Madras High Court
A.Thanajayan vs The Inspector Of Police on 29 April, 2022
Crl.O.P.No.15963 of 2020
IN THE HIGH COURT OF JUDICATURE AT MADRAS
RESERVED ON : 06.07.2022
DELIVERED ON : .07.2022
CORAM
THE HON'BLE MR.JUSTICE G.K.ILANTHIRAIYAN
Crl.O.P.No.15963 of 2020
and
Crl.M.P.No.6111 of 2020
1.A.Thanajayan
2.Benz Saravanan.C ... Petitioners
Vs.
1.The Inspector of Police,
V4 Rajamangalam Police Station,
Chennai.
2.Vijayakumar
S/o not known,
Police head constable 25083,
V4 Rajamangalam Police Station,
Chennai. ... Respondents
Prayer: Criminal Original Petition filed under Section 482 of Criminal
Procedure Code, to call for the records in the FIR Crime No.969 of 2020
on the file of the first respondent police and quash the same.
For Petitioners : Mr.C.Kanagaraj
For R1 : Mr.A.Gopinath
Government Advocate (Crl.Side)
1/17
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Crl.O.P.No.15963 of 2020
For R2 : No appearance
ORDER
This petition has been filed to quash the FIR in Crime No.969
of 2020 on the file of the first respondent police, for the offences under
Sections 3(2)(a),4(1),5(1)(a) of the Immoral Traffic (Prevention) Act r/w
Section 4(1)(k) of the Tamil Nadu Prohibition Act and Sections 188, 269
of IPC as against the petitioners.
2. The case of the prosecution is that when the respondent
police were on regular check up, they found that a Recreation club was
running without any valid permission. It is also alleged that the
petitioners and other accused are the owners of the club and they were
doing prostitution business. Hence, the complaint.
3. The learned counsel appearing for the petitioners would
submit that there are totally 9 accused in which the petitioners are
arrayed as A1 and A2. They are running a Recreation Club on their own
in the name of Kadal Pura Recreation Club, after obtaining necessary
permission and proper license from the Prohibition and Excise
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Department. It is also periodically renewed by the department concerned.
He would further submit that the provisions of the Act must be strictly
followed, cogent and with the convincing material must be placed before
this Court that the petitioners were involved in the offences. While being
so, the second respondent ought not to have arrayed the petitioners as the
accused without any specific allegation. The premises was let out by the
landlord Mrs.P.Sridevi to one Ramamohan Durai for carrying out the
business of bar, restaurant and entertainment events on monthly rental
basis. The first petitioner entered into the business agreement with the
said Ramamohan Durai on 27.03.2019. Therefore, the role played by the
petitioners is that they handed over the premises for the purposes of skill
development and to keep fit health and mind, away from day today
human problems. That apart, the petitioners were not present at the time
of search and they are no way connected with the activities of the
recreation club. Only on the false information given by the competitor, the
present impugned FIR has been registered as against the petitioners.
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Crl.O.P.No.15963 of 2020
4. The first respondent is not the competent person to register
the case under the Immoral Traffic (Prevention) Act [herein after called as
ITP Act]. As per the provision under Section 13 of the ITP Act has not
been complied with by the first respondent who had conducted the raid
and may arrest of the accused persons is not a Special Police Officer as
specified under the Act. Therefore, the first respondent has no jurisdiction
to register the FIR under the ITP Act. He further submitted that the first
respondent failed to follow the procedure laid down under Section 15 of
the ITP Act.
5. In support of his contentions, he relied upon several
Judgments in which this Court held in Crl.O.P.No.30001 of 2019 in
respect of the provisions under Section 15 of the ITP Act. By relying
upon the judgment of this Court reported in 2019 (1) LW Crl 94 in the
case of Kadek Dwi Ani Rasmini and Ors. Vs. K.Natarajan and Ors.,
held that the inspection was not carried out by the Special Police Officer
or the Trafficking Police Officer or the Officer who carried out the
inspection, was not an authorized Officer under Section 15 of the Act.
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Further, 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 is illegal in the eye of law. The Police officer failed to follow
the mandatory procedure as contemplated under Section 15 of the ITP
Act.
6. This Court held in Crl.O.P.No.10334 of 2022 in the case of
Udhaya Kumar Vs The State rep. By The Inspector of Police, Anti-
Vice Squad-II Police Station, Chennai CCB and another on relying
upon the Judgment of the Hon'ble Supreme Court of India reported in
2022 Live Law (SC) 525 in the case of Budhadev Karmaskar Vs. The
State of West Bengal & Ors, held that whenever any brothel house is
raided, sex workers should not be arrested or penalised or harassed or
victimised and it is only the running of the brothel, which is unlawful.
7. Per contra, the learned Government Advocate (Crl. Side)
submitted that when the first respondent went to the scene of occurrence
found that the accused persons escaped from occurrence place. There
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were only 12 victims in the place of occurrence and they were rescued
and safely handed over to the Government home. Thereafter, they were
produced before the Jurisdictional Magistrate Court and sent for medical
examination. Insofar as the petitioners are concerned, they obtained
Anticipatory Bail and investigation is pending. The first respondent have
examined 12 victims and recorded their statements. Insofar as the
accused 6, 8 and 9 are concerned, they are still absconding and yet to
complete the investigation. He further submitted that only FIR has to be
investigated in depth to unearth the truth. Therefore, the FIR cannot be
quashed on its threshold and prayed for dismissal of this petition.
8. Heard Mr.C.Kanagaraj, learned counsel appearing for the
petitioners, Mr.A.Gopinath, learned Government Advocate (Crl.Side)
appearing for the first respondent.
9. The learned counsel for the petitioners had mainly raised two
grounds:
(i) the first respondent is not a competent authority to conduct
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Crl.O.P.No.15963 of 2020
search and arrest of the accused persons as contemplated under Section
13 of the ITP Act.
(ii) the first respondent failed to comply the provisions under
Section 15 of the ITP Act while making search.
10. Both grounds raised by the petitioners have now been
settled by this Court in Crl.O.P.No.922 of 2021 dated 29.04.2022 in the
case of Hema Jwaalini and Ors. Vs. The Commissioner of Police,
Chennai and Ors. The first ground raised by the petitioners is that the
provision under Section 13 of ITP Act has not been followed by the first
respondent.
11. The learned counsel for the petitioners also relied upon the
judgment reported in AIR 1962 SC 63, in the case of Delhi
Administration Vs. Ram Singh. The ITP Act is enacted to inhibit or
abolish the commercialized trafficking of women and girls for the purpose
of prostitution as an organised means of living. To meet out the first
ground, it is relevant to extract under Section 13 of the ITP Act as
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follows:
“13.Special police officer and advisory body.—
(1) There shall be for each area to be specified by
the State Government in this behalf a special police
officer appointed by or on behalf of that
Government for dealing with offences under this
Act in that area.
(2) The special police officer shall not be below the
rank of an Inspector of Police.
(2A) The District Magistrate may, if he considers it
necessary or expedient so to do, confer upon any
retired police or military officer all or any of the
powers conferred by or under this Act on a special
police officer, with respect to particular cases or
classes of cases or to cases generally: Provided
that no such power shall be conferred on—
(a) a retired police officer unless such officer, at
the time of his retirement, was holding a post not
below the rank of an inspector;
(b) a retired military officer unless such officer, at
the time of his retirement, was holding a post not
below the rank of a commissioned officer.]
(3) For the efficient discharge of his functions in
relation to offences under this Act—
(a) the special police officer of an area shall be
assisted by such number of subordinate police
officers (including women police officers wherever
practicable) as the State Government may think fit;
and
(b) the State Government may associate with the
special police officer a non-official advisory body
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consisting of not more than five leading social
welfare workers of that area (including women
social welfare workers wherever practicable) to
advise him on questions of general importance
regarding the working of this Act.
(4) The Central Government may, for the purpose
of investigating any offence under this Act or under
any other law for the time being in force dealing
with sexual exploitation of persons and committed
in more than one State, appoint such number of
police officers as trafficking police officers and they
shall exercise all the powers and discharge all the
functions as are exercisable by special police
officers under this Act with the modification that
they shall exercise such powers and discharge such
functions in relation to the whole of India.
12. The Hon'ble Supreme Court of India held in the above
case of Delhi Administration Vs. Ram Singh that whether a police
officer, who is neither a special police officer under the Suppression of
Immoral Traffic in Women and Girls Act, 1956 nor a police officer
subordinate to a special police officer, can validly investigate the offences
under the Act. Whereas, the ground raised by the petitioners is that non
compliance of the provisions under Section 13 of the Act.
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13. The Government of Tamil Nadu by the G.O.Ms.No.618,
Social Welfare Department, dated 13.04.1987, with regards to exercise of
powers conferred under Section 13 of the Suppression of immoral Traffic
in Women and Girls Act, 1956 passed order and the relevant portion
which as follows:
“In exercise of the powers conferred by section 13
of the Suppression of Immoral Traffic in Women
and Girls Act, 1956 (Central Act 104 of 1956) and
in supersession of the orders issued with
G.O.Ms.No.2527, Home, dated the 6th September
1958 and G.O.Ms.No.2014, Home, dated the 29th
June 1964, the Governor of Tamil Nadu hereby
appoints every Police Officer not below the rank of
an Inspector of Police to be the special police
officer for dealing with offences under the said Act
in respect of the areas within his jurisdiction and
also appoints every Police Officer (including
Women Police Officers wherever necessary) not
below the rank of a Sub-Inspector of Police as
subordinate police officer to assist the special
police officer concerned.”
14. In pursuant to the Government Order the Commissioner
of Police, Chennai by the Memorandum dated 10.11.2017 appointed all
the officers and above the rank of the Inspector of Police as Special Police
Officer and the relevant portion which reads as follows:
“The Government order under reference
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1st cited issued in exercise of the powers conferred
under Section 13 of the Immoral Traffic
(Prevention) Act, 1956 reads as below:
“the Governor of Tamil Nadu hereby
appoints every Police Officer not below the rank of
an Inspector of Police to be the Special Police
Officer for dealing with offences under the said
Act in respect of the areas within his jurisdiction
and also appoints every Police Officer (including
Women Police Officers wherever necessary) not
below the rank of a Sub-Inspector of Police as
Subordinate Police Officers to assist the Special
Police Officer concerned”.
2)As per the above order, all officers of
and above the rank of Inspectors of Police are
empowered to deal with the offences under the
Immoral Traffic (Prevention) Act, 1956 in respect of
the areas within their jurisdiction and therefore
they are vested with the powers of search, arrest,
investigation etc., under various provisions of the
said Act.
3) Hence all officers concerned are
instructed to take not of the above said Government
Order and in light of the same, they will hence forth
deal with the offences under the Immoral Traffic
(Prevention) Act, 1956.”
Thus it is clear that the first respondent who has registered the
FIR, the Special Officer who empower to deal with the offences under the
ITP Act. Therefore, there is no violation of the provision under Section 13
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of the ITP Act.
15. The second ground raised by the petitioners is that there is
procedural irregularity on the part of the first respondent in complying
with the provisions of the Section 15(1) and (2) of the ITP Act, while
conducting search. In this regard, the learned counsel for the petitioners
relied upon the judgment in Crl.O.P.No.30001 of 2019 reported in the
case of Balu @ Balasubramanian Vs. The State. Rep. By The Inspector
of Police, Reddiyarpalayam Police Station, Puducherry District.
However, the decision in Bai Radha Vs. State of Gujarat reported in
1969 (1) SCC 43 was not brought to the notice of this Court.
Subsequently, this Court after considering the Bai Radha Vs. State of
Gujarat case in Crl.O.P.No.922 of 2021 held that non-observance of the
provisions of Section 15 of the Immoral Traffic (Prevention) Act would
not vitiate the entire criminal proceedings and such provisions are only
directory and not mandatory. Further held that in every case, on the
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touchstone of Section 15(2) of the Immoral Traffic (Prevention) Act,
1956, it has to be determined by the Courts whether it was efficacious for
the officers to call two persons from the locality or if due to urgency or
emergency, the said provision could not be complied with, it has to
depend on the facts and circumstances and mere violation of Section
15(2) of Immoral Traffic (Prevention) Act will not vitiate the proceedings,
as it will be in the realm of appreciation of evidence in each and every
case.
16. Further the FIR is not an encyclopedia and it need not
contain all facts and it cannot be quashed in the threshold. This Court
finds that the FIR discloses prima facie commission of cognizable offence
and as such this Court cannot interfere with the investigation. The
investigating machinery has to step in, to investigate, grab and unearth
the crime in accordance with the procedures prescribed in the Code.
17. It is relevant to rely upon the judgment of the Hon'ble
Supreme Court of India passed in Crl.A.No.255 of 2019 dated
12.02.2019 in the case of Sau. Kamal Shivaji Pokarnekar vs. the State
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of Maharashtra & ors., which reads as follows:-
"4. The only point that arises for our
consideration in this case is whether the High
Court was right in setting aside the order by which
process was issued. It is settled law that the
Magistrate, at the stage of taking cognizance and
summoning, is required to apply his judicial mind
only with a view to taking cognizance of the offence,
or in other words, to find out whether a prima facie
case has been made out for summoning the accused
persons. The learned Magistrate is not required to
evaluate the merits of the material or evidence in
support of the complaint, because the Magistrate
must not undertake the exercise to find out whether
the materials would lead to a conviction or not.
5. Quashing the criminal proceedings is
called for only in a case where the complaint does
not disclose any offence, or is frivolous, vexatious,
or oppressive. If the allegations set out in the
complaint do not constitute the offence of which
cognizance has been taken by the Magistrate, it is
open to the High Court to quash the same. It is not
necessary that a meticulous analysis of the case
should be done before the Trial to find out whether
the case would end in conviction or acquittal. If it
appears on a reading of the complaint and
consideration of the allegations therein, in the light
of the statement made on oath that the ingredients
of the offence are disclosed, there would be no
justification for the High Court to interfere.
......................
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9. Having heard the learned Senior
Counsel and examined the material on record, we
are of the considered view that the High Court
ought not to have set aside the order passed by the
Trial Court issuing summons to the Respondents. A
perusal of the complaint discloses that prima facie,
offences that are alleged against the Respondents.
The correctness or otherwise of the said allegations
has to be decided only in the Trial. At the initial
stage of issuance of process it is not open to the
Courts to stifle the proceedings by entering into the
merits of the contentions made on behalf of the
accused. Criminal complaints cannot be quashed
only on the ground that the allegations made
therein appear to be of a civil nature. If the
ingredients of the offence alleged against the
accused are prima facie made out in the complaint,
the criminal proceeding shall not be interdicted."
18. In view of the above discussion, this Court is not inclined to
quash the proceedings in Crime No.969 of 2020 on the file of the first
respondent police. However, the first respondent is directed to complete
the investigation and file a final report, within the period of twelve weeks
from the date of receipt of a copy of this order.
19. Accordingly, this Criminal Original Petition stands
dismissed. Consequently, connected Miscellaneous petition is closed.
.07.2022
Internet : Yes / No
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Crl.O.P.No.15963 of 2020
Index : Yes / No
Speaking / Non Speaking order
cda/mn
G.K.ILANTHIRAIYAN, J.
mn
To
1.The Inspector of Police,
V4 Rajamangalam Police Station,
Chennai.
2. The Public Prosecutor,
High Court, Madras.
Crl.O.P.No.15963 of 2020
and
Crl.M.P.No.6111 of 2020
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Crl.O.P.No.15963 of 2020
.07.2022
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