Kerala High Court
Basheer vs State Of Kerala on 17 September, 2025
CRL.MC NO.2354/2020 1
2025:KER:68741
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE SYAM KUMAR V.M.
WEDNESDAY, THE 17TH DAY OF SEPTEMBER 2025/26TH BHADRA, 1947
CRL.MC NO. 2354 OF 2020
CRIME NO.971/2013 OF SHORNUR POLICE STATION, PALAKKAD
CC NO.257/2014 OF JUDICIAL MAGISTRATE OF FIRST
CLASS - I, OTTAPPALAM
PETITIONER/1ST ACCUSED:
BASHEER,
AGED 42 YEARS
S/O.KUNHAYAMU HAJI, NEDIYEDATH HOUSE,
KURUVATTOOR, VALLAPUZHA P.O.
PALAKKAD DISTRICT 679 336.
BY ADVS.
SRI.DINESH MATHEW J.MURICKEN
SRI.N.R.SANGEETHARAJ
SRI.VINOD S. PILLAI
KUM.GAYATHRI MURALEEDHARAN
SMT.SREELAKSHMI R.
SHRI.MOHAMMED THAYIB N.M.
RESPONDENT/COMPLAINANT:
STATE OF KERALA,
REPRESENTED BY THE STATION HOUSE OFFICER,
SHORNUR POLICE STATION, PALAKKAD DISTRICT,
THROUGH THE PUBLIC PROSECUTOR, HIGH COURT OF
KERLAA, ERNAKULAM 682 031.
BY ADV.SRI.K.MOHAMED FAISAL, PUBLIC PROSECUTOR
THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON
10.09.2025, THE COURT ON 17.09.2025 PASSED THE FOLLOWING:
CRL.MC NO.2354/2020 2
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ORDER
Dated this the 17th day of September, 2025
This Crl.M.C. is filed challenging the order dated 13.12.2019
in C.M.P.No.6491 of 2019 in C.C.No.257 of 2014 before the Judicial
Magistrate of First Class - I, Ottapalam.
2. Petitioner, who is the 1st accused in the said C.C. is
alleged to have committed offences under Sections 3, 4, 5 and 7 of
the Immoral Traffic (Prevention) Act, 1956. He had filed
Crl.M.P.No.6491 of 2019 before the Magistrate, invoking Section
239 of Cr.P.C., seeking discharge. The said application was
dismissed by the JFCM vide the impugned order. By the same
order, it was also directed that the Circle Inspector of Police,
Shornur, shall conduct further investigation in the crime. Contending
that the order of the learned Magistrate dismissing Section 239
petition and directing further investigation by the Special Officer is
illegal, this Crl. M.C. has been filed.
3. Heard Sri. Dinesh Mathew J. Murikan, Advocate for the
petitioner and Sri.K.Mohamed Faisal, learned Public Prosecutor.
4. It is the contention of the learned counsel for the
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petitioner that Annexure A2, the final report, had been filed after
investigation by the Inspector of Police who is not a Special Officer
and thus incompetent to investigate. The petition seeking to
discharge the petitioner had been filed specifically contending that
the investigation and final report had not been submitted by the
Special Officer appointed under Section 13 of the Immoral Traffic
(Prevention) Act, 1956 and therefore, the investigation and final
report filed in contravention of Section 13 of the Act of 1956 is illegal
and unsustainable, entitling the petitioner to be discharged. The
learned Magistrate concurred with the same and had clearly
concluded that the contravention as alleged by the petitioner indeed
exists. In view of the said conclusion arrived at, the court below
ought to have dismissed the discharge petition. However, the
learned Magistrate dismissed the petition and the Special Officer to
conduct the investigation and file a further report. The said order
issued by the learned Magistrate in effect amounts to a denovo
investigation. Annexure A2 final report having already been filed
after investigation by the Inspector of Police, Ottapalam, the learned
Magistrate by invoking Section 173(8) of the Code of Cr.P.C. ought
not to have directed the Special Officer, who is the Circle Inspector
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of Police, Shornur, to conduct a further investigation. The said
direction made by the learned Magistrate in Annexure A5 impugned
order actually amounts to re-investigation by the Special Officer from
the beginning. This would amount to erasing the investigation
already carried out by the Inspector of Police, Ottapalam, based on
which a final report had been submitted. The course thus adopted
by the learned Magistrate, purportedly invoking Section 173(8) of the
Cr.P.C. is legally unsustainable, submits the learned counsel.
Reliance is placed on the dictum laid down in Vinay Tyagi v.
Irshad Ali alias Deepak and others [(2013) 5 SCC 762] delineating
the scope of 'fresh investigation', 're-investigation', denovo
investigation and further investigation (leading to a supplementary
report). The reliance placed by the learned Judge on the dictum laid
down in Siguran R.A.H. v. Shankare Gowda alias Shankara and
another (2017 KHC 5656) is termed as erroneous since the
same was a case wherein the trial had commenced and
prosecution witnesses had been examined. The judgment rendered
by the Hon'ble Supreme Court in Delhi Administration v. Ram
Singh (1962 KHC 422), it is submitted, holds the field and the same
ought to have been followed by the learned Magistrate. Reliance is
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also placed on the dictum laid down by this Court in State of Kerala
v. Moosa Haji (1993 KHC 383) and Central Bureau of
Investigation, Kochi v. State of Kerala and others (2015 KHC
29) to substantiate the contentions put forth. Pointing to the dictum
laid down by the Hon'ble Supreme Court in Vinubhai Haribhai
Malaviya and others v. State of Gujarat and another [(2019) 17
SCC 1], it is submitted that the Magistrate can only order further
investigation suo motu, and no re-investigation or de novo
investigation can be directed. Placing reliance on the dictum laid
down by this Court in Raju C.P. v. State of Kerala and another
(2014 KHC 318), it is submitted that it is open to this Court to quash
the final report when in an offence under Sections 4 and 5 of the
Immoral Traffic (Prevention) Act, 1956, the investigation and filing of
the final report has been carried out by Sub Inspector who is not a
Special Officer under the Act of 1956. Thus the learned Magistrate,
by directing further investigation, in a petition seeking discharge filed
by the accused had effectively rendered the right to seek discharge
otiose and ineffective. The impugned order is hence fit to be set
aside, submits the learned counsel for the petitioner.
5. The learned Public Prosecutor, on the other hand,
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defended that the order issued by the learned Magistrate as valid
and proper and submitted that the same does not call for any
interference.
6. I have heard the contentions put forth by both sides. I note
that there is merit in the contention put forth by the learned counsel
for the petitioner based on Ram Singh's case (supra), wherein it
has been unequivocally held that the Special Police Officer is
competent to investigate offences under the Act of 1956 and that
he and his Assistant Police Officers are the only persons competent
to investigate the offences under the Act. In Ram Singh (supra), the
Hon'ble Supreme Court has unequivocally held as follows:
"22 If the power of the special police officer to deal with the
offences under the Act, and therefore to investigate into
the offences, be not held exclusive, there can be then two
investigations carried on by two different agencies, one by
the special police officer and the other by the ordinary
police. It is easy to imagine the difficulties which such
duplication of proceedings can lead to. There is nothing in
the Act to coordinate the activities of the regular police
with respect to cognizable offences under the Act and
those of the special police officer.
23 The special police officer is a police officer and is
always of the rank higher than a Sub Inspector and
therefore, in view of S.551 of the Code, can exercise the
same powers throughout the local area to which he is
appointed as may be exercised by the officer in charge of
a police station within the limits of his station.
24 We are therefore of opinion that the special police
officer is competent to investigate and that he and his
assistant police offices are the only persons competent to
investigate offences under the Act and that police officers
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not specially appointed as special police officers cannot
investigate the offences under the Act even though they
are cognizable offences. The result is that this appeal by
the Delhi Administration fails and is hereby dismissed."
7. It is trite, as laid down in Vinay Tyagi (supra) that the
power of the Magistrate to direct further investigation under Section
173 (8) should be exercised sparingly. I note that Siguran RAH
(supra) was a case wherein the Magistrate had committed the case
to the Sessions Court and charges had been framed. The trial had
commenced, and a prosecution witness had been examined, and
the cross-examination had been deferred to another date.
Thereafter, the accused therein had applied to the High Court under
Section 482 Cr.P.C. on the ground that the investigating officer was
not competent to investigate as he was not a Special Officer
covered by the relevant notification. It was in the said facts and
circumstances that the Hon'ble Supreme Court in Siguran RAH
(supra) held that even if an investigation is not conducted by an
authorised officer, the trial is not vitiated unless prejudice is shown.
Admittedly, such a fact situation was not present in the case at
hand. Here, the investigation had been conducted, and the final
report filed by the Police officer who was not competent in this
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respect. The same militates against the mandates of law, and the
learned Magistrate ought not to have directed a further investigation
by a competent officer in the light of the well-settled precedent as
laid down in Ram Singh's case (supra). The prejudice that would be
occasioned to the petitioner in case of a further investigation by the
Special Officer after the investigation had already been completed
and the Final report submitted by the S.I. of Police was evident, thus
taking the matter outside the purview of the dictum laid down in
Siguran RAH (supra). The learned Magistrate apparently
overlooked the same. At any rate, the binding precedent laid down
by the Hon'ble Supreme Court in Ram Singh's case (supra) which
holds the field ought to have been followed.
Accordingly, the Crl.M.C. is allowed and the order dated
13.12.2019 in C.M.P.No.6491 of 2019 in C.C.No.257 of 2014 before
the Judicial Magistrate of First Class - I, Ottapalam, is set aside.
The matter is remanded back for fresh consideration in accordance
with law.
Sd/-
SYAM KUMAR V.M.
JUDGE
csl
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PETITIONER ANNEXURES
ANNEXURE A1 TRUE COPY OF THE FIRST INFORMATION REPORT
IN CRIME NO. 971 OF 2013 OF SHORNUR
POLICE STATION DATED 23.10.2013.
ANNEXURE A2 TRUE COPY OF THE FINAL REPORT IN C.C.
NO.257/2014 ON THE FILE OF JUDICIAL FIRST
CLASS MAGISTRATE COURT, OTTAPALAM ARISING
OUT OF CRIME NO.971/2013 OF SHORNUR
POLICE STATION, DATED 31.01.2014.
ANNEXURE A3 TRUE COPY OF THE CRIMINAL MISCELLANEOUS
PETITION IN C.M.P.NO.6491/2019 IN C.C.
NO.257/2014 FILED BY THE PETITIONER
BEFORE THE JUDICIAL FIRST CLASS
MAGISTRATE COURT, OTTAPALAM DATED
29.5.2019.
ANNEXURE A4 TRUE COPY OF THE OBJECTION IN C.M.P. NO.
6491/2019 IN C.C.NO.257/2014 FILED BY THE
RESPONDENT BEFORE THE JUDICIAL FIRST
CLASS MAGISTRATE COURT, OTTAPALAM DATED
10.10.2019.
ANNEXURE A5 TRUE COPY OF THE ORDER IN C.M.P. NO.
6491/2019 IN C.C. NO. 257/2014 PASSED BY
THE JUDICIAL FIRST CLASS MAGISTRATE
COURT, OTTAPALAM DATED 13.12.2019.
