Madras High Court
Balu @ Balasubramanian vs The State Rep. By on 18 February, 2021
Crl. OP No.30001 of 2019
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 18.02.2021
CORAM
THE HONOURABLE MR. JUSTICE N. ANAND VENKATESH
Crl. OP No.30001 of 2019
and Crl. MP Nos.16196 and 16197 of 2019
Balu @ Balasubramanian ... Petitioner/ Accused No.5
vs.
The State rep. By
The Inspector of Police,
Reddiyarpalayam Police Station,
Puducherry District.
(Crime No.126/2018) …. Respondent / Complainant
PRAYER: Criminal Original Petition filed under Section 482 of the Code
of Criminal Procedure, to call for the records relating to the complaint in
S.T.C.No.888 of 2019 on the file of the Judicial Magistrate No.III,
Puducherry and quash the same as far as the petitioners are concerned.
For Petitioner : Mr.V.Sakkarapani
For Respondents : Mr.V.Balamurugane
Addl. Public Prosecutor (Pondy)
1/12
https://www.mhc.tn.gov.in/judis/
Crl. OP No.30001 of 2019
ORDER
This petition has been filed seeking to quash the proceedings in STC
No. 888 of 2019 on the file of the Judicial Magistrate No.III, Puducherry.
2. The respondent Police has filed a Final Report before the Court
below against five accused persons for an offence under Sections 4(2)(b)(c),
5(1)(d), 6(1)(b), & 3(2)(a) (b) of the Immoral Traffic (Prevention) Act, 1956
r/w 34 IPC.
3. The case of the prosecution is that based on a secret information,
the respondent Police came to know that the subject property is being used
as a brothel house and A1, who is said to be a habitual offender had
engaged the victim girls in prostitution.
4. The petitioner has been arrayed as A5 on the ground that he is the
lessee of the subject property in which business was conducted in the name
of JP Residency.
https://www.mhc.tn.gov.in/judis/
Crl. OP No.30001 of 2019
5. The learned counsel appearing for the petitioner submitted that
there are absolutely no materials against the petitioner and the respondent
Police have not followed the mandatory procedure laid under Section 15 of
the Immoral Traffic (Prevention) Act, 1956. The learned counsel in order to
substantiate his submissions, relied upon the judgment of this Court in
Kadek Dwi Ani Rasmini and Ors. Vs. Respondent: K. Natarajan and Ors.,
reported in 2019 (1) LW crl 94.
6. Per contra, the learned Additional Public Prosecutor appearing on
behalf of the respondent Police submitted that the petitioner is the lessee of
the subject property where the prostitution had taken place and it was done
with the knowledge of the petitioner and therefore, based on the materials
collected by the respondent Police, a prima facie case has been made out
against the petitioner and there are absolutely no grounds to interfere with
the proceedings.
7. This Court has carefully considered the submissions made by the
learned counsel on either side and the materials available on record.
https://www.mhc.tn.gov.in/judis/
Crl. OP No.30001 of 2019
8. The main ground of attack in the present petition is that the
respondent police did not follow the mandatory requirements under Section
15 of the Immoral Traffic (Prevention) Act, 1956. For proper appreciation,
the relevant portions in the judgment referred by the learned counsel
appearing for the petitioner are extracted hereunder:
28. A careful look at the provisions of
Section 15 would show that a Special Police
Officer or a Trafficking Police Officer can enter
upon any premises and cause a search without
warrant, only after satisfying the following:?
(i) he should have reasonable grounds for
believing that an offence punishable under this
Act has been or is being committed;
(ii) he must believe that such an offence is
committed in respect of a person living in the
premises;
(iii) he should believe that the search of the
premises with warrant cannot be made without
undue delay; and
(iv)he must record the grounds of his belief
https://www.mhc.tn.gov.in/judis/
Crl. OP No.30001 of 2019
before entering the premises.
29.The expression ?Special Police Officer?
is defined in Section 2(i) of the Act, to mean 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.
Similarly, the expression ?Trafficking Police
Officer? is defined in Section 2(j) to mean a
Police Officer appointed by the Central
Government under Section 13(4). I do not know
and I have not come across any such Trafficking
Police Officer appointed by the Central
Government in terms of Section 13(4), at least in
the State of Tamil Nadu.
30. Under Sub section (2) of Section 15,
the Special Police Officer or the Trafficking
Police Officer should also call upon two or more
respectable inhabitants, at least one of whom
should be a woman of the locality in which the
place to be searched is situate, to attend and
witness the search. For the purpose of enforcing
the attendance of such respectable inhabitants,
https://www.mhc.tn.gov.in/judis/
Crl. OP No.30001 of 2019
the Police Officer is obliged to issue an order in
writing to them. If the person, who is called upon
to attend and witness the search, refuses or
neglects to comply with the notice, despite an
order in writing being delivered to him, he is
liable to be punished for an offence under Section
187 of the IPC, by virtue of Sub section (3) of
Section 15. An immunity is granted under Sub
section (6) of Section 15 to persons taking part in
or attending and witnessing a search, from any
civil or criminal proceedings in respect of
anything lawfully done in connection with the
search.
31. The Special Police Officer or the
Trafficking Police Officer, who makes a search,
should be accompanied by at least two women
Police Officers. If any woman or girl is removed
under Sub section (4) from the premises of search,
she could be interrogated only by the woman
Police Officer.
32. Day in and day out, newspapers
compete with each other in publishing reports
https://www.mhc.tn.gov.in/judis/
Crl. OP No.30001 of 2019
along with photographs of girls, whenever any
search is carried out under Section 15 of the Act
and any woman is removed from a place. The
website of the National Crime Records Bureau
shows that a total of about 2,44,270 incidents of
crime against women were reported in the whole
country during the year 2012. Out of them, about
2563 constitute cases under the Immoral Traffic
(Prevention) Act, 1956. Interestingly, 19.5% of
such cases (about 500 cases out of those 2563
cases) were reported only in Tamil Nadu. This
can be taken either as an indication that incidents
of crime under the said Act is on the increase in
Tamil Nadu or as an indication of the role played
by the Police in the State of Tamil Nadu in taking
the crimes under this Act more seriously than
what their counterparts in the other States do.
33. Unfortunately, no accountability is
fixed on the police to see whether all the
requirements of Section 15 are complied with or
not. No one calls upon the Special Police Officer
or the Trafficking Police Officer (i) to produce
records to show whether he has minuted the
https://www.mhc.tn.gov.in/judis/
Crl. OP No.30001 of 2019
grounds of his belief that an offence punishable
under the Act is committed or has been committed
in respect of a person living in any premises, (ii)
to produce records to show his subjective
satisfaction that the search of the premises with
warrant cannot be made without undue delay, (iii)
to produce records to show whether two
respectable inhabitants of the locality attended
and witnessed the search, (iv) to show whether
persons removed from such premises were
subjected to medical examination and produced
before the appropriate Magistrate immediately,
and (v) to produce proof to show that two women
Police Officers accompanied them and the
interrogation of any woman was done only by
them.
34.Many times, even persons who are
booked under the provisions of this Act, do not
appear to challenge the procedure adopted. This
is perhaps due to the fact that in most of the
cases, the Police find it convenient to book a
person only for an offence under Section 8, which
is punishable on first conviction, either with
https://www.mhc.tn.gov.in/judis/
Crl. OP No.30001 of 2019
imprisonment for a term which may extend to six
months or with fine which may extend to Rs.
5,000/-. Therefore, it appears that people choose
to plead guilty and pay the fine even on the first
occasion and get off, instead of going through the
mill, by facing the prosecution and challenging
the procedure followed by the Police. The remedy
is seen as worse than the disease.
36. Therefore, the only presumption that I
can draw is that as against the writ petitioners
herein, the Police did not carry out a search by
following all the steps prescribed in Section 15.
When the mandate of the law is so clear in Section
15, the respondents cannot carry out a search de
hors Section 15.
37.The conclusion that we can arrive at, on
the basis of the above discussion, is two fold. If
the Police carry out a search of the premises
where the petitioners are carrying on business
activities, after following all the steps prescribed
in Section 15, the petitioners cannot come under
Article 226, but may have to seek redressal
https://www.mhc.tn.gov.in/judis/
Crl. OP No.30001 of 2019
somewhere else. But, if the respondents are in the
habit of carrying out searches in a manner not
prescribed by Section 15, then the same actually
tantamount to an unlawful interference with the
fundamental right of the petitioners to carry on
any business or profession which is not declared
as unlawful by any legislation.”
9. In the present case, the inspection was not carried out by the
Special Police officer or the Trafficking Police Officer and the Officer who
carried out the inspection, was not an authorized Officer under Section 15 of
the Act.
10. This Court has time and again held that if the search and
inspection is not carried out by following the procedure prescribed under
Section 15 of the Act, the entire proceedings becomes illegal in the eye of
law. This is yet another case where the respondent Police failed to follow
the mandatory procedure under Section 15 of the Act.
11. This ground by itself will vitiate the proceedings and therefore,
https://www.mhc.tn.gov.in/judis/
Crl. OP No.30001 of 2019
this Court has no hesitation to interfere with the proceedings in STC No.
888 of 2019 on the file of the Judicial Magistrate No.III, Puducherry and the
same is hereby quashed, insofar as the petitioner is concerned and this
Criminal Original Petition is allowed. Consequently, the connected
miscellaneous petitions are closed.
18.02.2021
Index : Yes/No
Internet : Yes/No
Speaking Order/Non-Speaking Order
jv
To
1. The Judicial Magistrate No.III,
Puducherry.
2.The Inspector of Police,
Reddiyarpalayam Police Station,
Puducherry District.
3. The Public Prosecutor,
High Court of Madras,
Chennai 600 104.
https://www.mhc.tn.gov.in/judis/
Crl. OP No.30001 of 2019
N. ANAND VENKATESH, J.
jv
Crl. OP No.30001 of 2019
and Crl. MP Nos.16196 and 16197 of 2019
18.02.2021
https://www.mhc.tn.gov.in/judis/
