IMPORTANT POINT
If a special statue empowers a special officer with exclusive power of detection, investigation and also laying of final report before the Magistrate, he alone has the power to do the same, irrespective of the general powers provided under Section of CrPC.

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. 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 condu