IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH TUESDAY, THE 8TH FEBRUARY 2011 / 19TH MAGHA 1932 CRL.MC.NO. 4692 OF 2010() ---------------------------------------- CC.32/2007 OF JUDL. MAGISTRATE OF FIRST CLASS COURT, THALASSERY .................... PETITIONER(S): ACCUSED 3 & 4 ----------------------------------------------- 1. K.P.SADANANDAN,AGED 41 YEARS, S/O.KUNHIKANNAN,NITHYANAND HOUSE,PARAKKAL, MAHI. 2. SABAH,S/O.MOIDU,AGED 22 YEARS, PALLATH HOUSE,PALLOOR AMSOM DESOM, MAHI. BY ADV. SRI.CIBI THOMAS RESPONDENT(S): COMPLAINANT/STATE ----------------------------------------------------------- 1. SUB INSPECTOR OF POLICE,CHOKLI POLICE STATION. 2. STATE REP;BY P.PROSECUTOR,HIGH COURT OF KERALA,ERNAKULAM. BY PUBLIC PROSECUTOR SMT. M.K. PUSHPALATHA THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 08/02/2011, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: THOMAS P.JOSEPH, J. ==================================== Crl. M.C. No.4692 of 2010 ==================================== Dated this the 08th day of February, 2011 O R D E R Accused Nos.3 and 4 in Crime No.133 of 2006 of Chokli Police Station (coming within Kannur Circle) and C.C. No.32 of 2007 of the court of learned Judicial First Class Magistrate-I, Thalassery are the petitioners before me. They are charged for offences under Sections 4, 8 and 17 of the Immoral Traffic (Prevention) Act 1956 (for short, “the Act”). The allegation is that on 30.07.2006 at about 00.30 hours Sub Inspector, Chokli and party while on patrol duty getting information searched house of one Sankaran and detected the offence. It is alleged that petitioners were sitting in the Verandha inside the closed grills at the time of search. The Sub Inspector arrested some of the accused. Investigation of the case was conducted by the Additional Sub Inspector who submitted final report on which learned Magistrate took cognizance and issued process to petitioners. It is contended by learned counsel that all proceeding is illegal and against the provisions of the Act and the learned Magistrate could not have taken cognizance in the matter. CRL.M.C. No.4692 of 2010 -: 2 :- Learned counsel placed reliance on the decision in Delhi Administration v. Ram Singh (AIR 1962 SC 63). I have heard learned Public Prosecutor also. Learned Public Prosecutor has given to me the case diary file concerning the case where I find letter No.755/HOC/DR/06 dated 30.07.2006 issued by the Circle Inspector, Panoor to the Station House Officer, Chokli authorizing the latter to conduct search in the building in question and take immediate and necessary action. According to the learned Public Prosecutor it is pursuant to that authorisation that the Sub Inspector searched the house in question and effected the arrest. 2. Under Section 13 of the Act there shall be for each area to be specified by the State Government in that behalf “a Special Officer appointed by or on behalf of that Government for dealing with the offences under this Act in that area”. By virtue of the said provision the Government have issued Notification SRO No.344/2002 appointing Special Officers for the areas mentioned therein. So far as Panoor circle (serial No.176) in Kannur District is concerned, the authorised officer is the Circle Inspector of Police, Panoor. It is therefore clear that the Special Officer appointed under Sec.13 of the Act to deal with the offence within CRL.M.C. No.4692 of 2010 -: 3 :- Panoor circle is the Inspector of that circle. 3. Section 14 of the Act states that any offence punishable under the Act shall be deemed to be a cognizable offence within the meaning of the Code of Criminal Procedure (for short, “the Code”) and states that in the circumstances stated therein it is within the power of the Special Officer to direct arrest by any police officer as mentioned therein. Dealing with the above a learned Judge of this Court in Sinu Sainudheen v. Sub Inspector of Police (2002 [1] KLT 693) stated that The Assistant Commissioner of Police who was the Special Officer could not be said to have given sanction for effecting arrest to the subordinate officer as stated in the second proviso to Sec.14 of the Act since the sanction order was made even before the raiding of the house of the first accused. For that reason it could not be said that there was sufficient authorisation given by the Special Officer to the Sub Inspector for effecting arrest as mentioned in Sec.14 of the Act. 4. Assuming that in the case on hand the Special Officer had authorised the Sub Inspector to arrest the accused, that authorisation even as per under Sec.14 of the Act can only be in the matter of arrest of the offenders and not in the matter of CRL.M.C. No.4692 of 2010 -: 4 :- investigation and submission of final report. That issue was considered by another learned Judge of this Court in Radhakrishnan v. State of Kerala (2008 [2] KLT 521). There, the Officer superior in rank to the Special Officer investigated the case. It was held in paragraph 8 that it is futile to contend that any officer higher in rank to the officer specified in sec.13 of the Act can conduct investigation. Learned Judge, placing reliance on Sainu Sainudheen's case (supra) took the view that only the Special Officer appointed under Sec.13(2) of the Act can conduct the investigation. In paragraph 10 it is observed that the investigation conducted by an officer not empowered under Sec.13 of the Act is not as required under law. 5. I must also understand that under Sec.13 of the Act it is the function of the special police officer “to deal with offences.” Dealing with the offence includes all proceedings upto the submission of the final report. That view gets support from the decision of the Supreme Court referred to supra and in particular the observations in paragraphs 18 and 19. Though dealing with the provisions of Suppression of Immoral Traffic in Women and Girls Act, 1956 where Sec.13(1) contained the expression “dealing CRL.M.C. No.4692 of 2010 -: 5 :- with the offence” the Supreme Court observed that the expression “police duties” will include all functions of the police in connection with the purpose of the said Act and in the special context of the said Act it will include the detection, prevention and investigation of the offence and other duties which have been specially imposed on them under the said Act. The expression “dealing with the offence” was found to include investigation and submission of final report as well. That principle can be applied with respect to the expression “dealing with offences under this Act” contained in Sec.13 of the Act as well. If that be so the Special Officer appointed under Sec.13 (in the present case the Circle Inspector, Panoor) should have investigated the case and submitted final report, whereas it is done by the Additional Sub Inspector. He not being a Special Officer investigation conducted and final report submitted by him are without authority. It is not a case of irregular exercise of jurisdiction but exercise of lack of jurisdiction which goes to the root of the case. Cognizance taken on the final report cannot be sustained. Resultantly, this Criminal Miscellaneous Case is allowed. Final report in Crime No.133 of 2006 of Chokli police Station, CRL.M.C. No.4692 of 2010 -: 6 :- cognizance taken thereon and proceedings against the petitioners in C.C. No.32 of 2007 of the court of learned Judicial First Class Magistrate, Thalassery are quashed. THOMAS P. JOSEPH, JUDGE. vsv