Police (2006 (1) KLT 552), Abbas T.K. v. State of Kerala (2013 KHC 336)** and in **Ashraf Kancheriyil v. State of Kerala (2011(2) KHC 812)** considered the powers of this court to invoke Section 482 of the Code to quash the proceedings based on the acquittal of co-accused. The dictum laid down by this court in the above judgment is that, if substratum of prosecution case is shattered by the judgement of acquittal of the co-accused that could be taken into account while considering the request to quash the proceedings. After going through the judgment of the trial court, I am of the considered opinion that the continuation of the prosecution against the petitioner/s will be an abuse of process of court. It will be beneficial to extract the relevant portion of the judgment by which the co-accused is acquitted: _10. Prosecution alleged offences punishable u/s 4 and 5 of Immoral Traffic(Prevention) Act. Sec 4 of the act prescribed for punishment for living earnings of the prostitution. Sec. 5 is prescribed for punishment in procurring, inducing or taking a person for the sake of_ -5- Crl.M.C No. 6110 of 2022 _prosecution. Now the question to be considered is whether Al and A3 were living earnings of prostitution. Further whether the prosecution is succeeded in proving the fact that A2 and A4 procured Al and A3 for the purpose of prostitution. The prosecution does not have a case that the aforesaid lodge is a brothel house. According to them the accused were in the in a persons found lodge compromising position. Pw.6 the investigating officer came to a conclusion that Al and A3 were living in prostitution on the basis of the information obtained from the accused themselves. It is a well accepted proposition of law that admission by accused before a police officer is inadmissible in evidence. Therefore the conclusion arrived by Pw.6 has absolutely no value at all. Therefore there is absolutely no independent evidence to the effect that Al and A3 were living on prostitution. Similarly there is absolutely no evidence that A2 and A4 procured Al and A3 to the aforesaid lodge for the purpose of prostitution. Even accepting the entire evidence of prosecution witnesses are true it cannot be said that prosecution has succeeded in proving the fact that Al and A3 were doing prostitution at the aforesaid lodge. For proving the prostitution the prosecution has to prove that Al and A3 have sexual intercourse with A2 and A4 for monitory gain. In the absence of such an evidence offence u/s 4 and 5 is not attracted against the accused._ _11. As per sec.13 and 14 of the Act only a special officer notified in gazette alone is competent to search and arrest the accused. In other words the detection of the offence shall be done by a special officer notified as per the gazette. In the instant case Pw.6 the Circle Inspector of_ -6- Crl.M.C No. 6110 of 2022 _Police, Chengamanad has detected the offence. As per gazette notification published under G.O.M.S No.42/2002 Home dated 24.4.02 in Kerala gazette extra ordinary No.625 dated 10.2.2002 the special officers have been notified. As per the said notification C.L. Of Police, Chengamanad is not a special officer appointed as per the Provisions of the Act. Hon'ble High Court in the decision of Radhakrishnan V. state of Kerala reported in 2008(2) LT 521 held that police officers those are not specifically appointed as special officers cannot investigate the offence under the I.T.P. Act even though those offences are cognizable offences. The notification appointing special officers is also available in the said decision. In that notification C.I. Of Police, Chengamanad is not a special officer. Therefore the detection as well as investigation of the crime itself was improper and irregular and the trial itself is vitiated. In view of the above circumstances, I am of the view that prosecution has not succeeded in proving the guilt of the accused beyond all reasonable doubt. Hence A2 and A4 are entitled for an acquittal. Point Nos. 1 and 2 are not found in favour of the prosecution.”_ 6. From the above, it is clear that the substratum of the prosecution case is shattered by the judgment delivered by the lower court, while acquitting the co-accused. Therefore, this court is of the view that the continuation of the prosecution will be an abuse of process of court and it will be a judicial waste of time. Therefore, this Crl.M.C can be allowed. -7- Crl.M.C No. 6110 of 2022 Hence this Criminal Miscellaneous Case is allowed. All further proceedings as against the petitioner, who is the 1[st] accused in CC No.121 of 2021 on the file of the Judicial First Class Magistrate Court-IV, Perumbavoor, arising from Crime No.530 of 2007 of Kalady Police Station, Ernakulam, are quashed. sd/- ## **P.V.KUNHIKRISHNAN** **JUDGE** das -8- Crl.M.C No. 6110 of 2022 ## **`APPENDIX OF CRL.MC 6110/2022`** ## `PETITIONER ANNEXURES` ``` Annexure.A1TRUE COPY OF THE FIR DATED 28/06/2007 IN CRIME NO: 530/2007 OF THE KALADY POLICE STATION Annexure. A2TRUE COPY OF THE FIS GIVEN BY THE 2ND RESPONDENT Annexure. A3CERTIFIED COPY OF THE FINAL REPORT FILED BEFORE THE JUDICIAL MAGISTRATE COURT, PERUMBAVOOR Annexure. A4CERTIFIED COPY OF THE JUDGEMENT OF THE JUDICIAL FIRST-CLASS MAGISTRATE COURT, PERUMBAVOOR DATED 17.04.2022 IN C.C. NO. 1616/2007 Annexure. A5TRUE COPY OF THE G.O.M.S NO.56/2002 DATED 24.04.2002 IN KERALA GAZETTE EXTRA ORDINARY NO.625 DATED 10.02.2002 ```