IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR MONDAY, THE 27TH JULY 2009 / 5TH SRAVANA 1931 Crl.MC.No. 2370 of 2009 ------------------------------- CC.576/2006 of JUDL. MAGISTRATE OF FIRST CLASS COURT,CHALAKUDY ........................................... PETITIONER(S): ACCUSED -------------------------------------- 1. PREMJITH, AGED 27 YEARS, S/O.SURENDRAN, KARAKATUPARAMBIL HOUSE, CHEEKELODE, KOZHIKODE DIST,. NOW RESIDING AT AREEKAL MEETHAL, BALUSSERY, NANMANDA, ALINCHUVA. 2. SHYLA , AGED 40 YEARS, W/O.PREMJITH, NOW RESIDING AT AREEKAL MEETHAL, BALUSSERY, NANMANDA, ALINCHUVAD. BY ADV. SRI.A.C.DEVY RESPONDENT(S): COMPLAINANT ------------------------------------------------ STATE OF KERALA, REP.BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. PUBLIC PROSECUTOR SRI. B.VINOD THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 27/07/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: tga M.Sasidharan Nambiar, J. -------------------------- Crl.M.C.No.2370 of 2009 -------------------------- ORDER Petitioners are the accused in C.C.No.576/2006 on the file of Judicial First Class Magistrate's Court, Chalakudy. Prosecution case is that on 13.2.2006, the Additional Sub Inspector of Police, Chalakudy Police Station, along with a Probationary Sub Inspector and two women Constables, conducted a search in Chungath Towers Lodge and found the petitioners in Room No.203. Alleging that they were engaged in prostitution, they were arrested and Crime No.78/2006 of Chalakudy Police Station was registered for offences under Sections 3, 4, 5 and 7 of Immoral Traffic (Prevention) Act, 1956 (hereinafter referred to as 'the Act'). After completing the investigation, Annexure-D final report was submitted, based on which Judicial First Class Magistrate, Chalakudy took cognizance of the said offences. CRMC 2370/09 2 2. This petition is filed under Section 482 of Code of Criminal Procedure to quash the final report and the proceedings taken by the Magistrate contending that even if the allegations in the final report are accepted, no offence is made out and therefore, it is to be quashed. It is also contended that the search and arrest were conducted not by a Special Police Officer as provided under the Act and therefore, based on the said search and arrest, petitioners cannot be prosecuted and in such circumstances, the case is to be quashed. 3. Learned counsel appearing for the petitioners and learned Public prosecutor were heard. 4. Learned counsel appearing for the petitioners argued that Additional Sub Inspector of Police is not a Special Police Officer as provided under the Act and as per G.O.(MS)No.56/2002/Home dated 24.4.2002, only the Circle Inspector of Police, attached to the police station is a Special Police Officer under Section 13(1) of the Act and in such CRMC 2370/09 3 circumstances, proceedings initiated based on the search and arrest conducted by Additional Sub Inspector is not legal and on that reason alone, the case is to be quashed. It is also argued that even if the allegations in Annexure-D final report are accepted, none of the offences alleged is attracted and therefore, the case is to be quashed. 5. Learned Public Prosecutor did not dispute the fact that there is no material to prove that petitioners were engaged in prostitution, as this was only the solitary incident. 6. It cannot be disputed that in view of G.O. (MS)No.56/2002/Home dated 24.4.2002, Additional Sub Inspector of Police, who conducted the search and arrest of the petitioners, is not a Special Police Officer as provided under the Act. The effect of a search and arrest conducted by a Sub Inspector of Police, who is not a Special Police Officer as provided under the Act, was considered by this Court in Sinu Sainudheen v. Sub Inspector of Police CRMC 2370/09 4 (2002 (1) KLT 693). It was held that Sub Inspector of Police is not competent to conduct the search or arrest and when it is found that search and arrest were conducted not in accordance with the provisions of law and there is no possibility of the case ending in conviction, the proceedings is to be quashed. The decision squarely applies to the facts of this case also. 6. Moreover, in order to attract an offence under Section 3 of the Act, there should be an allegation that petitioners have been keeping or managing or assisting in keeping or management of a brothel. There is, absolutely, no such case. Similarly, to constitute an offence under Section 4, petitioners must be living wholly or partially on the earnings by prostitution. Prosecution has no such case also. Similarly, to attract an offence under Section 7, there should be evidence of prostitution. On the materials produced, there is nothing to prove that petitioners were engaged in CRMC 2370/09 5 prostitution. Hence, even if petitioners are to be tried, there is no likelihood of a conviction. In such circumstances, it is not, in the interest of justice, to continue the proceedings. Petition is allowed. C.C.No.576/2006 on the file of Judicial First Class Magistrate's Court, Chalakudy as against the petitioners is quashed. 27th July, 2009 (M.Sasidharan Nambiar, Judge) tkv