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2020 DIGILAW 411 (KER)

Nijas, S/o Kunjumohammed v. State Of Kerala

2020-05-20

T.V.ANILKUMAR

body2020
ORDER : The fifth accused before the Additional Chief Judicial Magistrate, Ernakulam in C.C. No.1446/2007 charge sheeted for offences punishable under Sections 3, 4 and 5 of the Immoral Traffic (Prevention) Act, 1956 (for short, 'the ITP Act') seeks to quash Annexure-I final report in Crime No.282/2006 of Ernakulam Town South Police station on the main ground that the Assistant Commissioner of Police, Kochi City, who submitted final report was not empowered as Special Police Officer under the said Act by the State Government either to investigate or prosecute the accused. 2. The contention of the petitioner is that Assistant Commissioner of Police investigated and charge sheeted him and other accused, without him being nominated as Special Police Officer by the notification issued by the State as required by Section 13 of the ITP Act on the relevant date and therefore, Annexure-I report and consequential prosecution proceedings are liable to be quashed under Section 482 of the Code of Criminal Procedure, 1973 (for short, 'the CrPC'). 3. The incident in this case was on 06.07.2006. The Circle Inspector of police and party attached to Ernakulam Town South Police Station, Kochi city conducted raid in a building named 'Lake View' situated in Elamkulam village occupied by the fourth accused and found the premises being used as a brothel with the help of first accused, who procured prostitutes for commercial activity. The petitioner was found on the date of occurrence to be indulged in sexual activities with one of such persons procured and accommodated in the brothel. 4. The specific accusation against the petitioner being confined only to his alleged indulgence in the act of sexual intercourse with one of such accused persons as rightly submitted by the counsel for the petitioner, none of the offences punishable under Sections 3, 4 and 5 can be said to be attracted against the petitioner since each of the said sections deals with punishment for the criminal activities of the co- accused prohibited by the ITP Act. The petitioner, therefore, contends that the accusation against him not being covered by any of the sections above, the Annexure-I is liable to be quashed on that ground also. 5. I heard the learned counsel for the petitioner and the learned Public Prosecutor. 6. The petitioner, therefore, contends that the accusation against him not being covered by any of the sections above, the Annexure-I is liable to be quashed on that ground also. 5. I heard the learned counsel for the petitioner and the learned Public Prosecutor. 6. Though it appears to be true that offences under Sections 3, 4 and 5 of the ITP Act are not attracted against the petitioner, yet the final report clearly indicates the specific criminal act allegedly committed by him. The petitioner's act of carrying on prostitution with second accused is no doubt an offence punishable under Section 7, for which, he is certainly liable to prosecution notwithstanding that the said section was not specifically incorporated in the final report. But the learned counsel for the petitioner submitted that petitioner cannot be prosecuted under Section 7, since the alleged offence was not shown to have been committed within the notified area as provided in Section 7(3). Notification in this respect was not produced by either of the parties and further it is not certain whether any such notification has been actually issued and is in force. For these reasons, I am not probing into the question as to whether petitioner could be prosecuted under Section 7 of the ITP Act, even though I am satisfied that omission to incorporate relevant section in the final report by itself is inconsequential. 7. The sole question to which I am confined is whether CW14, the Assistant Commissioner of police, Kochi City, was on the relevant date empowered by the State Government as Special Police Officer in terms of Section 13 of the ITP Act, to conduct investigation of the case and lay final report. A perusal of the report discloses that he had only to complete the remaining part of the investigation conducted by the C.I. of Police and afterwards he laid final report before the court. The detection as well as substantial part of the investigation was admittedly conducted by the Circle Inspector of Police, Ernakulam Town South Police Station, Kochi City. 8. It is admitted by both sides that as on the date of occurrence, the Special Police Officer empowered to investigate the offences under the ITP Act was only the Police Officer in the rank of a Circle Inspector of Police, within his respective area of jurisdiction. 8. It is admitted by both sides that as on the date of occurrence, the Special Police Officer empowered to investigate the offences under the ITP Act was only the Police Officer in the rank of a Circle Inspector of Police, within his respective area of jurisdiction. This position, as a matter of fact, changed subsequently when the State Government issued Notification No.145/2016 dated 04.05.2016 where under all the officers of and above the rank of Circle Inspector in the Crime Branch, Crime Investigation Department in their respective areas of jurisdiction were authorised to deal with the offences committed under the ITP Act. We are, however, concerned in this case only with the position as it obtained on the date of occurrence when as per the then existing notification, the Circle Inspector of Police within his respective area of jurisdiction alone had been exclusively nominated as the Special Police Officer by the State Government. 9. Annexure-I reveals that Assistant Commissioner of Police, Kochi City, submitted the final report after undertaking only a minor part of the investigation and the most part of the investigation had already been conducted by the Circle Inspector of Police himself. 10. The learned counsel for the petitioner, however, argued that the Assistant Commissioner of Police being not specifically nominated as an empowered Special Police Officer, he did not have any authority either to investigate or to lay Annexure-I final report and for that reason, the report was liable to be quashed. 11. On the other hand, the learned Public Prosecutor submitted that the final report is sustainable inasmuch as the Assistant Commissioner of Police had sufficient authority as a police officer in rank superior to Circle Inspector of Police by virtue of Section 36 of the CrPC whereby an officer superior in rank to a subordinate officer in charge of the police station is entitled to exercise same powers of the subordinate officer throughout the local area to which the former is appointed despite the fact that he is not specifically nominated as Special Police Officer under the ITP Act. 12. The legality of this contention requires to be examined in this case. Section 36 of the CrPC reads as follows: “36. 12. The legality of this contention requires to be examined in this case. Section 36 of the CrPC reads as follows: “36. Powers of superior officers of police._ Police officers superior in rank to an officer in charge of a police station may exercise the same powers, throughout the local area to which they are appointed, as may be exercised by such officer within the limits of his station.” 13. This Section ought to be read along with Section 173(2) of the CrPC also. It provides that the police officer competent to forward a final report to the Magistrate empowered to take cognizance of the offence on a police report is the officer in charge of the police station. That means by virtue of Section 36, a superior police officer has also equal authority to lay final report and prosecute the accused, exercising the same powers of his subordinate officers in charge of the Police Stations within the limits of his jurisdiction. But this legal position does not appear to have more than a general objective or application. It escapes one's comprehension as to how Section 36 would help a police officer in superior rank to exercise identical powers of a subordinate officer in charge of the police station when powers are created by a special statute and a special class or category of officers is entrusted with exercise of such powers. Section 13(1)& (2) of the ITP Act reads as under: “13. Special police officer and advisory body._(1) There shall be for each area to be specified by the State Government for dealing with offences under this Act in that area. [(2) The special police officer shall not be below the rank of an Inspector of Police. Section 13(1)& (2) of the ITP Act reads as under: “13. Special police officer and advisory body._(1) There shall be for each area to be specified by the State Government for dealing with offences under this Act in that area. [(2) The special police officer shall not be below the rank of an Inspector of Police. (2A) The District Magistrate may, if he considers it necessary or expedient so to do, confer upon any retired police or military officer all or any of the powers conferred by or under this Act on a special police officer, with respect to particular cases or classes of cases or to cases generally: Provided that no such power shall be conferred on- (a) a retired police officer unless such officer, at the time of his retirement, was holding a post now below the rank of an inspector; (b) a retired military officer unless such officer, at the time of his retirement, was holding a post not below the rank of a commissioned officer.]” 14. Special officer is defined by Section 2(i) of the ITP Act as follows: “2. xxx xxx xxx (a) xxx xxx xxx (aa) xxx xxx xxx (b) xxx xxx xxx (c) xxx xxx xxx (ca) xxx xxx xxx (cb) xxx xxx xxx (d) xxx xxx xxx (f) xxx xxx xxx (g) xxx xxx xxx (h) xxx xxx xxx (i) “Special police officer” means a police officer appointed by or an behalf of the State Government to be in charge of police duties within a specified area for the purpose of this Act; (j) xxx xxx xxx” 15. These provisions together indicate that a police officer nominated under the ITP Act is included in the special category or class distinct from the general category of officers. Section 13(1) confers on a Special Police Officer exclusive power to detect, investigate and to lay final report and prosecute the offenders under the ITP Act. The wider words used in Section 13(1) 'for dealing with offences under this Act' are significant enough to indicate that none other than a Special Police Officer is conferred with exclusive power to lay final report after completing investigation of the offences covered by the Act. The wider words used in Section 13(1) 'for dealing with offences under this Act' are significant enough to indicate that none other than a Special Police Officer is conferred with exclusive power to lay final report after completing investigation of the offences covered by the Act. In substance, the true position of law appears to be that the general power conferred by Section 36 of the CrPC on a police officer of superior rank should necessarily yield to the special provision in Section 13(1) of the ITP Act which confines the power to deal with the offences only to the nominated Special Police Officer irrespective of his rank. 16. Since during the relevant period, the Circle Inspector of Police of the South Town Police Station, Kochi City, alone was nominated by the State Government as the Special Police Officer to deal with the offences under the ITP Act, he alone had the authority to detect, investigate and also lay final report before the Magistrate. Thus, the Assistant Commissioner of police who was denuded of legal authority of a Special Police Officer, investigated and laid final report acting under an erroneous assumption that he was entitled to step into the shoes of an Officer in charge of the police station in exercise of power under Section 36 of CrPC. Since Annexure-I report came into being offending the provisions of the Act and without sanction of law, Annexure-I report is illegal and is unsustainable and liable to be quashed. In the result, petition succeeds and Annexure-I as against the petitioner is quashed. All pending interlocutory applications are closed.