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# **IN THE HIGH COURT OF KERALA AT ERNAKULAM**
## **PRESENT**
## **THE HONOURABLE MR. JUSTICE K.HARIPAL**
**WEDNESDAY, THE 9[TH] DAY OF MARCH 2022 / 18TH PHALGUNA, 1943**
**CRL.MC NO. 865 OF 2022**
## **PETITIONER/6TH ACCUSED:**
**VARUN M.S AGED 39 YEARS S/O. MOHANAN, ARUNODAYAM, T.C. 6/1884(15), NEAR SARASWATHY VIDYALAYAM, VATTIYOORKAVU P.O., THIRUVANANTHAPURAM, PIN - 695013**
**BY ADVS. D.KISHORE MEERA GOPINATH R.MURALEEKRISHNAN (MALAKKARA) ARYA JOSEPH**
## **RESPONDENT/STATE/DEFACTO COMPLAINANT :**
- **1 STATE OF KERALA REPRESENTED BY ITS PUBLIC PROSECUTOR HIGH COURT OF KERALA, ERNAKULAM, PIN - 682031**
- **2 THE STATION HOUSE OFFICER VALIYATHURA POLICE STATION, THIRUVANANTHAPURAM, PIN - 695008**
- **3 THE CIRCLE INSPECTOR OF POLICE POONTHURA POLICE STATION, THIRUVANANTHAPURAM, PIN - 695026**
- **SR. PP SRI HRITHWIK C.S.**
**THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 03.03.2022, THE COURT ON 09.03.2022 PASSED THE FOLLOWING:**
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## **O R D E R**
Petitioner is the 6[th] accused in C.C.838/2016 on the file of the Judicial First Class Magistrate's Court-XI, Thiruvananthapuram, which originated from the final report in crime 612/2016 of Valiyathura police station. That crime was registered on 27.04.2016 by the Inspector of Police, Poonthura, alleging offence under Sections 3, 4 and 7 of the Immoral Traffic (Prevention) Act, 1956, hereinafter referred to as the Act. On conclusion of investigation, he himself laid the charge sheet alleging the above stated offences. The sum and substance of the allegations against the accused persons, 21 in number, is that on 27.04.2016 at 2.00 p.m., accused persons 4 to 18 were found engaged in prostitution in Ruksana tourist home situated near Food Corporation of India godown at Valiyathura. Accused 1 to 3 are the Manager, Assistant Manager and Security of the said tourist home, which is owned by accused No.21. Accused Nos.19 and 20 are agents or pimps who had arranged prostitution by accused Nos.4 to 18.
2. The petitioner contends that he is innocent, that the allegations are false and legally unsustainable and therefore entire proceedings are sought to be quashed.
3. According to the petitioner, offence under Section 7 of the Act is
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alleged against him, which would not sustain as there is no whisper in Annexure-I final report that the place is a notified area as per Section 7(3) of the Act. Moreover, the offence was not committed in the vicinity of a public
place. Again, the alleged offence had happened within the territorial jurisdiction of Valiyathura police station where the Inspector of Police of Poonthura is not an authorised officer. Similarly, the 3[rd] respondent was allegedly authorised by the Assistant Commissioner of Police, Shankumugham but no such authorisation has been produced. The investigation conducted by the 3[rd] respondent is incompetent. The Assistant Commissioner of Police had no jurisdiction to give authorisation to him.
4. I heard the learned counsel for the petitioner and also the learned Senior Public Prosecutor.
5. The learned counsel for the petitioner has relied on the decisions reported in **Antony Vincent v. State of Kerala [2014 (3) KHC 542]** , **Sandhya and another v. State of Kerala and another [2017 (3) KHC 137]** and **Vijayakumar and others v. State of Kerala and others [2016 (1) KHC 698]** .
6. I have gone through the materials made available before Court and also the notification SRO No.344/2002 issued under G.O.(MS) No.131/1987/Home dtd.28.10.1987 and published as SRO 1451/1987 Kerala
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Gazette No.897 dt. 9.11.1987. After going through these materials, I have no doubt, for multiple reasons, the case against the petitioner cannot sustain. As rightly pointed out by the learned counsel for the petitioner, having regard to the circumstances, what is the offence alleged against the petitioner, accused No.6, is under Section 7 of the Act. Section 7 says that prostitution in or in the vicinity of public places that would be attracted with punishment. Section 7(3) of the Act says that the State Government may, having regard to the kinds of persons frequenting any area or areas in the State, the nature and the density of population therein and other relevant considerations, by notification in the Official Gazette, direct that prostitution shall not be carried on in such area or areas as may be specified in the notification. Such a notification is not available before Court. Secondly, the place of occurrence is within Valiyathura police station limits. The notification referred above does not postulate Valiyathura police station limits nor any officer has been authorized to deal with matters falling within Valiyathura police station limits. Section 13 of the Act says about special police officer and advisory body, that there shall be for each area to be specified by the State Government in this behalf a special police officer appointed by or on behalf of that Government for dealing with offences under this Act in that area. Sub-section (2) says that the special police officer shall not be below the rank of an Inspector of Police.
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Of course the Circle Inspector of police, Poonthura appears as serial No.6 in Thiruvananthapuram city as the notified area. But it cannot be inferred that Valiyathura police station limits falls within the territorial jurisdiction of Circle Inspector, Poonthura. Such a notification is not available before Court; nor the Circle Inspector, Poonthura has been authorized to deal with matters mentioned in Section 13 of the Act. Therefore, an officer who is not competent, merely for the reason that he happens to be Inspector of Police, he cannot exercise any power under the Act in respect of areas beyond the notified areas as per Section 13 of the Act.
7. Moreover, Section 15(2) of the Act reads as follow:
“Before making a search under sub-section (1), the special police officer or the trafficking police officer as the case may be, shall call upon two or more respectable inhabitants (at least one of whom shall be a woman) of the locality in which the place to be searched is situate, to attend and witness the search and may issue an order in writing to them or any of them so to do:
Provided that the requirement as to the respectable inhabitants being from the locality in which the place to be searched is situate shall not apply to a woman required to attend and witness the search.”
8. Here, the charge sheet does not indicate that any such respectable
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persons of the locality was made to witness the search and seizure and, as a necessary corollary, a respectable woman was not a witness to the occurrence. Here, there are fourteen witnesses in the charge sheet. CWs.1 and 2 are independent witnesses; one Kannan @ Rajan Sebastian and Jerald Fernandez, who are witnesses to the detection and arrest of the accused persons. CWs.3 to 11 are police officials who were in the party of CW15 the Circle Inspector who conducted search of the place and also arrested the accused persons. CW12 is the Assistant Surgeon of the General Hospital who had conducted potency test of accused Nos.4 to 10 whereas CW13 is the Consultant in Thycaud Women and Children hospital who had examined ladies, accused Nos.11 to 18. CW14 is Petta Circe Inspector who produced the accused persons before Court with remand application, after verifying the records and CW15 is the Circle Inspector who conducted search, seizure, arrest, registration of the crime, conduct of the investigation and laid the charge sheet. In other words, CW15 C.I. Poonthura is not a competent officer at the time of search and arrest of the accused persons and the alleged incident had happened in Valiyathura police station limits.
9. It is shown that the Circle Inspector had gone to the place of occurrence as authorised by the Assistant Commissioner, Shanghumugham. But as a matter of fact, as indicated earlier, the Assistant Commissioner,
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Shanghumugham is not an authorised officer and is not a special police officer in any of the areas. Merely for the reason that he may be the Assistant Commissioner in charge of Valiyathura police station limits and superior in hierarchy, he does not become a competent officer in respect of Valiyathura police station limits so that any amount of instruction given by him to a subordinate officer will not satisfy the legal requirement as mandated under Section 13 of the Act.
10. Even assuming that the C.I. Poonthura is the officer in charge of Valiyathura police station limits, so long as Valiyathura is not a notified area, the offence cannot sustain against the accused.
11. Moreover, as rightly pointed out by the learned counsel for the petitioner, in order to attract such an offence there must be prostitution taken place as defined under Section 2(f) of the Act, which means sexual exploitation or abuse of persons for commercial purposes and the expression 'prostitute' shall be construed accordingly. Here, even if the entire allegations are accepted, only a single incident has been noticed against the petitioner and that is not sufficient to attract the offence.
12. After considering the entire circumstances and evidence produced before Court, it does not seem that a case will sustain against the petitioner. There are technical flaws, mentioned above, to find that the prosecution
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cannot sustain. That means, there is no possibility of convicting the petitioner. Therefore, this is eminently a fit case for invoking the extraordinary jurisdiction of this Court under Section 482 of the Cr.P.C. and entire proceedings in C.C.838/2016 on the file of the Judicial First Class Magistrate's Court-XI, Thiruvananthapuram against the petitioner as the 6[th] accused are quashed and he shall stand exonerated.
The Crl.M.C. is allowed as above.
**Sd/-**
**K.HARIPAL JUDGE**
okb/5.3.22
//True copy// P.S. to Judge
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## **APPENDIX OF CRL.MC 865/2022**
PETITIONER ANNEXURES Annexure ANNEXURE-I: THE FREE COPY OF THE FINAL REPORT IN CRIME 612/2016 OF VALIYATHURA POLICE STATION, ISSUED TO THE PETITIONER FROM THE JFMC-XI, THIRUVANANTHAPURAM
