Madras High Court
Easwaramoorthi vs The State Represented Through on 11 March, 2022
Author: G.K.Ilanthiraiyan
Bench: G.K.Ilanthiraiyan
Crl.O.P.(MD)No.20822 of 2021
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED: 11.03.2022
CORAM:
THE HON'BLE MR.JUSTICE G.K.ILANTHIRAIYAN
Crl.O.P.(MD)No.20822 of 2021
&
Crl.M.P.(MD)No.11925 of 2021
Easwaramoorthi ...Petitioner
Vs.
1. The State represented through
The Inspector of Police,
Thideer Nagar Police Station,
Madurai City.
In Cr.No.277 of 2018
2. Mumthaj ... Respondents
Prayer: This Criminal Original Petition filed under Section 482 Cr.P.C.to call
for the records pertaining to charge sheet in P.R.C No.380 of 2019 on the file of
learned Judicial Magistrate No.V, Madurai and quash the same.
For Petitioner : Mr.M.Seenisulthan
For Respondents : Mr.K.Sanjai Gandhi
R1 Government Advocate (Criminal Side)
https://www.mhc.tn.gov.in/judis
Crl.O.P.(MD)No.20822 of 2021
ORDER
This Criminal Original Petition has been filed to quash the charge sheet in P.R.C No.380 of 2019 on the file of learned Judicial Magistrate No.V, Madurai.
2.In this case, there are totally four accused, in which the petitioner is arrayed as first accused. The first respondent registered a case in Crime No. 277 of 2018, against the petitioner and others for the offence under section 370 IPC and Section 3(1), 4(2)(C), 5(1)(a), 5(1)(d) of Immoral Traffic (Prevention) Act, 1956, based on the complaint lodged by the second respondent. After completion of investigation, the first respondent filed a final report and the same is pending In PRC 380 of 2019, on the file of learned Judicial Magistrate, No.V, Madurai.
3.The allegation in the complaint is that the defacto complainant/second respondent and her friend came to Madurai for searching a job. On believing the words of the petitioner, as he assured to provide employment, they went with the petitioner. The petitioner took them to a lodge and forced them to involve in prostitution.
4.The only point raised in this case is that the first respondent is not a competent to act under the Immoral Traffic (Prevention) Act. As per Section https://www.mhc.tn.gov.in/judis Crl.O.P.(MD)No.20822 of 2021 2(1)(j), 14 & 15 of Immoral Traffic (Prevention) Act, only a Special Officer is empowered to arrest and to investigate the case. In the present case, the first respondent is not a Special Officer as mandated under Section 14 of Immoral Traffic (Prevention) Act. Therefore, the first respondent has no power or authority to investigate the matter.
5.In this regard, it is relevant to rely upon In this regard, it is relevant to rely upon the Judgment of this Court reported in 2019 (1) CTC 385 in the case of Kadek Diwi Ani Rasmini Vs. K.Natarajan, Inspector of Police as follows :-
"42[6].The case diary clearly reveals the fact that the mandatory provisions under Section 15 of the Act, has been given a clear go by. None of the guidelines given by this Court in the judgment in Mr.S.Rangaraj & Others .Vs. The Commissioner of Police, Chennai City, Chennai-8 & Others, referred supra has been followed.
43[7].There is a striking similarity like the previous case in the modus operandi adopted by the Police in this case. The manner which a decoy was used and a raid was conducted and an FIR was registered, is a replica of what this Court saw while dealing with W.P.No.29995 of 2018.
44[8].The respondent Police for reasons best known to him has come to the conclusion that the Spa is a brothel and https://www.mhc.tn.gov.in/judis prostitution is conducted there. Unfortunately all the persons Crl.O.P.(MD)No.20822 of 2021 involved, right from the complainant up to the 6 stage of conducting the raid, not one respectable inhabitant of the locality was called as a witness. There was no proof of a single incident of prostitution, or of the activities of a prostitute.
45[9]. The respondent has assumed that he has unfettered power without realising that he is bound by the provisions of the Act .The more the power, the more must be the restrained in using the power. If the Police is permitted to exercise their powers under the Act in this manner, it is possible for the Police to brand any Spa Centre or a Massage Parlour as a brothel. It is only to keep check on the illegal use of power, mandatory requirements are prescribed under Section 15 of the Act, and has been clearly spelt out by this Court in Mr.S.Rangaraj &Others .Vs. The Commissioner of Police, Chennai City, Chennai-8 & Others, referred supra. Using the Special Sub Inspector belonging to the same Police team as a decoy to lay the trap and thereafter to conduct a ride,which ultimately did not result in a scrap of material to show that a brothel was run by the Spa, has been frowned upon by this Court in the judgment in Ratnamala referred supra and this Court held that such a technique is against all standards of decency and it shocks the conscience of the Court and such methods instead of preventing the evil are likely to only encourage it.
46[10]. This Court is of the considered view that the entire action of the respondent is illegal. This is clearly a case of colourable exercise of power. If this power goes unchecked, https://www.mhc.tn.gov.in/judis Crl.O.P.(MD)No.20822 of 2021 Spa Centre or a Massage Parlour can be run only under the mercy of a Police Officer. Foran extraneous consideration, the Police can brand any Spa or a Massage Centre as a brothel and even if the brothel is being run in the name of aSpa or a Massage Centre, no action will be taken. This situation is neither good for the society nor to the Police force.
47[11].The respondent Police which is a specialised wing to investigate cases under the Act, does not seem to resort to the provisions of Section 16 of the said Act. By resorting to Section 16 of the said Act, there will be a lot of authenticity in the action taken by the Police since information will be provided to the Magistrate by placing necessary materials and based on the direction given by the Magistrate, the Police can take appropriate action against any Spa or a Massage Centre, which indulges in prostitution. There are rotten apples in every business and stringent action must be taken against them. However, the Police must get out of this mind set of painting all the Massage Centres and Spas as brothels.
48[12].As stated above, the respondent Police being as specialised wing, should conduct the investigation in a more professional manner in accordance with the provisions of the Act, arrangements should be made for maintaining direct observations on the premises, and evidence of such observations should be recorded. Even if traps are resorted to, other evidence collected over a period of time on the https://www.mhc.tn.gov.in/judis Crl.O.P.(MD)No.20822 of 2021 observations made on the premises/centre, should also be adduced to strengthen the impression or inference of the continuous of the use of the place as a brothel. This will give a lot of authenticity while complying with the mandatory requirements under Section 15 of the Act. The Act was conceived to serve a public social purpose viz; to suppress immoral traffic in women and girls, to rescue fallen women and girls and to revent deterioration in public morals.
49[13]. In this case, the so called victims have filed independent petitions before this Court questioning the action of the respondent Police in branding them as victims. The so called confessions taken from the victims on 02.11.2018, is verbatim identical and the learned Magistrate has proceeded to send all these girls, in a routine manner to the Home, even without enquiring the genuineness of the facts projected by the Police. It is high time that the Magistrates deal with these types of cases with more sensitivity and ensure that genuine Spas and Massage Centres are not labeled as brothels. Even at the time when the victims are produced before the Court along with the case diary, the Magistrate must ensure that the Police have followed the mandatory requirements under Section 15 of the said Act. This will go along way in preventing the Police from misusing the powers under the Act, against the Spas and Massage Centres.
50[14]. In view of the above, this Court is of the considered opinion that the continuation of the investigation against the petitioner isan abuse of process of law and in the interest of justice, the same requires the interference of this https://www.mhc.tn.gov.in/judis Crl.O.P.(MD)No.20822 of 2021 Court in exercise of its jurisdiction under Article 226 of the Constitution of India. In the result, the FIR in Crime No.51 of 2018, on the file of the respondent Police is hereby quashed. Accordingly, this Writ Petition is allowed. There shall be no order as to costs"
This Court held that the respondent has assumed that the police has unfettered power without realising that they are bounded by the provisions of the Act. This is clearly a case of colourable exercise of . If the police is permitted to exercise there powers under the Act in this manner, it is possible for the police to brand any Spa center or a massage parlour as a brothel.
6.In view of the above, this Criminal Original Petition is allowed and the the charge sheet and entire proceedings in P.R.C No.380 of 2019 on the file of learned Judicial Magistrate No.V, Madurai is hereby quashed. Consequently, connected miscellaneous petition is closed.
11.03.2022
Index : Yes / No
Internet : Yes/ No
PNM
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:
https://www.mhc.tn.gov.in/judis Crl.O.P.(MD)No.20822 of 2021
1. The Inspector of Police, Thideer Nagar Police Station, Madurai City.In Cr.No.277 of 2018
2. The Additional Public Prosecutor, Madurai Bench of Madras High Court, Madurai.
https://www.mhc.tn.gov.in/judis Crl.O.P.(MD)No.20822 of 2021 G.K.ILANTHIRAIYAN,J.
PNM ORDER IN Crl.O.P.(MD)No.20822 of 2021 & Crl.M.P.(MD)No.11925 of 2021 11.03.2022 https://www.mhc.tn.gov.in/judis