Madras High Court
Mrs.Vinitha vs The Inspector Of Police on 13 April, 2022
1
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
Dated: 13/04/2022
CORAM:
THE HON'BLE MR JUSTICE G.ILANGOVAN
Crl.OP(MD)Nos.4978 of 2019
and
Crl.MP(MD)Nos.3111 and 3112 of 2019
1.Mrs.Vinitha
2.S.Kanagaraj
(Wrongly mentioned in the
FIR Ganagaraj)
3.D.Manikandan : Petitioners/A2 to A4
Vs.
1.The Inspector of Police,
Courtallam Police Station,
Tirunelveli
Crime No.669 of 2018 : R1/Complainant
2.Mr.J.Jaisel Kumar
Inspector of Police,
Courtallam Police Station,
Tirunelveli District.
(Amended as per the order
of this court, made in
Cr.MP No.5604of 2019 in
Crl.OP(MD)No.4978 of 2019,
dated 27/06/2019) : R2/De-facto Complainant
Prayer: Criminal Original Petition has been filed
under section 482 of the Criminal Procedure Code, to call
for the records pertaining to the case in CC No.138 of
2019 on the file of the Judicial Magistrate, Shengottai
and quash the same.
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2
For Petitioner : Mr.T.Lajapathi Roy
For Respondents : Mr.SS.Madhavan
Government Advocate
(Criminal side)
O R D E R
The petition has been filed seeking quashment of the
case in CC No.138 of 2019 on the file of the Judicial
Magistrate, Shengottai.
2.The case of the prosecution in brief:-
The 2nd accused is the Manager of the Massage Centre
called 'Sri Sai Ram Oil Massage Centre'. A1 and A2 are
brokers. On 08/12/2018 at about 12.00 noon, the witness
No.1 was taken to the above said Guest House by
misrepresentation that she can get a job, where she was
subjected to prostitution against her will by force and
A3 and A4 wherein the persons indulged in the
prostitution with the witness No.1. Based upon the
complaint of the 2nd respondent, a case in Crime No.669 of
2018 was registered for the offences under sections 4(2)
(a), 4(2)(b), 4(2)(c), 5(1)(a), 5(1)(c), 3(2)(a) of
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Immoral Traffic (Prevention) Act, 1956. After completing
the formalities of investigation, charge sheet was filed
in CC No.138 of 2019 and it was taken cognizance by the
Judicial Magistrate, Shengottai.
3.Seeking quashment of the same, A2 to A4 preferred
this petition on the ground that sections 13 and 15(2) of
the Immoral Traffic (Prevention) Act, 1956 was not
complied and in so far the accused 3 and 4 are concerned,
no penal provision is attracted against them and the
allegations mentioned in the final report does not
attract any of the ingredients of the offence, that has
been alleged against the accused 3 and 4. Even in respect
of A2, no offence is made out.
4.Heard both sides.
5.Let us first take the competency or power of the
Investigating Officer to initiate action, conduct
investigation and file a final report in respect of the
offence said to have committed under the provisions of
Immoral Traffic (Prevention) Act, 1956. For that purpose,
we shall straightaway go to the judgment of this court
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made in Crl.OP Nos.28535 of 2018 batch, dated 02/01/2019
(Suganth and Hema Vs. The Inspector of Police,
Neelangarai Police Station, Adayar District, Chennai),
wherein the power of the Special Police Officer under
section 15 of the Act has been elaborately discussed.
Following the judgments, subsequent orders have also been
passed by this court.
6.When this matter was heard, it has been brought to
the notice of this court that the Government of Tamil
Nadu has passed Government Order, conferring power upon
the competent Police Officer to conduct investigation and
file a final report. On that score, the learned
Government Advocate (Criminal side) required to inform
the court about the development, since no such Government
Order has been brought to the notice of this court on the
earlier occasion.
7.The learned Government Advocate (Criminal side)
also verified the same and he has produced the G.O Ms.No.
619, dated 13/04/1987, which was issued by the Social
Welfare Department and that was mentioned in the counter
also, wherein it has been stated that police not below
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the rank of the Inspector of Police to be the Special
Police Officer to deal with the offence in respect of the
Immoral Traffic Act, within the jurisdiction, in which he
is operating. Similarly every Police Officer not below
the rank of the Sub Inspector of Police are also
appointed as Special Police Officer. According to the
learned Government Advocate (Criminal side), the first
respondent, who was working as Inspector of Police
attached to Courtallam police station, by virtue of his
office is empowered to initiate and investigate the
offences as a special officer. According to him, he
deemed to have been appointed as Special Police Officer
as per section 13 of the Act. A Special Police Officer is
defined under section 12(i) of the Act, wherein it has
been stated that the Police Officer must be appointed or
on behalf of the State Government to be the in charge of
the police duty, within the specific area for the purpose
of this Act. In pursuance of which only, according to the
learned Government Advocate (Criminal side), the first
respondent is the competent person.
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8.The learned counsel appearing for the petitioners
would straightaway rely upon the judgment of the Andhra
High Court in the caser of Goenka Sajan Kumar Vs. The
State of A.P., represented by the Public Prosecutor, High
Court of A.P., Hyderabad (Crl. Petition No.4161 of 2014,
dated 09/06/2014), wherein it has been stated that
customer cannot be proceeded under the provisions of
Immoral Traffic (Prevention) Act, 1956. Similarly, the
Karnataka High Court also, in the case of Mahesh Hebbar @
Mahesh Vs. The Station House Officer, Banaswadi Police
Station, Bangalore (Writ Petition No.56504 of 2015 (GM-
RES), dated 17/12/2015, was of the similar view. By
relying upon these two judgments, the learned counsel
appearing for the petitioners would submit that the
prosecution against the petitioners are liable to be
quashed.
9.So in view of the above said two judgments, the
petitioners 2 and/A3 and A4, who are the customers cannot
be proceeded under the provision of Immoral Traffic
(Prevention) Act, 1956. But so far as the first
petitioner/A2 is concerned, it is stated by the
prosecution that she is a broker. If at all, A2 can be
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proceed with under section 5 of the Immoral Traffic
(Prevention) Act.
10.Section 5 in The Immoral Traffic (Prevention) Act,
1956 reads as under:-
“5.Procuring, inducing or taking
1[person] for the sake of prostitution.—
(1)Any person who—
(a)procures or attempts to procure
a[person], whether with or without (his]
consent, for the purpose of prostitution;
or 1[person], whether with or without
2[his] consent, for the purpose of
prostitution; or"
(b)induces a[person] to go from any
place, with the intent that [he] may for
the purpose of prostitution become the
inmate of, or frequent, a brothel; or
1[person] to go from any place, with the
intent that 3[he] may for the purpose of
prostitution become the inmate of, or
frequent, a brothel; or"
(c)takes or attempts to take a [person],
or causes a [person] to be taken, from one
place to another with a view to [his]
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carrying on, or being brought up to carry
on prostitution; or
(d)causes or induces a [person] to carry
on prostitution, 1[person] to carry on
prostitution," [shall be punishable on
conviction with rigorous imprisonment for a
term of not less than three years and not
more than seven years and also with fine
which may extend to two thousand rupees,
and if any offence under this sub-section
is committed against the will of any
person, the punishment of imprisonment for
a term of seven years shall extend to
imprisonment for a term of fourteen years:
Provided that if the person in respect of
whom an offence committed under this sub-
section,—
(i)is a child, the punishment provided
under this sub-section shall extend to
rigorous imprisonment for a term of not
less than seven years but may extend to
life; and
(ii)is a minor, the punishment
provided under this sub-section shall
extend to rigorous imprisonment for a term
of not less than seven years and not more
than fourteen years;]
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(3)an offence under this section shall
be triable—
(a)in the place from which a[person]
is procured, induced to go, taken or caused
to be taken or from which an attempt to
procure or take such [person] is made; or
1[person] is procured, induced to go, taken
or caused to be taken or from which an
attempt to procure or take such 1[person]
is made; or"
(b)in the place to which he may have
gone as a result of the inducement or to
which he is taken or caused to be taken or
an attempt to take him is made.”
11.If at all only the first petitioner/A2 can be
proceeded by the prosecution and not the petitioners 2
and 3/A3 and A4. Since, it is specifically stated that
the first petitioner/A2 has procured the witness No.1 for
the purpose of prostitution, the factual issue, whether
she is procured the witness No.1 or not, is a matter for
trial. In view of the above facts, this criminal
original petition is allowed in respect of the
petitioners 2 and 3 and the impugned CC No.138 of 2019
on the file of the Judicial Magistrate, Shengottai is
hereby quashed as against the petitioners 2 and 3. In so
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far as the first petitioner/A2 this criminal original
petition stands dismissed.
12.With the above said observations, this criminal
original petition is ordered as indicated above.
Consequently, connected Miscellaneous Petitions are
closed.
13/04/2022
Index:Yes/No
Internet:Yes/No
er
https://www.mhc.tn.gov.in/judis
G.ILANGOVAN, J
er
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.
Crl.OP(MD)No.4978 of 2019
13.04.2022
https://www.mhc.tn.gov.in/judis
