Ms Mona @APPELLANT@Hash State of Rajasthan & Ors.

The present petition has been filed under Section 482 Cr.P.C. seeking quashing of FIR No. 233/2007 registered at Police Station Sadar, Jaipur for the

offences under Sections 3, 4, 5, 6, 7 and 8 of Immoral Traffic (Prevention) Act, 1956.

The above said FIR was lodged at the instance of the investigating officer Bajrang Singh Shekhawat, RPS, who was then posted as Circle Officer,

Sadar, Jaipur. In the FIR it was stated that Bajrang Singh Shekhawat on 7.9.2007 and at 8:35 PM was on patrol duty and when he reached near

railway station circle, special informant gave him information that the owner of the Hotel Visitor Home, Kabir Marg, Banipark, Jaipur had called girls

from Delhi at his hotel, for the purposes of prostitution and he was taking Rs.2,000/- per girl from the customer and he had called three girls from

Delhi. The special informant further informed that out of the said amount, half of the money is retained by hotel owner and half is paid to the girl.

After making preparation for conducting raid by arranging decoy customers and handing over them currency notes, numbers of which were noted

down, customer was sent to the hotel, when deal was struck, decoy customer relayed the message and raid was conducted.Â

Petitioner was one of the girl, who was arrested at the spot alongwith customer.

To seek quashing of impugned FIR, the learned counsel for the petitioner has raised following two arguments:-

Firstly, it is contended that Bajrang Singh Shekhawat the investigating officer was not notified as a Special Police Officer under Section 13 of the

Immoral Traffic (Prevention) Act, 1956. Secondly, it is contended that in terms of the Section 15(2) of Immoral Traffic (Prevention) Act, 1956, two or

more respectable inhabitants of the locality out of which one should be woman were not called and hence, the search carried not in cosonance with

the provisions of the Act, shall vitiate.

In support of above arguments, the learned counsel for the petitioner has relied upon the judgment rendered by the coordinate Bench of this Court at

Principal Seat at Jodhpur in Pankaj Bansal & Anr. vs. State of Rajasthan, SB Criminal Misc (Petition) No. 878/2017, decided on 30.11.2017. In the

said judgment, it was held that since the prosecution failed to prove that the officer who had conducted raid was notified as a Special Police Officer,

the said raid was bad. However, the second argument raised before this Court, that it is mandatory as per Section 15(2) of Immoral Traffic

(Prevention) Act, 1956, to carry the search in presence of two persons is concerned, the same was not dealt with and the proceedings were quashed

in Pankaj Bansal’s case (supra) for the reasons that the investigating officer was not notified, as Special Police Officer under Section 13 of the

Immoral Traffic (Prevention) Act, 1956. The relevant portion of the judgment reads as under:-

“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 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.â€​

Dealing with the first argument, it is to be noted that the present Act called Immoral Traffic (Prevention) Act, 1956, before 26.1.1987 was called as

‘Suppression of Immoral Traffic in Women & Girls Act, 1956’. Before the name of the Act was changed, it was also same Act of 104 of 1956

and it was enacted in consonance with the International Convention for the Suppression of Immoral Traffic in Persons and the Exploitation of the

Prostitution of Others held at New York on 9th of May, 1950. Therefore, the Act No. 104 of 1956 which before 26.1.1987 was called as

‘Suppression of Immoral Traffic in Women & Girls Act, 1956’ remains the same but only name was changed with effect from 26.1.1987. By

carrying amendments, certain provisions of the Act were changed but so far Section 13 of the Act is concerned, before 26.1.1987 and after the said

date, the said Section in sum and substance remains the same and only change incorporated therein was that sub-section (4) was added. The name of

the Act was changed vide amendment dated 26.1.1987.

It will be apposite here to reproduce the object of Suppression of Immoral Traffic in Women & Girls (Amendment) Act, 1986 (Act No. 44 of 1986).

The statement of objects and reasons qua amendment of Act of 1986 bearing No. 44 of 1986, reads as under:-

“The Suppression of Immoral Traffic in Women and Girls Bill having been passed by both the Houses of Parliament received the assent of the

President on 30th December, 1956. It came on the Statute Book as the Suppression of Immoral Traffic in Women and Girls Act, 1956 (104 of 1956).

By section 3 of the Suppression of Immoral Traffic in Women and Girls (Amendment) Act, 1986 (44 of 1986) the nomenclature of the Act has been

changed with effect from 26th January, 1987. Now it stands as THE IMMORAL TRAFFIC (PREVENTION) ACT, 1956 (104 OF 1956) [Emphasis

supplied].â€​

Section 13 of the Act No. 104 of 1956 before 26.1.1987 when it was called ‘Suppression of Immoral Traffic in Women & Girls Act, 1956’ or

after 26.1.1987 when it became the Immoral Traffic (Prevention) Act, 1956 (because of change of name) in sum and substance remained the same,

however, qua inter State offences sub-section (4) was added and said Section reads as under:-

“13. Special police officer and advisory body.â€"(1) There shall be for each area to be specified by the State Government in this behalf a special

police officer appointed by or on behalf of that Government for dealing with offences under this Act in that area.

(2) The special police officer shall not be below the rank of an Inspector of Police.

(2A) The District Magistrate may, if he considers it necessary or expedient so to do, confer upon any retired police or military officer all or any of the

powers conferred by or under this Act on a special police officer, with respect to particular cases or classes of cases or to cases generally:

Provided that no such power shall be conferred onâ€

(a) a retired police officer unless such officer, at the time of his retirement, was holding a post not below the rank of an inspector;

(b) a retired military officer unless such officer, at the time of his retirement, was holding a post not below the rank of a commissioned officer.]

(3) For the efficient discharge of his functions in relation to offences under this Actâ€

(a) the special police officer of an area shall be assisted by such number of subordinate police officers (including women police officers wherever

practicable) as the State Government may think fit; and

(b) the State Government may associate with the special police officer a non-official advisory body consisting of not more than five leading social

welfare workers of that area (including women social welfare workers wherever practicable) to advise him on questions of general importance

regarding the working of this Act.

[(4) The Central Government may, for the purpose of investigating any offence under this Act or under any other law for the time being in force

dealing with sexual exploitation of persons and committed in more than one State, appoint such number of police officers as trafficking police officers

and they shall exercise all the powers and discharge all the functions as are exercisable by special police officers under this Act with the modification

that they shall exercise such powers and discharge such functions in relation to the whole of India.]â€​

This Court on 4.4.2018 had passed the following order:-

“Learned counsel for the petitioner has relied upon orders passed in Pankaj Bansal & Anr. v. State of Rajasthan, S.B. Criminal Misc. Petition

No.878/217, decided on 30.11.2017, by the Principal Bench of this court.

Shri N.S. Dhakar, learned Public Prosecutor, has submitted that he is not aware whether Bajrang Singh RPS was notified as Special Police Officer

under the provisions of Immoral Traffic (Prevention) Act, 1956, to conduct the raid.

Shri Dhakar is directed to file affidavit of Shri Bajrang Singh to the effect that on the date he conducted raid, he was notified as Special Police Officer

as per provisions of the Act. List on 11.04.2018.

A copy of this order under the seal and signature of Court Master be handed over to Shri N.S. Dhakar, learned Public Prosecutor, for onward

transmission and compliance. â€​

In pursuance of the aforesaid order, on 19.4.2018, the investigating officer Bajrang Singh appeared in this Court and produced Gazette Notification,

whereby he was notified as ‘Special Police Officer’ in terms of Section 13 of the Suppression of Immoral Traffic in Women & Girls Act,

1956’ The said Notification dated 11.9.1962 issued by Home Department reads as under:-

“HOME A DEPARTMENT Dated Jaipur the 11th September 1962 NOTIFICATION No.F.17 (14) Home (A-Gr.I) / 58- In exercise of the

powers conferred by sub-section of (1) section 13 of the Suppression of Immoral Traffic in Women & Girls Act, 1956 (Central Act 104 of 1956), the

State Government hereby appoints the Deputy Superintendents of Police, and Assistant Superintendents of Police, as Circle Officers in their

respective jurisdiction, as Special Police Officers for dealing with offences under the said Act.

By order of the Governor Shivshanker Secretary to the Governmentâ€​

After the copy of the Notification was handed over to the learned counsel for the petitioner, he raised a plea that the said notification after the name

of the Act was changed, ceased to operate. The learned counsel for the petitioner has contended that the said notification was issued under

Suppression of Immoral Traffic in Women & Girls Act, 1956 and not under the Immoral Traffic (Prevention) Act, 1956.

The aforesaid argument is wholly untenable, as the Act continued to be same and only the name of the Act had changed. After the name of the act

was changed, Section 13 under which Officer has to be notified had not undergone any change and thus, the Notification issued earlier thereto

automatically stands saved because of Section 25 of the Immoral Traffic (Prevention) Act, 1956, which contained repeal and savings clause. Section

25 of the Act reads as under:-

“25. Repeal and savings.â€"(1) As from the date of the coming into force in any State of the provisions other than section 1 of this Act, all State

Acts relating to suppression of immoral traffic in [persons] or to the prevention of prostitution, in force in that State immediately before such date shall

stand repealed.â€

(2) Notwithstanding the repeal by this Act of any State Act referred to in sub-section (1), anything done or any action taken (including any direction

given, any register, rule or order made, any restriction imposed) under the provisions of such State Act shall in so far as such thing or action is not

inconsistent with the provisions of this Act be deemed to have been done or taken under the provisions of this Act as if the said provisions were in

force when such thing was done or such action was taken and shall continue in force accordingly until superseded by anything done or any action

taken under this Act. Explanation.â€"In this section the expression “State Actâ€​ includes a “Provincial Actâ€​.â€​

Thus, notification reproduced above and relied by the prosecution stand saved because of Section 25(2) of the Immoral Traffic (Prevention) Act,

1956, even if this Court ignore Section 25 of the Immoral Traffic (Prevention) Act, it cannot become oblivious of the provisions contained in the

General Clauses Act, 1897.

The controversy raised in the present case on the anvil of the provisions of General Clauses Act, 1897 is not new to the courts.

During subsistence of Prevention of Corruption Act, 1947, Government of Punjab had issued a Notification on 9.7.1968 authorising Inspectors of

Police to carry investigation. In suppression of Notification dated 9.7.1968, Government of Punjab issued another Notification on 12.8.1968 under

Section 5 A (1) of Prevention of Corruption Act, 1947. The Prevention of Corruption Act, 1947 was repealed on 9.9.1948 and The Prevention of

Corruption Act, 1948 was re-enacted being the Act of 49 of 1988.

The question arose whether the investigation carried by the Police Officer notified under the Act of 1947 is saved or will vitiate.

Supreme Court setting aside the judgment rendered by the Single Judge of Punjab and Haryana High Court in State of Punjab vs. Harnek Singh

reported as (2002) 3 SCC 481, considered sweep of Section 6 and 24 of General Clauses act and observed as under:-

“15. The General Clauses Act has been enacted to avoid superfluity and repetition of language in various enactments . The object of this Act is to

shorten the language of Central Acts, to provide as far as possible, for uniformity of expression in Central Acts, by giving definition of series of terms

in common use, to state explicitly certain convenient rules for the construction and interpretation of Central Acts, and to guard against slips and

oversights by importing into every Act certain common form clauses, which otherwise ought to be inserted expressly in every Central Act. In other

words the General Clauses Act is a part of every Central Act and has to be read in such Act unless specifically excluded. Even in cases where the

provisions of the Act do not apply, courts in the country have applied its principles keeping in mind the inconvenience that is likely to arise otherwise,

particularly when the provisions made in the Act are based upon the principles of equity, justice and good conscience.

The words ""anything duly done or suffered thereunder"" used inclause (b) of Section  6 are often used by the Legislature in saving clause

which is intended to provide that unless a different intention appears, the repeal of an Act would not affect anything duly done or suffered hereunder .

This Court in Hasan Nurani Malak v. S.M. Ismail, Asstt. Charity Commr., Nagpur AIR 1967 SC 1742 has held that the object of such a saving clause

is to save what has been previously done under the statute repealed. The result of such a saving clause is that the pre-existing law continues to govern

the things done before a particular date from which the repeal of such a pre-existing law takes effect . In Universal Imports Agency vs. Chief

Controller of Imports and Exports AIR 1961 SC 41, this Court while construing the words ""things done"" held that a proper interpretation of the

expression ""things done"" was comprehensive enough to take in not only the things done but also the effect of the legal consequence flowing therefrom.

Section 24 of the General Clauses Act deals with the effect ofrepeal and re-enactment of an Act and the object of the section is to preserve the

continuity of the notifications , order schemes, rules or bye-laws made or issued under the repealed Act unless they are shown to be inconsistent with

the provisions of the reenacted statute.â€​

Having considered the above provisions, Supreme Court held as under:-

“25. To justify the impugned judgment and to impress upon us the inconsistency in the two provisions, the learned counsel appearing for the

respondents referred to some communications included in the paperbook from pages 109 to 120. It is submitted that the aforesaid correspondence in

the form of Annexure P-2 to P-5 showed that the Government had applied its mind under the re-enacted law and took a conscious decision that

Inspectors of Police were not competent to investigate the offences punishable under the new Act and that only officers above the rank of Dy.

Superintendent of Police should investigate the cases under the Act. Reference to the aforesaid letters is bases upon misconception. In none of the

letters the Government is shown to have taken any decision as argued. The aforesaid documents are the letters exchanged between different officials

of the Police Department of the State of Punjab which are not referable to any specific decision of the State Government. In the Memo of Appeal and

the Rejoinder Affidavit filed on behalf of the State it is specifically submitted that the proceedings of the high level meeting presided over by the Chief

Secretary, referred to by the respondents as decision of the Government, ""is internal communication between different wings of the Government and

cannot be made basis to conclude that State Government had neither any intention to keep alive the notifications under the Old Act of 1947 nor have

any intention to empower the Inspector of Police in the Vigilance Department to investigate the afresh cases. It is also relevant that as per the Old

Act, since there were notifications which were valid under the New Act by virtue of Section  6 and  24 of General Clauses Act unless these

were formally rescinded the same hold good and the notings on the file to any effect cannot be made basis for striking down those notifications"".â€​

In view of the judgment rendered by the Supreme Court in the case of Harnek Singh (supra), the Notification dated 11.9.1962 published in Rajasthan

Gazette on October, 4, 1962 notifying Dy. Superintendent of Police and Assistant Superintend of Police as Circle Officer to conduct investigation

under Section 13 of the Act of Suppression of Immoral Traffic in Women and Girls Act, 1956, is saved and shall continue to hold field. Thus, there is

no doubt that Bajrang Singh Shekhawat being posted as Dy. Superintendent of Police cum Circle Officer is a Special Police Officer within the ambit

of Section 13 of the Immoral Traffic (Prevention) Act, 1956. Hence, the investigation carried by him is perfectly valid.

Therefore, reliance placed upon the judgment rendered by the Single Judge of this Court at Principal Seat at Jodhpur in Pankaj Bansal’s case

(supra), is misplaced as same is judgment on its own facts and so far present case is concerned is distinguishable.Â

So far as the second argument that two persons from the locality out of which one ought to be woman were not associated, is concerned, it is settled

legal position that the said provision is only directory and not mandatory. In every case, on the touchstone of Section 15(2) of the Immoral Traffic

(Prevention) Act, 1956, it is to be determined by the courts whether it was efficacious for the officers to call two persons from the locality or due to

urgency or emergency, the said provision could not be complied with. It will depend on the facts and circumstances of each case. Mere violation of

Section 15(2) of the Immoral Traffic (Prevention) Act will not vitiate the proceedings, as it will be in the realm of appreciation of evidence in each and

every case.

Thus, taking totality of circumstances, this Court finds no merit in the present petition and hence, the same is dismissed.

Registrar General of this Court is directed to circulate copy of this order among all officers who are conducting trial, deciding revisions and appeals

pertaining to the Immoral Traffic (Prevention) Act, 1956.