Madras High Court
Vinu vs The State Represented By on 26 July, 2023
1
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED 26.07.2023
CORAM
THE HONOURABLE Mr.JUSTICE N. ANAND VENKATESH
Crl.O.P.No.16050 of 2023
and
Crl.M.P.Nos.10068 & 10072 of 2023
Vinu ... Petitioner
Vs.
1. The State represented by
Inspector of Police,
Tirupur North Police Station,
Tirupur City, Tirupur District.
2. Balamurali ... Respondents
Prayer: Criminal Original Petition is filed under Section 482 of Criminal
Procedure Code, to call for the records relating to C.C.No.641 of 2022 on
the file of the Judicial Magistrate – I, Tirupur and quash the same.
For Petitioner : Mr.D.Prabu
For Respondent No.1 : Mr.A.Gopinath
Government Advocate (Crl.Side)
https://www.mhc.tn.gov.in/judis
2
ORDER
This petition has been filed to quash the proceedings in
C.C.No.641 of 2022 on the file of the Judicial Magistrate – I, Tiruppur.
2. The 1st respondent registered an FIR in Crime No.1879 of 2021
for offence under Section 3(1), 3(2) (a), 4(1), 4(2) ©, 6(1) (b) of the
Immoral Traffic (Prevention) Act, 1956 on the ground that the petitioner
was running a brothel house in the guise of running a SPA. On completion
of investigation, a final report was filed and the same was taken on file
by the Court below in CC No.641 of 2022. The same has been put to
challenge in this petition.
3. Heard Mr.D.Prabu, learned counsel for the petitioner and
Mr.A.Gopinath, learned Government Advocate (Crl.Side) appearing on
behalf of respondents.
https://www.mhc.tn.gov.in/judis
4. This Court has carefully considered the submissions made on
either side and the materials available on record.
5. It is seen that in the present case the mandatory procedure
under Section 15 of the Immoral Traffic (Prevention) Act, 1956
(hereinafter called as the “Act”) has not been followed. This Court in
[Kadek Dwi Ani Ramini and others Vs. K.Natarajan and others]
reported in 2019 2 MLJ Crl 61 has dealt with the scope of Section 15 in
detail and for proper appreciation, the relevant portions are extracted
hereunder :-
11. This is not the first occasion where this Court is dealing
with the issue of a Massage Centre/Spa, being subjected to
the provisions of the Act. A learned Judge of this Court took
pains to analyse the entire law on Spas and Massage
Parlours, by making a comparative status of the laws
prevailing in other countries and had given broad guidelines
to the Police to deal with Spas and Massage Centres under
the Act, in future. The relevant portions of the judgment in
S.Rangaraj and Others .Vs. The Commissioner of Police,
https://www.mhc.tn.gov.in/judis
Chennai City, Chennai-8 & Others reported in [2015 1 LW
77], is extracted hereunder:
"7.Therefore, at the outset, it is necessary to find whether
the businesses carried on by the writ petitioners, are lawful
or not. To find out if a business is lawful or not, we must
see if it is prohibited by law. If it is not prohibited by law,
we must then see if it is atleast regulated by law. If it is
regulated by law, it would be lawful so long as it is carried
on as per the regulations. Otherwise, it would be unlawful.
8.The respondents do not contend that the massage
centers/spas etc., ran by the petitioners are prohibited by
law. They do not even contend that these are regulated by
any special law enacted by the Central Government or at
least the State of Tamilnadu or that the petitioners are
running these centers in violation of such law. If at all there
is any requirement under law, for these establishments, it is
only the necessity to obtain a license under the Chennai City
Municipal Corporation Act, 1919. This is why the petitioners
https://www.mhc.tn.gov.in/judis
have made even the Corporation as a party to these
proceedings.
9.The only basis on which the police conduct raids in some of
these establishments, is an apprehension or suspicion that
activities prohibited by law may be carried on in these
premises. The police think that some of these
establishments are indulging in offences punishable under
the Immoral Traffic (Prevention) Act. Therefore, the issues
arising for consideration in these cases, have to be analysed
from 3 angles, namely (i) the prescription contained in
Chennai City Municipal Corporation Act, 1919 (ii) the
provisions of the Immoral Traffic (Prevention) Act, and (iii)
the need to regulate massage parlours/spas etc., by law, to
avoid friction between both sides.
15. Keeping the above provisions in mind, if we go to
Schedule VI, to which a reference is made under Section 287,
it is seen that Schedule VI contains a list of purposes, for
which, places within the city may not be used without a
licence. The purposes or activities, for which, a licence is
https://www.mhc.tn.gov.in/judis
required, are arranged in the alphabetical order. Beauty
parlours, massage centres and spas are not activities, which
are included in Schedule VI. But fortunately, Schedule VI
contains the following purposes/activities:
(1) Hair-Storing, packing, pressing, cleansing, preparing or
manufacturing by any process whatever dyeing or drying.
(2) Keeping a shaving or hairdressing saloon.
19.But the main grievance of the petitioners is against the
police. The police conduct raids in the business premises of
the petitioners on the suspicion that activities punishable
under The Immoral Traffic (Prevention) Act, 1956 are
carried on in these premises. Therefore, let me now turn on
to the second issue namely the one revolving around the said
Act.
IMMORAL TRAFFIC (PREVENTION) ACT, 1956
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:—
https://www.mhc.tn.gov.in/judis
(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 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.
https://www.mhc.tn.gov.in/judis
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.
31. The Special Police Officer or the Trafficking Police
Officer, who makes a search, should be accompanied by at
https://www.mhc.tn.gov.in/judis
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.
https://www.mhc.tn.gov.in/judis
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,
(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
https://www.mhc.tn.gov.in/judis
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.
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
https://www.mhc.tn.gov.in/judis
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.
38.We have so far addressed two issues, one relating to the
license to be obtained from the Chennai City Municipal
Corporation under the provisions of the Chennai City
Municipal Corporation Act, 1919 and the other relating to
the action initiated by the police under the Immoral Traffic
(Prevention) Act, 1956. There is one more issue that relates
to the unregulated growth of massage centres/spas.
Unfortunately, there is no law in any State in India which
regulates the functioning of massage centres. Therefore, we
https://www.mhc.tn.gov.in/judis
may now have to take an overseas tour, of course at no cost,
for educational purposes.
GLOBAL SCENARIO ON THE REGULATION OF MASSAGE
CENTRES
66. Therefore, if the respondents wish to regulate the
business/profession of health centres, massage parlours and
spas, they must take recourse either to the enactment of a
legislation or to the issue of rules/bylaws in exercise of the
power conferred by the respective enactments to make
subordinate legislation.
67. In the light of the above, all the writ petitions are
disposed of to the following effect:—
(i) The respondents shall not, as a matter of routine and
without any basis, conduct any raids and interfere with the
business carried on by the petitioners;
(ii) In specific cases where the police have reasonable
grounds to believe that an offence punishable under
the Immoral Traffic (Prevention) Act has been or is being
committed, it is open to the police to take action, after
https://www.mhc.tn.gov.in/judis
scrupulously following all the steps indicated in Section
15 of the said Act. The steps to be followed are narrated by
me in paragraph 28 above; and
(iii) Based upon the laws enacted in various States of the
United States of America and Singapore, which I have dealt
with in paragraphs 39 to 54, the respondents may take
appropriate steps for bringing in either a new legislation or
a subordinate legislation in terms of the provisions of the
Chennai City Municipal Corporation Act or the Chennai City
Police Act, so that public order, decency and morality,
which can form the basis for a regulatory law under Article
19(2) of The Constitution, are taken care of. The
Government shall file a report on or before 31.3.2015,
before this Court, about the decision taken. No costs.
Consequently, all connected pending MPs are closed".
12. In spite of the above judgment rendered after a detailed
analysis covering all the enactments, neither did the
legislature nor the subordinate legislation took any efforts
to enact a law governing/regulating the business/profession
https://www.mhc.tn.gov.in/judis
of Health Centres, Massage Parlours and Spas, nor did the
Police follow the guidelines in every case where they
proceed to take action under the Act against Spas and
Massage Parlours. The judgment confined itself to the law
journal, without being implemented.
5. It is clear from the above that the respondent police did not
carry out a search by following all the steps prescribed under Section 15
of the Act.
6. In view of the above, the proceedings that are pending
before the Court below against the petitioner is a clear abuse of process
of law, which requires the interference of this Court. Accordingly, the
proceedings in C.C.No.641 of 2022 on the file of the Judicial Magistrate –
I, Tiruppur, is hereby quashed.
7. This Criminal Original petition stands allowed. Consequently,
the connected miscellaneous petitions are closed.
https://www.mhc.tn.gov.in/judis
26.07.2023
Index :Yes/No
Internet:Yes/No
Speaking/Non speaking order
rka
To
1. The Inspector of Police,
Tirupur North Police Station,
Tirupur City, Tirupur District.
2. The Judicial Magistrate – I, Tiruppur.
3. The Public Prosecutor,
High Court, Madras.
N. ANAND VENKATESH,J
rka
https://www.mhc.tn.gov.in/judis
Crl.O.P.No.16050 of 2023
and
Crl.M.P.Nos.10068 & 10072 of 2023
26.07.2023
https://www.mhc.tn.gov.in/judis
