Crl. Misc. No.M-49242 of 2007 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH. Crl. Misc. No.M-49242 of 2007 Date of Decision: 14.01.2011 Jiwanjot ....Petitioner Versus State of Punjab and others ....Respondents CORAM : Hon'ble Ms. Justice Nirmaljit Kaur Present:- Mr. M.S. Kang, Advocate for the petitioner. Mr. K.S. Pannu, D.A.G., Punjab for the respondent-State. ***** 1. Whether Reporters of Local Newspapers may be allowed to see the judgment ? 2. To be referred to the Reporters or not ? 3. Whether the judgment should be reported in the Digest ? ** NIRMALJIT KAUR, J. This is a petition under Section 482 of Cr.P.C for quashing of FIR No.129 dated 07.10.2006 registered at Police Station Beas, Police District Majitha under Sections 3, 4 and 5 of the Immoral Traffic (Prevention) Act, 1956 qua the petitioner. The only argument raised by learned counsel for the petitioner is that the search was conducted without compliance of provisions of Section 15(1) read with Section 15(2) of the Immoral Traffic (Prevention) Act, 1956. The search party before making a search was required to call upon two or more respectable inhabitants of a locality, at least one of whom was required to be a woman. This having not been done, the proceedings are vitiated and are rendered illegal. Reliance has been placed on the judgment of Hon'ble the Apex Court rendered in the case titled as State of Punjab vs. Baldev Singh etc. reported as AIR 1999 Supreme Court 2378(1). Crl. Misc. No.M-49242 of 2007 2 Heard. As per the FIR, Balwinder Kaur was carrying on immoral traffic in her house by making it an Adda for immoral traffic. On a raid conducted by the police upon secret information, the petitioner and three other women were apprehended at the spot, whereas, two of their accomplices ran away. Challan in this case has already been presented in the Court of Sub Divisional Judicial Magistrate, Baba Bakala. Charges have been framed against the petitioner and his co-accused. One of them i.e. Anju co- accused has been declared proclaimed offender. Reply by way of affidavit of Deputy Superintendent of Police, Baba Bakala has been filed. As per the reply, the Investigating Officer DSP Kulwinder Singh Theasa tried to join the independent witness at the time of arrest of the petitioner but nobody came forward to join the police investigation. It is further stated that no body had come forward to join probably with a view to avoid enmity and wrath of the accused persons. It is also stated that this fact of making attempt to associate public witnesses in the raiding party at the time of conducting search and their reluctance to join the raiding party was recorded in the case diary dated 07.10.2006. It was further submitted that besides Investigating Officer and other police party consisted of lady constable Charanjit Kaur and the search of the lady accused was got conducted from said lady constable. There is absolutely no doubt with the proposition of law that the safeguards provided under Section 15 of Immoral Traffic (Prevention) Act, 1956 or the procedure prescribed for search should be followed. However, whether an effort was made to include independent witness in this search and as to whether the safeguards provided in Section 15 of the Act were duly observed or not will have to be determined by the Court on the basis of evidence led at the trial. The finding on that issue, one way or the other, would be relevant for recording an order of conviction or Crl. Misc. No.M-49242 of 2007 3 acquittal. Without giving an opportunity to the prosecution to establish, at the trial, that the provisions of Section 15 were complied with or nor or whether the non-compliance of the same would have any bearing on the facts of the case will be determined at the time of trial and an evidence before the court after taking into account the other circumstantial evidence. Thus, it would not be appropriate to cut short the trial in serious offences as the present one, which is against the Society and against the public policy. In the case of State of Punjab (supra), the accused was acquitted in appeal. The said case does not help the petitioner, in as much as, the order of acquittal was passed in an appeal i.e after the evidence was duly recorded and the trial was allowed to proceed. In fact, one of the conclusions arrived at on the basis of the reasoning and discussion in the said case is as under :- “55. xxx xxx xxx 1, 2, 3, 4. xxx xxx xxx 5. That whether or not the safeguards provided in Section 50 have been duly observed would have to be determined by the Court on the basis of evidence led at the trial. Finding on that issue, one way or the other, would be relevant for recording an order of conviction or acquittal. Without giving an opportunity to the prosecution to establish, at the trial, that the provisions of Section 50, and particularly the safeguards provided therein were duly complied with, it would not be permissible to cut short a criminal trial.” Similarly, in the present case as well, the trial cannot be cut short and the prosecution will have to be given an opportunity to lead their evidence and prove as to whether Section 15 of the Act was complied with or not and whether the non-compliance of the same, in any way, render the trial unfair in the facts and circumstances of the present case and in the face of other circumstantial evidence or not. Such a finding can only be Crl. Misc. No.M-49242 of 2007 4 recorded after deciding the issues, which can only be done, if the prosecution is given due opportunity to lead evidence. Hon’ble the Apex Court in the case of Pankaj Kumar vs. State of Maharashtra reported as 2008(4) RCR (Criminal) 890 while discussing the scope and ambit of powers of the High Court under Section 482 Cr.P.C., as well as, the expression “rarest of rare cases” observed in paras 10, 11 and 12 as under :- “10. The scope and ambit of powers of the High Court under Section 482 Cr.P.C or Article 227 of the Constitution has been enunciated and reiterated by this Court in a series of decisions and several circumstances under which the High Court can exercise jurisdiction in quashing proceedings have been enumerated. Therefore, we consider it unnecessary to burden the judgment by making reference to all the decisions on the point. It would suffice to state that though the powers possessed by the High Courts under the said provisions are very wide but these should be exercised in appropriate cases, ex debito justitiae to do real and substantial justice for the administration of which alone the courts exist. The inherent powers do not confer an arbitrary jurisdiction on the High Court to act according to whim or caprice. The powers have to be exercised sparingly, with circumspection and in the rarest of rare cases, where the court is convinced, on the basis of material on record, that allowing the proceedings to continue would be an abuse of the process of the court or that the ends of justice require that the proceedings ought to be quashed. 11. Although in Bhajan Lal’s case (supra), the court by way of illustration, formulated as many as seven categories of cases, wherein the extra-ordinary power under the afore-stated provisions could be exercised by the High Court to prevent abuse of process of the court yet it was clarified that it was not possible to lay Crl. Misc. No.M-49242 of 2007 5 down precise and inflexible guidelines or any rigid formula or to give an exhaustive list of the circumstances in which such power could be exercised. 12. The purport of the expression “rarest of rare cases” has been explained very recently in Som Mittal (supra). Speaking for the three-Judge Bench, Hon’ble the Chief Justice has said thus : “When the words `rarest of rare cases’ are used after the words `sparingly and with circumspection’ while describing the scope of Section 482, those words merely emphasize and reiterate what is intended to be conveyed by the words `sparingly and with circumspection’. They mean that the power under Section 482 to quash proceedings should not be used mechanically or routinely, but with care and caution, only when a clear case for quashing is made out and failure to interfere would lead to a miscarriage of justice. The expression “rarest of rare cases” is not used in the sense in which it is used with reference to punishment for offences under Section 302 IPC, but to emphasize that the power under Section 482 Cr.P.C to quash the FIR or criminal proceedings should be used sparingly and with circumspection.” Applying the test and the legal position as above, the case, in hand, does not fall in any of the exceptions, as well as the expression “rarest of rare cases” where the FIR can be quashed while exercising power under Section 482 Cr.P.C. Dismissed accordingly. (NIRMALJIT KAUR) 14.01.2011 JUDGE gurpreet