Mumtaj @ Behri vs The State (Govt. Of Nct Of Delhi)
2002 Latest Caselaw 1322 Del

JUDGMENT

O.P. Dwivedi, J.

1. This appeal is directed against the impugned order of conviction dated 10th January, 2002 and order on sentence dated 1st February, 2002 passed by learned ASJ whereby the appellant was convicted under Section 3 and 4 of Immoral Traffic (Prevention) Act (for short 'the Act') and was sentenced to undergo RI for two years and a fine of Rs. 1,000/-, in default thereof, imprisonment for five months for the offence under Section 3 of the Act and to undergo RI for a period of 7 years for the offence under Section 4 of the Act in case SC. No. 298/01 FIR No. 94/2001 PS Kamla Market, Delhi.

2. Briefly narrated the facts leading to the appeal are that on 25th February, 2001 at about 9.30 P.M. SI V.P. Jha, Police Station Kamla Market was on patrolling duty in the area and when they reached at Chowk Nihariyan along with H.C. Makhan Singh, Lady Constable Pulkira, he received a secret information that some girls were illegally confined in Kotha No. 50, G.B. Road. On receipt of this information, SI V.P. Jha along with the Constables reached Kotha No. 50, G.B. Road. On enquiry, he came to know that one girl was forcibly confined on the First Floor. Girl namely Allivellu met the police officials and told them that she had been forcibly confined there. Girl was speaking Telgu. SI V.P. Jha called constable K. Anand who knew the said language. With the held of Constable K.Anand, SI V.P. Jha recorded the statement of Allivellu. SI V.P. Jha got the case registered and thereafter on the pointing out of Allivellu SI apprehended both the accused persons namely Nagina and Mumtaj and they were arrested. Statement of Alivelu was got recorded under Section 164 Cr.PC before the Magistrate. After completing investigations, challan was filed against Nagina and Mumtaj under Section 342/323/363/368/ 373/109/506/34 IPC and under Section 3, 4, 5 and 6 of the Act. Learned ASJ framed charges under Sections 368/373/363/342/323/506 IPC against both the accused persons. They were also charged separately under Sections 3, 4, 5 and 6 of Act. Both the accused persons pleaded not guilty to the charges and claimed trial. In order to prove its version, prosecution examined as many as 11 witnesses. After consideration, learned ASJ convicted Nagina for the offences under Section 368/373/363/342/322/506 IPC and also 3, 4, 5 and 6 of the Act. Appellant Mumtaj was convicted only under Sections 3 and 4 of the Act and sentenced as stated earlier. Present appeal has been filed by Mumtaj only.

3. The first and foremost challenge of learned counsel for the appellant was as to legality and validity of entire process of raid, arrest, investigation and prosecution of the appellant. Submission of learned counsel for the appellant was that Section 13 of the Act mandates State Government to appoint Special Police Officer for dealing with the offences under the Act. Such Special Police Officer shall not be below the rank of an Inspector of Police. Further Section 15 of the Act requires that search and arrest can be carried out only by, the Special Police Officer or some officer subordinate to him and authorised by him in writing. In the present case, SI V.P. Jha who conducted search, investigations and arrested the accused persons, did not have the power of Special Police Officer and therefore all proceedings conducted by him are illegal and unauthorised. Learned counsel for the appellant referred to a decision of Three Judges Bench of Supreme Court in the case of Delhi Administration v. Ram Singh AIR 1963 SC 63 wherein the facts were that the respondent who was suspected of having committed an offence under Section 8 of the Act was prosecuted vide challan filed by Sub Inspector who had not been appointed as Special Police Officer by the State Government. The Magistrate quashed the charge sheets holding that the SI was not competent to investigate the case. On revision by the State, High Court agreed with the view of the Magistrate and dismissed the revision. Delhi Administration preferred appeal before the Supreme Court. After a detailed analysis of various provisions of Act, Hon'ble Supreme Court observed that the Act is a complete Code with respect to what is to be done under it. The entire police duties in connection with the purposes of Act within a certain area have been put in the charge of a special police officer. The expression "police duties" under Section 2(i) includes 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 the detection, prevention and investigation of offences and the other duties which have been specially imposed on them under the Act. Hon'ble Supreme Court further observed that if powers 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 two investigations carried on by two different agencies, one by 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 the cognizable offences under the Act and those of the special police. It was further held that only the special police officer appointed under the Act is competent to investigate offences under the Act and the police officers not specially appointed as special police officers cannot investigate offences under the Act even though they are cognizable offences. Accordingly, the appeal filed by the Delhi Administration was dismissed.

4. The same view was taken by this Court in the case of Raghubir Singh v. State 2001 AD (Cr.) DHC 386 wherein prosecution under Section 3, 4 and 5 of the Act was quashed by invoking Section 482 Cr.PC as the investigation was not conducted by Special Police Officer.

5. Mr. V.K. Malik, Advocate appearing for the State countered this argument on the strength of a subsequent decision of Hon'ble Supreme Court in the case of Bai Radha v. State of Gujarat . In that case investigation was carried out by a Special Police Officer. But while conducting the search by provision of Section 15 of the Act viz. recording of grounds of belief for conducting search and joining two or more public witness was not complied with. Hon'ble Supreme Court held that this irregularity does not vitiate the trial. The judgment in the case of Delhi Admn. (supra) was also referred in para No.5 but was distinguished on the ground that the police officer who visited the premises where the offences were alleged to have been committed was not a special police officer who alone is authorised to do the various things under the provisions of the Act. So the law laid down in the said judgment would not apply to the case of Bai Radha (supra). In that case investigation was conducted by special police officer. The only point involved in the case of Bai Radha (supra) was whether the trial is vitiated if the search has not been made in strict compliance with the provisions of Section 15 of the Act.

6. In this case, the entire proceedings were conducted by SI V.P. Jha who was not appointed as Special Police Officer under the Act. It is not a question of mere irregularity in the procedure. It goes to the very root, competence and jurisdiction. Therefore, on the strength of law laid down by the Supreme Court in the case of Delhi Admn. (supra), the entire proceedings namely search, investigations, arrest and prosecution by S.I. V.P. Jha has to be held to be illegal.

7. Besides, on merits also I find that prosecution has failed to prove the case under Sections 3 and 4 of the Act against the appellant. Section 3 of the Act provides the punishment for keeping/managing or assisting in keeping or managing of a brothel. Section 2(a) of the Act defines that "brothel" includes any house, room or place or any portion of any house, room or place, which is used for the purposes of sexual exploitation of abuse for the again of another person or for the mutual gain of two or more prostitutes. It is obvious that for proving an offence under Section 3 of the Act some specific instances of prosecution must be proved and then it must further be proved that the accused was managing/keeping the place with the knowledge that same is being used for the purposes of sexual exploitation or abuse for the gain of another person or for the mutual gain of two or more prostitutes.

8. In the present case, the police did not send any decoy customer to the kotha to strike a deal with the appellant for providing girl for prostitution. Even the girl Alivelu PW-3 does not say that appellant ever provided girls for prostitution or allowed anybody else to use Kotha for prostitution. In examination-in-chief PW-3 Alivelu has completely exonerated the appellant by stating clearly "I do no know the other accused present in Court". Her entire statement is against the other accused Nagina. But in cross-examination she states that the appellant was the owner of the Kotha and she used to take money from the girls. The factum of ownership of Kotha has been admitted by the appellant herself in her statement under Section 313 Cr.P.C. but there is no evidence whatsoever that she took money from prostitutes. PW-3 herself did not say that she ever paid any amount to the appellant. Her statement was that the appellant was the owner of the Kotha and she used to be called Badi Didi and she used to take money from the other girls. PW-3 Alivelu herself denied that the appellant used to help Nagina in prostitution and used to take earnings of the prostitution. So the mere fact that the appellant is the owner of the building/kotha, in absence of any definite evidence to prove any specific instances of prostitution or that the said kotha was used for prostitution with the connivance of the appellant, would not be sufficient to make out offence under Section 3 of the Act. For the same reason, offence under Section 4 of the Act also is not made out because PW-3 never stated that she ever paid any amount to the appellant nor any other girl has been examined to prove it.

9.In all such cases, it will be almost impossible for prosecution to succeed unless some specific instance of prostitution are proved and that is why while organising raids, decoy customer is generally used for the purpose of providing sexual exploitation of girls for monitory gain of another person or for the mutual gain of two or more persons.

10. In the result, appeal is accepted. The impugned order where by the appellant was convicted and sentenced under Section 3 and 4 of the Act is hereby set aside.

Appeal stands disposed of.