ORDER :

These are miscellaneous cases filed under Section 482 of the Criminal Procedure Code seeking to quash the proceedings initiated against the petitioners in C.C.1161 of 2016 on the file of the Judicial First Class Magistrate, Kalpetta. The genesis of the case is the final report in crime 224/2011 of Vythiri police station in Wayanad district. The petitioner in Crl.M.C.6251/2021 is the 2nd accused in the said Calendar Case whereas the 1st accused has moved Crl.M.C.6264/2021. Not only that the petitioners are co-accused in the case, the contentions raised for quashing the proceedings are also common so that both the matters were heard together and are being disposed of by this common order.

2. Crime 224/2011 of Vythiri police station was registered on 31.08.2011 by M.B. Premdas, Inspector of police, Vythiri. The First Information Report indicates that on that day at 16.00 hours while the Inspector of police was engaged in his usual duties, he got reliable information that at Lake View home-stay, a home-stay situated near Pookkodu lake, a man and woman are engaged in prostitution. Then after intimating the information to the Dy.S.P., Kalpetta who instructed him to conduct search, as he will not get time for getting a search memorandum from the Court, after preparing a search memorandum and sending it to the court, he along with Assistant Sub Inspector, K. Ayyappan, CPO 1891 Sunilraj, CPO 1846 Reji and Driver PC 1683 Babu proceeded to the place and at 16:25 hours ascended the upstairs of building No.VP/XI-334 and reached in front of the room on the south-eastern corner. The room was found locked. He forcibly opened the door and found a lady and a man engaged in sexual intercourse. They were made to wear the dresses and their names and addresses were asked and finding that they were engaged in prostitution, both were arrested and after returning to the police station, crime 224/2011 was registered. On conclusion of investigation, charge sheet has been laid and the petitioners and another face allegations under Sections 4, 5 and 3 read with 7 of the Immoral Traffic (Prevention) Act, 1956, hereinafter referred to as the Act.

3. The charge sheet indicates that on 31.08.2011 at 16:25 hours the CW1 Inspector of police and party found accused Nos.1 and 2 engaged in sexual intercourse in the said building, which is an alleged act of prostitution. Thus offence under Section 4 is alleged against the 1st accused, the petitioner in Crl.M.C.6264/2021; offence under Section 5 of the Act is alleged against the 2nd accused i.e. the petitioner in Crl.M.C. 6251/2021 and Sections 3 and 7 are directed against the 3rd accused who is the owner of the home-stay. In other words, the allegation against the 1st accused is that she was committing prostitution, the 2nd accused had procured her to the said room and subjected her to prostitution and the activities of accused 1 and 2 were facilitated by the 3rd accused, the owner of the home-stay and that was how final report was laid before Court. The proceedings are sought to be quashed by the petitioners.

4. I heard the learned counsel for the petitioners and also the learned Senior Public Prosecutor.

5. According to the learned counsel for the petitioners, even though detection was conducted by the Special Police Officer as notified under the Act, the investigation was conducted and charge sheet was laid by a Sub Inspector of police, which is illegal. In this connection, he has relied on the decision reported in Shajahan and others v. State of Kerala [2014 (2) KLJ 239]. Relying on the decision reported in Radhakrishnan v. State of Kerala [2008 (2) KLT 521] the counsel pointed out that detection and investigation have to be conducted by a notified officer with specified rank by the Government under Sections 13 and 14 of the Act, who is the Circle inspector of police of a given area, and not a Sub Inspector who is not empowered to conduct investigation and to file the final report. Therefore, according to hi