Naveen Rego Vs. State of Maharashtra and ors. - Court Judgment

Excerpt:
criminal - prevention of immoral traffic - section 3, 4, 5 and 6 of immoral traffic prevention act, 1956(act) - petitioner filed complaint under provision of act before joint commissioner of police to rescue minor girls who were commercially exploited for purposes of sex - joint commissioner was ineffective and therefore he forwarded complaint to d.c.p. who also did not respond the complaint - hence, present petition seeking direction for initiation of prosecution and departmental enquiry against erring officers held, court directed director general of police to commence departmental proceedings against respondent no. 2 immediately - petition allowed - section 34: [d.k. deshmukh, s.j. vazifdar & j.p. devadhar, jj] court fee on petition under section 34 of the act bombay court fees act (36 of 1959), schedule i, article 3, schedule ii, article 1(f)(iii) held, according to article 3 of schedule i, on any plaint, application or petition or memorandum of appeal for setting aside or modifying an award, same court fee is payable as is payable on a plaint or memorandum of appeal under article 1. thus, when an award is challenged by a plaint, application, petition or memorandum of appeal, court fee is payable on ad valorem basis. but from this requirement of payment of court fee on ad valorem basis, article 3 excludes an application or petition or memorandum of appeal filed in civil or revenue court challenging any award made under the arbitration act, 1940.thus, the provisions of article 3 of schedule 1 do not apply when an application is filed or appeal is filed challenging an award made under the arbitration act, 1940. thus the provisions of article 3 of schedule i do not apply when an application is filed challenging an award made under the arbitration act, 1940. the question, therefore, that arises for consideration is whether reference to the provisions of 1940 act found in article 3 of schedule i of the bombay court fees act can be said to include reference to the 1996 act. perusal of the provisions of section 8 of general clauses act shows that where by a central enactment any provision of a former enactment is repealed and re-enacted with or without modification then reference in any other enactment to the provisions so repealed shall, unless a different intention appears, be construed as references to the provisions so re-enacted. in the present case, it is common ground that the former enactment is the 1940 act, the new enactment is the 1996 act and any other enactment is the bombay court fees act, the only provision of the 1940 act referred to in article 3 of schedule 1 of the bombay court fees act is the provisions of section 33 of the 1940act and bare comparison of that provision with the provisions of sub-section (1) of section 34 of the 1996 act shows that the provision of section 33 of 1940 act is repealed and re-enacted in sub-section (1) of section 34 of the 1996 act with slight modification. therefore, reference to the provisions of section 33 of the 1940 act in article 3 of schedule-i of the bombay court fees act has to be construed, in view of the provisions of section 8 of the general clauses act, as reference to the provisions of section 34 of the 1996 act. so far as an appeal filed under section 37 of the 1996 act is concerned, perusal of section 37 shows that an appeal is provided to the appellate court against an order setting aside an arbitral award or refusing to set aside an arbitral award under section 34. thus, as the provisions of article 3 of schedule-i do not apply to an application or petition filed under section 34 of the 1996 act, they will also not apply to the memorandum of appeal filed to set aside or modify an award made by the arbitrator under the 1996 act. in other words nothing contained in article 3 of schedule-i of the bombay court fees act applies to an application, petition or memorandum of appeal to set aside or modify any award made under the 1996 act as it does not apply to an application or petition or memorandum of appeal to set aside or modify an award made under the arbitration act, 1940. perusal of the provisions of section 8 of the general clauses act shows that references in any other enactment to a provision in a former enactment is to be construed as reference to re-enacted provision in the new enactment unless a different intention appears. the different intention may appear either in the new enactment or in the other enactment. nothing was pointed out either in the 1996 act or in the bombay court fees act which can be construed as a different intention or which will show that it was not the intention of the maharashtra legislature to exclude an application or petition or memorandum of appeal filed in court to set aside or modify an award made under the 1996 act, from the provisions of article 3 of schedule-i of the bombay court fees act. it appears that the intention behind excluding an application made, challenging the award made under the 1940 act, from requirement of payment of ad valorem court fee which is required to be paid if the same litigant filed a suit on the same subject matter, was to encourage a litigant to go for arbitration instead of filing a suit. nothing has been pointed out to show that ther4e is any change in that legislative policy. on the contrary, from the preamble of the 1996 act it is clear that the policy of the legislature is to encourage people to adopt the mode of arbitration for resolving disputes. article 3 of schedule-i of the bombay court fees act does not apply to a petition, application or memorandum of appeal filed for challenging an award made under the 1996 act, and court fee on a petition filed under section 34 of the 1996 act challenging an award in high court is payable according to article 1(f)(iii) of schedule ii. section 37: [d.k. deshmukh, s.j. vazifdar & j.p. devadhar, jj] court fee on appeal under section 37 of the arbitration & conciliation act, 1996 - held, court fee is payable according to article 13 of schedule ii of the bombay court fees act. schedule i, article 3 & schedule ii, article 1(f)(iii): [d.k. deshmukh, s.j. vazifdar & j.p. devadhar, jj] court fee on petition under section 34 of the arbitration & conciliation act, 1996 - held, when a petition under section 34 is to be filed before a principal civil court of original jurisdiction which is not a high court, the question arises which article of either first schedule or second schedule would apply. in so far as the challenge to an award made under the 1940 act is concerned, an application under section 33 of that act could be made to a civil court and therefore, payment of court fee was governed by article 1(a) of schedule ii. this was so because the application was to be presented to the court of civil judge which was not a principal civil court of original jurisdiction. but now because of change of definition of term court in the 1996 act, a petition has to be presented, challenging an award made under the 1996 act in terms of the provisions of section 34 thereof, before the principal civil court of original jurisdiction. no entry either in the first schedule or in the second schedule was pointed out which applies to an application or petition to be made before the principal civil court of original jurisdiction, and therefore, when a litigant wants to file petition before a principal civil court having original jurisdiction which is not high court, challenging an award made under the 1996 act, no court fee under bombay court fees act is payable because of absence of a general or specific provision. therefore, it can be said that no court fee under the bombay court fees act is payable when a petition under section 34 challenging an award is filed before any principal civil court of original jurisdiction which is not high court. schedule ii, article 13: [d.k. deshmukh, s.j. vazifdar & j.p. devadhar, jj] court fee on appeal under section 37 of the arbitration & conciliation act, 1996 - held, court fee is payable according to article 13 of schedule ii of the bombay court fees act. - however, the police for reasons best known to them have not suspended them. according to the petitioner the direction issued by the supreme court that bogus customers should not behave like real customers was pointed out to mr.ranjana desai, j.1. rule. respondents waive service. by consent of the parties taken up for hearing forthwith.this petition is filed under article 226 of the constitution of india, by one mr. navin rego who is the representative of international justice mission, a human rights organization which makes efforts to rescue minor girls who are commercially exploited or trafficked for the purposes of sex.2. it appears that on 8th february, 2008 a raid was conducted at dhoom bar and restaurant at bhiwandi under the provisions of the immoral traffic prevention act, 1956 (p.i.t.a. for short) by bhiwandi town police and shantinagar police station. according to the petitioner, the evidence includes illegal prostitution activities documents on video cd, statements of the complainant, bogus customer, respectable and independent panchas and victims. on the same day bhiwandi town police prepared a panchanama and handed it over to shantinagar police station. the grievance of the petitioner appears to be that on 9th february, 2008, shantinagar police station released victims into the hands of the traffickers and refused to lodge complaint on the ground that there was lack of evidence. according to the petitioner on 11th february, 2008 the petitioner gave written complaint to the joint commissioner of police, mr. madhu shinde. according to the petitioner, mr. madhu shinde was ineffective and therefore he forwarded the complaint to d.c.p. ankush shinde who also did not respond to the complaint. aggrieved by this, attitude of the police, the petitioner has filed this petition.3. the petitioner has made the following 1 prayers:(1) that this hon'ble court be pleased to issue appropriate writs, directions and orders to the shantinagar police station to register offences under section 3, 4, 5 and 6 of the immoral traffic prevention act, 1956 against the owner, manager, cashier, waiter -pimps for the dhoom bar and restaurant situated at thane-nashik highway, kalyan phata, bhiwandi on the basis of the video recording and affidavits of witnesses of the illegal activities being conducted at the bar.(2) that this hon'ble court be pleased to issue appropriate writs, directions and orders directing a suitable independent agency to conduct an investigation into the p.i.t.a. offences which were committed by the bar owner, managers, waiters and customers of dhoom bar and restaurant.(3) that this hon'ble court be pleased to issue appropriate writs, directions and orders directing the prosecution of police officers, namely senior police inspector j.j. jadhav and his subordinates for abetting the offences committed by the bar owner, managers, waiters and customers of dhoom bar.(4)that this hon'ble high court be pleased to issue appropriate writs, directions and orders directing the director general of police for maharashtra to immediately commence departmental proceedings against the police officers respondent no. 2, senior police inspector j.j. jadhav for gross misconduct in refusing to register offences punishable by law.(5) that this hon'ble court be pleased to lay down guidelines for the police to conduct p.i.t.a. traps with due regard to the direction of the supreme court, dignity of the victim and probity of all concerned.(6) that this hon'ble court be pleased to direct the independent investigation agency to investigate the role of mr. shankar shetty.(7) pending final hearing and disposal of this case, that this hon'ble court be pleased to direct either the commissioner of police, thane or the independent investigation agency to take all lawful measures to rescue these minor girls, illegally released by respondent no. 2 senior police inspector j.j. jadhav, and produce them before a magistrate or the appropriate child welfare committee for care and protection.4. we have heard at some length learned counsel appearing for the petitioner and learned public prosecutor shri. borulkar. learned counsel for the petitioner made a serious grievance that in this case the police have shown extreme inertia and inaction. she submitted that insensitivity of the police to the grave offence of this nature needs to be commented upon. she submitted that at every stage this respondents have taken time to implement the orders passed by this court. learned counsel pointed out that though this court directed the central bureau of investigation (c.b.i. for short) to take over the investigation, a notification under section 6 of the delhi police establishment act came to be issued only on 3rd may, 2008. she submitted that seven victim girls are yet to be traced. their age verification is yet to be done. one minor girl is missing. learned counsel submitted that the police must be directed to take immediate steps to trace these girls. she also submitted that two officers who have been indicted and against whom a departmental inquiry is proposed, ought to have been suspended. however, the police for reasons best known to them have not suspended them. she submitted that some orders need to be passed in this behalf also. she also submitted that one shankar shetty has played a major role in this case, however his involvement has not been investigated. learned counsel further submitted that the investigating officers have outdated notions as regards investigation of offences under the p.i.t.a. their attention needs to be drawn to the relevant judgments of the supreme court. she submitted that therefore this court should pass appropriate orders.5. on the last occasion, we had directed shri. borulkar, learned public prosecutor to let us know today as to whether considering the seriousness of the allegations, the state desires to take decision of suspending the concerned officers pending the departmental enquiry. pursuant to our order the commissioner of police, thane has submitted his report dated 12th july, 2008 to this court. the said report is taken on record and marked 'x'. after referring to the relevant rule no. 442 contained in manual part-1 which deals with the suspension and allowance during suspension of any police officer, the commissioner of police, thane has stated that, in his opinion in this case transfer orders of the defaulting officers should be issued within a week and within the same period, departmental inquiry will also have to be ordered. we trust the discretion of the commissioner of police, thane. we deem it appropriate to rely on the, opinion expressed by him. we hope and trust that he will do the needful and ensure that the departmental inquiry is 'conducted' in a fair and impartial manner. as stated by the commissioner of police, therefore let the transfer orders of the erring officers be issued within a week from today. ideally the departmental enquiry should have been initiated earlier. in any case, since the commissioner of police has now stated that it will be initiated within a week, we do not want to say anything more on this aspect. let the departmental enquiry be initiated within a week from today. in the circumstances of the case and considering the serious nature of allegations made against the concerned officers, we direct that the departmental enquiry be concluded within a period of four months from the date of receipt of this order by the commissioner of police, thane.6. prayer (1) of the petition pertains to registration of offences under sections 3, 4, 5 and 6 of the p.i.t.a. since admittedly the offences have been registered, this prayer does not survive.7. so far as prayer (2) is concerned, it pertains to directing a suitable independent agency to conduct investigation into the offences. admittedly, pursuant to the order dated 19th march, 2008 c.b.i. has been directed to take over the investigation of this case. we have already noted that notification under section 6 of the delhi police establishment act, has been issued on 3rd may, 2008. we hope and trust that the c.b.i. takes expeditious steps to investigate this case. prayer (2) of the petition therefore does not survive.8. prayers (3) and (4) of the petition pertain to initiation of prosecution and departmental enquiry against the erring officers. we have already referred to the report submitted to us by the commissioner of police, thane. we have also directed him to ensure that the departmental enquiry is concluded within a period of four months from the date of receipt of this order by him. we have recorded the decision of the commissioner of police, thane to transfer the erring officers within a period of one week from today. in our opinion, therefore prayers (3) and (4) are substantially complied with. needless to say that the prayer regarding the prosecution of the erring officers cannot be dealt with at this stage. it will depend upon the result of the departmental enquiry. we keep that issue open.9. prayer (5) pertains to petitioners' request for issuance of guidelines to the police which can help the police while conducting p.i.t.a. traps. the supreme court has in a series of judgment given necessary guidelines to the police. even this court has time and again issued necessary guidelines. the guidelines are there only to be followed by the police officers. we feel that unfortunately these guidelines are not brought to the notice of the police officers who investigate p.i.t.a offences. it is the case of the petitioner, that despite overwhelming information, the senior inspector of police mr. jadhav refused to register the case saying that he needs to conduct a further enquiry. mr. jadhav stated that no offence was made out because the girl had not been sexually abused or undressed by the bogus customer. according to the petitioner the direction issued by the supreme court that bogus customers should not behave like real customers was pointed out to mr. jadhav, but he brushed it aside.10. we do not want at this stage to go into the question whether what the petitioner is alleging is factually correct or not. but we feel that in all such cases, attention of the investigating officers must be drawn to the relevant judgments of the supreme court, particularly the judgment of the supreme court in gaurav jain v. union of india and ors. : air1997sc3021 . the supreme court has in paragraph 16 thereof stated as under:section 2(a) of the immoral traffic (prevention) act, 1956 (for short ttp act) defines 'brothel' to mean any house, room, conveyance or place or any portion of any house, room, conveyance or place which is used for purpose of sexual exploitation or abuse for the gain of another person or for the mutual gain of two or more prostitutes. the essential ingredient therefore, is a place being used for the purpose of sexual exploitation or abuse. the phrase for the purpose of indicates that the place being used for the purpose of the prostitution may be a brothel provided a person uses the place and ask for girls, where the person is shown girls to select from and where one does engage or offer her body for promiscuous sexual intercourse for hire. in order to establish prostitution, evidence of more than one customer is not always necessary. all that is essential to prove is that a girl/lady should be a person offering her body for promiscuous sexual intercourse for hire. sexual intercourse is not an essential ingredient. the inference of prostitution would be drawn from diverse circumstances established in a case. sexuality has got to be established but that does not require the evidence-of more than one customer and no evidence of actual intercourse should be adduced or proved. it is not necessary that there should be repeated visits by person to the place for the purpose of prostitution. a single instance coupled with the surrounding circumstances may be sufficient to establish that the place is being used as a brothel and the person alleged was so keeping it. the prosecution has to prove only that in a premises a female indulges in the act of offering her body for promiscuous sexual intercourse for hire. on proof thereof, it becomes a brothel.11. we therefore direct director general of police, state of maharashtra to bring to the notice of the officers who investigate cases under the p.i.t.a. the relevant judgments of the supreme court. the gist of these judgments may be prepared and circulated to the police officers and workshops may be conducted by senior police officers to train the investigating officers. prayer (5) of the petition is therefore substantially granted.12. prayer (6) refers to investigation into the role of shankar shetty. mr. borulkar learned public prosecutor makes a statement that the police will investigate whether shankar shetty has played any role in this case and if it is found that he has indeed played a role, necessary steps will be taken. we accept this statement. in view of this statement, prayer (6) does not survive.13. we direct the police to continue with their efforts to trace the missing girls. we further direct that if they are traced, necessary steps as laid down in p.i.t.a. may be taken. mr. borulkar, learned public prosecutor submitted that as required by section 18 of the p.i.t.a. the police have forwarded the information to the district magistrate on 9th april, 2008. we direct the district magistrate to take necessary steps as per section 18 of the p.i.t.a. as expeditiously as possible and in any event within a period of two months from the date of receipt of this order by him.14. with the above observations and directions, the petition is disposed off.