MUHAMMED ALI Vs. S I OF POLICE

JUDGEMENT

(1.) This is a petition filed under Section 482 of the Code of Criminal Procedure by accused 4 and 6 in Crime No. 199/05 of Perinthalmanna Police Station registered under Sections 3, 4, 5 and 8 of Immoral Traffic (Prevention) Act, hereinafter referred to as the Act to quash the proceedings as against him under Section 482 of Code of Criminal Procedure. The Sub Inspector of Police, Perinthalmanna, as authorised in writing by Deputy Superintendent of Police, Perinthalmanna conducted the search at M.A. Tourist Home and arrested accused 1 to 6 male accused and 7 to 9 female accused on the allegation that they committed offences under Sections 3, 4, 5 and 8 of Immoral Traffic (Prevention) Act. The accused was produced before the learned Magistrate after registering Crime 199/05 of the Police Station. Petitioners contended that the Sub Inspector of Police is not a Special Officer as provided under Section 15 of the Act and therefore he is not authorised to conduct a search and search is per se illegal and therefore petitioners cannot be prosecuted on the basis of the search and hence the proceedings is to be quashed. Petitioners also contended that the search was conducted in violation of Sub-section (2) of Section 15 as no woman witness was present at the time of search and therefore this Court has to exercise the inherent jurisdiction under Section 482 of the Code to quash the proceedings.

(2.) Heard learned counsel appearing for the petitioners and the learned Public Prosecutor.

(3.) The learned counsel appearing for the petitioners pointed out that as is clear from Annexure I FIR search was conducted by the Sub Inspector though as authorised by the Deputy Superintendent of Police and Sub Inspector of Police is not a Special Police Officer and under Section 15 the Special Police Officer cannot authorise a Subordinate Officer to conduct the search and hence search is per se illegal and as no woman witness of the locality witnesses the search, there is violation of Sub-section (2) of Section 15 and therefore the prosecution as against the petitioners is to be quashed. Learned counsel relied on single Bench decisions of this Court in Sinu Sainudheen v. S.I. of Police, 2002 (1) KLT 693 : 2002 (1) KLJ 298, and Joseph v. S.I. of Police, , and argued that in view of the said decisions, petitioners are also entitled to get the case as against them quashed. The learned Public Prosecutor argued that as the Sub Inspector of Police was authorised in writing by the Deputy Superintendent of Police who is a Special Police Officer, the search is not invalid and in any event the failure to have a lady witness at the time of search or the validity of search are to be decided only at the time of trial and cannot be a ground for quashing the proceedings under Section 482 of Code of Criminal Procedure.