Rajasthan High Court - Jodhpur
Sunil vs State And Anr on 6 September, 2019
Author: Pushpendra Singh Bhati
Bench: Pushpendra Singh Bhati
HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
JODHPUR
S.B. Criminal Misc(Pet.) No. 3266/2019
1. Pharisa Promrin D/o Buntain Srima, Aged About 40 Years,
9, Samrannonthai, Khonkan, Thailand
2. Nitaya Pangsri D/o Venn, Aged About 40 Years, 29/1,
Samram Nonasong Khon Kaen, Thailand
3. Thanyaporn Tongkote D/o Suntong Phanpoka, Aged About
38 Years, 49/1, Nong Burpool, Thailand
----Petitioners
Versus
State Of Rajasthan, Through Pp
----Respondent
Connected With
S.B. Criminal Misc(Pet.) No. 1703/2018
Sunil S/o Shri Mohan Lal Gowani, R/o-Gaushala Road, Ratlam
M.p.
----Petitioner
Versus
1. The State Of Rajasthan
2. Sho Of P.s. Sadar, Kotwali, Bhilwara.
----Respondents
S.B. Criminal Misc Second(Pet.) No. 4181/2017
1. Rajesh Motiyani S/o Shri Sugni Chand Motiyani, Aged about
31 years, R/o - 48 Bichlawas Ratlam (M.P.).
2. Chandan Motiyani S/o Shri Sugni Chand Motiyani, Aged about
29 years, R/o - 3 Katzu Market, Sailana Bus Stand, Ratlam
(M.P.)
----Petitioners
Versus
1. The State of Rajasthan
2. SHO of P.S. Sadar, Kotwali, Bhilwara.
----Respondents
For Petitioner(s) : Mr.Dinesh Godara & Mr.Pawan
Rankawat.
For Respondent(s) : Mr.Sudhir Tak, PP.
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HON'BLE DR. JUSTICE PUSHPENDRA SINGH BHATI
Order 06/09/2019
1. The petitioners have preferred these three misc.
petitions seeking quashing of FIR No.391/2017 registered at P.S. Kotwali, Bhilwara under Sections 3, 4, 5 and 7 of the Immoral Traffic (Prevention) Act, 1956 (for short referred to herein after as 'PITA Act').
2. Learned counsel for the petitioners jointly submit that the Circle Officer was not authorised under the PITA Act to have conducted the search and seizure proceedings. They relied upon the judgment of this Court in the case of Pankaj Bansal & Anr.
vs. State of Rajasthan reported in 2018(1) Cr.L.R. (Raj.) 1, which reads as under :-
"Heard learned counsel for the parties. Perused the material available on record.
By way of this misc. petition under Section 482 Cr.P.C., the petitioners seek to challenge the order dated 18.2.2017 passed by the learned Additional Sessions Judge No.4, Udaipur rejecting the revision preferred by the accused petitioners against the order dated 16.1.2017 passed by the learned Additional Chief Judicial Magistrate (P.C.P.N.D.T. Act Cases), Udaipur whereby, charges were directed to be framed against the petitioners for the offences under Sections 3, 4, 5 and 6 of the Immoral Traffic (Prevention) Act, 1956 (for short referred to herein after as 'PITA Act').
As per the prosecution case, on 5.4.2015 Ms.Ranu Sharma C.O., Girwa acting on a prior information conducted a raid at Hotel Udai Palace & Resort owned by the petitioners located on the Udaipur Nathdwara Highway with the aid of S.H.O., P.S. Goverdhan Vilas and discovered that the hotel premises was being used for organising a Rave party, in which liquor was being served illegally and services of girls had been procured for prostitution, etc. After conducting the search and seizure proceedings under (Downloaded on 11/09/2019 at 08:39:39 PM) (3 of 7) the PITA Act, the C.O. apprehended as many as 85 people (including the petitioners) from the hotel which was owned and being operated by the petitioners herein. On the basis of these proceedings, an FIR No.99/2015 came to be registered at P.S. Goverdhan Vilas for the offences under Sections 3, 4, 5 & 6 of the PITA Act against 85 persons including the petitioners. After investigation charge-sheet was filed against all the accused for these offences.
By order dated 16.1.2017, the learned Additional Chief Judicial Magistrate (P.C.P.N.D.T. Act Cases), Udaipur directed framing of charges against the petitioners herein for the offences under Sections 3, 4, 5 & 6 of the PITA Act and against the remaining accused persons for varying provisions of PITA Act. The said order was challenged by the petitioners through a revision which came to be rejected by the learned Additional Sessions Judge No.4, Udaipur by order dated 18.2.2017. Hence, this misc. petition has been preferred to challenge the impugned orders.
Shri Kotwani learned counsel representing the petitioners assailed the impugned orders and the entire proceedings sought to be undertaken against the petitioners on the legal ground that the Circle Officer Ms.Ranu Sharma who conducted the raid on the disputed premises was not authorised to do so under the provisions of the PITA Act and as such, the entire proceedings are vitiated. Shri Kotwani urged that as no notification has ever been issued by the State Government to appoint Ms.Ranu Sharma to be a special police officer under Section 2(i) of the PITA Act, the entire proceedings including the order taking cognizance which are based on totally illegal and unauthorised search and seizure are vitiated and as such, the proceedings sought to be taken against the petitioners deserve to be quashed. He relied upon the following judgments to support his contention :-
(1) AIR 1962 SC 63 (Delhi Administration vs. Ram Singh) (2) 2002 Law Suit (Kerla) 78 (Sinu Sainudheen vs. Sub Inspector of Police) (3) 2008 Law Suit (H.P.) 368 (State of H.P. vs. Sardara Singh and others) (4) 2014 Law Suit (Kerla) 423 (Sreejith @ Ayyapan and Sanjeev S vs. State of Kerala) (5) 2014 Law Suit (Kerla) 432 (Shajahan and others. vs. State of Kerala) and (6) 2014 Law Suit (Kerla) 576 (C.P. Raju, S/O Pathrose vs. State of Kerala, Circle Inspector of Police).(Downloaded on 11/09/2019 at 08:39:39 PM)
(4 of 7) He further urged that the C.O. did not comply with the mandatory requirement of Section 15(2) of the PITA Act as per which, two or more respectable inhabitants of the locality have to be associated to attend and witness the search and seizure proceedings under this Act. He urged that only two police officers who were members of the raiding team were associated as panchas in the process of search and seizure and as such, the entire proceedings are totally vitiated. He further urged that the position of law as postulated in the above mentioned judgments squarely covers the factual issues of the case at hand and hence, the impugned orders and all proceedings sought to be undertaken against the petitioners for the offences under the PITA Act should be quashed and set aside.
In order to appreciate the arguments advanced by Shri Kotwani, the relevant provisions of PITA Act require a reference and are reproduced herein below :-
"2(i) "special police officer" means 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;
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."
Since the argument regarding the C.O. not being authorised under the PITA Act to conduct the search and seizure proceeding was not raised before the Courts below and has been advanced for the first time in the instant misc. petition, this Court directed learned P.P. to file a reply to this averment made on behalf of the petitioner. Learned P.P. has filed a written reply wherein, though it is averred that Ms.Ranu Sharma, Circle Officer, P.S. Girwa was authorised to undertake search, seizure and investigation under the PITA Act but no document/notification has been filed in support of this bald assertion made in the reply. Since, a controversy has been raised about the incompetence of the police officer under the Special Act, existence of such authorisation has (Downloaded on 11/09/2019 at 08:39:39 PM) (5 of 7) to be proved by a notification issued by the competent authority/Government as per the requirement of the Statute. However, the learned P.P. has failed to place on record, either with reply or during the course of arguments any notification whereby, the Court can be satisfied regarding Ms.Ranu Sharma C.O. having been authorised specially or generally to conduct search and seizure proceedings/police duties under the PITA Act. The Hon'ble Supreme Court considered the import of a similar provision in Ram Singh's case (supra) and held that the offence under the special Act can only be investigated by a special police officer and not by any police officer. The consequence of investigation by an officer not specially appointed/authorised under the Act was held to be vitiating the search and seizure proceedings. Similar view has been taken by the High Court of Kerala in various judgments relied upon by Shri Kotwani.
Thus, it is virtually an admitted position that Ms.Ranu Sharma was not appointed as a special police officer under the PITA Act and as such, it has to be assumed that she was not having any authority of law to either conduct the raid or to carry out the investigation. Since the charge-sheet and the order framing charges etc. are based on unauthorised search and seizure, entire such proceedings are vitiated and cannot be allowed to continue.
As an upshot of the above discussion, the instant misc. petition deserves to be and is hereby allowed. The order dated 16.1.2017 passed by the learned Additional Chief Judicial Magistrate (P.C.P.N.D.T. Act Cases), Udaipur directing framing of charges against the petitioners herein and the other accused persons for various offences under the PITA Act and so also, the order dated 18.2.2017 passed by the learned Additional Sessions Judge No.4, Udaipur are hereby quashed and set aside. The entire proceedings of Criminal Original Case No.1305/2015 which were launched on the basis of the search carried out by an unauthorised police officer are hereby quashed.
Stay petition also stands disposed of."
3. As per the petitioners, the very basis of criminal prosecution goes away as for trying the offence under Sections 3, 4 & 5 of the PITA Act, the concerned officer has to be empowered (Downloaded on 11/09/2019 at 08:39:39 PM) (6 of 7) as a special police officer under the PITA Act so as to authorise him to conduct the search in question and as to in what manner, the petitioner is being linked with the offences alleged.
4. As per the prosecution case, the raid was conducted by the Circle Officer (City), Bhilwara Shri Rajendra Tyagi who was an officer of rank of Deputy Superintendent of Police. Learned P.P. submits that the circle officer in question was empowered as a special officer in terms of PITA Act as he was holding the rank in accordance with Section 13(2) and 2A of the PITA Act.
5. Heard learned counsel for the parties and perused the material available on record as well as the precedent law of Pankaj Bansal (supra).
6. Learned P.P. has not been able to distinguish the facts in the present case from the precedent law of Pankaj Bansal (supra). Learned P.P. has not been able to justify as to in what circumstances, the Circle Officer Ms.Ranu Sharma who has conducted raid in the case of Pankaj Bansal (supra) was unlawful but the present Circle Officer's raid is lawful. Learned P.P. has further not been able to show the authorisation of the police officer in question on behalf of the State Government for the purpose of giving effect to the aforesaid Act. The facts of the present case are identical to the precedent law cited above and the learned P.P. has failed tos how any distinction from the aforementioned precedent law as he has not been able to show the authorisation of Circle Officer, Sadar Police, Bhilwara to be authorised to conduct the raid in question. Thus, it is virtually an admitted position that Shri Rajendra Tyagi was not appointed as special police officer under the PITA Act and as such, it has to be (Downloaded on 11/09/2019 at 08:39:39 PM) (7 of 7) assumed that he was not having any authority of law to either conduct the raid or to carry out the investigation.
7. In light of the aforesaid observations as well as the precedent law of Pankaj Bansal (supra), all these misc. petitions are allowed. The FIR No.391/2017 registered at P.S. Kotwali, Bhilwara and all other consequential proceedings qua the petitioners are hereby quashed and set aside.
8. All pending applications are disposed of.
(DR. PUSHPENDRA SINGH BHATI)J. 219-220-C-SPhophaliya/-
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