In the High Court of Judicature in Madras
W.P.No.29995 of 2018
Appellant
Ms.Kadek Dwi Ani Rasmini
Respondent
Mr.K.Natarajan
Date of Judgement
13th December 2018
Bench
The Hon’ble Mr. Justice N. Anand Venkatesh
Facts of the case-
M/s.Kadek Dwi Ani Rasmini, hails from Bali, Indonesia, who is a professionally trained and qualified Spa Therapist. She had come to India on 04.08.2018, to work under a valid contract with the 5th respondent Spa after obtaining the Indian Employment E-2 visa. On 01.10.2018, at about 03.30 p.m., the Inspector of Police of Neelankarai Police Station had conducted a raid at the premises of the 5th respondent, and took away the petitioner and 4 other Spa Therapists who were working in the Spa.
At about 10.30 p.m., all of them were shifted to the 4th respondent – Government Vigilance Home at Mylapore and confined there. The petitioner was not even informed on what grounds she was taken from the Spa and kept at the Home and she was kept in custody for nearly 26 days in the Home. With very great difficulty the petitioner contacted her father at Indonesia who had spent a huge amount of money to come to India and he stayed here for nearly 20 days.
Furtherin case of the petitioner the whole incident was never informed to the Indonesian Embassy or the Ministry of External Affairs, which procedure is mandatory, whenever foreign national is arrested or detained. The father of the petitioner on his arrival, informed the Indonesian Embassy, and efforts were made to get the release of the petitioner.
The petitioner ultimately left India high and dry on 01.11.2018 to her country. Aggrieved by the illegal action on the part of the Police, the present writ petition has been filed, seeking for compensation of a sum of Rs.10 lakhs for denial of personal liberty, loss of personal reputation and monitory loss suffered by the petitioner.
Issues Raised and Arguments Advanced-
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Issue Raised |
Petitioner |
Respondent |
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Whether the detention was legal or not? |
The learned counsel submitted that the entire mandatory procedure under the Act has been thrown to winds and a Foreign National has been unnecessarily branded as a victim and subjected to illegal detention for 26 days |
The learned counsel submits that the 5th respondent indulged in utilising the premises to run a brothel and was involving the victims in prostitution and thereby had committed an offence under the Act. Hence the raid, and subsequent detention was lawful.
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Whether procedure under Section 15 of Immoral Traffic (Prevention) Act 1956 was complied with? |
The learned counsel submitted that the 1st respondent took law into his hands, and conducted an illegal raid without following the mandatory procedure under Section 15 of Immoral Traffic (Prevention) Act 1956, without informing about the detention to the Indonesian Embassy and thereby violated the personal liberty of the petitioner.
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The learned Additional Public Prosecutor appearing on behalf of the respondent Police would submit that the Police, viz; the 1st respondent had complied with the mandatory provisions under the Act, and had also informed the Indonesian Consulate about the incident.
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Whether personal belongings of petitioner were returned? |
The learned counsel also submitted that the personal belongings of the petitioner was never returned back to the petitioner, and therefore the petitioner incurred a huge monitory loss. |
The learned counsel would further submit that the personal belongings of the petitioner had been handed over to the 5th respondent, and the 1st respondent did not take custody of the same. |
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Whether state is liable to compensate the petitioner? |
Hence, the learned counsel submitted that the State is liable to pay compensation to the petitioner, which can be recovered from the 1st respondent – Inspector of Police. |
The learned counsel submitted that the 1st respondent had acted strictly in accordance with the Act, and no compensation can be claimed from the 1st respondent for the act done by him in discharge of his official duty. |
Observations-
The Court Observed-
“Whatever be our pre conceived notions about a Spa and a Massage center, due to various factors influencing our thoughts and behavioural patterns, there is always a scope to evolve and start looking at things in a right perspective. Each day, many of us unintentionally place limitations on ourselves by way of our conditioned mind. What we perceive as a purely natural reaction may actually be creating limitations for us and take away our inherent ability to empower ourselves. It’s time we get out of that conditioning and look at the science and real purpose behind Massage and Spa Centres.”
This observation was aimed at the action of the Police who presupposed the running of a prostitution hub in the name of a massage parlour, and the narrow mindedness of their action.
Decision of the Court-
1. In the facts and circumstances of the case, this Court is of the considered view that the petitioner is entitled to be paid a compensation of a sum of Rs.2,50,000/- [Rupees Two Lakhs Fifty Thousand only] for infringement of her personal liberty and her reputation. This compensation must be paid by the State Government, viz; the 3rd respondent, to the petitioner.
2. In view of the above, this Court is of the considered opinion that the continuation of the investigation against the petitioners is an abuse of process of law and in the interest of justice; the same requires the interference of this Court in exercise of its jurisdiction under Section 482 of the CrPC. In the result, the FIR in Crime No.1518 of 2018, on the file of the respondent Police is hereby quashed.
3. This Court is of the considered view that the entire action of the respondent is illegal. This is clearly a case of colourable exercise of power. If this power goes unchecked, Spa Centre or a Massage Parlour can be run only under the mercy of a Police Officer.
4. Accordingly, this Criminal Original Petition is allowed. W.P.No.31320 of 2018 this writ petition has been filed challenging the FIR registered by the respondent Police in Crime No.51 of 2018.
Edited by Sree Ramya
Approved & Published – Sakshi Raje
