# BAI RADHA v. STATE OF GUJARAT

- **Citation:** [1969] 2 S.C.R. 799
- **Court:** Supreme Court of India
- **Decided:** 1968-11-20
- **Bench:** J. C. Shah, V. Ramaswami, A. N. Grover
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/bai-radha-v-state-of-gujarat-4592
- **Pages:** 8

## Headnote

799
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 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 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 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 bemg committed
in the premises and that a search of the premises with warrant cannot be
made without undue delay.
On the qu.,tion 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
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 noncomoliance 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 a necessary
C011dition
for making a search, 1unsd1ction to make a search is not derived therefrom.
The power to search is conferred by statute.
Therefore, omission
to _record reas.ons be'fore the search or even thereafter in a 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 1on contained in a special Act
Under th s .
~10~ of I~.moralf Traffic Act there is no provision de~ling with th~ e~~~tr~f
on. ravcn
1
100 o s. 15.
There'fore, the law with re_gard to the effect of
an meru ar search under s. 165 of the Code would apply.
Where a trial
has !~_ken. place, under s. 537 of the Olde a defect or an illegalit in the
~~vill toa/.'~n _ha~ no bearing on the result of the trial unless the iriegularity
th · eqa 1 ~ J'i s .own to have 'hrou!:!'ht ~bout a 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 a m:re 1rre.gu]aritv. the conviction o'f the appellant cou1d not be
.
~et
1
.as1de[
8
as It was not shown that the irregularity caused ony failure
of
1us tee.
04 B-C; 805 B, E, H-806 Bl
800
SUPREME COURT REPORTS
[1969] 2 s.c.R.
H. N. Rishbud & Inder Singh v. State of Delhi, [1955] I S.C.R~ 1150
A
and State of U.P. v. Bhagwati Kislwre Jashi, [1964] 3 S.C.R. 71, followed.
f
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, referred 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.

## Text

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BAI RADHA
v.
STATE OF GUJARAT
November 20, 1968
[J. C. SHAH, V. RAMASWAMI AND A. N. GROVER, JJ.]
799
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 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 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 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 bemg committed
in the premises and that a search of the premises with warrant cannot be
made without undue delay.
On the qu.,tion 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
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 noncomoliance 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 a necessary
C011dition
for making a search, 1unsd1ction to make a search is not derived therefrom.
The power to search is conferred by statute.
Therefore, omission
to _record reas.ons be'fore the search or even thereafter in a 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 1on contained in a special Act
Under th s .
~10~ of I~.moralf Traffic Act there is no provision de~ling with th~ e~~~tr~f
on. ravcn
1
100 o s. 15.
There'fore, the law with re_gard to the effect of
an meru ar search under s. 165 of the Code would apply.
Where a trial
has !~_ken. place, under s. 537 of the Olde a defect or an illegalit in the
~~vill toa/.'~n _ha~ no bearing on the result of the trial unless the iriegularity
th · eqa 1 ~ J'i s .own to have 'hrou!:!'ht ~bout a 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 a m:re 1rre.gu]aritv. the conviction o'f the appellant cou1d not be
.
~et
1
.as1de[
8
as It was not shown that the irregularity caused ony failure
of
1us tee.
04 B-C; 805 B, E, H-806 Bl
800
SUPREME COURT REPORTS
[1969] 2 s.c.R.
H. N. Rishbud & Inder Singh v. State of Delhi, [1955] I S.C.R~ 1150
A
and State of U.P. v. Bhagwati Kislwre Jashi, [1964] 3 S.C.R. 71, followed.
f
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, referred 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 accordance with the provisions of s. 15 of the Suppression of Immoral
Traffic in Women & Girls Act, J 956 (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 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 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 rio money he was given Rs. 8/- in all.
That amount included a 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
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BAI RADHA v. GUJAMT (Grover, J.)
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 but -
tons 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 :
"(l) 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 lhas 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
place 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(') it was held by Sharfuddin 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
(']) A.l.R. !965'A.P. 176,
802
SUPREME COURT REPORTS
[1969] 2 S.C.R.
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 inhab~tants was c~n
cerned the direction was mandatory and the legislature by msisting 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 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 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 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
Jaw which rendered the evidence of the panch witnesses inadmissible 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 a mandatory
nature.
Onr attention h~s been drawn to State of Raiasthan v. Rehman(') in which a 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 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 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
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BAI RADHA v. GUJARAT (Grover, J.)
so:l
jurisdiction to make search though it is a necessary condition for
uomg so. J u<1su1cuon or power LO maKe a 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 a 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 a 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 respect 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 a mere irregulanty then the sentence cannot be set aside unless it can be shown that such irregulanty 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 concerned offences committed under the Act and on which reliance
has beea 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 offenc.es in ~ccordance with the provisions of the
special Act.
The ~nt.lfe police. work m connection with the purposes of the Act. withm a certam area had been put in the charge
?f a 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 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 cas~ certainly supports one part of
the subm1ss10n of. the counsel for the appellant that the Act is a
complete Code with respect to what has to be done under it
Jn
that sense it would be legitimate to say that a 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 a search is not
<
(I) [1962] 2 S.C.R. 694.
"'< "
804
SUPREME COURT REPORTS
(1969) 2 $.C.R.
carried out strictly ~n accordance with the provisions of that section the trial is rendered illegal.
There is hardly any paral!el
between an officer conducting a search who has no authonty
under the law and a search having been made which does not
strictly conform to the provisions of s. lS 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 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 a provision we must apply the law whichhas 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(') 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 magistnite was
obtained to investigate into the case as required by s. SA 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. 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 a 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 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.
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BAI RADHA v. GUJARAT (Grover, J.)
been caused to the accused. He had a fair trial and had
his full say."
805
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 un.der the Indian .Penal Cod~ shall
be investigated, inquired into, tned and otherwise dealt with according 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 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
D
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
E
upheld.
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. 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
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 delicate 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 a 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 . sard m H. N. R1shbud and lnder Singh v. The State
f
Delh1(
2
)_, that a defect. or an illegality in the investigation, ho~
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.
4 Sup Cl/69--19
(2) [1955] I S.C.R, t 15 1_
806
SUPREME COURT REPORTS
[1969] 2 S.C.R.
whenever such a situation arises, s. 537 of the Code of Criminal
A
Procedure is attracted and unless the irregularity or the illegality
in the investigation or trial can be shown to have brought about
a mis-carriage of justice, the result is not affected.
For the above reasons this appeal fails and it is dismissed.
Appeal dismissed.
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