Madras High Court
)R.Saravanakumar vs )The State Represented By on 2 December, 2020
Author: J.Nisha Banu
Bench: J.Nisha Banu
Crl.O.P.(MD)No.3689 of 2020
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED : 02.12.2020
CORAM :
THE HONOURABLE MRS.JUSTICE J.NISHA BANU
CRL.O.P.(MD)No.3689 of 2020
1)R.Saravanakumar
2)A.Ramakrishnan ... Petitioners
vs.
1)The State Represented by
The Inspector of Police,
All Women Police Station,
Ramanathapuram,
Ramanathapuram District.
(Crime No.2 of 2011)
2)Mrs.S.Pandiselvi ... Respondents
PRAYER : Criminal Original Petition is filed under Section 482 of
Cr.P.C, to call for the records pertaining to the impugned charge sheet in
PRC.No.10 of 2018 on the file of the learned Judicial Magistrate Court
II, Ramanathapuram District in Crime No.2 of 2012 dated 25.07.2011
under Sections 368, 370, 376, 366(A) r/w 109, 34 of IPC and Sections 3,
4, 5, 6, 7, 8 of Immoral Traffic (Prevention) Act 1956 on the file of the
Respondent No.1 and quash the same as illegal in so far as these
Petitioners/Accused Nos.16 and 17 are concerned.
For Petitioners : Mr.I.Pinaygash
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Crl.O.P.(MD)No.3689 of 2020
For R1 : Ms.S.E.Veronica Vincent
Government Advocate (Crl.Side)
ORDER
This Criminal Original Petition has been filed to call for the records pertaining to the impugned charge sheet in PRC.No.10 of 2018 on the file of the learned Judicial Magistrate Court II, Ramanathapuram District in Crime No.2 of 2012 dated 25.07.2011 under Sections 368, 370, 376, 366(A) r/w 109, 34 of IPC and Sections 3, 4, 5, 6, 7, 8 of Immoral Traffic (Prevention) Act 1956 on the file of the Respondent No. 1 and quash the same as illegal in so far as these Petitioners/Accused Nos.16 and 17 are concerned.
2.The learned counsel for the petitioner would state that the allegation raised in the FIR is that the defacto complainant lodged a complaint before the 1st respondent/Police stating that the accused 1 to 5 allowed the premises to be used as brothel and forced the defacto complainant into prostitution and accused 2 to 6 earned through the prostitution of the defacto complainant and accused 8, 9, 10, 20 and 21 had sexual intercourse with the defacto complainant on various 2/11 http://www.judis.nic.in Crl.O.P.(MD)No.3689 of 2020 occasions. The learned counsel would state that the petitioners are only employees of the lodge belongs to 11th accused and there is no allegation against the petitioners regarding keeping a brothel or earning from prostitution and they have been falsely implicated in the present crime.
After investigation, charge sheet has been filed and the same has been taken on file in PRC.No.10 of 2018 on the file of the Judicial Magistrate No.II, Ramanathapuram District.
3.The learned counsel for the petitioner would state that none of the mandatory provisions under the Act have been followed while searching the premises and the case has been registered against the settled principles of law and it is a clear abuse of process of law. He would also state that FIR has been registered based on the complaint given by the 2nd respondent and investigation was done by the 1st respondent who is not the authorised officer to conduct the investigation as contemplated under Section 13 of the Act. According to him, even the arrest was not done in accordance with the mandatory provisions under the Act and while searching the premises, Sections 14(i)(ii) and (iii) and Section 15(2) of the Act have been violated and therefore, the learned 3/11 http://www.judis.nic.in Crl.O.P.(MD)No.3689 of 2020 counsel would state that the petitioner is entitled to the benefit of the order of this Court in Crl.OP(MD)Nos.16310 and 17442 of 2019 dated 10.02.2020 passed in similar circumstances. Thus, he would pray to quash the impugned charge sheet in PRC.No.10 of 2018 on the file of the learned Judicial Magistrate Court II, Ramanathapuram District.
4.The learned Government Advocate (Crl.Side) on instructions would fairly state that the officer who had investigated the present case is not the authorised officer or the Special Officer appointed under the Act and therefore, would state that the petitioner also stands in the same footing as that of the order passed in Crl.OP(MD)Nos.16310 and 17442 of 2019 dated 10.02.2020.
5.Heard the learned counsel for the petitioners and the learned Government Advocate (Crl.Side) for the 1st respondent/police.
6.Heard the learned counsel for the petitioners as well as the learned Government Advocate (Crl.Side). In view of the order going to be passed, notice to the 2nd respondent is dispensed with.
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7.In the decision relied on by the petitioners 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 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 Court in 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 5/11 http://www.judis.nic.in Crl.O.P.(MD)No.3689 of 2020 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....
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 Agency including the prosecution 6/11 http://www.judis.nic.in Crl.O.P.(MD)No.3689 of 2020 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 the lack drop of such irregularity cognizance of the offence taken by the CJM is unsustainable.
19. Thus the above decisions reiterated by the various Hon'ble High Courts in line with the Delhi Administration Vs. Ram Singh reported in AIR 1962 SC 63 holding that violation of the mandatory provisions would vitiate and nullify the entire criminal proceedings.”
4. In the case on hand, admittedly, the 7/11 http://www.judis.nic.in Crl.O.P.(MD)No.3689 of 2020 respondent is not a Special Officer as mentioned under the ITP Act, 1956. Further, it is also seen that there is no authorization to the effect of conferring as such special status as to discharge a duty under ITP Act, 1956. That apart, the Deputy Superintendent of Police, who had sanctioned permission to conduct the search, is also not found to be a Special Police Officer or Trafficking Police Officer as contemplated under Section 2 (i ) (j) of ITP Act. In these circumstance, the entire proceedings initiated by the respondent is vitiated and it is nothing, but, clear abuse of process of law.”
7.The learned Additional Public Prosecutor appearing for the respondent police would submit that the first respondent police had complied with the mandatory provisions under the Act.
8.This Court has carefully considered the submission made on either side and also perused the materials available on records.
9.The guidelines given by this Court in the case of S.Rangaraj and others Vs. the Commissioner of Police reported in 2015-1-L.W. 77 and in the case of Kadek Dwi ani Rasmini Vs. K.Nataraja, Inspector of Police reported in 2019-1-L.W.161 is that the Magistrate must ensure that the police have followed the mandatory requirements under Section 15 of the Immoral Traffic (Prevention) Act, 1956. In this case the mandatory requirements have not been followed.
10.In view of the above, this Court is of the considered opinion that the continuation of the investigation against the petitioners is an abuse of process of law and in the interest of justice, the same requires the interference by this Court in exercise of its jurisdiction under Section 482 of Cr.P.C.''
8.In my considered opinion, the above order is squarely applicable 8/11 http://www.judis.nic.in Crl.O.P.(MD)No.3689 of 2020 to the facts and circumstances of the present case. In the case present on hand, admittedly, the respondent/Police is not a Special Officer as per Section 2(i) of the Act. Further, it is also seen that there is no authorization to the effect of conferring as such special status as to discharge a duty under the Act. Similarly, search made and seizure list prepared by the investigating officer were not the 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 and illegality. In these circumstances, the entire proceedings initiated by the respondent is vitiated and it is nothing but clear abuse of process of law and therefore, cognizance of the offence taken by the learned Magistrate is unsustainable and therefore, continuation of the proceedings in my considered opinion is an abuse of process of law.
9.Hence, the impugned proceedings in PRC.No.10 of 2018 on the file of the learned Judicial Magistrate Court II, Ramanathapuram District in Crime No.2 of 2012 dated 25.07.2011 under Sections 368, 370, 376, 366(A) r/w 109, 34 of IPC and Sections 3, 4, 5, 6, 7, 8 of Immoral Traffic (Prevention) Act 1956 on the file of the Respondent No.1 is quashed and 9/11 http://www.judis.nic.in Crl.O.P.(MD)No.3689 of 2020 the Criminal Original Petition is allowed.
02.12.2020 bala 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
1)The Inspector of Police, All Women Police Station, Ramanathapuram, Ramanathapuram District.
2)The Judicial Magistrate, Ramanathapuram District.
3)The Additional Public Prosecutor, Madurai Bench of Madras High Court, Madurai.
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bala ORDER MADE IN Crl.O.P.(MD)No.3689 of 2020 DATED : 02.12.2020 11/11 http://www.judis.nic.in