CRL.O.P.(MD).No.17085 of 2019

BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT

DATED: 21.11.2019

CORAM

THE HONOURABLE MR.JUSTICE G.K.ILANTHIRAIYAN

CRL.O.P.(MD).No.17085 of 2019

and

CRL.M.P(MD)Nos.10106 & 10107 of 2019

1. Krishnakumar

2. Pasumpon @ Jeeva

... Petitioners/Accused Nos.2&3

Vs.

State rep by

The Inspector of Police

Mathchiyam Police Station

Madurai.

In Cr.No.580/2018

... Respondent/Complainant

PRAYER: This Criminal Original Petition has been filed under

Section 482 of Criminal Procedure Code, to Call for the records

and quash the charge sheet in C.C.No.644 of 2019 on the file of

the Judicial Magistrate No.II, Madurai.

For Petitioners

: Mr.M.Murugesan

For Respondent

: Mr.K.Suyambulinga Bharathi

Government Advocate(Crl.side)

O R D E R

This petition has been filed to quash the proceedings in

C.C.No.644 of 2019 on the file of the learned Judicial Magistrate

No.II, Madurai.

2. The petitioners are arrayed as A2 and A3. The crux of

the complaint is that on 16.10.2018 at about 16.00 hours, on the

secret information, the respondent went to the house of the

petitioners and found in that rental house, the petitioners and

the other accused are running a brothel business in the name of

'Grand New Ayurvedic Massage Centre'. The respondent arrested the

petitioners and the other accused and registered a case in Crime

No.580 of 2018 for the offences under Sections 3 (2) (a), 4 (2)

(c), 5 (1) (a), 5 (1) (d) of Immoral Traffic (Prevention) Act,

1956 and the same has been taken cognizance in C.C.No.644 of 2019

before the learned Judicial Magistrate No.II, Madurai. The

respondent failed to mandate the provisions under the Immoral Act,

1956. As per Section 2 (i) (j) of Immoral Traffic (Prevention)

Act, 1956, special police officer 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 this Act.

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https://hcservices.ecourts.gov.in/hcservices/

CRL.O.P.(MD).No.17085 of 2019

3. In the case on hand, the respondent neither being a

special Police Officer nor a trafficking police officer authority

to arrest or investigate the case. In this regard, the learned

counsel for the petitioners relied upon the judgment in the case

of Mumtaj @ Behri Vs. The State (Government of NCT Delhi) reported

in (2003 Cri.L.J. 533, wherein, it has been held that the entire

proceedings conducted by the Sub Inspector of Police in a case of

involving Immoral Trafficking (Prevention) Act, who was not

appointed as Special Police Officer was held to be illegal. It is

relevant to note that the decision of the Hon'ble High Court of

Kerala, in the matter of Thomas Vs. State of Kerala, which is held

as follows:-

“ 17. In this regard it would be relevant to

note here that in line with the above decision of

the Hon'ble Apex Court, the Hon'ble Court of Kerala

in the matter of Thomas Vs State of Kerala through

Sub Inspector, vide para 4 has held that .... As

held by the Hon'ble Apex Court in

Delhi

Administration Vs. Ram Singh (1962 SC 63), the

expression police duties will include all the

functions of the police in connection with the

purpose of the Act and in the special context of the

Act, they will include detection, prevention and

investigation of offences and the other duties which

have been specifically imposed on them under the

Act. Therefore, it is only the Special officer who

is authorised to arrest and investigate the case

under the Act, Crmc 3533/09 subject to the

provisions of Section 14. Proviso to Section 14

provides that arrest without warrant can only be

made by the Special Police Officer under his

direction or guidance subject to his prior

approval....

5.Therefore, when the arrest of the

petitioner in this case is by a Sub

Inspector, allegedly authorized by the