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IN
HIGH COURT OF JUDICATURE FOR RAJASTHAN
BENCH AT JAIPUR
S.B. Criminal Miscellaneous (Petition) No. 221/2018
Ms Mona D/o Md Subhan, Aged About 32 Years, R/o Kholiwadi,
Hazrat Nizamuddin, Delhi.
----Petitioner
Versus
State Of Rajasthan Through P.P.
----Respondent
For Petitioner(s) : Mr. Rajendra Jain for the petitioner
For Respondent(s) : Mr. Anurag Sharma AAG with Mr.
Aniroodh Mathur for the respondent
HON'BLE MR. JUSTICE KANWALJIT SINGH AHLUWALIA
Order
Order Reserved on: 04/05/2018
Order Pronounced on: 24/05/2018
REPORTABLE
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
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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.
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 co-
ordinate 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
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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
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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.”
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 9 th 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
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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].”
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.—(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 on—
(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.]
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(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 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.]”
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. ”
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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 Government”
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
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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.—(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.—"
(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.—In this
section the expression “State Act” includes a “Provincial Act”.”
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
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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.
16. The words "anything duly done or suffered thereunder" used in
clause (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
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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.
17. Section 24 of the General Clauses Act deals with the effect of
repeal 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 re-
enacted statute.”
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
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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".”
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.
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
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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.
(KANWALJIT SINGH AHLUWALIA),J
Mak/-
