1 IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA Cr. Revision No. 96 of 2008. Date of Decision: 4-11-2008 ____________________________________________________________ State of H.P. Petitioner. Versus Sardara Singh and others. Respondents. Coram Hon’ble Mr. Justice Surinder Singh, J. Whether approved for reporting1?Yes. For the petitioner : J.S. Guleria, Law Officer. For the respondents : : Mr. Rahul Mahajan, Advocate. _________________________________________________________ Surinder Singh, J (oral) Learned trial Court after gong through the challan and the documents appended thereto, charge-sheeted only Bhupinder and Prem Lata for offences punishable under Sections 376, 342 and 506 read with Section 120-B of the Indian Penal Code but the respondents herein were discharged for the offences punishable under Sections 3, 4, 5, 6 and 9 of the Immoral Traffic (Prevention) Act, 1956. As such, the State has filed this revision petition against the respondents on the ground that the learned trial Court failed to appreciate the facts and law of the case against them in the right perspective. Heard learned counsel for the parties and examined the record. In brief, the case of the prosecution has been that during the intervening night of 12/13-11-2000, Sub Inspector Brij Mohan of Police Station, Parwanoo arrested one Bhupinder Singh along with Asha Devi under Section 109 of the Code of Criminal Procedure. On 13-11-2000, Whether reporters of the Local papers are allowed to see the judgment? Yes. 2 they were produced before the Executive Magistrate, Parwanoo. On the request of Asha Devi, she was allowed to disclose some material facts to Deputy Superintendent of Police, Parwanoo. Accordingly, Asha Devi was produced before the said Officer and she made a statement under Section 154 of the Code of Criminal Procedure and disclosed that she was member of flesh trade racket which is operated by her sister Poonam, Bhupinder Singh, Balwinder Singh and Prem Lata. They have hired the flats at different places like Pinjore, Kalka and Panchkula and have supplying the girls for prostitution to make money. One such house was at Parwanoo bearing House No. MIG-95 in Sector 4 from where they were operating this racket. The aforesaid persons were having different mobile numbers and used to charge rupees 5000/-, per girl out of this, rupees 1000/- was paid to her for the night and rupees 700/- for the day. She further disclosed that she spent many nights with the customers in the said house at Parwanoo. The said persons had also one Maruti Car which was used for supplying the prostitutes and to keep watch over them. She alleged rape by Bhupinder Singh on the pretext to marry her. She was criminally intimidated and threatened to do away with her life. The FIR was lodged. During the investigation, Jagmohan Singh alias Toni and Parveen Sharma respondents were arrested from the said house at Parwanoo. Smt. Rekha was arrested from Patiala. The said accused were medically examined. The vehicles were taken into possession along with one scooter. Balwinder Singh Kaushal was said to be the kingpin of the whole racket. He went under-ground and could not be arrested. The charge-sheet was filed in the Court against the respondents besides others under the Immoral Traffic Act and under Sections 376, 342, 506, 120-B, I.P.C. Accused Balwinder Singh, Sangita, Gurnam Singh, Asha Singh and Rekha were declared as proclaimed offenders. 3 The arguments on charge were heard by the learned Additional Sessions Judge. The respondents were charge-sheeted only for the commission of offence under the Immoral Traffic (Prevention) Act, 1956. He took notice of Section 7 and 13 of the Immoral Traffic (Prevention) Act, 1956 read with Section 13 of the said Act and put reliance on 2002 (2) Criminal Court Cases 358 Kerala and discharged the respondents as there was no allegation against them under Section 376, 324 and 506 of the Indian Penal Code, whereas accused Bhupinder Kumar @ Dara and Prem Lata were charge-sheeted under Section 376, 342, 506 read with Section 120-B, IPC. After the complete trial, they were also acquitted on 30-5-2008. Section 7 of the Immoral Traffic (Prevention) Act, in short the Act reads as follows:- “7. Prostitution in or in the vicinity of public places: (1) Any person who carried on prostitution and the person with whom such prostitution is carried on in any premises:- (a) which are within the area or areas notified under sub-section (3) or (b) which are within a distance of two hundred meters of any place of public religious worship, educational institution, hostel, hospital, nursing home or such other public place of any kind as may be notified in this behalf by the Commissioner of Police or magistrate in the manner prescribed shall be punishable with imprisonment for a term which may extend to three months. (IA) Where an offence committed under sub- section (1) is in respect of a child or minor the person committing an offence shall be punishable with imprisonment of either description for a term which shall not be less than seven years but which shall also be liable to fine; 4 Provided that the court may, for adequate and special reasons to be mentioned in the judgment, impose a sentence of imprisonment for a term of less than seven years. (2) Any person who- (a) being the keeper of any public place knowingly permits prostitutes for purposes of their trade to resort to or remain in such place; or (b) being the tenant, lessee, occupier or person in charge of any premises referred to in sub-section (1) knowingly permits the same or any part thereof to be used for prostitution or (c) being the owner, lessor or landlord of any premises referred to in sub-section (1) or the agent of such owner, lessor or landlord lets the same or any part thereof with the knowledge that the same or any part thereof may be used for prostitution, or is willfully a party to such use, shall be punishable on first conviction with imprisonment for a term which may extend to three months, or with fine which may extend to two hundred rupees and if the public place or premises happen to be a hotel, the license for carrying on the business of such hotel under any law for the time being in force shall also be liable to be suspended for a period of not less than three months but which may extend to one year: Provided that if an offence committed under this sub-section is in respect of a child or minor in a hotel, such license shall also be liable to be cancelled. Explanation: For the purposes of sub-section “hotel” shall have the meaning as in clause (6) of section 2 of 5 the Hotel Receipts Tax Act, 1980- (54 of 1980) (3) The State Government may having regard to the kinds of persons frequenting any area or areas in the State, the nature and the density of population therein and their other relevant considerations, by notification in the official gazette, direct that prostitution shall not be carried on in such area as may be specified in the notification. (4) Where a notification is issued under sub-section (3) in respect of any area or areas, the State Government shall define the limits of such area or areas in the notification with reasonable certainty. (5) No such notification shall be issued so as to have effect from a date earlier than the expiry of a period of ninety days after the date on which it is issued”. Thus, sub-section (1) of the above Section makes the “carrying on of prostitution” by any woman and the person with whom such prostitution is carried on, liable for punishment. The words “carries on prostitution” have a definite meaning and import. It is only if plural and indiscriminate sexuality is proved, it could be said that a person is carrying on prostitution. Whether the activity amounts to keeping of a brothel or using the premises as a brothel, there should be the activity of carrying on prostitution. The expression “Prostitution” had been defined under Section 2(f) as follows : “Prostitution” means the sexual exploitation or abuse of persons for commercial purposes and the expression “prostitute” shall be construed accordingly”. To become prostitute there should be the offering of her body by a female for promiscuous, i.e. indiscriminate sexual 6 intercourse for hire, whether in money or in kind. Meaning thereby that the woman or girl offering her body offers it for hire to anyone who desires it for sexual intercourse. In other words, the woman is available to be shared without any discrimination. If, therefore, excuses sexual intercourse which a person may have with a permanently kept concubine. Clauses (a) to (e) of sub-section (2) of section 7 of the Act also would only attract if the keeper, occupier, tenant or the person in charge of the premises knowingly permits prostitution in such premises. There is no such accusation against the respondents herein. The prosecution has no case that the respondents were keeping or possessing the premises in question and therefore, clauses (a) to (c) of sub-section (2) of Section 7 of the I.T.P. Act are also not attracted. The next question which survives for consideration is whether the detection, arrest and investigation was done by a ‘special police officer’ appointed by or on behalf of the Government for the area in question under Section 13 of the Act aforesaid. For a proper consideration of this question advertence to some of the provisions of the Act may be necessary. Section 2 (i) defines a “Special Police Officer” to mean a police officer appointed by or on behalf of the State Government to be in charge of police duties within a specified area for the purpose of the Act. This Court is not in this case concerned with “trafficking police officers” since they are police officers appointed by the Central Government under sub-Sec. (4) of Section 13 inserted by amendment Act 44 of 1986 w.e.f. 26-1-1987. Sub-sections (1) to (3) of Section of the Act read 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 7 Government for dealing with offences under this Act in that area. (a) 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 to do so, confer upon any retired police or military officer all or any of the powers conferre4d by or under this Act on a special police officer, with respect to particular case or cases 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. (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 woman 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 woman social welfare workers wherever practicable) to advise him on questions of general importance regarding the working of this Act. Thus, an officer not below the rank of an Inspector of Police i.e. the Circle Inspector of Police alone can be appointed by the State Government as a Special Police Officer. 8 Section 14 of the Act read as follows :- “14. Offences to be cognizable- Notwithstanding anything contained in the Code of Criminal Procedure, 1973 (2 of 1974), any offence punishable under this Act shall be deemed to be a cognizable offence within the meaning of that Code: Provided that, notwithstanding anything contained in this Code, (i) arrest without warrant may be made only by the special police officer or under his direction of guidance, or subject to his prior approval; (ii) when the special post officer requires any officer subordinate to him to arrest without warrant otherwise than in his presence any person for an offence under this Act, he shall give the subordinate officer an order in writing, specifying the person to be arrested and the offence for which the arrest is being made; and the latter officer before arresting the person shall inform him of the substance of the order and, on being required by such person, show him the order; (iii) any police officer not below the rank of (sib-inspector) specially authorized by the special police officer, if he was reason to believe that no account of delay involving in obtaining the order of the special police officer, any valuable evidence relating to any offence under this Act is likely to be destroyed or concealed, or the person who has committed or is 9 suspected to have committed the offence is likely to escape, or if the name and address of such a person is unknown or there is reason to suspect that a false name or address has been given, arrest the person concerned without such order, but in such a case he shall report, as soon as may be, to the special police officer the arrest and the circumstances in which the arrest was made”. In exercise of the powers under Section 13 of the Act, the Government of Himachal Pradesh is stated to have issued the notification on 24.10.2002 (Gazette copy not produced) which is the date subsequent to the date of the alleged incident having no retrospective effect. In order to effectively enforce the provisions of the Act, it is essential that the Officers are duly authorized as per Section 13 of the Act. Section 13 (2) provides that the Special Officer shall not be below the rank of Inspector of Police. This notification is intended to achieve the above purpose. Since the notification in the instant case is subsequent to the alleged incident, thus it is futile to the learned law officer to contend that at the stage of framing of charge, the date of notification is not to be seen. When the Investigating Officer in the present case could not have exercised the powers of investigation, arrest, seizure etc, the whole evidence so collected and produced before the Court is an exercise in futility and the prosecution case is bound to fall to doll-drums even on merits. The result of the foregoing discussion is that in absence of mandatory requirement of Section 7 and 13 of 10 the Act, the learned trial Court had rightly discharged the respondents. Accordingly, the revision petition is dismissed. (Surinder Singh) Judge. November 4, 2008. (bm)