BAI RADHA versus STATE OF GUJARAT

BAI RADHA

STATE OF GUJARAT

November 20, 1968

[J. C. SHAH, V. RAMASWAMI AND A. N. GROVER, JJ.]

Suppression of lmmoml Traffic in Women and Girls Act (104 of 1956), ss. 15(1) and (2)-Trial ending in conviction-Provisions of s. 15 disregarded during investigation-No prejudice to accused-Effect on trial.

The appellant was convicted for offences punishable under ss. 3 (I) and 4( !) of the Suppression of Immoral Traffic in Women and Girls Act, 1956. The special police officer conducted raid on the appellant's house which was being kept as brothel and recovered marked currency notes from the appellant. He took with him two persons to witne'S the search but they were not inhabitants of the locali1y as required by s. 15 (2) of the Act. After the scacch he prepared document. It did not satisfy the requirements of s. 15(1) as it did not contain any ground on which he formed the belief that an offence under the Act was bemg committed in the premises and that search of the premises with warrant cannot be made without undue delay.

On the qu.,tion whether the trial was illegal as there was violation of s. 15(1) and (2).

HELD : The Act being special one search under the Act must comnly with s. 15. Investigating agencies ought not to disregard the special sa'feguards such as those in s. 15(1) and (2) provided by the Legislature, but the trial itself would not be vitiated if there was non-comoliance with such directions unless thereby some prejudice is caused to the. accused. The court however, has to be very careful in weighing the evidence where there has been such non-Ob'iervance of the provisions. [803 G-H; 805 E----Gl

(a) !hough the re_cordi~g. of reasons may be necessary C011dition for making search, 1unsd1ction to make search is not derived there-from. The power to search is conferred by statute. Therefore, omission to _record reas.ons be'fore the search or even thereafter in proper way would not by itself affect the validity of the search. [803 A-Bl '

State of Rajasthan v. Rehman, [1960] [ S.C.R. 991, followed .

. • (b) Unde_r s. 5(2) Criminal Procedure Code, all proceedings includ· 10, . ., 1nve'ihgat1.on of offences under any law. have to be conducted in accordance ~1th the .~rocedure laid down in the Code except to the extent of anv snec1fic nrov1s[1]on contained in special Act Under th s . ~[10]~ of I~.moralf Traffic Act there is no provision de~ling with th~ e~~~tr~f on. ravcn100 o s. 15. There'fore, the law with re_gard to the effect of an meru 1ar search under s. 165 of the Code would apply. Where trial has ~~vill toa/.'~n !~_ken. place, under _ha~ no bearing on the result s. 537 of the Olde of defect the trial unless the iriegularity or an illegalit in the th · eqa [1]~ J'i s .own to have 'hrou!:!'ht ~bout milicarriag~ of iustice Sine"' c;i e_ n~n-o ~ervan~e of th~ provisions of s. 15(2) of the Act. in the Prc"ien't 'se, !s m:re 1rre.gu]aritv. the conviction o'f the appellant cou[1]d not be ~et.as1de[as It was not shown that the irregularity caused ony failure of 1us .1tee. 804 B-C; 805 B, E, H-806 Bl

H. N. Rishbud & Inder Singh v. State of Delhi, [1955] I S.C.R~ 1150 and State of U.P. v. Bhagwati Kislwre Jashi, [1964] 3 S.C.R. 71, followed.

Delhi Administration v. Ram Singh, [1962] 2 S.C.R. 694 and Public Prosecu-tor, Andhra Pradesh v. U, Nageswararao A.LR. 19€5 A.P. 176, re-ferred to.

CRIMINAL AP PELLA TE JURISDICTION : Crim\nal Appeal No. 1 (N) of 1967.

Appeal by special leave from the judgment and order dated October 12, 13, 1966 of the Gujarat High Court in Criminal Appeal No. 390 of 1965.

B. Datta, for the appellant.

H. R. Khanna and B. D. Sharma, ,for the respondent.

The Judgment of the Court was delivered by

Grover, J. The sole point which arises for decision in this appeal by special leave is whether the trial became illegal by reason of the search not having been conducted strictly in accord-ance with the provisions of s. 15 of the Suppression of Immoral Traffic in Women & Girls Act, J 956 (Act CIV of 1956), here-inafter called the "Act".

The facts need not be stated in detail. The appellant and two other persons were tried for various offences under the provi-sions of the Act, the charge substantially against her being that she was keeping brothel in her house and knowingly lived on the earnings of the prostitution of women and girls. All the three accused persons were acquitted by the magistrate. The State preferred an appeal to the High Court against the appellant and the third accused only. The High Court set aside the order of acquittal in respect of the appelJant and convicted her for offences punishable under ss. 3(1) and 4(1) of the Act. She was sentenced to suffer rigorous imprisonment .for one year arid to pay fine of Rs. 200/-, (in default to suffer further rigorous imprison-ment for six months) and to suffer rigorous imprisonment for six months on the second count, the sentences of imprisonment being concurrent.

The prosecution case was that on receiving complaints from several residents of the locality raiding party was organised. The services of decoy witness Kishan Taumal were requisitioned and he agreed to work as the punter. After ascertaining that he had rio money he was given Rs. 8/- in all. That amount in-cluded currency note of Rs. 51- and three currency notes of Re. 1/- each, the numbers of notes having been noted down in the first part of the panchnama. The punter was instructed to ])and over the amount for the charges that WQuld tiavc; to be

paid for having sexual intercourse with any girl or woman in the appellant's house. He was, however, only to engage himself in talk not the. actual act. panch witness Prem Singh Hiraji was also to accompany the raiding party. The raid was ultimately made according to the original plan and Kishan, the punter manag-ed to engage women in conversation in room in the house of the appellant. The raiding party found that she had opened the but -tons of her blouse and she was found with her clothes in such disordered condition that it was apparent that she was getting ready to have sexual intercourse with Kishan; but on seeing the police party she got up and dressed herself. The seven currency notes i.e. one five rupee note and two of one rupee currency notes were recovered from the appellant which were marked and had been given by Kishan. Sub-sections (1) & (2) of s. 15 of the Act provide as follows :

"(l) Notwithstanding anything contained in any other law for the time being in force, whenever the special po-lice officer has reasonable grounds for believing that an offence punishable under this Act lhas been or is being committed in respect of woman or girl living in any premises, and that such search of the premises with warrant cannot be made without undue delay, such officer may, after recording the grounds of his belief, enter and search such premises without warrant.

(2) Before making search under sub-section (1) the special police officer shall call upon two or more respectable inhabitants (at least one of whom shall be 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."

What has been stressed greatly by learned counsel for the appel-lant is that the Act being special Act its provisions should have been strictly followed. It is pointed out that the panch witness Prem Singh was not an inhabitant of the locality in which the place to be searched was situate. Another panch witness had also been taken who was woman (Bai Shanta) to satisfy the require-ment of sub-s. (2) of s. 15 but she also was not an inhabitant of the locality where the house of the appellant was situate. It has been pointed out that in Public Prosecutor, Andhra Pradesh v. Uttaravalli Nageshwararao(') it was held by Sharfuddin Ahmed J., that the Act being special piece of legislation enacted with JI specific purpose all the directions contained in s. 15 were man-datory. According to the learned judge while the recording of

(']) A.l.R. !965'A.P. 176,

reasons for proceeding without obtaining the search warrant might not be done, which was matter of discretion, so far as the requisition of the services of the respectable inhab~tants was c~n­cerned the direction was mandatory and the legislature by m-sisting on the presence of one woman mediator at the time of search had undoubtedly chosen to safeguard the interests of the persons with whom the Act was intended to deal. In that case the services of woman mediator had not been requisitioned at all. The search was held to be altogether illegal with the result that the accused person in that case was acquitted and his acquittal was upheld by the High Court.

In the present case two main defects have been pointed out in the matter of search; one is that the special police officer Shri Mankad has been found both by the Magistrate and the High Court to have prepared the document Ext. 8/ long after the search. As found by the High Court this document contained reproduction of s. 15(1) and it hardly contained any ground on which the police officer had formed the belief with regard to the matters st.ated in sub-s. ( 1). The other JJoint which has been pressed on behalf of the appellant relates to contravention of sub-s. (2) inasmuch as the panch witnesses were not inhabitants of the locality in which the appellant's house was situate. The High Court was of the view that power to conduct the search was derived from the statute and not from the recording of rea-sons and therefore the search was not rendered illegal, in the present case, on account of contravention of s. 15(1) of the Act. On the second point it was held that there was no provision in Jaw which rendered the evidence of the panch witnesses inadmis-sible even though s. 15 (2) had been contravened. The High Court did not airree with the decision of the Andhra Pradesh High Court that the directions contained in sub-s. (2) were of mandatory nature.

Onr attention h~s been drawn to State of Raiasthan v. Reh-man(') in which Denuty Suuelintendent of Central Excise who had received informat1on that the respondent in that case had cultivated tobacco but had not paid the excise duty, went to search his house. He was obstructed, while making the search with the result that he fell down and was injured. ·The respon-dent was prosecuted under s. 353. Indian Penal Code. It was held that s. 165 of the Code of Criminal Procedure was appli-cable to such search and the search being in contravention of that section it was illegal. The respondent therefore. had be~n rfahtlv ~cauitted. In this case. however. it was observed thM the recording of reasons under s. 165 did not confer on the officer I) [1961] I.S.C.R. 991

jurisdiction to make search though it is necessary condition for uomg so. J u<1su1cuon or power LO maKe search was conferred by the S•dtute amt not uenved from tne recoruing of reasons. 'lhese ooservauons are surnc1ent to a1spose or the nrst point which has been pre>sea aoout tne om1ss10n to record the reasons berore the searcn or even thereatLer m proper way. lhis case cann0t be of mucn assistance to the appellant because no quesuon is involved in tne present case of any pubhc servant havmg been obstructed in the course of search conducted under s. l 6J of the Cruninal Procedure Code. The tnal of che appeLant was for contravention of certain provisions of the Act ana the search was made in res-pect of those otfences. The trial having taken place the question of the applicao1llty of s. 537 of the Criminal Procedure Code will at once arise. lf the non-observance of the provisions of s. 15(2) 1s not an illegality but is mere irregulanty then the sen-tence cannot be set aside unless it can be shown that such irre-gulanty has caused failure of justice. As will be presently seen we are of the opinion that non-compliance with the directions contained in s. 15(2) in the matter of search would only be an irregularity and not such an illegality which will vitiate the trial. The decis10n in Deihi Administration v. Ram Singh( [1 ]) which con-cerned offences committed under the Act and on which reliance has beea placed on behalf of the appellant involved different point. There the police officer who had entered the premises where the offences were alleged to be committed was not special police officer who alone is authorised to do the various things mentioned in the provisions of the Act. It was observed that the Act created new offences and provided for the forum before which they would be tried. Necessary provisions of the Code of Cri-minal Procedure had been adopted fully or with modification. As the Act provided machinery to deal with the offences created the necessary implication must be that the new machinery was to deal. with those offenc.es in ~ccordance with the provisions of the special Act. The ~nt.lfe police. work m connection with the pur-poses of the Act. withm certam area had been put in the charge ?f special police officer. According to the majority judgment ~n that case, only the special police officer was competent to mvest1gate .and as the inv~stigation had been conducted by regular police officer who did not come within the category of special police officer the order ·of the magistrate quashing the charge-sheet was upheld. This cas~ certainly supports one part of the subm1ss10n of. the counsel for the appellant that the Act is complete Code with respect to what has to be done under it Jn that sense it would be legitimate to say that search whi~h is to be_ con~ucted under tJ_ie Act must comply with the provisions contamed m s. 15; but It cannot be held that if search is not

< "'< "

(I) [1962] 2 S.C.R. 694.

carried out strictly ~n accordance with the provisions of that sec-tion the trial is rendered illegal. There is hardly any paral!el between an officer conducting search who has no authonty under the law and search having been made which does not strictly conform to the provisions of s. lS of the Act. The prin-ciples which have been settled with regard to the effect of an irregular search made in exercise of the powers under s. 165 of the Code of Criminal Procedure would be fully applicable even to case under the Act where the search ilias not been made in strict compliance with its provisions. It is significant that there is no provision in the Act according to which any search carried out in contravention of s. 15 would render the trial illegal. In the absence of such provision we must apply the law which-has been laid down with regard to searches made under the pro-visions of the Criminal Procedure Code.Now in The State of Uttar Pradesh v. Bhagwati Kishore Joshi(') this Court had to deal with case where booking clerk was stated to have committed an offence of criminal breach of trust. Sub-Inspector of police made some investigation and submitted report but this was done without obtaining the order of magistrate. Subsequently the permission of the magistnite was obtained to investigate into the case as required by s. SA of the · Prevention of Corruption Act. After making further investiga-tion he submitted charge sheet. The respondent in that case· was tried and convicted under s. 5(2) of that Act. It was held by this Court (by the majority) that there was contravention of s. SA of th~ Prevention of Corruption Act at the first stage of investigation when the requisite permission of the magistrate had not been obtained but after the permission had been given there was practically de novo investigation. Therefore the accused not having been prejudiced by the illegality committed by the police, the conviction could not be set aside on the ground of mere irregularity or illegality in the matter of investigation. The following passage at p. 84 may be usefully reproduced :-

"The High Court set aside the conviction on the ground that there was breach of the mandatory safe-guards of the Act in that the .first stage of the investiga-tion was contrary to the provisions of the Act. But it did not consider the other question whether the said breach caused prejudice to the accused in the matter of his trial. In doing so, the High Court ignored the pro-visions of s. 537 of the Code of Criminal Procedure. Having carefully gone through the record for the reasons aforesaid, we are satisfied that no such prejudice has

been caused to the accused. He had fair trial and had his full say."

It is abundantly clear that s. 537 of the Cr.P.C. would be applic-able to the proceedings in the present case. Section 5(2) of the Code provides that all offences un.der the Indian .Penal Cod~ shall be investigated, inquired into, tned and otherwise dealt with ac-cording to the provisions of the Cr.P.Code. All offen~es. under any other law shall be similarly investigated etc. acc<;irdmg to the same provisions but subject to any enactment regulatmg the man-ner or place of investigating, inquiring into, trying or otherwise dealing with such offences. According to s. 22 no court inferior to that of magistrate as defined in clause (c) of s. 2 shall try any offence under ss. 3 to 8 of the Act.

Thus all proceedings including investigation had to be con-ducted in accordance with the procedure laid down in the Crimi-nal Procedure Code except to the extent of the specific provisions contained in the Act. No such provision has been brought to our notice nor indeed has it been contended that s. 537 of the Code of Criminal Procedure would not govern the investigation, inquiry or. trial of the offences with which the appellant was charged. The ratio of the decision in the case of Bhagwati Kishore Joshi('). must be followed and in the absence of any prejudice having been shown by non-compliance with the provisions of sub-ss. (l}· and (2) of s. 15 of the Act, the order of the High Court must be upheld. ,

. In conclusion it may be observed that the investigating agen-cies cannot and ought not to show complete disregard of such provisions as are contained in sub-ss. (1) and (2) of s. 15 of the Ac~. The legislature in its wisdom provided special safeguards owmg. to the nature of the premises which have to be searched mvolv.mg ~nroa?s on the privacy of citizens and handling of deli-cate sltuatrons m respect of fenrnles. But the entire proceedings and the tnal do not become r.llegal ~nd vitiated owing to the ~on-observan~e of or. ~on-complrance wrth the direction contained m the afores~rd prov1s10ns. The court, however has to be v careful and crrc.umspect in weighing the evidence' where there ~~~ been such fil!lure on the part of the investigating agency but unless and untrl some prejudice is shown to have been caused to the accused ~erson or persons the conviction and the sentence cannot ~e ~et aside. I~ may not be out of place to reiterate what was Delh1(. sard m 2)_, that defect. or an illegality in the investigation, H. N. R1shbud and lnder Singh v. The State ho~­f ever senous, h~s no drrect bearing on the competency or th procedure relatmg to cognizance or trial of an offence and tha~ (1) [1964] J S.C.R. 71. (2) [1955] I S.C.R, t 15 1_ 4 Sup Cl/69--19