Madras High Court
Haja Nawaz vs The State Represented By on 13 April, 2022
Crl.O.P.(MD)No.15214 of 2021
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED : 13.04.2022
CORAM
THE HONOURABLE MR.JUSTICE G.K.ILANTHIRAIYAN
Crl.O.P(MD)No.15214 of 2021
&
Crl.M.P(MD)No.8154 of 2021
Haja Nawaz ... Petitioner/
Sole Accused No.2
Vs.
1. The State represented by
The Inspector of Police,
Kottar Police Station,
Kanyakumari District.
(In Crime No.81 of 2021) ... 1st Respondent/
Complainant
2. Sasikumar ... 2nd Respondent/
Defacto Complainant
Prayer: Criminal Original Petition is filed under Section 482 Cr.P.C., issue to
call for the entire records pertaining to the FIR in Crime No.81 of 2021 on the
file of the first respondent Police and quash the same insofar as the petitioner is
concerned.
For Petitioner : Mr.Niranjan S.Kumar
For Respondents : Mr.K.Sanjai Gandhi
Government Advocate (Criminal Side)
for R.1
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Crl.O.P.(MD)No.15214 of 2021
ORDER
This Criminal Original Petition has been filed to quash the FIR in Crime
No.81 of 2021 on the file of the first respondent Police.
2. The case of the petitioner is that the petitioner along with other
accused indulged in immoral activities in their premises.
3. The learned counsel for the petitioner would submit that according to
Section 13 of the Act, only the officer who is the rank of Police Inspector or
above, who is specifically authorized by the Government, are entitled to
investigate the offences under the ITP Act. In the case on hand, the first
respondent is not the competent officer and he was not appointed as Special
Officer. He would further submit that the arrest was also not done under the
Act and while searching the premises, the procedures prescribed under Section
14 (i) (ii) and (iii) and Section 15(2) of the Act, have been violated. The
learned counsel in order to substantiate his submissions, relied upon the
judgment of this Court in Kadek Dwi Ani Rasmini and Others vs K.Natarajan
and others reported in 2019(1) LW crl 94.
4. Per contra, the learned Government Advocate (Criminal Side)
appearing for the respondent police would submit that based on the materials
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Crl.O.P.(MD)No.15214 of 2021
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. He would further submit that the investigation is going on.
5. Heard the learned counsel appearing on either side and perused the
records.
6. The main ground raised 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
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Crl.O.P.(MD)No.15214 of 2021
(iv) he must record the grounds of his belief 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, 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.
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Crl.O.P.(MD)No.15214 of 2021
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 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 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,
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Crl.O.P.(MD)No.15214 of 2021
(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 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.
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Crl.O.P.(MD)No.15214 of 2021
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 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.
7. In the case on hand, 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.
8. 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 proceeding becomes illegal in the eye of law.
9. In view of the above observations, the entire proceeding itself is
vitiated and this Court has no hesitation to interfere with the proceedings in
Crime No.81 of 2021 dated 23.02.2021 on the file of the first respondent and
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Crl.O.P.(MD)No.15214 of 2021
same is hereby quashed. Accordingly, this Criminal Original Petition is
allowed. Consequently, connected miscellaneous petition is closed.
13.04.2022
Index : Yes / No
Internet : Yes/ No
mga
Note: In view of the present lock down owing to COVID-19
pandemic, a web copy of the order may be utilized for official
purposes, but, ensuring that the copy of the order that is presented is
the correct copy, shall be the responsibility of the advocate/litigant
concerned.
To
1. The Inspector of Police,
Kottar Police Station,
Kanyakumari District.
2. The Additional Public Prosecutor,
Madurai Bench of Madras High Court,
Madurai.
https://www.mhc.tn.gov.in/judis
Crl.O.P.(MD)No.15214 of 2021
G.K.ILANTHIRAIYAN, J.
mga
Crl.O.P(MD)No.15214 of 2021
&
Crl.M.P(MD)No.8154 of 2021
13.04.2022
https://www.mhc.tn.gov.in/judis
