Shalu Rawal And Ors. vs State Of N.C.T. Of Delhi And Ors.
2003 Latest Caselaw 400 Del

JUDGMENT

Dalveer Bhandari, J.

1. This petition under Article 226 of the Constitution of India read with Section 482 of the Code of Criminal Procedure has been filed for quashing the order dated 14.10.2000 passed by the learned Additional Chief Metropolitan Magistrate (for short ACMM), Delhi taking cognisance of offences emanating from FIR No. 445/2000 under Sections 3, 4, 5 & 8 of the Immoral Traffic (Prevention) Act, P.S. Rajouri Garden, New Delhi.

2. The facts as found by the learned ACMM are as under:-

At 3.45 p.m on 29.4.2000 Additional Station House Officer (for short `Addl. SHO') police station Rajouri Garden, received an information from an informer that in "Bunny Thunny D Guys Den Beauty Parlour", A-1, Rajouri Garden, II floor, New Delhi flesh trade was being run by one Sandeep Suri, who has employed 6/7 girls for the purpose of sexual pleasure of the customers and if a raid was conducted the same could be detected. Addl. SHO P.S. Rajouri Garden brought this information to the notice of Additional Commissioner of Police (in short `ACP') Rajouri Garden who in turn ordered to organise a raiding party. Accordingly the Addl SHO P.S. organized a raiding party consisting of Sub Inspector Satish Kumar, Sub Inspector Ritu Raj, Devender Purang, Sub Inspector Jagdish Kumar and Woman Head Constable Lata Kumari.

3. The information was recorded in the daily diary vide DD No. 14A at 3.45 p.m dated 29.4.2000 and the raiding party departed for Bunny Thunny Parlour along with the informer. They reached the Rajouri Garden market at about 4 p.m and asked 4/5 passersbyes to join the raiding party after sharing the information with them. However, only Ajay Kumar, S/o K.V. Radha Krishna, R/o B-1/46 A, Mansa Ram Park, Uttam Nagar agreed to join the raiding party whereas, others left them without disclosing their names and addresses. The Addl. SHO conducted a personal search of Ajay Kumar, who willingly joined as a decoy customer and nothing was left on his person in the personal search conducted by Addl. SHO. Two currency notes in the denomination of Rs. 500/-each bearing No. 2AK049313 and 9HM947944 were handed over to him by the Addl SHO through a memo, for striking a deal when he was sent to "Bunny Thunny Beauty Parlour". Sub Inspector Ritu Raj who was in civil dress was made a shadow witness and he was directed to remain with Ajay Kumar at the time the deal was struck and when the deal was materialised, shadow witness was required to give signal to the raiding party waiting in the gallery. Decoy customer Ajay Kumar and Sub Inspector Ritu Raj entered into the said beauty parlour at 4.30 p.m and the remaining members of the raiding party kept waiting in the gallery. Sub Inspector Ritu Raj, who was a shadow witness, after opening the door of the beauty parlour gave the pre-arranged signal to the raiding party around 5 p.m on which the Addl.SHO along with other members of the raiding party entered the parlour where they found that Ajay Kumar the decoy customer was sitting on a bench cum bed. He was hugged and kissed by two girls Rajni and Ritu.

4. The decoy customer, Ajay Kumar stated that when he entered the beauty parlour, Sandeep Suri asked him the purpose of his visit. On which Ajay Kumar replied that he had come there for body massage. Sandeep Suri thereafter, asked him whether he wanted to have more services to which decoy customer Ajay readily consented. Sandeep Suri, thereafter, informed him that the body massage would cost Rs. 1,000 and that sex would cost Rs.2000, out of which Rs. 1000 was charged in advance and balance was to be paid afterwards. Sandeep Suri further revealed that there were six girls and he could select any one, as all of them were expert in oral and traditional sex. Thereafter, decoy customer Ajay Kumar was asked to deposit advance money with the manager named Shalu. The moment the decoy customer deposited the aforementioned currency notes with Shalu, she produced six girls before the decoy customer Ajay Kumar one by one and all of them kissed and hugged Ajay Kumar by making sexually overt postures. The other girls went to the reception leaving Rajni and Ritu in the room with Ajay. Sub Inspector Ritu Raj also corroborated the version of decoy customer Ajay Kumar.

5. Thereafter, Addl SHO conducted the search of Shalu and recovered the two same currency notes of Rs. 500/- which had been earlier handed over to the decoy customer and seized the same through him. Thus Sandeep Suri in the garb of beauty parlour was in fact running a flesh trade. The manager of the parlour, Shalu who produced six girls for prostitution had committed offences under Sections 3,4, 5 & 7 Immoral Traffic (Prevention) Act. Inspector Parvati Kujur sent the ruqqa through Sub Inspector Jagdish and got the case registered vide FIR No. 445 dated 29.4.2000 under Sections 3, 4, 5 & 7 Immoral Traffic (Prevention) Act, P.S. Rajouri Garden. The case was registered at 7.40 p.m. Sandeep Suri and seven girls were also arrested in this case. Sub Inspector Ajay Kumar took the accused persons vide DD No. 45-D dated 29.4.2000 for medical examination. The case file remained with the Addl. SHO P.S. Rajouri Garden till 11.5.2000 and later on the case was transferred to the crime branch.

6. Inspector Narinder Chawla made the request for cancellation of FIR and discharge of accused on the following material:-

(a) That as per Inspector Parvati Kujur raiding party comprising of Sub Inspector Ritu Raj, SI Jagdish, SI Devender and SI Sandeep Suri, Woman Head Constable Lata Kumari under the supervision of Additional Commissioner of Police departed vide DD No.dt.29.4.2000 at 3.45 p.m. from P.S.Rajouri Garden for conducting raid at `Bunny Thunny Beauty Parlour' located at A-1, Rajouri Garden to smash a racket of prostitution run by Sandeep Suri and his manager Shalu. On the other Woman Head Constable Lata Kumari 65/W handed over the rojnamcha vide DD No.6 at 3.50 p.m. To Constable Jagat Ram of P.P.MIG Flats and PS Rajouri Garden.

(b) The other member of the raiding party SI Jagdish Kumar who was stated to be present at the spot on the said date as per his statement was performing the duty of emerngency officer. He attended calls of duty vide DD No.7A at 11.40 a.m. Message received through PCR regarding a person lying unconscious behind Police Station in open space and DD No.27B received at 9.05 p.m with regard to attending the court. On the other hand by DD No.17A recorded 7.40 p.m. Sub Inspector brought a ruqqa sent by Inspector Parvati Kujur for registration of the case from the spot and took back the FIR to the spot and handed it over to the Inspector Parvati.

(c) Sub Inspector Satish Kumar who was also a member of the raiding party was out of Police Station Vide DD No.8A recorded at 12.30 a.m. In connection with an accident; DD No.16B recorded at 11.05 a.m. and DD No.26B at 4.35 p.m. And returned entries made by him at 9.10 p.m. Vide DD No.42B.

(d) It has been submitted that the above entries create doubt about the presence of above mentioned Sub Inspector between 3.45 p.m. To 9.45 p.m. with Inspector Parvati Kujur as member of the raiding party which is being claimed by her vide DD No.20A recorded at 9.45 a.m. Sub Inspector Jagdish Kumar was on emergency duty on 29.4.2000 and it is quite possible that he might have joined the raiding party and in between on receipt of few calls he might have been compelled by the circumstance to attend to those calls against the aforesaid DD's. It may depend on facts and circumstances of each case which may take minimum time and after attending the said call against respective DD entry, Sub Inspector Jagdish might have joined the raiding party which fact is supported by the fact that he had taken the ruqqa to the PS for getting the FIR registered. His signatures might not have been taken on the seizure memo on account of the fact that he had to attend to few calls during the time of raid. Moreover Sub Inspector Jagdish Kumar, Sub Inspector Satish Kumar, Woman Head Constable Lata Kumari are the best persons to explain the contradicitions if any about their presence at the time of alleged raid. Truth in the crystal clear manner can be ascertained in this regard only through the acid test of cross-examination during the trial.

(e) In support of the application for cancellation second 1nvestigating 0fficer Inspector Narinder Chawla has also submitted that signatures of public witness Mr.Ajay Kumar @ P.K.Ajay also do not exist on the seizure memo nor on any of the personal search memos. Whereas the public witness reiterated that he remained present for sufficient time with the police party.

7. The learned ACMM after perusing the relevant record came to the conclusion that no doubt, signatures of the decoy customer does not appear on these documents. However, signatures of P.K. Ajay very much exist on fad haulage note memo dated 29.4.2000 on which signatures of Sub Inspector Ritu Raj, Sub Inspector Satish Kumar and Inspector Parvati Kujur also exist. He stated that just because signatures of decoy customer does not exist on seizure memo, no adverse inference can be drawn against the prosecution case at this stage as these matters of minute details are not be attached much significance at this stage. This order is under challenge.

8. The case of the prosecution is that "D Guys Den" is used for prostitution. This is mentioned on the basis of the raid conducted by the police officials.

9. According to the allegations in the FIR, these girls were offered for sex to the decoy customer. Number of persons have been examined who have established business in the premises of `Bunny Thunny Parlour' and they revealed that on 24.4.2000 the Sub Inspector Ritu Raj in civil dress with two constables in uniform visited "Bunny Thunny Parlour" and forcibly took Rajni Madan and again visited the parlour and took away all the remaining girls forcibly while they were having their lunch. He observed in his order that it is inconceivable that when accused persons were forcibly taken away by Sub Inspector Ritu Raj why no complaint has been sent to the concerned authorities. He further stated that Inspector Parvati Kujur and Woman Head Constable Lata never visited the site as confirmed by the vigilance inquiry conducted by ACP Nihal Singh. One Ajay Kumar had alleged that he could not read Hindi and did not know what was written on those papers in Hindi on which ACP Nihal Singh took his signatures. He made allegations against the police officials also and wanted his statement under Section 164 CrPC recorded for which the learned CMM asked him to get his statement recorded.

10. It may be pertinent to mention that the learned ACMM stated in his order that the decoy customer P.K.Ajay went to "Bunny Thunny Parlour and D Guys Den" where he met Sandeep Suri, who told that Rs. 2,000 will be charged, for having sex for which Rs. 1000 were payable in advance and balance was to be paid after having sex. Sandeep Suri offered six girls stating that they were experts in sex , including oral sex. The decoy witness was asked to make payment to accused Shalu, who was the manager and he accordingly paid Rs. 1000 who offered him six girls.

11. These girls allegedly kissed and hugged the decoy customer by making sexually overt postures. The decoy customer in his statement under Section 161 CrPC also disclosed that accused Rajni and Ritu were embracing him on a single bench cum bed when members of raiding party arrived after receiving a signal. The two currency notes of Rs. 500/- each were recovered from the accused Shalu from her bra which were paid by the decoy customer P.K.Ajay in advance for having sex. The version of decoy customer has been corroborated by other members of the raiding party in their statement under section 161 CrPC.

12. The learned ACMM in his order observed that from the material placed on record commission of offfences under Sections 3,4,5 of Immoral Traffic (Prevention) Act 1956 against accused Sandeep Suri and accused Shalu and under section 8 of the Immoral Traffic (Prevention) Act 1956 are prima facie made out against other accused persons,namely, Rajni Madan, Ritu Tomer, Sapna, Rajani Sandhu, Vimal and Sheetal. He observed that in the interest of justice, cognizance of the said offences is taken. Accused persons were summoned with notice to their sureties to face trial for offences under the aforesaid provisions of the Act.

13. The learned counsel appearing for the petitioners challenged the order of the learned ACMM on various grounds. He submitted that issuing of the process in the said case on the allegations mentioned is manifestly erroneous and unsustainable. He also submitted that the learned ACMM has wrongly taken cognizance inspite of the fact that there was a cancellation report. He further submitted that the medical examination revealed that hymen of petitioners 1,2 3 were intact. Petitioner No. 1, 4 and 7 were menstruating on the date of the alleged incident and this fact itself was sufficient for the learned ACMM to be convinced that at that stage of their body they could not have been offered for sex.

14. Mr. K.T.S. Tulsi, learned Senior Counsel, appearing for the petitioners, placed reliance on the judgment of the Apex Court in Pepsi Foods vs. Special Judicial Magistrate in which it is mentioned that summoning an accused is a serious matter and order must reflect application of mind to the nature of allegations and the evidence on record.

15. He also placed reliance on State of Karnataka vs. Munnuswamy 1977 SCC (Cri) 404. In this case, their Lordships of the Supreme Court observed that the High Court should exercise the powers to quash proceedings in cases where proceedings before court are being degenerated into a weapon of harassment or persecution.

16. Reliance has also been placed on MCD v. Ram Kishan Rohtagi and Others, 1983 SCC (Cri) 115. In this case their Lordships observed that the court would be justified in quashing the order, if the court reaches the conclusion that the proceedings are inherently absurd and improbable, so that no prudent person can reach such a conclusion. The court also observed that if discretion in issuing process is capricious and arbitrary and based on no evidence, in that event proceedings should be quashed.

17. Learned counsel for the petitioners has also drawn our attention to the another case of Supreme Court Ashok Chaturvedi and Others v. Shitul H. Chanchani and Another, (1998) SCC 698. It is observed in this case that when the complaint is vague and based on a bald allegation without an iota of material in support thereof, offence cannot be said to be made out, order of cognizance be quashed.

18. On the same proposition, reliance has been made on the following cases:

Rishi Anand vs. NCT,

Smt. Nagawwa v Veeranna Shivaligappa Konjgalgi, 1976 SCC(Cri) 507;

SW Palanitkar v. State of Bihar, (@))@) 1 SCC 241;

Alpic Finance : 2001 (3) SCC 513

Charanjit Singh Chadha : 2001 (&) SCC 417

Kunstocom Electronics Pvt. Ltd. v. Gilt Pack Ltd.:

Hridaya Ranjan Prasad : .

19. Mr. Gopal Subramaniam, learned senior counsel appearing on behalf of respondents 4 to 9 submitted that there is no quarrel with the propositions of law which have been enunciated in the aforesaid cases. He also submitted that the ratio of the judgments in the aforesaid cases have no application to the facts of the case in hand.

20. Mr. KTS Tulsi, learned senior counsel appearing for the petitioner submitted that though a Departmental enquiry has been ordered against the erring officials on 27-8-2001, but the departmental action has been kept in abeyance against all these officials. He submitted that a show cause notice issued to the delinquent officials by the Commissioner of police shows that prima facie case against the police officials has been found even by the Commissioner of the Police. Therefore, it was imminently desirable that the police ought to have directed registration of a criminal case against the concerned officials. He further submitted that it was a fit case where the payment of compensation be given to the petitioners who have been made victim by the evil desire of the police officials. He placed reliance on the following judgments:-

Neelabati Behra :

Sahli Vs. Commissioner of Police : 1990(1) SCC 482;

Rudul Sah :

Chairman, Rly. Board & Ors. Vs. Chandrima Das :

Sebastian Hongray : 1984 (3)SCC 82

State of Rajasthan Vs. Vidyawati : 1962(Supp 2) SCR 989

MC Mehta :

Organo Chemicals Vs. UOI :

21. These aforementioned cases pertain to payment of compensation for contravention of human rights and fundamental freedom, as protected and guaranteed by the Constitution.

22. Mr. Subramaniam, learned senior counsel for respondents 4 to 9, submitted that the law which has been enunciated by the Apex Court in these judgments also have no application to the facts of this case.

23. Mr. Subramaniam addressed the argument on the main concern of the Court belonging to Medical Report in which hymen of three girls have been shown as intact. He submitted that it is uncommon feature to conduct hymen test under ITP Act. In the written submissions filed by him, it is mentioned that hymen test has been conducted because of the influence, connection and pressure used by the family members of the accused persons. He questioned the veracity of the test. He referred to page 571 of Forensic Medicine and Toxicology, Volume-II, by J.B. Mukherjee. He submitted that it is a specialised job of the Specialist to conduct the hymen test. He again referred to page 75 of Taylor's Principles and Practice of Medical Jurisprudence, 13th Edition. It is mentioned that the hymen has got vast and various variances as even after several intercourses the hymen can still remain intact.

24. It is mentioned that cases are on record to show that, women may have intact hymen even after regular marital relationship; with pregnancy the hymen gets ruptured, during full term delivery through vagina only. In case of Paris prostitutes as reported by K. Simpson in Taylor's (1965) 12th Edition, Vol-II, hymen were found to be intact. Hymen may not get ruptured even after abortion in early months. (f) In case of sexual assault on very young children, hymen usually does not get ruptured owing to the depth of its situation, thick texture and narrowness of the vaginal canal.

25. He also referred to another leading book on the subject, Forensic Medicine and Toxicology, Volume-II, by J.B. Mukherjee. It is mentioned that even in the cases of those involved in prostitution the hymen had been found to be intact and the same is confirmed in various researches in Western Countries where the intact hymen is not a taboo at all.

26. In the written submissions, it is also mentioned that these days due to high risk of the contaminating diseases like, AIDS and other sexual diseases majority of the persons going to the prostitutes prefer oral sex. It may be pertinent to mention that the services offered to the decoy customer was of oral pleasure, therefore, this possibility cannot be ruled out that the accused petitioners whose hymen as allegedly shown as intact might be indulging only in oral sex.

27. It is also incorporated in the written submission made by Mr. Subramaniam, that petitioners have willfully, knowingly and purposely concealed material facts:

Inquiry Report by A.C.P. S.P.S. Sirohi of Public Grievance Cell, Delhi Police;

Dismissal of previous P.I.L. /Writ Petition on the same ground;

Complaint of Ashwini Suri, (Brother of accused Sandeep Suri);

Applications/complaints of decoy customer P.K. Ajay made to Chief Metropolitan Magistrate & order passed thereof.

28. In the written submissions it is also mentioned that the petitioners have grossly mis-represented the facts. The Rent Agreement which is shown with Dayanand is shown as employee in the attendance register of the principal accused at pages 248 & 249.

29. There is no explanation as to why most of the alleged petitioners had given their false names and addresses while in custody. There is no explanation as to why the Investigating Officer has not considered all the above facts while preparing the cancellation report and had not placed the same along with closure report, though he had taken three days for the same purpose. It is also mentioned that no protest or complaint was lodged when the accused were produced before the Metropolitan Magistrate.

30. Mr. Subramaniam submitted that it is the settled law that the Metropolitan Magistrate can reject the closure report on the basis of material on record and on the basis of material on record itself can take cognizance of the offence and proceed in accordance with law. He submitted that the entire defense set up by the accused/petitioners that Sub-inspector Ritu Raj has asked for sexual favor is entirely baseless and does not inspire any credibility.

31. Mr. Subramaniam, learned senior counsel submitted that under Section 190(1)(b), learned ACMM was empowered to take cognizance of any offence under Section 204. Reliance has been placed on the following judgments:

H.M. Rishbud Vs. State of Delhi,

Abhinandan Jha & Ors. v. Dinesh Mishra, AIR 1968 117;

H.S. Bains Vs. State,

M/s. Indian Carat Pvt. Ltd. & 16 Ors. Vs. State of Karnataka,

State of Haryana Vs. Bhajan Lal,

K.L.Chawla Vs. S.M. Agarwal & Ors., 1987 (2000) DLT 202.

32. He submitted that the law is well-settled that the ACMM can ignore the cancellation report or the conclusion arrived at by the Investigating Officer and independently apply his mind to take cognizance in exercise of his power under Section 190(1)(b) Cr.P.C. and direct the issue of processes to the accused. It is submitted that the powers under Article 226 of the Constitution of India and Section 482 of the Code of Criminal Procedure should be exercised sparingly in exceptional cases and reference has been made in the following judgments:

State of U.P. Vs. O.P. Sharma,

Smt. Rashmi Kumar Vs. Mahesh Kumar Bhada, JT 1996 (II) 175;

State of Kerala and Ors. Vs. O.C. Kuttan & Ors.,

Satvinder Kaur Vs. State of NCT of Delhi, JT 1999(3) 25;

K.M. Mathew Vs. K.A. Abraham & Ors., .

33. He also referred that a Public Interest Petition being Civil Writ No. 5105/2000 was filed on behalf of petitioners here and that Writ Petition was heard by a Division Bench of this Court consisting of Chief Justice Mr. Arijit Pasayat and Hon'ble Mr. Justice D.K. Jain and the Writ Petition was dismissed on 20.10.2000. The Court observed as under "since a judicial order has been passed on the closure report submitted by the police, we do not think it necessary to continue with the petition".

34. Mr. Subramaniam also pointed out that this petition deserved to be dismissed because the petitioners are guilty of making out entirely false case that the Beauty Parlour was given on rent to one Dayanand for Rs.12,000/- per month from 1st April, 2000 and the incident is also of April, 2000. The attendance register at page 247-248 for the month of April and May shows that Dayanand is an employee of the Beauty Parlour. He submitted that alleged lease deed/rent agreement is a managed and fabricated document. The rent agreement was only created to absolve the actual owner so that the burden will be on their employee Dayanant who has been falsely shown as lessee. Mr. Subramaniam also pointed out that all the members of the raiding party have been recently posted on their respective positions and have no connection to each other. ACP, respondent No. 3 was posted less than two months prior to the incident, the Inspector (lady) respondent No.4 was posted 2 days prior to the date of incident and other members were also recently posted in that police station.

35. We have considered rival contentions and perused all the relevant documents on record. This Writ Petition is directed against the order dated 29.4.2000 by which the learned ACMM has taken the cognizance. There can be no dispute that the learned ACMM is not bound to accept the cancellation report. At the stage of issuing process the learned ACMM must apply his mind, on the basis of material available before him.

36. It is settled law that at the stage of taking cognizance it is enough if there is adequate material to proceed with the matter. The defense of the accused cannot be considered at this stage. We have noted various contentions but deliberately refrained to give our findings lest it may prejudice the case of either party during the trial.

37. In our considered opinion, impugned order of the learned ACMM cannot be called perverse or contrary to law calling for interference by this Court.

38. This petition being devoid of any merit is accordingly dismissed.