IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR THURSDAY, THE 10TH DECEMBER 2009 / 19TH AGRAHAYANA 1931 Crl.MC.No. 3533 of 2009() ------------------------------------ CC.2077/2002 of JUDL.MAGISTRATE OF FIRST CLASS COURT-II, ERNAKULAM. .................... PETITIONER/ACCUSED NO.1 ---------------------------------------- THOMAS, S/O.CHAKUNNI, CHIRAYATH HOUSE, NEAR ST.JOSEPH CHURCH, THOTTUVA KARA KODANAD VILLAGE, KUNNATHUNADU TALUK. BY ADV. MR.SOORAJ T.ELENJICKAL RESPONDENT(S): ------------------------ STATE OF KERALA THROUGH SUB INSPECTOR OF POLICE, ERNAKULAM TOWN NORTH POLICE STATION REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. BY PUBLIC PROSECUTOR MR.P.A. SALIM. THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 10/12/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: rs. M.SASIDHARAN NAMBIAR,J. ------------------------------------------ Crl.M.C.NO. 3533 OF 2009 ------------------------------------------ Dated 10th December 2009 O R D E R Petitioner is the first accused in C.C.2077/2002 on the file of Judicial First Class Magistrate-II, Ernakulam. Petition is filed under Section 482 of Code of Criminal Procedure to quash the cognizance taken against the petitioner contending that the raid and arrest was not conducted by a special police officer as provided under Section 13 of Immoral Traffic (Prevention) Act and hence the very arrest is bad. It is also contended that as is clear from the final report, investigation was conducted by the Sub Inspector of police and not by the Special police Officer as provided under the Act and therefore, the cognizance taken is also bad. It is also contended that there is no case that there is a notification as provided under Section 7 or the room from where the petitioner was arrested, is within the distance of 200 meters provided under Section 7 and on that ground also prosecution is not sustainable. Crmc 3533/09 2 2. Learned counsel appearing for the petitioner and learned Public Prosecutor were heard. 3. Learned counsel relying on the decision of this court in Radhakrishnan v. State of Kerala (2008 (2) KLT 521) and Sinu Sainudheen v. Sub Inspector of Police (2002 (1) KLT 693) argued that the dictum squarely applies to the facts of the case and as is clear from Annexure-I FIR and Annexure-II final report ,petitioner was arrested not by the Special Police Officer but by a Sub Inspector of Police and the entire investigation was conducted by the same Sub Inspector and in such circumstances, the case is to be quashed. 3. FIR and First information statement show that on the instructions of Assistant Commissioner of Police, the Special police Officer empowered under Section 13 of the Act, Sub Inspector along with women constables reached room No.102 of Star Hotel, Kaloor and arrested petitioner and second accused lady on the allegation that they were having sex and petitioner had paid money to second accused for that purpose. Annexure-II final report also shows that not only the arrest but the entire investigation was conducted by Crmc 3533/09 3 Sub Inspector of police. 4. Section 2(i) of the Act defines a Special Police Officer, as a police Officer appointed by or on behalf of the State Government to be in charge of police duties within a specified area for the purpose of the Act. Learned Public Prosecutor has no case that Sub Inspector of Police, who conducted raid or arrested the petitioner or investigated the case, is a special police officer as defined under Section 2(i) of the Act. Section 13 provides 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 the Act. As held by the Apex court in Delhi Administration v. Ram Singh (1962 SC 63), the expression police duties will include all the functions of the police in connection with the purpose of the Act and in the special context of the Act, they will include detection, prevention and investigation of offences and the other duties which have been specifically imposed on them under the Act. Therefore, it is only the Special officer who is authorised to arrest and investigate the case under the Act, Crmc 3533/09 4 subject to the provisions of Section 14. Proviso to Section 14 provides that arrest without warrant can only be made by the Special Police Officer under his direction or guidance subject to his prior approval. Proviso (ii) and (iii) reads, “(ii) When the special police officer requires any officer subordinate to him to arrest without warrant otherwise than in his presence any person for an offence under this Act, 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 latter officer before arresting the person shall inform him of the substance of the order and, on being required by such person, show him the order; (iii) Any police officer not below the rank of sub inspector specially authorised by the special officer may, if he has reason to believe that on account of delay involved in obtaining the order of the special police officer, any valuable evidence relating to any offence under this Act is likely to be destroyed or concealed, or the person who has committed or is suspected to have committed the offence is likely to Crmc 3533/09 5 escape, or if the name and address of such a person is unknown or there is reason to suspect that a false name or address has been given, arrest the person concerned without such order, but in such a case he shall report, as soon as may be, to the special police officer the arrest and the circumstances in which the arrest was made.” Therefore, if subordinate officer is required by a special police officer, to arrest without warrant otherwise than in his presence, he shall give the subordinate officer an order in writing. Such order shall specify not only the name of the person to be arrested but also the offence for which the arrest is to be made. It further provides that in the event of the arrest, that officer shall inform the person arrested, the substance of the order and if he so requires shall show him the order. This court in Sinu Sainudheen's case (supra) considering the provision in Section 14 held. “What is said in the second proviso to S.14 is that for the purpose of arresting any person, an order in writing specifying the person to be arrested has to be given to the Crmc 3533/09 6 subordinate officer by the special police officer. Such an order in writing can be given by the special police officer specifying the person to be arrested only after seeing that a particular person has committed an offence. There is also provision in the proviso which says that in the order in writing given by the special police officer the offence for which the arrest is being made also has to be mentioned. That also would indicate that the special police officer can give an order in writing to a subordinate officer for arresting a person only after he is being convinced that there are reasons to believe that a particular person has committed an offence. Here the sanction given by the Assistant Commissioner of Police who is the special police officer cannot at all be said to be a sanction given for effecting arrest by a subordinate officer as is said in the second proviso to S.14 since the sanction order was made even before the raiding of the house of the first accused. For that reason it cannot be said that there was sufficient authorisation given by the special police officer to the Sub Inspector of Crmc 3533/09 7 police for effecting arrest as mentioned in S.14 of the Act.” The proviso under clause (iii) enables a police officer who is specially authorised by the special police officer, to arrest a person who is not named in the order to arrest. But it can only be done only on fulfilling certain conditions. Police officer must be satisfied that before obtaining order from the special police officer authorising him to arrest, on account of the delay involved, any available evidence relating to the offence is likely to be destroyed or concealed or the person who has committed or is suspected to have committed the offence is likely to flee. Even in that case, it is mandatory that he shall record those facts and report it to the special officer immediately. 5. Therefore, when the arrest of the petitioner in this case is by a Sub Inspector, allegedly authorised by the Commissioner of Police, the special police officer, and the authorisation admittedly does not contain the name of the petitioner or the offence for which petitioner is to be arrested, it cannot be treated as an authorisation as provided Crmc 3533/09 8 under Section 14 of the Act. If that be so, arrest and detention of the petitioner is illegal. 6. This court in Sinu Sainudheen's case considered the effect of arrest and investigation in violation of mandatory provisions of the Act and held that violation of the mandatory provision would lead to unsuccessful prosecution and such prosecution would only be an abuse process of court which warrants quashing the proceedings under Section 482 of Code of Criminal Procedure. In such circumstances, petition is allowed. C.C.2077/2002 on the file of Judicial First Class Magistrate-II, Ernakulam is quashed. M.SASIDHARAN NAMBIAR, JUDGE. uj.