Patna High Court
Md. Raja @ Rameej Raja vs The State Of Bihar on 25 June, 2024
Author: Chandra Shekhar Jha
Bench: Chandra Shekhar Jha
IN THE HIGH COURT OF JUDICATURE AT PATNA
CRIMINAL MISCELLANEOUS No.45499 of 2016
Arising Out of PS. Case No.-344 Year-2014 Thana- BARAUNI District- Begusarai
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Md. Raja @ Rameej Raja son of Md. Jahangir resident of Barauni, P.S.
Teghra District Begusarai.
... ... Petitioner
Versus
The State Of Bihar
... ... Opposite Party
======================================================
Appearance :
For the Petitioner/s : Mr.Diwakar Prasad Singh, Advocate
For the Opposite Party/s : Mr.Matloob Rab, APP
======================================================
CORAM: HONOURABLE MR. JUSTICE CHANDRA SHEKHAR JHA
ORAL JUDGMENT
Date : 25-06-2024
Heard Mr. Diwakar Prasad Singh, learned counsel
appearing on behalf of the petitioner and Mr. Matloob Rab,
learned A.P.P. for the State.
2. The present quashing petition has been filed to
quash the order dated 26.02.2016 passed by learned Chief
Judicial Magistrate, Begusarai in connection with Barauni
P.S. Case No. 344 of 2014 corresponding to G.R. No.
3595/2014, whereby and whereunder cognizance of the
offence under Section 120B of the Indian Penal Code (in
short the 'I.P.C.') and Section 3/4/5/6 of the Immoral Traffic
(Prevention) Act, 1956 (hereinafter referred to as the "Act of
1956") was taken by learned Magistrate.
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3. The brief facts of the case is that the informant,
who was the Sub-Inspector, posted at Zero Mile Police
Station, has alleged that while he was on patrolling duty
alongwith other police personnel, reached near Bihar Nagar
Parishad foreign liquor shop No. 24 and started search of the
vehicle, where on search of one Car bearing Registration No.
BR09P-3462, he saw three persons and a lady were present
inside the car and doing illicit act/behaviour. They were
apprehended by the police and, on query, they disclosed
their name and address. The informant further alleged that
the accused persons were committing illicit behaviour with a
lady by locking themselves in a car, which constitutes a
criminal offence under the provisions of Section 3/4/5/6 of
Immoral Traffic (Prevention) Act. He alleged that due to non-
availability of independent witness, Home Guard personnels
were made the witness of the occurrence. Thereafter, on
search of the accused persons, mobiles and cash of Rs.
11,000/- etc. were found and seized. The informant also
seized the car and produced the arrested persons for taking
action under Section 120B of the Indian Penal Code and
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Sections 3/4/5/6 of Immoral Traffic (Prevention) Act, 1956.
4. Learned counsel appearing on behalf of the
petitioner submitted that petitioner has been falsely
implicated in the present case. It is submitted by learned
counsel that the lady co-accused, was not known to this
petitioner, as she took lift for a short destination which was
given by the owner of the vehicle i.e. co-accused Raj Kumar
Poddar. It is pointed out that no doubt the conveyance in the
present case, the alleged car may be said as 'brothel' in view
of section 2(a) of the Immoral Traffic Act, and if it is so,
then the petitioner maximum can be said as a customer
because he is not the owner of the vehicle in question. It is
submitted that there were three other persons inside the
vehicle beside this petitioner, where there is no specific
allegation available against the petitioner as to involve in any
indecent act or activities which can be said as 'immoral'. It is
further pointed out by learned counsel that the cash belongs
to the owner of the vehicle where nothing specifically
surfaced during investigation as it was paid for fulfilling
sexual lust as alleged. It is further submitted by learned
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counsel that the facts of the case is nowhere convincing as
to make out a prima-facie case under Section 3/4/5/6 of the
Immoral Traffic Act, as alleged, and as such continuance of
the proceeding would only amount to misusing the process
of court of law, as mere presence of a person in brothel does
not constitute any offence.
5. Learned counsel further submitted that the
mandatory provision of Section 15 of the Immoral Traffic Act
regarding search of the premises not appears to be followed
in the present case. It is further pointed out that compliance
of Section 100(4) of the Code of Criminal Procedure (in
short the 'Cr.P.C.') also appears not followed regarding
search and, on this ground alone, this criminal prosecution is
liable to be quashed against the petitioner.
6. Learned counsel further relied upon the report
of Hon'ble Allahabad High Court titled as Dinesh Tiwari @
Dhirendra Kumar Tiwari Vs. State of U.P. through
Principal Secretary, Home Civil Sectt. Lko. and another
(Neutral Citation No. 2024 AHC-LKO-15780).
7. Learned A.P.P. for the State, while opposing the
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prayer of the petitioner, submitted that the petitioner was
found inside the vehicle with a girl alongwith three other
male accused persons and were found involved in doing
indecent/immoral activities as per the statement of the eye
witnesses of the occurrence who are the police personnel,
whereas it is conceded that the same appears not specific
against this petitioner.
8. It would be apposite to reproduce Section 15(2)
of Immoral Traffic Act and Section 100(4) of the Cr.P.C. of
which learned counsel for the petitioner has relied upon, are
read as under:
"15(2). Before making a search under sub-section (1),
the special police officer [or the trafficking police officer, as
the case may be], shall call upon two or more respectable
inhabitants (at least one of whom shall be a woman) of the
locality in which the place to be searched is situate, to
attend and witness the search, and may issue an order in
writing to them or any of them so to do:
[Provided that the requirement as to the respectable
inhabitants being from the locality in which the place to be
searched is situate shall not apply to a woman required to
attend and witness the search.]"
"100(4). Before making a search under this Chapter, the
officer or other person about to make it shall call upon two
or more independent and respectable inhabitants of the
locality in which the place to be searched is situate or of
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any other locality if no such inhabitant of the said locality
is available or is willing to be a witness to the search, to
attend and witness the search and may issue an order in
writing to them or any of them so to do."
9. So far as Sections 3, 4, 5 and 6 of the
Immoral Traffic Act are concerned, whether a customer
found in the 'brothel' is liable to be prosecuted under these
sections are quoted hereinbelow for a ready reference:
"3. Punishment for keeping a brothel or
allowing premises to be used as a brothel. - (1)
Any person who keeps or manages, or acts or assists
in the keeping or management of, a brothel shall be
punishable on first conviction with rigorous
imprisonment for a term of not less than one year
and not more than three years and also with fine
which may extend to two thousand rupees and in the
event of a second or subsequent conviction, with
rigorous imprisonment for a term of not less than two
years and not more than five years and also with fine
which may extend to two thousand rupees.
(2) Any person who -
(a) being the tenant, lessee, occupier or person in
charge of any premises, uses, or knowingly allows
any other person to sue, such premises or any part
thereof as a brothel, or
(b) being the owner, lessor or landlord of any
premises or the agent of such owner, lessor or
landlord, lets the same or any part thereof with the
knowledge that the same or any part thereof is
intended to be used as a brothel, or is willfully a
party to the use of such premises or any part thereof
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as a brothel, shall be punishable on first conviction
with imprisonment for a term which may extend to
two years and with fine which may extend to two
thousand rupees and in the event of a second or
subsequent conviction, with rigorous imprisonment
for a term which may extend to five years and also
with fine.
[(2-A) For the purposes of sub-section (2), it shall be
presumed, until the contrary is proved, that any
person referred to in clause (a) or clause (b) of that
sub-section, is knowingly allowing the premises or
any part thereof to be used as a brothel or, as the
case may be, has knowledge that the premises or any
part thereof are being used as a brothel, if,--
(a) a report is published in a newspaper having
circulation in the area in which such person resides to
the effect that the premises or any part thereof have
been found to be used for prostitution as a result of
a search made under this Act; or
(b) a copy of the list of all things found during the
search referred to in clause (a) is given to such
person.]
(3) Notwithstanding anything contained in any other
law for the time being in force, on conviction of any
person referred to in clause (a) or clause (b) of sub-
section (2) of any offence under that sub-section in
respect of any premises or any part thereof, any
lease or agreement under which such premises have
been leased out or are held or occupied at the time of
the commission of the offence, shall become void and
inoperative with effect from the date of the said
conviction.
4. Punishment for living on the earnings of
prostitution.--(1) Any person over the age of
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eighteen years who knowingly lives, wholly or in part,
on the earnings of the prostitution of [any other
person] shall be punishable with imprisonment for a
term which may extend to two years, or with fine
which may extend to one thousand rupees, or with
both 2[and where such earnings relate to the
prostitution of a child or a minor, shall be punishable
with imprisonment for a term of not less than seven
years and not more than ten years].
[(2) Where any person over the age of eighteen
years is proved--
(a) to be living with, or to be habitually in the
company of, a prostitute; or
(b) to have exercised control, direction or influence
over the movements of a prostitute in such a manner
as to show that such person is aiding, abetting or
compelling her prostitution; or
(c) to be acting as a tout or pimp on behalf of a
prostitute, it shall be presumed, until the contrary is
proved, that such person is knowingly living on the
earnings of prostitution of another person within the
meaning of sub-section (1).
5. Procuring, inducing or taking 4[person] for
the sake of prostitution.--(1) any person who--
(a) procures or attempts to procure a [person],
whether with or without his consent, for the purpose
of prostitution; or
(b) induces a [person] to go from any place, with the
intent that he may for the purpose of prostitution
become the inmate of, or frequent, a brothel; or
(c) takes or attempts to take a 4[person], or causes a
[person] to be taken, from one place to another with
a view to his carrying on, or being brought up to
carry on prostitution; or
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(d) causes or induces a 4[person] to carry on
prostitution;
[shall be punishable on conviction with rigorous
imprisonment for a term of not less than three years
and not more than seven years and also with fine
which may extend to two thousand rupees and if any
offence under this sub-section is committed against
the will of any person, the punishment of
imprisonment for a term of seven years shall extend
to imprisonment for a term of fourteen years:
Provided that if the person in respect of whom an
offence committed under this sub-section,--
(i) is a child, the punishment provided under this sub-
section shall extend to rigorous imprisonment for a
term of not less than seven years but may extend to
life; and
(ii) is a minor, the punishment provided under this
sub-section shall extend to rigorous imprisonment for
a term of not less than seven years and not more
than fourteen years;
[***]
(3) An offence under this section shall be triable -
(a) in the place from which a [person] is procured,
induced to go, taken or caused to be taken or from
which an attempt to procure or take such [person] is
made; or
(b) in the place to which he may have gone as a
result of the inducement or to which he is taken or
caused to be taken or an attempt to take him is
made.
6. Detaining a [person] in premises where
prostitution is carried on.--
(1) Any person who detains 2[any other person,
whether with or without his consent],--
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(a) in any brothel, or
(b) in or upon any premises with intent 3[that such
person may have sexual intercourse with a person
who is not the spouse of such person],
shall be punishable [on conviction, with imprisonment
of either description for a term which shall not be less
than seven years but which may be for life or for a
term which may extend to ten years and shall also be
liable to fine:
Provided that the court may, for adequate and special
reasons to be mentioned in the judgment, impose a
sentence of imprisonment for a term of less than
seven years].
[(2) Where any person is found with a child in a
brothel, it shall be presumed, unless the contrary is
proved, that he has committed an offence under sub-
section (1).
(2A) Where a child or minor found in a brothel, is, on
medical examination, detected to have been sexually
abused, it shall be presumed, unless the contrary is
proved, that the child or minor has been detained for
purposes of prostitution or, as the case may be, has
been sexually exploited for commercial purposes.]
(3) A person shall be presumed to detain a woman or
girl in a brothel or in or upon any premises for the
purpose of sexual intercourse with a man other than
her lawful husband, if such person, with intent to
compel or induce her to remain there,--
(a) withholds from her any jewellery, wearing
apparel, money or other property belonging to her, or
(b) threatens her with legal proceedings if she takes
away with her any jewellery, wearing apparel, money
or other property lent or supplied to her by or by the
direction of such person.
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(4) Notwithstanding any law to the contrary, no suit,
prosecution or other legal proceeding shall lie against
such woman or girl at the instance of the person by
whom she has been detained, for the recovery of
any jewellery, wearing apparel or other property
alleged to have been lent or supplied to or for such
woman or girl or to have been pledged by such
woman or girl or for the recovery of any money
alleged to be payable by such woman or girl."
10. It would further be apposite to reproduce
paragraph 14, 15, 16, 29 and 30 of the judgment of
Hon'ble Allahabad High Court in the case of Dinesh Tiwari
(supra) for better understanding of legal position in the
given set of facts and circumstances, which reads as under:
"14. Hon'ble Apex Court in the case of Kalpnath Rai vs.
State (through CBI); (1997) 8 SCC 732, while
interpreting Section 100(4) Cr.P.C. observed that there
can be no legal proposition that evidence of police officer
is unworthy of acceptance in case of absence of a witness
during police raid. At the most, it would cast a duty on
the court to adopt greater care while scrutinizing the
evidence of the police officer. If the evidence of a police
officer is found acceptable, then it would be the
erroneous proposition that the court must reject the
prosecution version, solely on the ground that no witness
was present. Paragraph No. 88 of the above judgement
is quoted as under:-
"88. There can be no legal proposition that
evidence of police officers, unless supported by
independent witnesses, is unworthy of
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acceptance. Non-examination of independent
witness or even presence of such witness during
police raid would cast an added duty on the court
to adopt greater care while scrutinising the
evidence of the police officers. If the evidence of
the police officer is found acceptable it would be
an erroneous proposition that the court must
reject the prosecution version solely on the
ground that no independent witness was
examined. In Pradeep Narayan Madgaonkar
[(1995) 4 SCC 255 : 1995 SCC (Cri) 708] to
which one of us (Mukherjee, J.) was a party, the
aforesaid position has been stated in
unambiguous terms, the relevant portion of
which is extracted below: (SCC p. 261, para 11)
"Indeed, the evidence of the official (police)
witnesses cannot be discarded merely on the
ground that they belong to the police force and
are, either interested in the investigating or the
prosecuting agency but prudence dictates that
their evidence needs to be subjected to strict
scrutiny and as far as possible corroboration of
their evidence in material particulars should be
sought. Their desire to see the success of the
case based on their investigation requires greater
care to appreciate their testimony."
15. Similarly, in the case of Sahib Singh vs. State of
Punjab; (1996) 11 SCC 685, while interpreting
Section 100(4) Cr.P.C., the Apex Court observed that the
absence of independent witness during the search would
affect the weight of the evidence of police officer, though
not its admissibility. In the present case, non-presence of
independent witnesses, as required u/s 15(2) of the Act,
was clearly explained by the police as no one was ready
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to accompany them to search the house which was being
used for prostitution. Therefore, unless a prejudice is
shown to be caused to the applicant during trial by the
applicant, the prosecution story merely on the violation of
Section 15(2) of the Act cannot be thrown out.
16. Therefore, this Court is of the view that lacuna in
search is a question that should be decided during trial
and proceeding cannot be quashed only on the ground
that there is irregularity or non-compliance of Section
15(2) of the Act while conducting the search of a house,
being used for prostitution because in practical, none of
the persons of locality comes forward to accompany the
police in case of search of a brothel. If such ground is
considered for quashing the proceedings under the Act,
then most of the proceedings will be quashed without
going to trial. Hon'ble Apex Court in the case of D.
Vinod Shivappa vs. Nanda Belliappa; (2006) 6 SCC
456, also observed that in interpreting a statute, the
Court must adopt the construction which suppresses the
mischief and advance the remedy. This rule is laid down
in Heydon's Case (1584) 76 ER 637. Therefore,
this Court also holds that the direction of Section
15(2) of the Act is directory in nature and not
mandatory despite the use of the word "shall" in
Section 15(2) of the Act.
29. In the judgements mentioned above, relied upon by
the applicant in support of his second contention, the
Gujarat High Court, Karnataka High Court, as well as
Andhra Pradesh High Court also observed that merely the
presence of a person as a customer at a brothel would
not attract the ingredients of offence u/s 3/4/5/7/8/9 of
the Act. Paragraph No.5 of the judgement in Goenka
Sajan Kumar (supra) reads as under:-
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"5. None of these sections speaks about
punishment to the customer of a brothel house.
Admittedly, the petitioner does not fall under the
provisions of Sections 3 to 7 of the Act, as the
petitioner was not running a brothel house, nor
did he allow his premises to be used as a brothel
house. The petitioner is not alleged to be living
on the earnings of prostitution. It is also not the
case of the prosecution that the petitioner was
procuring or inducing any person for the sake of
prostitution, nor is it the case of the prosecution
that any person was earning on the premises
where prostitution is carried out."
30. Similarly, the Andhra Pradesh High Court, in the case
of Nartu Rambabu (supra), relying upon the
judgement in Goenka Sajan Kumar (supra), observed
in paragraph No.8 that when a person visits a brothel as
a customer, then he is not liable for prosecution for the
offence u/s 3/4/5 of the Act."
11. In view of aforesaid factual and legal
submissions, as on the ground of search conducted in
violation of Section 15(2) of the Immoral Traffic Act or in
violation of Section 100(4) of the Cr.P.C., what maximum
can be ascertained is the irregularity while searching a
premise or any conveyance which may be termed as 'brothel'
in view of Section 2(a) of the Immoral Traffic Act, which
certainly, cannot be the only basis for quashing of the
proceeding under Section 482 Cr.P.C., but when allegation
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against petitioner is maximum of as a customer to visit a
'brothel' or merely present thereof then certainly in want of
any conspiracy, he cannot be prosecuted under Section
3/4/5/6of the Immoral Traffic Act.
12. In view of the discussion as made above, the impugned order 26.02.2016 as passed by learned C.J.M. Begusarai in connection with Barauni P.S. Case No. 344 of 2014, G.R. No. 3595 of 2014 is here by quashed and set- aside with all its consequential proceedings qua petitioner.
13. Accordingly, this application is allowed.
14. Let a copy of this judgment be sent to the learned trial court forthwith.
(Chandra Shekhar Jha, J.) Rajeev/-
AFR/NAFR AFR CAV DATE NA Uploading Date 27.06.2024 Transmission Date 27.06.2024