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PETITIONER: BAI RADHA

       Vs.

RESPONDENT: STATE OF GUJARAT

DATE OF JUDGMENT: 20/11/1968

BENCH: GROVER, A.N. BENCH: GROVER, A.N. SHAH, J.C. RAMASWAMI, V.

CITATION:  1970 AIR 1396            1969 SCR  (2) 799  1969 SCC  (1)  43  CITATOR INFO :  RF         1972 SC 886  (6)

ACT: Suppression of Immoral 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.

HEADNOTE: The  appellant was convicted for offences  punishable  under ss. 3(1)   and 4(1) of the Suppression of Immoral Traffic in Women  and  Girls Act,   1956.  The special  police  officer conducted  a   raid on  the  appellant’s   house  which  was being  kept  as  a brothel  and  recovered  marked  currency notes  from the appellant.  He took with him two persons  to witness  the   search but they were not inhabitants  of  the locality  as required by s. 15(2)   of the Act.   After  the search  he  prepared a 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 being committed in the premises and that a search of the premises with warrant cannot be   made without undue delay. On the question whether the trial was illegal as there was a violation of  s. 15(1) and (2). HELD:  The  Act being a special one a search under  the  Act must   comply with s. 15.  Investigating agencies ought  not to  disregard  the   special safeguards such as those in  s. 15(1) and (2)  provided  by the   Legislature, but the trial itself would not be vitiated  if there was noncorrosive 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- observance of the provisions.  [803 G--H; 805 E-G] (a)  Though  the  recording of reasons may  be  a  necessary condition   for  making  a search, jurisdiction  to  make  a search  is  not derived therefrom.  The power to  search  is conferred  by  statute.   Therefore,  omission    to  record reasons  before  the search or even thereafter in  a  proper way, would not by itself affect the validity of the  search. [803  A-B]   State of Rajasthan v. Rehman, [1960]  1  S.C.R.

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991, followed.   (b) Under s. 5(2) Criminal Procedure  Code, all  proceedings including investigation of  offences  under any  law, have  to be  conducted  in   accordance  with  the procedure  laid down in the Code except to the  extent    of any  specific  provision contained in a special Act.   Under the  Suppression  of  Immoral  Traffic  Act  there  Tim   no provision  dealing with the effect of   contravention of  s. 15.   Therefore, the law with regard to the effect  of    an irregular  search  under  s. 165 of the  Code  would  apply. Where a trial   has taken p1ace, under s. 537 of the Code  a defect  or  an illegality in  the    investigation   has  no bearing  on the result of the trial unless the  irregularity or  illegality is Shown to have brought about a  miscarriage of  justice. Since  the non-observance of the provisions  of s.  15(2)  of  the Act  in the present    case,  is  a  mere irregularity,  the conviction of the appellant could not  be set  aside as it was not shown that the irregularity  caused any failure  of   justice. [804 B--C; 805 B, E, H--806 B] 800      H.N. Rishbud & Inder Singh v. State of Delhi, [1955]  1 S.C.R.  1150  and State of U.P.v.  Bhagwati  Kishore  Joshi, [1964] 3 S.C.R. 71, followed.      Delhi Administration v. Ram Singh, [1962] 2 S.C.R.  694 and  Public  Prosecutor, Andhra Pradesh v.  U.  Nageswararao A.I.R. 1965 A.P. 176, referred to.

JUDGMENT: CRIMINAL APPELLATE JURISDICTION: Criminal 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 accordance with the provisions of s. 15 of  the Suppression  of Immoral Traffic in Women & Girls  Act,  1956 (Act CIV of 1956), hereinafter called the "Act".     The  facts need not be stated in detail.  The  appellant and two other persons were tried for various offences  under the provisions of the Act, the charge substantially  against her  being that she was keeping a 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  appellant 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 and to pay a  fine of  Rs.  200/-,  (in  default  to  suffer  further  rigorous imprisonment   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  a  raiding  party  was organised.The services of a decoy witness Kishan Taumal were requisitioned  and he agreed to work as the  punter.   After ascertaining  that he had no money he was given Rs.  8/-  in all.   That amount included a currency note of Rs.  5/-  and

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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 hand over the amount  for  the charges that would have to be 801 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.  A 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 managed to engage a women in conversation in a room in the house of the appellant.  The raiding  party found that she had opened the buttons of her blouse and  she was  found with her clothes in such a  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:                  "(1) Notwithstanding anything contained  in               any  other  law for the time being  in  force,               whenever   the  special  police  officer   has               reasonable  grounds  for  believing  that   an               offence punishable under this Act has been  or               is  being committed in respect of a  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  a               warrant,               (2)  Before making a search under  sub-section               (1) the special police officer 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." What  has been stressed greatly by learned counsel  for  the appellant is that the Act being a 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 p1ace to be  searched  was  situate. Another  panch witness had also been taken who was  a  woman (Bai Shanta) to satisfy the requirement 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(1)  it was held by Shar fuddin Ahmed J.,  that the Act being a special piece of legislation enacted with  a specific purpose all the directions contained in s. 15  were mandatory.   According  to  the  learned  judge  while   the recording of (1) A.I.R, 1965 A.p. 176. 802 reasons for proceeding without obtaining the search  warrant might not be done, which was a matter of discretion, so  far as  the  requisition  of the  services  of  the  respectable inhabitants  was concerned the direction was  mandatory  and the  legislature by insisting 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

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intended  to  deal.  In that case the services  of  a  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/A 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 stated in sub-s.. (1 ).  The other point 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 reasons  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 law which rendered the evidence of  the  panch witnesses  inadmissible  even  though  s.  15(2)  had   been contravened. The High Court did not agree with the  decision of  the  Andhra  Pradesh  High  Court  that  the  directions contained in sub-s. (2) were of a mandatory nature.     Our  attention has been drawn to State of  Rajasthan  v. Rehman(1) in which a Deputy Superintendent of Central Excise who  had  received information 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 respondent was prosecuted under s. 353. Indian Penal Code.  It was held that s. 165 of the Code of Criminal Procedure  was  applicable to such a search and  the  search being in contravention of that section it was illegal.   The respondent. therefore  had been rightly  acquitted  In  this case bowever. it was observed that the recording  of reasons under s. 165 did not confer on the officer [1969] I.S.C.R. 991 803 jurisdiction  to  make  search  though  it  is  a  necessary condition  for  doing so. Jurisdiction  or power to  make  a search was conferred by the statute and not derived from the recording  of reasons. these observations are sufficient  to dispose of the first point which has been pressed about tile omission  to  record the reasons before the search  or  even thereafter  m  a  proper way. This case cannot  be  of  much assistance to the appellant because no question is  involved m  tile  present  case of any public   servant  having  been obstructed in the course of a search conducted under s.  165 of the Criminal Procedure Code.  The trial of the  appellant was  for contravention of certain provisions of the Act  ann the search was made in respect of those offences.  The trial having  taken place the question of the applicability of  s. 537  of the Criminal Procedure Code will at once arise.   If the non-observance of the provisions of s. 15 (2) is not  an illegality  but  is a mere irregularity  then  the  sentence cannot  be  set  aside  unless it can  be  shown  that  such irregularity  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  decision  in

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Delhi   Administration  v.  Ram  Singh(1)  which   concerned offences  committed under the Act and on which reliance  has been placed on behalf of the appellant involved a  different point.   There  the  police  officer  who  had  entered  the premises where the offences were alleged to be committed was not  a 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 Criminal 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 offences in accordance with the  provisions of  the special Act.  The entire police work  in  connection with the purposes of the Act within a. certain area had been put in the charge of a special police officer.  According to the majority judgment in that case, only the special. police officer   was   competent   to  investigate   and   as   the investigation had been conducted by a regular police officer who  did  not come within the category of a  special  police officer  the  order of the magistrate quashing  the  charge- sheet was upheld.  This case certainly supports one part  of the submission of the counsel for the appellant that the Act is a complete Code with respect to what has to be done under it.   In  that sense it would be legitimate to  say  that  a search  which is to be conducted under the Act  must  comply with  the  provisions contained in s. 15; but it  cannot  be held that if a search is not (1) [1962] 2  S .C.R. 694. 804 carried  out strictly in accordance with the  provisions  of that section the trial is rendered illegal.  There is hardly any  parallel between an officer conducting a search who has no  authority  under the law and a search having  been  made which  does not strictly conform to the provisions of s.  15 of  the  Act.  The principles 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 a case under the Act where the  search has 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 a provision we must apply the law  which has  been laid down with regard to searches made  under  the provisions of the Criminal Procedure Code.     Now in The State of Uttar  Pradesh  v.  Bhagwati Kishore Joshi(1) this Court had to deal with a case where a  booking clerk  was stated to have committed an offence  of  criminal breach  of  trust.   A Sub-Inspector  of  police  made  some investigation   and  submitted a report but  this  was  done without  obtaining the order of a  magistrate.  Subsequently the permission of the magistrate was obtained to investigate into  the  case as required; by s. 5A of the  Prevention  of Corruption  Act.   After  making  further  investigation  he submitted  a 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   a contravention  of s. 5A of the 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  a  de novo. investigation.  Therefore the accused not having  been prejudiced  by the illegality committed by the  police,  the

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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 a breach of  the               mandatory  safeguards of the Act in  that  the               first   stage  of  the  investigation  .   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 provisions  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               (1) [1964] 3 S.C.R. 71.               805               been  caused  to the accused. He  had  a  fair               trial ’and had his full say." It  is abundantly clear that s. 537 of the Cr.P.C. would  be applicable to the proceedings in the present, case.  Section 5(2) of the Code provides that all offences under the Indian Penal  Code shall be investigated, inquired into, tried  and otherwise  dealt  with according to the  provisions  of  the Cr.P.Code.   All  offences  under any  other  law  shall  be similarly investigated etc. according to the same provisions but subject to any enactment regulating the manner or  place of  investigating,  inquiring  into,  trying  or   otherwise dealing  with  such offences.  According to s. 22  no  court inferior to that of a 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 conducted in accordance with the procedure laid down in  the Criminal 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(1) must  be  followed and  in  the absence of any prejudice having been  shown  by non-compliance with the provisions of sub-ss. (1) 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 agencies 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 Act.  The legislature in its  wisdom  provided special safeguards owing to the nature of the premises which have  to  be searched involving inroads on  the  privacy  of citizens  and handling of delicate situations in respect  of females.   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.  It may not be out  of place to reiterate what was  said in H.N. Rishbud and  Inder Singh  v.  The  State  of Delhi(2),  that  a  defect  or  an ii.legality  in the investigation, however serious,  has  no

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direct bearing on the  competency or  the procedure relating to cognizance or trial of an offence and that (1) [1964] 3 S.C.R. 71. (2) [1955] 1 S.C.R, 115 . 4 Sup CI/69 19 806 whenever  such  a situation arises, s. 537 of  the  Code  of Criminal Procedure is attracted and unless the  irregularity or the illegality in the investigation or trial can be shown to  have brought about a miscarriage of justice, the  result is not affected. For the above reasons this appeal fails and it is dismissed. V.P.S.                                  Appeal dismissed. 807