LADLEY KUMARI v. THE STATE OF BIHAR

For the State in both the cases: Mr. Jharkhandi Upadhyay, A.P.P. -------------- O R D E R Although both the cases were heard on different dates and pronouncement of order was reserved, they are being disposed of by this common order since both the cases involve a common question of law. In Criminal Misc. No.25363 of 2007, the petitioner who is one of the F.I.R. named accused in Gardanibagh P.S. Case No.500 of - 2 - 2001 registered under Sections 3, 4, 5 and 7 of the Immoral Traffic (Prevention) Act (hereinafter referred to as “the Act”) has prayed for the quashing of the F.I.R. thereof including order dated 8.3.2006 passed therein by Sri Prem Chand Anal, Judicial Magistrate, First Class, Patna, whereby the petition of the petitioner for her discharge was rejected. The informant in this case is Dy.S.P., Sachivalaya. In Criminal Misc. No.33699 of 2007 the petitioner who is also one of the F.I.R. named accused of Jai Nagar P.S. Case No.174 of 2006 registered under Sections 3, 4 and 7 of the Immoral Traffic (Prevention) Act has prayed for the quashing of the F.I.R. thereof as also the order dated 18.12.2006 passed by the learned Chief Judicial Magistrate, Madhubani. The informant in this case is Officer Incharge, Jai Nagar P.S. The joint submissions in both the cases are three fold. Firstly, the Act being a Special Act neither the Dy.S.P. of Sachivalaya P.S. or the Officer Incharge of Sachivalaya P.S. who conducted the search and seizure nor the Officer Incharge of Jai Nagar P.S. who conducted the search and seizure in the second case were competent to conduct search and seizure as they did not happen to be the Special Police Officer appointed by the State Government under Section 13 of the Act nor had such Police Officer given any explanation for such search for which they were not authorized by law and as such the entire prosecution, search and seizure were without jurisdiction. Reliance for the purpose was sought to be placed on the case of Delhi Administration Vs. Ram Singh (AIR 1962 SC 63) which was a case - 3 - dealing with the Suppression of Immoral Traffic in Women and Girls Act, 1956. The second submission advanced by the learned counsels for the parties was that the Sub Section (2) of Section 15 of the Act makes it mandatory to be making a search under Sub Section (1) the Special Police Officer or the Trafficking Police Officer, as the case may be, shall call upon or more respectable inhabitance (at least one of whom shall be a woman) of the locality in which the place to be searched is situate to attain a witness the search and may issue an order in writing to them or any of them so to do. In the instant case, the mandatory provision of a woman witness being present not having been strictly complied with the entire prosecution becomes illegal and is required to be quashed. The third submission advanced by the learned counsel for the petitioners is that the instant Act being a Special Law which prescribes special provision overriding the provision of general law the ordinarily procedure followed for investigation , search and seizure cannot be applied in this case. An additional ground has been taken in Criminal Misc. No.33699 of 2007 inasmuch as the informant or member of raiding party cannot be I.O. of the case as in the instant case Upendra Kumar Sinha, a member of the raiding party was assigned the task for I.O. So far as the question of quashing the F.I.R. is concerned, there is no basis for the same as the allegation made in the F.I.R. do constitute offences under the Act. Admittedly, the F.I.R. is not a - 4 - substantive piece of evidence. It is information of a cognizable offence given under Section 154 Cr.P.C. As held in Hallu Vs. State of Madhya Pradesh (AIR 1974 SC 1936) Section 154 does not require that the report must be given by a person who has personal knowledge of the incident reported. The Section speaks of information relating to the commission of a cognizable offence given to an Officer Incharge of a Police Station. That apart cognizance has already been taken in the basis of chargesheet submitted after investigation and it would not be proper for this Court to quash the F.I.R. The State has filed a counter affidavit in Criminal Misc. No.25363 of 2007 but no such counter affidavit has been filed in the other case. However, as common question of law is involved in both cases the counter affidavit filed by the State in one case would broadly also govern the other case. The submission raised by the learned counsels for the petitioners that the Inspector, Dy.S.P. of the Bihar Police are not competent to investigate under the Act is not tenable. The State Government in the Home (Police) Department issued a Notification No.8443 dated 4.8.1997 whereby the Government has authorized all Superintendents of Police, Deputy Superintendents of Police and all Inspectors of Police posted in the Criminal Investigation Department and in all the Districts of Bihar State as Special Police Officers for investigating the cases relating to Suppression of Immoral Traffic in Women and Girls Act, 1956 and by a subsequent Notification No.10796 dated 29.11.1997 the words “Suppression of Immoral - 5 - Traffic in Women and Girls Act” in the Notification was replaced by the words “Immoral Traffic(Prevention) Act.” In view of the said conferring of power by the State Government on Superintendents of Police, Dy. S.Ps. and Inspectors of Police , I do not find any merit in the submissions advanced by the learned counsel for the petitioners of both cases. The case relied upon by the learned counsels would also not apply in view of the changed legal position. So far as the non compliance of Sub Section (2) of Section 15 of the Act is concerned, the position is made clear by Sub Section (1) thereof which provides that where the 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 a 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 grounds of his belief enter in any such premises without a warrant. Since a loose harness has been provided to the Police Officer to search a premises without a warrant, sub Section (2) of Section 15 providing for the presence of a woman witness at the time of search cannot be considered to be a mandatory provision. Even otherwise it is fool hardy to consider a situation where the Police Officer receives information of the commission of offence under the Act but he has to wait to procure a warrant as also to requisition the services of a woman witness by which time the - 6 - offenders have sufficient opportunity to escape. In my considered opinion I find no merit in the submissions advanced by the learned counsels for the parties although a brave effort was made to put forward a bonafide case. In view of the discussions made above, I do not find any merit in any of the two applications which are accordingly dismissed. (Abhijit Sinha,J) Patna High Court, Patna. Dated: The 15th of December, 2008. Pradeep Srivastava/A.F.R.