IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR MONDAY, THE 29TH JUNE 2009 / 8TH ASHADHA 1931 Crl.MC.No. 790 of 2009(A) --------------------------------- CC.24/2008 of CHIEF JUDL.MAGISTRATE, ERNAKULAM .................... PETITIONER(S): ACCUSED NO.2 -------------------------------------------- SHIJI @ SHIJI PAUL, D/O. PAUL, KUZHIKKANDATH VEETTIL,KAKKAVAYAL KARA, MUTTI VILLAGE, WAYANAD. BY ADV. SRI.MATHEW KURIAKOSE RESPONDENT(S): COMPLAINANT ----------------------------------------------- STATE OF KERALA, (CRIME NO. 482/2007 OF CENTRAL POLICE STATION, COCHIN CITY) REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM, R1 BY PUBLIC PROSECUTOR SRI.GIKKU JACOB. THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON 29/06/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: M.SASIDHARAN NAMBIAR, J. ================== Crl.M.C. No. 790 of 2009-A ================== Dated this the 29th day of June, 2009. O R D E R Petitioner is the second accused in C.C.No.24/2008 on the file of Chief Judicial Magistrate Court, Ernakulam. Annexure A final report submitted by Circle Inspector of Police, Ernakulam Central Circle Station, shows that on getting information that prostitution is going on in room No.201 of Silaire Guest House, Circle Inspector of Police, Ernakulam Town South Circle Station, on 28-3-2007 at about 10.15 PM raided room No.202 and found accused 1 and 2 engaged in prostitution and accused 3 and 4 were also there. They were arrested and were got examined by a doctor. After completing investigation, final report was filed alleging offences under Sections 3(2)(a)(b), 4 and 7(1)(b) of Immoral Traffic (Prevention) Act, 1956 (hereinafter referred to as the Act). This petition is filed under Section 482 of Code of Criminal Procedure, by the second accused lady, to quash the proceedings contending that the case as against the petitioner will not stand. Crl.M.C.No.790/2009-A -2- 2. Learned Counsel for the petitioner and learned Public Prosecutor were heard. 3. Learned Counsel for the petitioner submitted that the search and arrest were conducted by Circle Inspector of Police, Ernakulam Town South Circle Station, in a lodge situated within the jurisdiction of Ernakulam Central Circle Station and the Circle Inspector of Police, Ernakulam Town South Circle Station is not the special police officer notified for that area and therefore he has no authority to conduct the search or arrest the petitioner and therefore the search and arrest are per se illegal and based on the arrest, petitioner cannot be prosecuted. Reliance was placed on the decision of this court in Radhakrishnan v. State of Kerala (2008 (2) KHC 460), where a learned Single Judge of this court interpreting Sections 13 and 14 of the Immoral Traffic (Prevention) Act found that the special police officer had jurisdiction only over the notified area and not outside. It was argued that therefore based on the search and arrest conducted by an officer, who is not the special police officer for that area, Crl.M.C.No.790/2009-A -3- petitioner cannot be prosecuted. Reliance was also placed on the decisions in Sinu Sainudheen v. S.I. of Police (2002 (1) KLT 63), Joseph v. S.I. of Police (2003 (3) KLT 718) and Muhammed Ali v. S.I.of Police (2005 (3) KLT 527). Relying on the decision in X v. State of Kerala (2009 (2) KLT 7) it was argued that the room in a Guest House by itself will not constitute a brothel and in the absence of specific allegations that petitioner is engaged in prostitution, an offence alleged against the petitioner will not lie and therefore the case is to be quashed. 4. Learned Public Prosecutor pointed that though the search and arrest was conducted by Circle Inspector of Police, Ernakulam Town South Circle Station, who is not the notified special police officer for the area within Ernakulam Central Circle Station, the Circle Inspector of Police, Ernakulam Central Circle Station was engaged in other duty and so on getting information, Circle Inspector of Police, Ernakulam Town South Circle Station after obtaining permission of Assistant Commissioner of Police proceeded to Crl.M.C.No.790/2009-A -4- the lodge, conducted the search and arrested the culprits and investigation was completed by the Circle Inspector of Police, Ernakulam Central Circle Station, who is the notified special police officer for that area and therefore there is no illegality and the case cannot be quashed at the threshold. 5. Section 13(1) of Immoral Traffic (Prevention) Act provides that there shall be for each area to be specified by the State Government, a special police officer appointed by or on behalf of the Government, for dealing with offences under the Act in that area. The learned Single Judge in Radhakrishnan's case (supra) extracted the notification authorising the special police officers as per SRO No.344/2002 published in Kerala Gazette dated 9-11-1987, where under Government appointed Circle Inspectors of Police attached to the police stations as special police officers for dealing with offences under the Act “within their respective area of jurisdiction”. Item No.86 is Ernakulam Central Circle Station and item No.88 is Ernakulam Town South Circle Station. It is therefore clear that there are Crl.M.C.No.790/2009-A -5- separate special police officers, notified for the area of Ernakulam Central Circle Station as well as Ernakulam Town South Circle Station. It is also clear that each of the Circle Inspectors were appointed as special police officers for dealing with the offences under the Act within the respective areas of territorial jurisdiction. Therefore a special police officer, who is authorised under Section 13 to deal with offences under the Act, including search and arrest, within Ernakulam Central Circle Station, is the Circle Inspector of that Circle. Though the Circle Inspector of Police, Ernakulam Town South Circle Station is also a special police officer, he can act as special police officer only within the area of his territorial jurisdiction. As held in Radhakrishnan's case (supra), when a police officer, who was notified and appointed by the Government to deal with offences under the Act is the Circle Inspector of Police, Ernakulam Central Circle Station. Though the Circle Inspector of Police, Ernakulam Town South Circle Station is the special police officer within the area of jurisdiction of that police station, he cannot act or Crl.M.C.No.790/2009-A -6- deal with offences within the jurisdiction of Ernakulam Central Circle Station as a special police officer. 6. If that be so, the search and arrest conducted by the Circle Inspector of Police, Ernakulam Town South Circle Station in a lodge situated within the jurisdiction of Ernakulam Central Circle Station, which is not by the notified special police officer and therefore such search is per se illegal. As held by this court in Sinu Sainudheen's case, Joseph's case and Mohammed Ali's case (supras) when the search and arrest is per se illegal, continuation of the proceedings is an abuse of process of court. In view of this finding, I do not find it necessary to go into other aspects. 7. Crl.M.C. is allowed. Annexure A charge sheet and C.C.No.24/2008 on the file of Chief Judicial Magistrate, Ernakulam, as against the petitioner is quashed. M.SASIDHARAN NAMBIAR JUDGE dkr