Madras High Court
C.Karthick vs The Inspector Of Police on 21 September, 2023
Crl.O.P.(MD)No.18066 of 2022
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED: 21.09.2023
CORAM:
THE HONOURABLE DR.JUSTICE D.NAGARJUN
Crl.O.P.(MD) No.18066 of 2022
and
Crl.M.P.(MD).Nos.12051 & 12052 of 2022
C.Karthick ... Petitioner
Vs.
1.The Inspector of Police,
Thilagarthidal Police Station,
Madurai City.
(Crime No.731 of 2019)
2.Hemalatha .. Respondents
PRAYER : Criminal Original Petition is filed under Section 482 of
Cr.P.C, to call for the records connected with the case in C.C.No.540 of
2021 pending on the file of the learned Judicial Magistrate No.II,
Madurai and quash the same as illegal as against the petitioner.
For Petitioner : Mr.A.Prabhu Raj
For R1 : Mr.E.Antony Sahaya Prabahar
Additional Public Prosecutor
For R2 : Mr.J.Karthikeyan
https://www.mhc.tn.gov.in/judis
1/10
Crl.O.P.(MD)No.18066 of 2022
ORDER
This Criminal Original Petition is filed under Section 482 of
Cr.P.C. seeking for quashment of C.C.No.540 of 2021 pending on the file
of the learned Judicial Magistrate No.II, Madurai.
2. The facts and brief as per the records would go to show
that, on 16.09.2019, when the respondent Police has searched the
Cosmopolitan Hotel situated near the Madurai Railway Station, they
found that the petitioner along with the sex workers committed immoral
trafficking activities. The respondent Police seized a sum of Rs.57,200/-,
cell phones and swiping machine from the accused, basing on which, a
case has been registered in Crime No.731 of 2019 and the respondent
Police have filed a charge sheet in C.C.No.540 of 2021 on the file of
learned Judicial Magistrate No.II, Madurai, against the petitioners and
others, which has taken cognizance for the offence under Sections 3 (1),
4(1), 4 (2) (a), 4(2) (c), 5(1) (a) and 5(1) (c) of the Immoral Traffic
(Prevention) Act, 1956.
3. Learned counsel for the petitioner submits that the
petitioner is an innocent and in order to perform the marriage of his
https://www.mhc.tn.gov.in/judis
Crl.O.P.(MD)No.18066 of 2022
brother on 08.12.2019, he was looking for accommodation in various
hotel and he came to that Cosmopolitan Hotel and enquired with the
hotel management, at that time, the respondent Police have searched the
hotel and a case has been registered against him alleging that he has
committed immoral trafficking activities. It is further submitted that he
has no nexus with the offence alleged against other accused.
4. Learned Additional Public Prosecutor for the State
supporting the charge sheet filed by the respondent Police.
5. Section 3 (1) of the Immoral Traffic (Prevention) Act,
1956, (hereinafter referred as “the above said Act”) deals with the
punishment for keeping a brothel or allowing the premises to be used as a
brothel. Section 4 (1) of the above said Act deals with the punishment
for living on the earnings of the prostitution. Section 4 (2) (a) of the
above said Act deals with the punishment, in case, if a person, who is
aged 18 years is living with or a habitually in the company of a
prostitute. Section 4 (2) (c) of the above said Act speaks about a
punishment to be acting as a tout or pimp. Section 5 (1) (a) of the above
said Act speaks about whoever procures or attempts a person with or
without a consent for the purpose of prostitution. Section 5 (1) (d)
https://www.mhc.tn.gov.in/judis
Crl.O.P.(MD)No.18066 of 2022
speaks about the punishment knowing for the person whom induces the
person to carry prostitution.
6. In the case on hand, according to the prosecution version,
on 16.09.2019, the petitioner was found along with a prostitute in Room
Nos.234 and 235 at a Cosmopolitan Hotel near Madurai Railway Station.
It is not the case of the petitioner that he is running a brothel house or he
has been living in the brothel house. There is no allegation against him
that he has procured or attempted to procuring the persons for the sake of
prostitution. According to the prosecution version, the petitioner is a
customer. It is the settled legal position that the customer cannot be
prosecuted for any of the offence under Sections 3 (1), 4(1), 4 (2) (a),
4(2) (c), 5(1) (a) and 5(1) (c) of the Immoral Traffic (Prevention) Act,
1956. As there is no provision under the Immoral Traffic (Prevention)
Act, punishing the customer, on this ground, therefore, that a case
registered against the petitioner whom stated to be committed will not
sustain.
7. According to the prosecution version, the Inspector of
Police, Madurai, has received the information about the prostitution
being done in the Cosmopolitan Hotel. The Police without obtaining
https://www.mhc.tn.gov.in/judis
Crl.O.P.(MD)No.18066 of 2022
permission from the learned Judicial Magistrate No.II, Madurai, has
conducted search at 12.40 P.M at the Cosmopolitan Hotel. As per
Section 15 of the above said Act, the Special Police Officer alone
empowered to take up the search. It is also required to take two
respectable persons along with him. In the case on hand, the Special Sub
Inspector of Police is also required to take two women constables
whenever they were going to conduct the raid. The Division Bench in
the case of Manikandan Vs. State in Crl.O.P.(MD).No.17180 of 2019,
held as follows:-
“5.In the decision relied on by the petitioner
in Crl.OP(MD)Nos.16310 and 17442 of 2019
dated 10.02.2020 [Govindaraj vs. The Inspector of
Police, Madurai], this Court has held as follows:-
''6.In support of his contention, the counsel for the
petitioner relies on the judgment of this Court in
Crl.O.P.No.15770 of 2019 dated 05.11.2019,
wherein it has been held as follows:
“3. In the case on hand, the respondent
neither being a special Police Officer nor a
trafficking police officer authority to arrest or
investigate the case. In this regard, the learned
counsel for the petitioner relied upon the judgment
in the case of Mumtaj @ Behri Vs. The State
(Government of NCT Delhi) reported in (2003
https://www.mhc.tn.gov.in/judis
Crl.O.P.(MD)No.18066 of 2022
Cri.L.J. 533, wherein, it has been held that the
entire proceedings conducted by the Sub Inspector
of Police in a case of involving Immoral
Trafficking (Prevention) Act, who was not
appointed as Special Police Officer was held to be
illegal. It is relevant to note that the decision of the
Hon'ble High Court of Kerala, in the matter of
Thomas Vs. State of Kerala, which is held as
follows:-
''17. In this regard it would be relevant to
note here that in line with the above decision of the
Hon'ble Apex Court, the Hon'ble Court of Kerala
in the matter of Thomas Vs State of Kerala through
Sub Inspector, vide para 4 has held that .... As held
by the Hon'ble Apex Courtin Delhi Administration
Vs. Ram Singh (1962 SC 63), the special context of
the Act, they will include detection, prevention and
investigation of offences and the other duties which
have been specifically imposed on them under the
Act. Therefore, it is only the Special officer who is
authorised to arrest and investigate the case under
the Act, Crmc 3533/09 subject to the provisions of
Section 14. Proviso to Section 14 provides that
arrest without warrant can only be made by the
Special Police Officer under his
direction or guidance subject to his prior
approval....
https://www.mhc.tn.gov.in/judis
Crl.O.P.(MD)No.18066 of 2022
5.Therefore, when the arrest of the petitioner
in this case is by a Sub Inspector, allegedly
authorized by the Commissioner of Police, the
Special Police Officer, and the authorization
admittedly does not contain the name of the
petitioner or the offence for which petitioner is to
be arrested, it cannot be treated as an
authorization as provided Crmc 3533/09 under
Section 14 of the Act. If that be so, arrest and
detention of the petitioner is illegal.
6.This Court in Sinu Sainudheen's case
considered the effect of arrest and investigation in
violation of mandatory provisions of the Act and
held that violation of the mandatory provision
would lead to unsuccessful prosecution and such
prosecution would only be an abuse process of
Court which warrants quashing the proceedings
under Section 482 of Code of Criminal Procedure.
18.Again the scope of search and seizure to be
done under the ITP Act. 1956 and the result of non-
adherence of such procedure is further dealt with
by the Hon'ble High Court of Jharkhand reported
in 2008 (2) JCR 153 Rehan Ahmad @ Mojahid
Rehan Ahmad @ Majid Rehan Vs. State of
Jharkhand. The relevant portion is extracted
hereunder:
It is a matter surprise that the Investigating
https://www.mhc.tn.gov.in/judis
Crl.O.P.(MD)No.18066 of 2022
Agency including the-prosecution over looked the
provisions of Special Act in respect of competency
of a person to institute a case and to file final form
under Section 173, Cr.P.C., after investigation.
Admittedly, Shri Gajanand Singh S.I of police was
not a Special Police Officer under Section 15 of the
Immoral Traffic (Prevention) Act, 1956 to make
search and seizure of the vehicle. Similarly, Shri
B.B.Sharma. Sub-Inspector of Police below the
rank of Inspector was not a Special Police Officer
under Section 13 of the Special Act to submit final
form. Therefore, the entire criminal proceeding of
the petitioners suffers from material irregularity
and illegality.
8. I have examined the provisions of law
carefully and I find substance in the arguments
advanced on behalf of the petitioners that the
investigation of the instant case, under the Special
Act, was done by the Sub-Inspector of Police and
not by a Special Police Officer in contravention of
the provision of Section 13 of Special Act. Similarly
search made and seizure list prepared by the
Investigating Officer as well as the informant in
were not a competent police officer under Section
15 of the Act and therefore, the institution of the
case as well as its investigation suffers from
material irregularity an illegality and in view of
https://www.mhc.tn.gov.in/judis
Crl.O.P.(MD)No.18066 of 2022
the lack drop of such irregularity cognizance of the
offence taken by the CJM is unsustainable.”
8. In the case on hand, admittedly, there are no orders to
show that the person, who has conducted the raid is the authorized
person as mentioned under Section 15 of the Immoral Traffic
(Prevention) Act, 1956. Since the respondent Police is not a Special
Designated Police Officer and that the offence under Sections 3 (1), 4(1),
4 (2) (a), 4 (2) (c), 5 (1) (a) and 5 (1) (c) of the Immoral Traffic
(Prevention) Act, 1956, is not applicable, the case against the petitioner is
required to be quashed.
9. Accordingly, the Criminal Original Petition is allowed and
C.C.No.540 of 2021 filed against the petitioner on the file of the learned
Judicial Magistrate No.II, Madurai, is hereby quashed. Consequently, the
connected miscellaneous petitions are closed.
21.09.2023
NCC : Yes/No
Index : Yes/No
Internet : Yes/No
tsg
https://www.mhc.tn.gov.in/judis
Crl.O.P.(MD)No.18066 of 2022
DR.D.NAGARJUN. J.
tsg
To
1.The Judicial Magistrate No.II, Madurai.
2.The Inspector of Police,
Thilagarthidal Police Station,
Madurai City.
3.The Additional Public Prosecutor,
Madurai Bench of Madras High Court, Madurai.
Crl.O.P.(MD)No.18066 of 2022
21.09.2023
https://www.mhc.tn.gov.in/judis
