Madras High Court
Vinu vs The State Represented By on 26 July, 2023
Author: N. Anand Venkatesh
Bench: N. Anand Venkatesh
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.
4. This Court has carefully considered the submissions made on either side and the materials available on record. https://www.mhc.tn.gov.in/judis 3
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, Chennai City, Chennai-8 & Others reported in [2015 1 LW 77], is extracted hereunder:
https://www.mhc.tn.gov.in/judis 4 "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 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 https://www.mhc.tn.gov.in/judis 5 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 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:
https://www.mhc.tn.gov.in/judis 6 (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:—
(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; https://www.mhc.tn.gov.in/judis 7
(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.
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 https://www.mhc.tn.gov.in/judis 8 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 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 https://www.mhc.tn.gov.in/judis 9 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.
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 https://www.mhc.tn.gov.in/judis 10 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 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 https://www.mhc.tn.gov.in/judis 11 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 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.
https://www.mhc.tn.gov.in/judis 12
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 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.
https://www.mhc.tn.gov.in/judis 13
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 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 https://www.mhc.tn.gov.in/judis 14 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 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.
6. 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.
7. In view of the above, the proceedings that are pending https://www.mhc.tn.gov.in/judis 15 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.
8. This Criminal Original petition stands allowed. Consequently, the connected miscellaneous petitions are closed.
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.
https://www.mhc.tn.gov.in/judis 16 N. ANAND VENKATESH,J rka 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