Immoral Traffic (Prevention) Act, 1956 . Section 15. Requirement of a woman witness to be present during the search and/or for a woman police officer to be present during the search is directory and not mandatory when the accused is male. Karnataka High Court.

M. Vishwanath vs State of Karnataka. Criminal Petition 2113/2020 decided on 23 December 2020.

Judgment Link: http://judgmenthck.kar.nic.in/judgmentsdsp/bitstream/123456789/360577/1/CRLP2113-20-23-12-2020.pdf

Relevant paragraphs: 11.3. This Court in several decisions has come to a conclusion that the requirements under Section 15 of the Act are mandatory and not directory. However, in all the said decisions the dictum by the Hon’ble Apex Court in Bai Radha vs. The State of Gujarat reported  in 1969 (1) SCC 43 has not been brought to the notice of this Court, as such this Court had no opportunity to consider the dictum of the Hon’ble Apex Court.

11.5 Applying the principle’s laid down by the Hon’ble Apex Court in Bai Radha’s case (quoted supra) it cannot now be held that  the procedure under Section 15 of the Act is mandatory it can only be held to be  directory, in the event of the said directory provisions not being followed and  such failure resulting in prejudice to the accused, the trial Court would have to take into consideration such prejudice while deciding the matter.

11.6 The intent of the Legislature in providing for  a woman witness and or a woman police officer is due to the involvement of women   in the alleged crime. The crime alleged being such that the women in the brothel could be found in compromising position/s and or various stages of undress, the search having an impact on the privacy of the woman. Hence, a woman could raise an issue as regards the non following of the said preocedure, which the cour would be bound to consider.

11.7 This benefit in my considered opinion cannot be extended to men, there is no particular requirement for a women witness or woman police officer in so far as men on  the premises or men involved in the crime are concerned, be it as an owner of the  premises, the person running a brothel, person soliciting and or a customer. There  will be no prejudice caused to the men in the place raided if there is no woman witness or woman police officer. If at all, it is only a woman who could claim for this benefit.

Compiled by S. Basavaraj, Advocate, Daksha Legal.