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2011 DIGILAW 1046 (KER)

Abdul Rasheed v. State of Kerala

2011-10-14

C.T.RAVIKUMAR

body2011
JUDGMENT : This petition under S.482 of the Code of Criminal Procedure has been filed by the first and sixth accused in C.C. No.281 of 2006 on the file of the court of the Judicial First Class Magistrate - IV, Kozhikode. The delation against the first petitioner is that of commission of offence under S.3(1) of the Immoral Traffic (Prevention) Act, 1956 (for short 'the Act') and that against the 2nd petitioner is one of commission of offences under Sections 4(1) and 5(1) (d) of the Act. On 21.6.2006 the Circle Inspector of Police, Kozhikode Town made a raid on house No. 1/2890, 'Parag', taken on rent by the first petitioner, whereon 'Ashwaradha Ayurveda Hospital and Panchakarma Centre' are housed and found it as a home for harlotry. The accusation is that respondents 2 and 3 are conducting prostitution there. All the accused except the first petitioner/first accused were arrested from there. Consequently, crime No. 215/2006 of Nadakkavu Police station was registered by the Sub Inspector of Police, Nadakkavu. After completing investigation, Annexure A charge sheet was laid before the Judicial First Class Magistrate Court IV, Kozhikode by the Circle Inspector of Police, Nadakkavu. 2. The petitioners seek for quashment of Annexure A charge sheet in crime No. 215/2006 of Nadakkavu Police Station on the file of the Judicial First Class Magistrate Court IV Kozhikode, taken on its file as C.C.No.281/2006 on manifold grounds. The learned counsel for the petitioners relied on the decision of this Court reported in Sinu Sainudheen v. Sub Inspector of Police ( 2002 (1) KLT 693 ) and also Radhakrishnan v. State of Kerala reported in ( 2008 (2) KLT 521 ) to contend that the prosecution against the petitioners is liable to be terminated. The specific contention of the petitioners is that the raid which resulted in the registration of Crime No.215/2006 of Nadakkavu Police Station was conducted by the Circle Inspector of Police, Kozhikode Town and he was not the 'Special Police Officer' in terms of the provisions under S.13(1) of the Act in respect of the area, Nadakkavu. It is contented that the case was registered by the Sub-Inspector of Police, Nadakkavu and the investigation was conducted and the charge was laid by the Circle Inspector of Police, Nadakkavu. It is contented that the case was registered by the Sub-Inspector of Police, Nadakkavu and the investigation was conducted and the charge was laid by the Circle Inspector of Police, Nadakkavu. The above decisions were relied on to contend that inasmuch as the raid was not conducted by the Special Police Officer appointed for the area concerned viz., Nadakkavu, under S.13(1) of the Act no successful prosecution could be conducted in this case based on the raid conducted by the C.I. of police, Kozhikode. 3. Section 13(1) of the Act reads thus:- “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 this Act in that area.” Section 2(1) of the Act defines “Special Police Officer” to mean 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. 4. The learned counsel appearing for the petitioners submitted that in exercise of the power under S.13 of the Act, Government of Kerala have issued a notification under G.O. (Ms) 56/2002/Home dated 24.4.2002 in Kerala Gazette extraordinary No.625 dated 10.5.2002, S.R.O. No.344/2002, appointing Special Police Officers under S.13(1) of the Act. The relevant portions of the said notification have been extracted in Radhakrishhan's case (supra). The said G.O. dated 24.4.2002 would reveal that, in exercise of power conferred by S.13(1)of the Act, Government of Kerala have appointed Circle Inspector of Police attached to the police stations specifically named thereunder, in the State, 'as Special Police Officers' for dealing with the offences under the Act, within their respective area of jurisdiction. Entry 153 in the said order pertains to the area falling under Nadakkavu Police Station and Entry 149 therein pertains to Kozhikode Town. The said G.O. would reveal that by virtue of the power conferred under S.13(1) of the Act in respect of the area under Kozhikode Town Police Station, the Circle Inspector of Police, Kozhikode Town was appointed as the Special Police Officer and in respect of the area under Nadakkavu Police Station, the Circle Inspector of Police, Nadakkavu was appointed as Special Police Officer. The specific contention of the petitioners is that the raid that resulted in registration of Crime No.215/2006 of Nadakkavu Police Station against the petitioners and the co-accused under the Act was conducted by the Circle Inspector of Police, Kozhikode Town. Going by the provisions under S.13(1) of the Act and the Government Order referred above which was issued in exercise of the powers conferred by S.13(1) of the Act, the Circle Inspector of Police, Kozhikode Town could not have acted as the Special Police Officer in respect of the area under Nadakkavu Police Station. Therefore, the correctness of the said factual aspect got to be ascertained as it is the pivotal point. 5. I have heard the learned counsel for the petitioners and also the learned Public Prosecutor. 6. Indisputably, the raided house viz. No.1/2890 situated within the limits of Nadakkavu Police Station, the area that falls under Entry 153 of the G.O. dated 24.4.2002. The raid in that house that led to the registration of Crime No. 215/2006 was conducted by the Circle Inspector of Police, Kozhikode Town. It is also not in dispute that in terms of S.R.O. No.344/2002 which was issued in exercise of power conferred under S.13(1) of the Act, in respect of the area under Nadakkavu Police Station, the Circle Inspector of Police, Nadakkavu is the Special Police Officer for the purpose of S.13(1) of the Act. Thus, going by the indisputable and undisputed factual positions it is evident that the raid in question was not conducted by the Special Police Officer for the said area, in terms of the provisions under S.13(1) of the Act. Whether the mere fact that the charge sheet was laid by the Special Police Officer appointed for the concerned area would validate the proceedings and whether based on the same the petitioners could successfully be prosecuted? 7. The learned Public Prosecutor, on instructions, submitted that the raid on 21.6.2006 was conducted by the Circle Inspector of Police, Kozhikode Town who was not the Special Police Officer appointed under S.13(1) of the Act for the area concerned and further submitted that the Circle Inspector of Police, Kozhikode had conducted the said raid upon the direction issued by the Commissioner of Police, Kozhikode City. There is no case for the prosecution that the Commissioner of Police, Kozhikode City though an officer above the rank of Circle Inspector of Police is also the Special Police Officer appointed for the area concerned, by the State Government in exercise of the powers conferred by S.13(1) of the Act. Therefore, even if he had authorised Circle Inspector of Police, Kozhikode City for conducting the said raid, it would not be construed as a raid conducted by the Special Police Officer authorised to conduct a raid in terms of the provisions of the Act and for registering the case, under the Act. Admittedly, in this case, the petitioners are charge sheeted alleging only commission of offences under the Act. There is no charge that the petitioners/accused Nos. 1 and 6 in C.C.No. 281/2006, had committed any offence under the Indian Penal Code. Going by the decision in Sainudheen's case (supra) and also in Radhakrishnan's case (supra) a Special Police Officer appointed under S.13(1) of the Act alone is authorised to conduct a raid for the purpose of registering a crime under the Act. Even if it is taken that being an officer superior to Circle Inspector, the Commissioner of Police, Kozhikode City can exercise the powers of the Special Police Officer, he is not authorised to conduct raid through another officer who is not a special officer in the absence of any supporting or enabling provision in the Act for such an action. The second proviso to S.14 of the Act enjoins that when the Special Police Officer requires any Police Officer subordinate to him to arrest, without warrant otherwise than in his presence, of 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 to be made. S.15 of the Act deals with search without warrant. There is no provision under the Act empowering the Special Police Officer or an officer superior to the Special Police officer to authorise any of the subordinate officer for conducting search without warrant. In this case, admittedly, the raid was conducted not by the Special Police Officer appointed for the area under S.13(1) of the Act. There is no provision under the Act empowering the Special Police Officer or an officer superior to the Special Police officer to authorise any of the subordinate officer for conducting search without warrant. In this case, admittedly, the raid was conducted not by the Special Police Officer appointed for the area under S.13(1) of the Act. There is no case for the prosecution that the accused persons were arrested with warrant by a subordinate police officer and on authorisation, in accordance with law by the Special Police officer. Indisputably, in this case, search was conducted and also arrest was effected, not in accordance with the provisions under the Act. The said inherent illegalities in conducting search and arrest can be the ground of attack against a prosecution proceedings in a petition under S.482 of the Code of Criminal Procedure. When once it is found that the search as also the arrest were not effected in accordance with the provisions of the Act, it is beyond doubt that the possibility of the case ending in a conviction would be bleak. In fact, no prosecution will lie on the basis of an illegal search and arrest. In Sainudheen's case (supra) it was held:- “11. The Sub Inspector of Police is not an Officer competent to conduct search under S. 15 of the Act because the Section specifically provides that the special police officer or the trafficking police officer is to conduct search. Illegality in conducting search and arrest can be ground for quashing the proceedings, if it is found that search and arrest were done by the officer not in accordance with the provisions of law and the possibility of the case ending in a conviction is not there. If the proceedings are allowed to go on even after it is found that the search and arrest were not conducted on observing the mandatory provision of law, that will be an abuse of process of court. Under S.482 of the Criminal Procedure Code, the Court will be justified in quashing the proceedings to prevent the abuse of process of court or otherwise to secure the ends of justice. In Roy v. State of Kerala ( 2001 (1) KLT 86 (SC)), the Supreme Court considered what would be the effect of search and arrest which are per se illegal. In Roy v. State of Kerala ( 2001 (1) KLT 86 (SC)), the Supreme Court considered what would be the effect of search and arrest which are per se illegal. That was a case in which it was found by the Supreme Court that the search and arrest made under the provisions of the Narcotic Drugs and Psychotropic Substances Act were not in accordance with the provisions of the Act. Here also search as well as the arrest made by the Sub Inspector of Police, Thrikkakkara are per se found to be illegal. In the decision of the Supreme Court, it is observed that the power under S.482 of the Criminal Procedure Code has to be exercised by the High Court to prevent abuse of process of Court or otherwise to secure the ends of justice. The further observation made by the Supreme Court is that where criminal proceedings are initiated based on illicit material collected on search and arrest which are per se illegal and vitiate not only a conviction and sentence based on such material, but also the trial itself, the proceedings cannot be allowed to go on as it cannot but amount to abuse of process of court. In this case, it is seen that search conducted and arrest made are illegal and if the proceedings are not quashed and are allowed to continue that would certainly perpetuate abuse of process of court resulting in injustice to the persons who are alleged to have committed the offence. Hence I find that there is sufficient ground for quashing the First Information Report, Annexure I and further proceedings.” 8. The relevant portion In Radhakrishanan's case (supra) runs as follows:- “The house of occurrence in this case is located in Thaliparamba Taluk of Kannur District. Thus, as against the Circle Inspector, Thaliparamba, who is the Special Police Officer, competent to investigate the case, it was the Assistant Sub Inspector who registered the crime and it was the Dy.S.P.(Administration), Kannur who conducted the investigation and laid the charge before Court. The Dy.S.P. (Administration), Kannur may be an officer not below the rank of an Inspector of Police as provided under S.13(2) of the Act. But what S.13(2) has prescribed is the minimum rank for the State Government to appoint by a notification under S.13(l) of the I.T.P. Act. The Dy.S.P. (Administration), Kannur may be an officer not below the rank of an Inspector of Police as provided under S.13(2) of the Act. But what S.13(2) has prescribed is the minimum rank for the State Government to appoint by a notification under S.13(l) of the I.T.P. Act. Once an officer of a specified rank, namely the Circle Inspector of Police has been appointed by the State Government under sub-s.(l) of S.13 of the I.T.P. Act, it is futile for the Public Prosecutor to contend that any officer higher in rank than the officer specified under S.13(2) of the I.T.P. Act can conduct the investigation. I am fortified in this connection by the decision of this Court in Sinu Sainudheen v. Sub Inspector of Police ( 2002 (1) KLT 693 ). Thus, the officer (Assistant Sub Inspector) who registered the crime and the Officer- Dy.S.P. (Administration) who conducted the investigation and charge sheeted the petitioner herein, were not empowered to do so. It is well settled that Police Officers not specially appointed as Special Police Officers cannot investigate the offence under the I.T.P. Act even though those offences are cognizable offences. (See Delhi Administration v. Ram Singh (AIR 1962 SC 68).” 9. In such circumstances, as mentioned above, if the proceedings are allowed to continue even after finding that the search and arrest were effected not under the provisions of the Act, it would amount to an abuse of process of court. I am of the view that the decision of the Hon'ble Apex Court in Roy V.D. v. State of Kerala reported in (2000) 8 SCC 590 ) also assumes relevance in the said context. In Roy's Case the prosecution was sought for under NDPS Act. Taking into account the fact that the search and seizure were made by a person not authorised under Sections 41 and 42 of the NDPS Act and as such search and seizure were per se illegal, charge framed on the basis of such illegal search and seizure was quashed. In view of the admitted position in this case that raid was not conducted by the Special Police Officer and the arrest was also made not in accordance with law, the search has to be held per se illegal. In view of the admitted position in this case that raid was not conducted by the Special Police Officer and the arrest was also made not in accordance with law, the search has to be held per se illegal. Since the power under S.482 of the Code of Criminal Procedure has to be exercised to prevent an abuse of process of Court and to secure ends of justice, I am of the view that this is a fit case wherein this Court should invoke the inherent power under S.482 Cr.P.C. to terminate the procedures abruptly. The upshot of the discussion is that Annexure A and all further proceedings in CC No.281/2006 on the file of the Judicial First Class Magistrate Court IV, Kozhikode are liable to be quashed. Now, the question is whether Annexure-A and all further proceedings in C.C. No. 281/2006 on the file of the court of the Judicial First class Magistrate - IV, Kozhikode are liable to be interfered with, in respect of all their co-accused, in other words, whether the benefit of this judgment should also be extended to the accused who have not approached this court? In that context, the decisions of the Hon'ble Apex Court in Bijoy Singh v. State of Bihar reported in ( AIR 2002 SC 1949 ), and in Gurucharan Kumar v. State of Rajasthan reported in ( AIR 2003 SC 992 ) assume relevance. Their Lordships held that where on evaluation of the case, if the court reaches the conclusion that no conviction of any accused is possible the benefit of that, decision must be extended to the co-accused, similarly situated, though he has not challenged the order. True that in this case, the co-accused of the petitioner have not chosen to challenge Annexure-A and further proceedings in C.C.No.281/2006. On 15.1.2008 this court granted an interim stay of all further proceedings in C.C. No. 281/06 on the file of the court of the Judicial first class Magistrate-IV, Kozhikode and that order was extended from time to time and it is still in force. In view of my above findings that no successful prosecution can be conducted in C.C.No.281/2006 in view of the inherent illegalities mentioned earlier it would only be appropriate to extend the benefit of this judgment to all the co-accused of the petitioners, as well. In view of my above findings that no successful prosecution can be conducted in C.C.No.281/2006 in view of the inherent illegalities mentioned earlier it would only be appropriate to extend the benefit of this judgment to all the co-accused of the petitioners, as well. Accordingly Annexure-A and all further proceedings in C.C. No.281/2006 on the file of the Court of Judicial First Class Magistrate - IV, Kozhikode are quashed. 10. Before parting with the case, I would like to express my deep concern over one disgraceful and disheartening aspect viz., recurrence of such serious defect or lapse in investigation, be it intentional or unintentional, resulting in abrupt termination of cases of this nature. In view of Sections 2(i), 13(1) of the Act and the G.O.(Ms) 56/2002/Home dated 2.4.2002 notified in Kerala Gazette Extraordinary No. 625 dated 10.5.2002 as S.R.O. No. 344/2002 as also the decisions of this Court in Sainudheen's case (supra) and Radhakrishnan's case (supra) it leaves no room for any doubt in regard to the directions of law as to the way in which a police officer/police officers is to conduct himself/themselves in the matter of search and arrest under the provisions of Immoral Traffic (Prevention Act), 1956. The aforesaid provisions and decisions make it absolutely clear that a raid could legally be conducted under the Act only by the 'Special Police Officer' appointed under S.13(1) of the Act in respect of the area concerned. Any raid conducted and the consequential registration of a crime under the Act has to meet the inevitable fate of failure in prosecution of the accused concerned. 11. The power of search or raid is an overriding power of the State for the protection of social security and therefore, regulated by law. The police in the State cannot feign ignorance of the mandates or direction of the law as to the way in which an investigation is to be conducted, rather, how the offenders for the purpose of the Act should be booked and brought before law. But, by repeatedly committing the same mistake persons who are otherwise to get condign punishment are able to get out of the clutches of law. In recent times when flesh industry mars the society and growing menacingly such recurring mistakes cannot be taken or considered as mere, innocuous mistakes and it, virtually, encourages those in the dirty industry to involve in crime personnel with impunity. In recent times when flesh industry mars the society and growing menacingly such recurring mistakes cannot be taken or considered as mere, innocuous mistakes and it, virtually, encourages those in the dirty industry to involve in crime personnel with impunity. In the circumstances, the Registry is directed to forward copies of this judgment to the Home Secretary, Government of Kerala and also to State Police Chief, for issuing appropriate orders to avoid its recurrence and also to take appropriate stringent action against those erring officers. The possibility and permissibility of prosecution against those who knowingly disobeys the direction of law under S.166 of the Indian Penal Code is also to be probed into, as a measure to make the officers concerned to keep vigil to curb flesh industry in the state. The Criminal M.C. is allowed.