Procedure For Search Under Immoral Traffic (Prevention) Act Is Directory & Not Mandatory: Madras High Court

The bench of Justice AD Jagadish Chandira observed that the petition did not have any merits as the petitioners had suppressed material facts and had merely claimed that the respondent police had fabricated the case due to a cold war existing between them.

With respect to the search procedure to be followed under the Immoral Traffic (Prevention) Act, the court held that the procedures were directory and not mandatory and a mere violation of the same will not vitiate the entire proceedings.

"In every case, on the touchstone of Section 15(2) of the Immoral Traffic (Prevention) Act, 1956, it has to be determined by the courts whether it was efficacious for the officers to call two persons from the locality or if due to urgency or emergency, the said provision could not be complied with, it has to depend on the facts and circumstances and mere violation of Section 15(2) of 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."

Background

The petitioners were facing criminal proceedings initiated by the respondent police alleging that they were running a brothel house in the guide of running Spas and Beauty Parlours and have been exploiting women and girls.

The petitioners claimed that these criminal proceedings were false and illegal and were fabricated as they did not satisfy the illegal demands of the respondent police. The main points contended by the petitioners were:

• The Inspector of Police, who had conducted the search and made the arrest is not a Special Police Officer as specified in the Act.
• There is a procedural irregularity on the part of the respondent police in complying with Section 15 of the Act in conducting the raid.
• Engaging a decoy witness is administered by the respondent police despite the deprecation made by various courts.

The respondent on the other hand presented the factual position and informed the court of how the petitioners were repeatedly involved in immoral trafficking. They had also traded one victim girl between spas on different occasions. The respondent submitted that non-compliance with the requirements of Section 15 of the Act would not necessarily vitiate the entire proceedings and sought to dismiss the application.

The respondent also enlightened the court about the G.Os passed by the Social Welfare Department whereby the Governor appointed every Police Officer not below the rank of an Inspector of Police to be the special police officer for dealing with offenses under the Suppression of Immoral Traffic in Women and Girls Act, 1956 in respect of the areas within his jurisdiction and also appoints every Police Officer (including Women Police Officers wherever necessary) not below the rank of a Sub Inspector of Police as a subordinate police officer to assist the special police officer concerned.

The court considered the above G.O and was satisfied that the Inspector of Police who had registered the present case was a Special Police Officer under the Act and therefore there was no violation of Section 13 of the Act.

Though the petitioners submitted a batch of decisions wherein the courts have condemned the procedural irregularities on the part of the respondent police, the respondents submitted that strict compliance with the provisions of the Immoral Traffic (Prevention) Act or non-compliance thereof was not at all confronted in those matters.

The respondent also highlighted the decision in Bai Radha vs. State of Gujarat (1969) where a three-judge bench of the Apex Court discussed the scope of Section 15(1) and (2) of the Act. The court, in that case, had held as follows:

"…But the entire proceedings and the trial do not become illegal and vitiated owing to the non-observance of or non-compliance with the direction contained in the aforesaid provisions. The court, however, has to be very careful and circumspect in weighing the evidence where there has been such a failure on the part of the investigating agency but unless and until some prejudice is shown to have been caused to the accused person or persons the conviction and the sentence cannot be set aside."

Thus, the court was satisfied that the provisions of Section 15 of the Immoral Traffic (Prevention) Act were directory and not mandatory.

In view of the facts and circumstances of the case, the court was, therefore, satisfied that the police did not have any malafide intention in filing the case, and on the other hand the petitioners had suppressed material facts.

Case Title: Hema Jwaalini and others v. The Commissioner of Police and Others

Case No: Crl O.P No 922 of 2021

Citation: 2022 LiveLaw (Mad) 194

Counsel for Petitioner: Mr. B. Harikrishnan

Counsel for Respondents: Mr. Hasan Mohamed Jinnah (State Public Prosecutor) and Mr. A. Gokulakrishnan, assisted by Ms. Archana

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