Saneh Lata vs State of Punjab

V.S. Aggarwal, J.

By virtue of the present petition Sneh Lata petitioner seeks quashing of the FIR No. 187 dated 4.12.1993 registered against her at police station Division No. 4, Jalandhar with respect to the offences punishable under Sections 3, 4 and 5 of the Immoral Traffic (Prevention) Act, 1956 and the subsequent proceeding thereto.

The relevant facts are that secret information was received that the petitioner has started running brothel and is supplying certain girls in her house after charging money from them. Certain names of the ladies involved in the said offence have been mentioned. It was further mentioned that recently they were indulging themselves illegally in flesh trade and if raid is conducted the men and women can be apprehended redhanded. Deputy Superintendent of Police Sudesh Kumar headed the raid party and raided the place of the petitioner. Certain persons were apprehended.

The grievance of the petitioner is that the First Information Report so recorded and the subsequent proceedings are liable to be quashed because the mandatory provisions of the Immoral Traffic (Prevention) Act, 1956 (hereinafter described as ''the Act'') have been violated. No attempt has been made to procure the warrants of arrest and search from a Magistrate. It is further asserted that the Deputy Superintendent of Police who conducted the raid was not a Special Police Officer appointed by the Central Government and, therefore, he could neither search the premises nor conduct the investigation. Furthermore contention has been raised that two respectable ladies of the locality have not been joined and consequently the search and the investigation are all invalid.

In the reply filed, the plea has been raised that the Deputy Superintendent of Police has claimed the permission from the Superintendent of Police and thereafter conducted the raid. Amar Chand a resident of Avtar Nagar had been joined by the Deputy Superintendent of Police. The Deputy Superintendent of Police was competent to conduct the raid. The search warrants were not obtained because if there was delay, the offenders would have left the place. A mention has been made of the fact that on 25.4.1994 the charge has since been framed against the petitioner.

Learned counsel for the petitioner highlighted the fact that two respectables of the locality had not been joined and one of them necessarily has to be a woman. This is violation of Section 15 of the Act and, therefore, the search was invalid. He further argued that the search and the investigation would only be conducted by the Special Police Officer appointed under the Act. Since, it has not been done, the entire proceedings are vitiated.

The first and foremost question, therefore, that comes up for consideration is as to whether any police officer who is not a special police officer within the meaning of the Act, can investigate an alleged offence under the provisions of the Act or not ? The expression ''special police officer'' has been denied under Section 2(i) of the Act and reads :

"2(i). "special police officer" means a police officer appointed by the Central Government to be in charge of police duties within a specified area for the purpose of this Act."

It is obvious from aforesaid that the special police officer has to be appointed by the Central Government for the purpose of the Act. The expression used by the legislature is "for the purpose of this Act." Does it imply that the said police officer has the right to investigate also and whether only he can investigate the same ? The purpose of the Act obviously is to inhibit or abolish commercialised vice of running such trade or act under the Act. It becomes unnecessary to ponder further with the said fact because the matter in question is concluded by the decision of the Supreme Court. The Supreme Court was concerned with subsection (1) of Section 13 of the Act. It also refers to the special police officer appointed for dealing with offences under the Act. In the case of Delhi Administration v. Ram Singh, AIR 19623 SC 63, Supreme Court by a majority decision held that the special police officer or his assistant police officers are the only persons competent to investigate the said offences. In paragraph 24 the Supreme Court held :

"We are therefore of opinion that the special police officer is competent to investigate and that he and his assistant police officers are the only persons competent to investigate offences under the Act and that police officers not specially appointed as special police officers cannot investigate the offences under the Act even though they are cognizable offences. The result is that this appeal by the Delhi Administration fails and is hereby dismissed."

The same question was again considered by the Calcutta High Court in the case titled Superintendent and Remembrancer of Legal Affairs on behalf of State of West Bengal v. Sardar Bahadur Singh and others, AIR 1969 Calcutta 451. The conclusion once again was that the special police officers alone can investigate the offences under the Act. In paragraph 10 it was held :

"It, therefore, follows that the subordinate police officers, whom the learned magistrate does not apparently think much of, are even competent to investigate the offences:

Proposition B above. Indeed, to assist the special police officer by conducting the search or by examining witnesses is to participate in investigation, which is only part of the functions, the special police officer has to discharge in relation to the offences under the Act. Part, because by the conjoint operation of Section 2, Clause (i), and Section 13, subsection (1), the special police officer, in charge of police duties within a specified area for the purposes of the Act, shall be dealing with offences under the Act in that area. Both these expressions "police duties" and "dealing with offences" are of the widest amplitude and necessarily connote all that the police has to do in connexion with the offences under the Act, including detention, prevention and investigation."

In the present case in hand despite repeated opportunities, the attention of this Court was not drawn to any order passed by the State or the Central Government authorising any officer by designation or by name as special police officer under this Act. The learned Assistant Advocate General conceded that no such order has been passed. Therefore, it is apparent that the investigation as such was not conducted by an authorised officer.

Corelated with the said fact was the argument advanced and pressed that since investigation and search is not by an authorised officer, the same is invalid and, therefore, the proceedings in court should be quashed. A glance at some of the provisions of the Act in this regard would be appropriate. Section 3 of the Act provides for punishment for keeping a brothel or allowing the premises to be used as a brothel. Section 4 of the Act prescribes for punishment for living on prostitution. Section 5 further provides for punishment for procuring, inducing or taking persons for sake of prostitution. Section 6 refers to the punishment for detaining a person in the premises where prostitution is carried on. Section 7 refers to punishment when prostitution is carried on in premises in the vicinity of public places and Section 8 prescribes for seducing or soliciting for purpose of prostitution. To deal with the offences under the Act, the State Government can appoint special police offices under Section 14 of the Act which reads :

"13. Special police officer and advisory body. (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 the Government for dealing with offences under this Act in the 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 or cases or to cases generally;

Provided that no such power shall be conferred on

(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 Act

(a) the special police officer of an area shall be assisted by such number of subordinate police officers (including women police officers, whenever practicable) as the State Government may think fit; and

(b) the State Government may associate with the special police officer a nonofficial 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."

Section 14 further provides that offences are cognizable and permits a special police officer to arrest without warrants. It further permits a police officer not below the rank of SubInspector specially authorised by the special police officer to arrest without warrants if he has reason to believe that on account of delay involved, the evidence may not be destroyed or concealed. Section 14 reads as under :

"14. Offences to be cognizable Notwithstanding anything contained in the Code of Criminal Procedure, 1973 (2 of 1974), any offence punishable under this Act shall be deemed to be a cognizable offence within the meaning of the Code:

Provided that, notwithstanding anything contained in that code,

(i) arrest without warrant may be made only by the special police officer or under his direction or guidance, or subject to his prior approval;

(ii) when the special police officer requires any officer subordinate to him to arrest without warrant otherwise than in his presence of any persons for an offence under this Act, he shall give that subordinate officer an order in writing, specifying the person to be arrested and the offence for which the arrest is being made and the latter officer before arresting the person shall inform him of the substance of the order and, on being required by such person, show him the order;

(iii) any police officer not below the rank of (subInspector) specially authorised by the special police officer may, if he has reason to believe that on account of delay involved in obtaining the order of the special police officer, any valuable evidence relating to any offence under this Act is likely to be destroyed or concealed, or the person who has committed or is suspected to have committed the offence is likely to escape, or if the name and address of such a person is unknown or there is reason to suspect that a false name or address has been given, arrest the person concerned without such order, but in such a case he shall report, as soon as may be, to the special police officer the arrest and the circumstances in which the arrest was made."

In line with the same provisions is Section 15 of the Act dealing search without warrant and subSections (1), (2), (6A) and (7) of Section 15 reads as under :

"15(1). Notwithstanding anything contained in any other law for the time being in force, whenever the special police officer (or the trafficking police officer, as the case may be) has reasonable grounds for believing that an offence punishable under this Act has been or is being committed in respect of (person) living in any premises, and that search of the premises with warrant cannot be made without undue delay, such officer may, after recording the ground of his belief, enter and search such premises without a warrant.

(2) Before making a search under subsection (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.)

(6A). The special police officer or the trafficking police officer, as the case may be, making a search under this section shall be accompanied by at least two women police officers, and where any woman or girl removed under subsection (4) is required to be interrogated, it shall be done by a woman police officer and if no woman police officer is available, the interrogation shall be done only in the presence of a lady member of a recognised welfare institution or organisation.

Explanation. For the purposes of this subsection and Section 17A, "recognised welfare organisation" means such institution or organisation as may be recognised in this behalf by the State Government.

(7). The provisions of the Code of Criminal Procedure, 1973 (2 of 1974), shall, so far as may be, apply to any search under this section as they apply to any search made under the authority of a warrant issued under Section 94 of the said Code.)"

It is apparent from aforesaid provisions that the Immoral Traffic (Prevention) Act, 1956 is a complete Code in itself. The special police officer only has the right to investigate, search and even arrest. It has already been noted above that investigation in the present case has not been carried out by the authorised officer or in other words, the special police officer. The effect of such a flaw was considered by the Supreme Court in the case of H.N. Rishbud and another v. State of Delhi, AIR 1995 SC 196. The decision pertained to Prevention of Corruption Act, 1947. The investigation was not carried in terms of Section 5A of the said Act. The cognizance as such had been taken by the Magistrate. The Supreme Court held that if the fact was brought to the notice of the Court at an early stage, the Court has to consider the nature and extent of violation. Otherwise, once the cognizance is taken by the Court, it is a matter to be considered whether prejudice is caused or not. It will not vitiate the trial. In paragraph 9 the Court held :

"If, therefore, cognizance is in fact taken, on a police report vitiated by the breach of a mandatory provision relating to investigation, there can be no doubt that the result of the trial which follows it cannot be set aside unless the illegality in the investigation can be shown to have brought about a miscarriage of justice. That an illegality committed in the course of investigation does not affect the competence and the jurisdiction of the Court for trial is well settled as appears from the cases in "Prabhu v. Emperor", AIR 1944 PC 73(C) and ''Lumbhardar Zutshi v. The King'', AIR 1950 PC 26 (D).

These no doubt relate to the illegality of arrest in the course of investigation while we are concerned in the present cases with the illegality with reference to the machinery for the collection of the evidence. This distinction may have a bearing on the question of prejudice or miscarriage of justice, but both the cases clearly show that invalidity of the investigation has no relation to the competence of the Court. We are, therefore, clearly, also, of the opinion that where the cognizance of the case has in fact been taken and the case has proceeded to termination, the invalidity of the precedent investigation does not vitiate the result, unless miscarriage of justice has been caused thereby."

The same question was considered by a Division Bench of Bombay High Court in the case State v. Mainabai, AIR 1962 Bombay 202. The question for consideration again was as to if the case is investigated by a person not duly authorised, whether it would be the jurisdiction of the Magistrate to take cognizance of the Act or not. The decision of the Supreme Court in the case Delhi Administration v. Ram Singh (supra) was distinguished. That Court held that if the arrest was illegal, the said officer may not be able to protect himself but still felt that Magistrate can proceed and take cognizance of the offence. Reliance in this regard was placed on the decision in the case of H.N. Rishbud v. State of Delhi (supra) of the Supreme Court. It was concluded that unless there is miscarriage of justice, the trial would not be vitiated. In paragraph 6 the conclusions were drawn to be :

"Hence, where the cognizance of the case has in fact been taken and the case has proceeded to termination, the invalidity of the precedent investigation does not vitiate the result, unless miscarriage of justice has been caused thereby."

Subsequently, in the case State of Uttar Pradesh v. Bhagwant Kishore Joshi, AIR 1964 SC 221, the scope of Prevention of Corruption Act and Section 5A of the said Act came up for consideration. The investigation was by an officer of a lower rank. The answer provided was that it was an irregularity and if there is no prejudice shown to have caused, it would not vitiate the trial. In paragraph 13 it was held :

"The question is not whether in investigating an offence the police have disregarded the provisions of the Act, but whether the accused has been prejudiced by such disregard in the matter of his defence at the trial. It is, therefore, necessary for the accused to throw a reasonable doubt that the irregularity in the matter of investigation, or that he was prevented by reason of such irregularity from putting forward his defence or adducing evidence in support thereof. But where the prosecution evidence has been held to be true and where the accused had full say in the matter, the conviction cannot obviously be set aside on the ground of some irregularity or illegality in the matter of investigation: there must be a sufficient nexus, either established or probabilized, between the conviction and the irregularity in the investigation. In this case, as we have earlier pointed out, not only the trial was fair and the evidence convincing, but even the earlier defect was rectified by having practically a de novo investigation in strict compliance with the provisions of the Code of Criminal Procedure. We cannot, therefore, hold that the accused has been prejudiced by the illegality committed by the police in the first stage of the investigation."

Reference with advantage may also be made to the decision of the Division Bench of Delhi High Court in the case Delhi Administration v. B. Kishan, 1973 I.L.R. (Delhi) II 765. This was a dispute arising under the Suppression of Immoral Traffic in Women and Girls Act, 1956 (as the Act was earlier known). There the learned Additional Sessions Judge of Delhi had acquitted the person solely on the ground that investigation was not by a special police officer. The Division Bench of Delhi High Court did not accept the said view and held that it will not vitiate the trial, unless prejudice is shown to have caused by illegal investigation, proceedings have not to be quashed. The Court concluded :

"In H.N. Rishbud''s case referred to above, the Supreme Court has held that section 537 Cr.P.C. applies even to cases of an illegal investigation. Therefore, the accused has to show that prejudice has been caused to him by reason of the illegal investigation and in determining whether any prejudice has been caused to the respondent by reason of the illegal investigation, the Court shall have regard to the fact whether the objection could and should have been raised at an earlier stage in the proceedings. The respondent did not raise any objection during his trial. It is only before the learned Additional Sessions Judge that he raised this objection for the first time. Further, it has not been shown how and in what manner he has suffered any prejudice by reason of the illegal investigation. No presumption can be drawn that every illegal investigation causes a prejudice to an accused person. Therefore, the learned Additional Sessions Judge was clearly wrong in acquitting the respondent merely on the ground that the police officer who had investigated the case was not a special police officer appointed under Section 13 of the Act."

Same was the view of the Supreme Court in the Khandu Sonu Dhobi and another v. State of Maharashtra, AIR 1972 SC 958 pertaining to investigation under Section 5A of the Prevention of Corruption Act which hardly requires any repetition. The Division Bench of this Court considered a similar question in the case State of Haryana v. Rugha, AIR 1970 P&H 502. Herein also the investigation was by an officer not authorised. The cognizance had been taken under the Essential Commodities Act by Magistrate. This Court held that in the absence of prejudice to the accused, it is an irregularity which is curable.

Looking back on the facts of the present case and after scanning through number of precedents above, it is obvious that investigation was not by a proper person. Cognizance still had been taken by the Magistrate. There is nothing to indicate that this fact was brought to the notice of the Magistrate at the earliest stage. Therefore, it would be an irregularity rather than an illegality, vitiating the trial. Cognizance has been taken by the trial court. If the arrest was not valid, the concerned person may take appropriate steps. Presently, the trial court would only concern with the question if the petitioner was guilty or not. It would look into the facts as to whether as a result of the aforesaid any projudice has been caused to the petitioner or not. If no prejudice is shown to have been caused, there will be no illegality. One cannot restrain to refer to subsection (2) of Section 156 Code of Criminal Procedure which provides that no proceedings of the police officer shall be called in question on the ground that he was not empowered to act under Section 156 Cr.P.C. to investigate the same. The intent is obvious. Consequently at the risk of the repetition it is mentioned that unless prejudice is shown to have been caused and cognizance has since been taken, the investigation will not be illegal nor the trial effected.

Confronted with this position, it had been urged that two respectable persons of the locality have not been joined as witnesses before the search as provided under subsection (2) of Section 15 of the Act. In this regard, at this stage, no opinion need be expressed. This is matter to be looked into during the course of trial. Once the cognizance has been taken and the charge framed besides the trial has proceeded, it will not be appropriate to quash the same, but it is in the fitness of things that the Judicial Magistrate considers all these things.

Before parting with the judgment, it deserves a mention that it is unfortunate to the effect that despite the Act having been enforced for many decades, no Special Police Officer as stated above has been appointed. The State would be well advised to take appropriate steps immediately.

As an offshoot of the reasons given above, the petition being without merit fails and is dismissed.