IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH WEDNESDAY, THE 23RD MARCH 2011 / 2ND CHAITHRA 1933 Crl.MC.No. 4087 of 2010() ------------------------------------- CRIME NO.898/09 OF MANJERI POLICE STATION ---------------------- PETITIONER(S): IST ACCUSED --------------------------------------------- T.MOHAMMED ASHRAF, S/O.KUNHIMOIDEEN, MANJERI AMSOM, KOZHAKKETHAL P.O., MANJERI, ERNAD TALUK. BY ADVS. SRI.V.V.SURENDRAN SRI.P.A.HARISH SMT.RESMI NANDANAN RESPONDENT(S): COMPLAINANT/STATE ----------------------------------------------------------- 1. STATE OF KERALA, REP. BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. 2. THE SUB INSPECTOR OF POLICE, MANJERI. R1 & R2 BY PUBLIC PROSECUTOR SRI.K.J.MOHAMMED ANZAR THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 23/03/2011, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: sts THOMAS P JOSEPH, J. ---------------------------------------- Crl.M.C.No.4087 of 2010 --------------------------------------- Dated this 23rd day of March, 2011 ORDER First accused in Crime No.898 of 2009 of Manjeri Police Station seeks to quash proceeding against him which originated on Annexure-A4, FIR for offences punishable under Secs.3 to 7 of the Immoral Traffic (Prevention) Act, 1956 (for short, “the Act”). Case is that petitioner took a building on rent for earning money by allowing the said premise to be used for prostitution and on 26.12.2009 at 00.45hrs accused 2 and 3 were engaged in sexual activities in the said premise for money. It is alleged that accused 2 and 3 were arrested by the Sub Inspector, Manjeri, said to be on an authorisation given by the Circle Inspector, Manjeri who is the Special Police Officer appointed for the area under Sec.13 of the Act. It is contended that the whole procedure adopted by the Sub Inspector are illegal and that at any rate, there is no material to show that the building was taken on rent by the petitioner and if so, used for prostitution as understood in the Act. I have heard learned counsel for petitioner and the learned Public Prosecutor. Learned Public Prosecutor contends that even if it is assumed that the search is illegal, that need not necessarily vitiate the Crl.M.C.No.4087 of 2010 -: 2 :- trial. It is also contended by learned Public Prosecutor that it was as per the authorisation of the Special Police Officer that the Sub Inspector has arrested accused 2 and 3. 2. It is not necessary for me to go into the disputed question whether petitioner taken the building on rent allegedly for earning money by prostitution. I am only at the question whether on the legal ground urged before me proceeding against petitioner could be sustained. Under Sec.13 of the Act proceedings under the said Act are to be taken by the Special Police Officer who shall be an officer not below the rank of Inspector of Police. The Special Police Officer for the area is the Circle Inspector, Manjeri. The proviso to Sec.14 of the Act states that notwithstanding anything contained in the Code of Criminal Procedure the Special Police Officer or under his direction or guidance or subject to his approval (any subordinate officer) may arrest the offender without a warrant. Sub rule (ii) of the proviso states that 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 the 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 Crl.M.C.No.4087 of 2010 -: 3 :- 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 such order. In the present case, in the remarks column of the search list (prepared by the Sub Inspector on 21.12.2009 at about 10.30p.m) it is stated that when the Sub Inspector was at his residence he got reliable information through mobile phone that a man and woman are engaged in prostitution (on 20.12.2009 at 00.45hrs) in the building in question. Thereon, he conveyed the information to the Circle Inspector (Special Police Officer) over telephone. Since the Circle Inspector was on other duty he gave written instruction to the Sub Inspector to reach the place and search the spot as delay would enable the accused to escape. Accordingly he went to the spot, arrested accused 2 and 3 and conducted the search. It is also stated that in the search he found a man and woman detained by about 200 person. On enquiry he learned that on their engaging in sexual activities local people surrounded the area. 3. I have gone through the CD file and found an order in writing by the Special Police Officer, addressed to the Sub Inspector of Police, Manjeri on 20.12.2009 at about 10.30p.m on Crl.M.C.No.4087 of 2010 -: 4 :- getting information about woman trafficking. The Special Police Officer instructed the Sub Inspector to take legal action at the earliest. The Special Police Officer also stated that on his duty being over, he will continue further proceeding. 4. I referred to sub clause (ii) of proviso to Sec.14 which of course empower the Special Police Officer to authorise an officer subordinate to him to arrest without warrant otherwise than in his presence any person for offence under the Act. If such an authorisation is to be given, the Special Police Officer shall give the subordinate officer an order in writing specifying the person to be arrested and the offence for which the arrest is being made. The order of authorisation given by the Special Police Officer in writing to the Sub Inspector to make the arrest otherwise than in the presence of the Special Police Officer does not comply with the requirement of clause (ii) of proviso to Sec.14 of the Act in that it does not mention the person to be arrested and the offence for which the arrest is to be made. This Court in Sinu Sainudheen Vs. S.I of Police ((2002)1 KLT 693) stated that the order under clause (ii) of proviso to Sec.14 could be issued only on specifying the person to be arrested. In short, in the matter of arrest the Sub Inspector and the Special Crl.M.C.No.4087 of 2010 -: 5 :- Police Officer (Circle Inspector) have not complied with the mandatory requirement of clause (ii) of proviso to Sec.14 of the Act. 5. More serious argument is regarding the search conducted by the Sub Inspector. I referred to the remarks column in the search list prepared by the Sub Inspector. It is not disputed that the Sub Inspector conducted search. Search is to be conducted under Sec.15 of the Act which provision does not enable the Special Police Officer to authorise any other officer to exercise that power. In Joseph Vs. S.I of Police ((2003)3 KLT 718) it is held referring to Sec.15 of the Act that as per the said provision search without warrant could be done only by the Special Police Officer and that there is no provision under which the Special Police Officer or trafficking Police Officer can authorise any subordinate officers to conduct search without warrant. The same view is taken in Muhammed Ali Vs. S.I of Police (2005(3) KLT 527) as well. 6. Learned Public Prosecutor contended that the illegality in search cannot vitiate the trial. An officer otherwise having the authority to conduct search if does so in an illegal manner is one thing, that may not vitiate the trial but an officer Crl.M.C.No.4087 of 2010 -: 6 :- having no authority to conduct the search is an entirely different matter. That is an act without jurisdiction which cannot be cured or reckoned for any purpose. 7. It is also contended by learned Public Prosecutor that the illegality if any regarding arrest is concerning accused 2 and 3 and so far as petitioner/accused 1 is concerned, there is no arrest. But I must bear in mind that the edifice on which the prosecution case is built upon even as against petitioner is the arrest of accused 2 and 3 and the search which followed which I said without authority. If that be so, proceeding against petitioner cannot stand and is liable to be quashed. Resultantly this petition is allowed and Annexure-A4, FIR in Crime No.898 of 2009 of Manjeri Police Station and all proceeding pursuant to it to the extent it concerned petitioner are quashed. (THOMAS P JOSEPH, JUDGE) Sbna/-