High Court allowed criminal revision, setting aside conviction and sentence under ITP Act. Court held only officers specifically appointed as Special Police Officers can investigate; superior officers without appointment lacked jurisdiction.
Conviction and sentence set aside; revision petitioner discharged and released on cancellation of bail bond.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
CR
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR. JUSTICE B.SUDHEENDRA KUMAR
THURSDAY, THE 27TH DAY OF OCTOBER 2016/5TH KARTHIKA, 1938
Crl.Rev.Pet.No. 3135 of 2010 ( ) ---------------------------------
AGAINST THE JUDGMENT IN CRA 447/2007 of ADDL.SESSIONS COURT (ADHOC-II)KASARAGODE
AGAINST THE JUDGMENT IN CC 322/2005 of C.J.M.,KASARAGOD
REVISION PETITIONER(S)/APPELLANT/4TH ACCUSED:
KHADEEJA BANU, W/O.ABDULLA KUNHI, AGED 43 YEARS,
RAHAMATHA MANZIL, CHENGALA, KASARAGOD TALUK.
BY ADV. SRI.T.G.RAJENDRAN
RESPONDENT(S)/COMPLAINANT/STATE:
BY PUBLIC PROSECUTOR SRI.C.K. PRASAD
THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 27-10-2016, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:
CR
B. SUDHEENDRA KUMAR, J.
Crl. R.P. No. 3135 of 2010
Dated this the 27th day of October, 2016
ORDER
The revision petitioner is the 4th accused in C.C. No. 322 of 2005 on the files of the Court of the Chief Judicial Magistrate, Kasaragod. The revision petitioner was found guilty under Section 9 of the Immoral Traffic (Prevention) Act, 1956 (“the I.T.P Act” for short), concurrently by the courts below.
On 22-01-2005 at abut 5.35 p.m., accused Nos. 1 to 3 were found persuading PW1, for the purpose of prostitution, in the veranda of Building No. XX/300 of
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Chemnad Panchayath by PW4 and party. On questioning accused Nos. 1 to 3, it was revealed that the revision petitioner had kept a girl for prostitution in Building No. X/282 (B). Then, PW4 and party proceeded to that place and found the revision petitioner seducing PW2 for the purpose of prostitution, detaining her in Building No. X/282(B), at about 7 p.m. on the same day .
has argued that since the investigation in this case was conducted and the final report was filed by the Deputy Superintendent of Police, who was not a “Special Police Officer”under Section 2 (i) of the I.T.P Act, the cognizance taken and the further proceedings, including the
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conviction and sentence had been vitiated.
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defines “Special Police Officer”, which means 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 I.T.P. Act. As per SRO No. 344 of 2002, the Government of Kerala in exercise of powers under Section 13 (1) of the I.T.P. Act appointed Circle Inspector of Police of Kasaragod Police Station as “Special Police Officer” for dealing with the offences under the I.T.P Act within Kasaragod area.
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“4. Trial of offences under the Indian Penal
Code and other laws:- (1) All offences under the Indian Penal Code (45 of 1860) shall be investigated, inquired into, tried and otherwise dealt with according to the provisions hereinafter contained.
(2) All offences under any other law shall be investigated, inquired into, tried, and otherwise dealt with according to the same provisions, but subject to any enactment for the time being in force regulating the manner or place of investigating, inquiring into, trying or otherwise
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dealing with such offences”.
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Section 13 (1) of the I.T.P Act are the only officers under the State Government, having the power to conduct the raid, search, arrest of the accused, investigation and the filing of the final report. Of course, the 'trafficking Police Officers' appointed by the Central Government under sub-section (4) of Section 13 of the I.T.P. Act shall exercise all the powers and discharge all the functions as are exercisable by special police officers under I.T.P. Act, with the modification that they shall exercise such powers and discharge such functions in relation to the whole of India. Sub section (3) of Section 13 of the I.T.P. Act provides that the Special Police Officer is to be assisted, for the efficient discharge of his 'functions in relation to offences' under the I.T.P. Act, by a number of subordinate police officers and will be advised by a nonofficial advisory body. The Apex Court in Delhi Administration (supra) held that the expression 'functions in relation to offence' in Section 13(3) of the I.T.P. Act includes his functions connected with the investigation of the offences. The Apex Court further held in Delhi
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Administration (supra) that in respect of the offences under the I.T.P.Act, the special police officer is competent to investigate and that he and his Assistant Police Officers are the only persons competent to investigate offences under the I.T.P. Act and that police officers not specifically appointed as special police officers cannot investigate the offences under the Act eventhough the offences are cognizable offences.
“Once an officer of a specified rank, namely the Circle Inspector of Police has been appointed by the State Government under Sub -section (1) of S. 13 of the ITP 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 ITP Act can conduct investigation”.
The above discussion would make it clear that once an
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officer of a special rank has been appointed by the State Government under Section 13 (1) of the ITP Act, no officer higher in rank than the officer appointed under Section 13 (1) of the I.T.P. Act has the power to conduct investigation and file the final report before the Court.
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final report before the Court, the investigation conducted and the final report filed by him and the cognizance taken and the further proceedings including the trial, on the basis of the said final report were without jurisdiction. Consequently, the conviction and sentence passed by the courts below cannot be sustained.
In the result, this Revision Petition stands allowed, setting aside the conviction and sentence passed by the courts below under Section 9 of the I.T.P. Act and the revision petitioner stands discharged. The bail bond of the revision petitioner stands cancelled and she is set at liberty.
B. SUDHEENDRA KUMAR, JUDGE .
ani/
2 issues framed by the court
Whether a Deputy Superintendent of Police who was not specifically appointed as a Special Police Officer under Section 13 of the ITP Act had jurisdiction to investigate offences and file a final repor
Whether the conviction and sentence in an ITP Act case conducted by an unauthorized investigating officer can be sustained.
Colour shows how this judgement treated each authority
Delhi Administration v. Ram SinghRelied on¶49
Delhi Administration v. Ram Singh [AIR 1962 SC 63] · Who else cites this
Radhakrishnan K. v. State of KeralaRelied on¶55
Radhakrishnan K. v. State of Kerala [2008 (2) KLT 521]
4 provisions across 2 enactments
Khadeefa Banu
The Sub Inspector of Police, Kasaragod
State of Kerala
B. Sudheendra Kumar
As recorded by the court registry
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