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Harbhajankaur and anr. Vs. State - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtMumbai High Court
Decided On
Case NumberCriminal Revn. Appln. No. 528 of 1963
Judge
Reported inAIR1969Bom285; (1968)70BOMLR778; 1969CriLJ1038; ILR1968Bom1180; 1969MhLJ91
ActsWomen and Girls Act, 1956 - Sections 3(1), 4(1), 5(1), 13, 14 and 15; Code of Criminal Procedure (CrPC) , 1898 - Sections 173 and 190(1)
AppellantHarbhajankaur and anr.
RespondentState
Appellant AdvocateS.A. Neemuchwala and ;V.P. Matharani, Advs.
Respondent AdvocateV.H. Gumaste, Govt. Pleader
Excerpt:
suppression of immoral traffic in women and girls act (civ of 1956), sections 13, 14, 15 - criminal procedure code (act v of 1898), sections 173, 190 - police officer appointed to assist special police officer appointed under section 13 of act civ of 1956 -- police officer investigating offence under act whether can file charge-sheet in respect of offence under section 173 of code.;a police officer appointed to assist the special police officer appointed under section 13 of the suppression of immoral traffic in women and girls act, 1956, can file a charge-sheet under section 173 of the criminal procedure code, 1898, in respect of the offences under the suppression of immoral traffic in women and girls act investigated by him.;h.n. rishbud v. state of delhi [1955] a.i.r. s.c. 196, rasiklal.....order1. this criminal revision application is filed by the accused who are being tried in the case no.2470/ p of 1967 in the court of the presidency magistrate, 21st court, bandra, bombay respect of offences under sections 3, 4 and 5 of the suppression of immoral traffic in women and girls act, 1956 (act 104 of 1956). the inspector of police, vigilance branch c .i.d. bombay filed a charge-sheet on november 22, 1967 in the court of the presidency magistrate, 21st court, bandra, bombay alleging that accused no.1, harbhajankaur alias harbhajankaur and accused no. 2, rachana alias kripla, who were both described in the charge-sheet as hindu prostitutes, kept a brothel at flat no.4, first floor, jambh nagar, juhu raod, santa cruz and thereby committed an offence under section k3 (1) o f the.....
Judgment:
ORDER

1. This criminal revision application is filed by the accused who are being tried in the case No.2470/ P of 1967 in the Court of the Presidency Magistrate, 21st Court, Bandra, Bombay respect of offences under Sections 3, 4 and 5 of the Suppression of Immoral Traffic in Women and Girls Act, 1956 (Act 104 of 1956). The Inspector of Police, Vigilance Branch C .I.D. Bombay filed a Charge-sheet on November 22, 1967 in the Court of the Presidency Magistrate, 21st Court, Bandra, Bombay alleging that accused No.1, Harbhajankaur alias Harbhajankaur and accused No. 2, Rachana alias Kripla, who were both described in the charge-sheet as Hindu prostitutes, kept a brothel at flat No.4, first floor, Jambh Nagar, Juhu Raod, Santa Cruz and thereby committed an offence under Section k3 (1) o f the Suppression of Immoral Traffic in Women and Girls Act, 1956 which will be hereafter referred to as ' S.I. T. Act. 'It was also alleged in the charge-sheet that the said accused between March 1967 and May 15, k1967 did live on the earnings of prostitution of two girls-(1) Kumud alias a Merry Jkamil Andrews and (2) Rita alias Loreta Frank Williamson and thereby they committed an offence under Section 4(1) of the S.I.T. Act. It was further alleged against them that the accused procured against them that the accused procured against them that the accused procured the said girls for the purpose of prostitution and induced them to do prostitution and thereby the accused committed the offence under Section kj5 (1) of the S.I.T. Act . After filing of the charge sheet, the learned Presidency Magistrate took cognizance of the offence and on hearing arguments framed a charge on April 23, 1968 against the two accused as follows:-

'I. Shri S.S. Shinde, Presidency Magistrate, 21st Court, Bandra Bombay, do hereby charge you (1) Harbhajankaur Kaur @ Harbans Kaur w/o Massasingh (2) Rachan @ Kripla d/o Massasingh as follows;-

Firstly:-

That you on the 15th May of 1967 at Flat No.4, 1st floor, Jambh Nagar, Juhu Road Santa Cruz. Bombay, d id keep a brothel and thereby committed an offence punishable under Section 3 (1) of the S.I.T. Act 1956 and within my cognizance.

Secondly:-

That you on the date and place mentioned above and being over 18 years of age did knowingly live wholly or in part on the earning of prostitution of witnesses Nos.5 and 6 viz. Kumud @ Mary Camil Andruz and Rita @ Loreta Frank Williamson respectively and thereby committed an offence punishable under Section 4 (I) of the S.I.T. Act 1956 and within my cognizance.

Thirdly-

That you on the date and place mentioned above did cause or induce witnesses Kumud @ Mery Camil Andruz and Rita @ Loreta Frank Williamson to carry on prostitution and thereby committed an offence punishable under Sec.,5 (1) (d) of the S.I.T. Act and within my cognizance.

And, I hereby direct that you be tried by me on the aforesaid charges.'

Thereafter the case was adjourned for hearing. One witness Krishna Champaya Patel, P.W. I. was examined by the prosecution and cross-examined by the advocate for the accused. The prosecution also examined Kashinath Lalchand Chaudhary, P.W. 2 and in kjturn the Advocate for the accused cross-examined him. But before the cross-examination of this second witnesses was over, an application was filed on May 18, 1968 praying that the Magistrate may drop or quash the proceedings and not proceed further with that trial because the copy of the charge-sheet had not been furnished to the accused along with the copies of police statements and that as a result, after the previous date of hearing on taking inspection, it was found that the charge-sheet in the present case was signed and submitted by the Inspector of police and not by the special officer, i.e., the Assistant Commissioner of police , as contemplated by Section 13 of the Act and thereby the accused were prejudicially affected. It was submitted that as the charge-sheet was not validly and properly filed the taking cognizance of the case by the Magistrate was also illegal and improper.

2. The learned Presidency Magistrate, rejected the application by his order dated May 29, 1968. The learned Presidency Magistrate considered the cases cited before him, viz. Delhi Administration v. Ram Singh : [1962]2SCR694 . Smt. Tara V. The State : AIR1965All372 which were relied upon on behalf of the accused. He also considered the contention raised on behalf of the prosecution by the Special police Prosecutor that the objection raised by the accused was belated and it should have been raised before the trial proceeded. The learned Presidency Magistrate held that there was no substance in this contention because in his opinion , the point raised by the defence was a jurisdictional point and if it was held that the charge-sheet waw not properly filed, then there was no point in going on with the trial. However, the learned Presidency Magistrate while holding that the decision of the Supreme Court laid down that it was only the Special police Officer who has the power to investigate the offences under the Act, overruled the objection on behalf of the defence on the ground that it was not necessary for the Special Officer to file the charge-sheet merely because of the fact that the Act gave the power to investigate the offence under the Act to the Special Officer. He distinguished the Supreme Court decision by pointing out that in that case the charge-sheet was filed by a police officer who was not specially empowered or appointed and that the only point for consideration before the Supreme Court was whether the investigation itself was carried out by an officer who was duly appointed as Special Officer and the Supreme Court held that it was not so and hence the Court could not proceed with the chargers against the accused. The learned Presidency Magistrate, however, held that as the investigation in the present case was carried out by Shri Bagwe, Assistant Commissioner of police who was appointed as the special officer under the Act and as he was cited as a witness in the charge-sheet and there was nothing on the record before him to show that when the charge-sheet was filed by Inspector, Vigilance Branch, he did so in his own discretion without any orders or guidance from Shri Bagwe, there was nothing on the record before him to show that the decision to file the charge-sheet which was, really speaking, a final report under the Code of Criminal Procedure was taken by the Inspector, Vigilance Branch and not by Shri Bagwe. He also relied on a Notification issued by the Government which was notification No. PPA. 1257/84187-X dated July 22 1958 by which the Government had appointed Superintendents of police Crime Branch, Bombay as special police officers and had also appointed all police officers subordinate to the Divisional Superintendents of police in Greater Bombay as assistants to the special police officers and held that there was considerable force in the argument that the Inspector of Police, Vigilance Branch had every right to assiting the special police officer in the investigation of a case. The learned Presidency Magistrate refused to follow the decisions of the Allahabad High Court in : AIR1965All372 on the ground that the Supreme Court had not laid down in the decision referred to above that the charge-sheet should be filed by special police officer. He relied on a passage in the judgment of the Supreme Court in Rishbud v. State of Delhi, : 1955CriLJ526 which runs as follows:-

'A defect or illegality in investigation, however serious, has no direct bearing on the competence or the Procedure relating to cognizance or trial. No doubt a police report which results from an investigation is provided in Section 190 Criminal Procedure Code as the material on which congnizance is taken. But it cannot be maintained that a valid and legal police report is the foundation of the jurisdiction of the Court to take cognizance. Section 190 Criminal Procedure Code is one out of a group of sections under the heading 'Conditions requisite for initiation of proceedings'. The language of this section is in marked contrast with that of the other sections of the group under the heading, i.e. Sections 193 and 195 to 199. These latter sections regulate the competence of the Court and bar its jurisdiction in certain cases excepting in compliance therewith. But Section 190 does not. While no doubt in one sense Clauses (a), (b) and (c) of Section 190 (1) are conditions requisite for taking of congnizance, it is not possible to say that cognizance on an invalid police report is prohibited and is therefore a nullity. Such an invalid report may still fall either under Clause (a) or (b) of Section 190 (1) and in any case cognizance so taken is only in the nature of error in a proceeding antecedent to the trial. To such a situation Section 537 Criminal Procedure Code is attracted'. The learned Presidency Magistrate applied these observations to the present case and said that in his opinion, no prejudice was caused to the accused at the stage at which the trial stood and, therefore, he rejected the application made by the accused for quashing the proceedings.

3. The accused have filed this revision application praying that the said order passed by the learned Presidency Magistrate may be set aside and the proceedings pending before him should be quashed on the ground that the charge-sheet in the present case was not filed by the special officer empowered to deal with the offences under the S.I.T.Act.

Mr. Neemuchwalla, the learned Counsel for the accused, has relied on the aforesaid decisions of the Supreme Court and the Allahabad High Court and a decision of the Gujarat High Court in Rasiklal Manilal v. State of Gujarat, and has contended that in view of these decisions, it is clear that none but the special officer appointed under Section 13 (1) of the S.I.T. Act, could file a charge-sheet. He submitted that filing a charge-sheet was a very important steps in the investigations by the police and as held by the Supreme Court in his Rishbud's case : 1955CriLJ526 the officer investigating has to make up his mind whether he would file a charge-sheet or not this power could not be exercised by him through someone else. He contended that if the Legislature has specially appointed a special officer to deal with the offences, it must have been intended that that all important steps in the investigations must be taken by the special officer personally. He had to make up his own mind as to whether in the facts and circumstances discovered by him in the course of the investigation it was necessary to file a charge-sheet against the accused. A charge-sheet filed without making up his mind is no charge-sheet at all in law. He has further submitted, in the alternative, that even assuming that the Inspector of police who filed the charge-sheet in the present case was an officer who was empowered under the aforesaid notification of the Government of Maharashtra to assist the special officer, he could not step into the shoes of the special officer and decide whether to file a charge-sheet or not. He argued that filing of a charge-sheet jeopardized the liberties of a citizen and if the legislature has chosen to entrust this important duty to the special officer, nobody else could file a charge-sheet so as to prejudice the accused. He submits that if the special officer himself had personally considered the matter carefully, perhaps, his client would not have been charge-sheeted at all. He, therefore urged that his clients have been prejudiced by the fact that the special officer has not filed the charge-sheet and hence he submits that the view taken by the Presidency Magistrate of the matter was wrong and the order should be set aside.

4. The learned Government Pleader has repelled these contentions relying on the decision of the Supreme Court in : [1962]2SCR694 . He urges that that very decision lays down that the investigation in respect of the offences under the S.I.T. Act could be done not only by special officers but also by officers appointed to assist him. Under the aforesaid notification, the Inspector, Vigilance Branch was an officer appointed to assist the special officer. He was, therefore, entitled to file the charge-sheet, as filing a charge-sheet was one of the ways in which the Inspector could assist the special officer. He argued that if the provisions of sections 13,14 and 15 of the S. I. T Act are taken into consideration, it would be clear that the scheme of the Act, so far as the special machinery which was set up for enforcing it was concerned, it that there are no limitations with regard to the duties and powers of the police officers assisting the special police officers except those which are mentioned in Sections 14 and 15. He has urged that wherever the legislature intended that certain powers relating to investigation were to be exercised by the Special Officer and no one else, special provisions are made in that behalf in the Act itself. In the absence of such special provisions, the assisting officers under Section 13 Clause (3) of the Act could do everything to assist the special officer. He argued that filing of a charge-sheet was not considered by the legislature to be so important as to be done by the special officer himself. Hence the matter was left entirely to be done by the investigating officer under the Code of Criminal Procedure. He submitted that in a large and populous city like Greater Bombay, it would be impossible to expect a special officer appointed under S. 13 (1) to investigate personally every case under the S.I. T. Act and to file a charge-sheet personally in the Court of the Presidency Magistrate and as there was no impediment to the filing of the charge-sheet in the present case, signed and filed by the Inspector of Police, Vigilance Branch, C. I. D. Bombay was properly field and the objection raised on behalf of the accused was rightly overruled by the learned Presidency Magistrate .

5. In view of these contentions, the only point which I have to consider in case is as to whether an officer appointed to assist the special police officer appointed under Section 13 of the S. I. T. Act could file a charge-sheet under Section 173 of the Code of Criminal Procedure in respect of the offences under the S. I. T. Act investigated by him.

6. For this purpose it would be necessary, in the first place to consider the provisions of the S. I. T. Act. Section 13 of the S. I. T. Act, which is the most important section to be considered in the present case, is as under:-

13' (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 a special police officer appointed by or on behalf of that Government for dealing with officers under this Act in that area.

(2) The special police officer shall not below the rank of:-

(a) an Assistant Commissioner of police in the presidency towns of Madras and Calcutta:

(b) a Super intendment of police in the Presidency town of Bombay and

(c) a Deputy Super intendment of police elsewhere.

(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 women police officers wherever practicable) as the State Government may thin 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 women social welfare workers wherever practicable) to advise him on questions of general importance regarding the working of this Act.'

In exercise of the powers of the State Government under this section, a notification was issued on July 22,

1958 and published in the Government Gazette. The notification reads as under:-

'HOME DEPARTMENT'

Sachivalaya, Bombay-1, dated the 22nd July 1958

Suppression of Immoral Traffic in Women and Girls Act, 1956.

No. PPA.1257/84187-X -In exercise of the powers conferred by Section 13 of the Suppression of Immoral Traffic in Women and Girls Acts 1956, (CIV OF 1956), the Government of Bombay hereby-

(1) appoints the officers specified in column 1 of the Schedule appended hereto to be the special police officers for the areas respectively specified against them in column 2 of that Schedule for dealing with offences under the said Act in those areas; and

(ii) directs that the special police officers so appointed shall be assisted by the subordinate police officers, respectively, specified against them in column 3 of the said Schedule

OFFICERS. AREA. SUBORDINATE POLICE OFFICERS.

The Super intendment of Police, Greater Bombay, (1) All police officers subordinate to the Crime Branch, Greater Bombay. Divisional Super intendment of police in Greater Bombay.

(2) All police officers subordinate to the Superintendent, Crime Branch.

(3) All women police officers of Greater Bombay police Force.

The Deputy or Assistant Super The subdivision of All police officers (including intendment of police in charge of a a District constituted women police officers) sub-subdivision of a district or any for the purposes of the ordinate to them.

police officer not below the rank code of Criminal Procedure Code of the Deputy Super intendment of cedure, 1898. Police, temporarily holding the additional charge of the Deputy Assistant Super intendment of police of a subdivision of district .

It appears that thereafter an Act was passed changing the designation of the officers concerned, known as the Maharashtra police Officers (Change in Designation) Act, 1962(Maharashtra Act 46 of 1962). Under that Act the designation of the Super intendment of police in Greater Bombay was changed to Assistant Commissioner of police and this change was to be read in any notification or instrument or any other document after the commencement or any other document after the commencement of the Act. Thus reading the provisions of this Act and the contents of the aforesaid notification, it is clear that so are as Greater Bombay area was concerned, it was the Assistant Commissioner of police , Crime Brach who was the special officer under Section 13 of the S. I. T. Act. It is not disputed that the Vigilance Brach is one of the sub-branches of the Crime Brach of the police organisation in Greater Bombay. Hence the notification which says that the special officer appointed under it shall be assisted by the subordinate police Officers specified in the third column would mean that all police Officers subordinate to the Assistant Commissioner of Police, Crime Branch would be officers empowered to assist the special police Officer under S. 13 of the S. I. T. Act.

7. Mr. Neemuchwalla is right in his contention that in view of the decision of the Supreme Court in : 1955CriLJ526 , investigation by the police under the Code of Criminal Procedure consisted inter alia of formation of the opinion as to whether on the material collected there was a case to place the accused before a Magistrate for trial and if so, taking the necessary steps for the same would be by the filing of a chargesheet under Section 173. He is also right in saying that his final step in the investigation, viz. the formation of the opinion as to whether or not there is a case to place the accused on trial cannot be delegated to a subordinate police officer. But the questions whether the officer, who is appointed as an officer to assist the special police officer under Section 13 and who has investigated into the offence, cannot file a chargesheet in respect of the offence which he has investigated. An officer investigating, files what is popularly known as the chargesheet under S. 173 of the Code of Criminal Procedure. Now that section refers to an officer in charge of the police station. Such an officer is expected to forward to the Magistrate his report as required by the said section. It is only when the State Government has appointed a superior officer of police under Section 158, through whom such reports have to be submitted, that the officer in charge of the police station is expected to submit his report through the superior officer of police. Otherwise , it is the investigating officer in charge of the police station who has to file the chargesheet. As a result of the filing of the report, the Magistrate would take cognizance of the offence in report. Now, Section l90 of the Code of Criminal Procedure, so far as it is applicable to the State of Maharashtra is a follow:-

190. '(1) Except as hereinafter provided, any Presidency Magistrate and any Judicial Magistrate specially empowered in that behalf under Section 37 may take cognizance of any offence-

(a) upon receiving a complaint of facts which constitute such offence;

(b) upon a report in writing of such facts made by any police officer;

(c) upon information received from any person other than a police officer; or upon his own knowledge or suspicion that such offence has been committed.'

Thus Section 190 (1) (b) does not in terms lay down that the report on the basis of which the Magistrate can take cognizance should be by any particular police officer. It is now well settled that the police report mentioned in the said provision is not limited to a report mentioned in chapter XIV of the Code of Criminal Procedure. The word 'any' in Section 190 (1) (b) is comprehensive enough to include a report lodged by a police officer even other than the police Officer who made the investigation. As, however, the filing of the chargesheet is an important step in the investigation of an offence and the investigation of the offence under the S. I. T. Act is to be done by the special police Officers. In my opinion, therefore, on a plain reading of Section 13 of the S. I. T. Act is with Section 190 (1) (b) of the Criminal Procedure Code, any police Officer who was entitled to investigate into offence under the S. I. T. Act can make a report about the investigation done by him to a Magistrate and the Magistrate can take cognizance of the offences on the basis of these reports . Ordinarily, the word 'assist' means help. The police Officers appointed to assist them give the help to special officers in the discharge of their functions efficiently in relation to the offences under the Act . This implies that the legislature intended that the assisting police officers appointed under Clause (ii) of the notification issued by the Government of Bombay can do everything to help the special police officers subject to the provisions of the S. I. T. Act or the Code of Criminal Procedure. There is no provision in the S. I. T. Act which prohibits an assisting officer from filing a charge-sheet or sending a report to the Magistrate about the investigation done by him. There is also nothing in the Code of Criminal Procedure which prevents a Magistrate from taking cognizance of the offence on the basis of such report under j Section 190 (1) (b). Hence , in my opinion in the present case the Inspector of Police, Vigilance Branch who was an assistant to the special police officer under the S. I. T. Act could in law made a report about the investigation of offences made by him and the learned Presidency Magistrate was right in taking cognizance of the offences on the basis of that report. It was not at all necessary under any provision of the S. I. T. Act or under the Criminal Procedure Code that the decision with regard to filing of the charge-sheet or the report had to be taken by the special police officer . Nor was it necessary that before the chargesheet was filed, a direction or order should have been obtained by the Inspector of police from the special police officer, viz. the Assistant Commissioner of Police, Crime Branch.

8. The learned Government Pleader has submitted that the fact that there are several other provisions in the Act, for instance, the provisions in the Act, for instance , the provisions under Sections 14 and 15, which lay down that no arrest without warrant can be made by officer other than the special police officer or under his direction or guidance or subject to his prior approval, land any police officer, not below the rank of Inspector, even when delay would result and the delay in obtaining the order of the special officer would result in valuable evidence relating to the offence being destroyed or concealed and the person concerned may escape, can certain conditions, viz., that immediately after the arrest, a report should be sent to the special police officer about the arrest or circumstances in which the arrest was made, goes to show that wherever the legislature so contemplated, the Act confined the powers of investigation to the Special police officer appointed under Section 13 and the Act made special provision in respect thereof. Section 15 lays down that a search without warrant can be made in certain instances by the special police officer after recording the grounds of his belief and hence no other police officer assisting him could search without a warrant can be made in certain instances by the special police officer after recording the grounds of his belief and hence on other police officer assisting him could search without a warrant. It is because of the legislature that such a power should not be exercised by any assisting police officer, that it has made it incumbent upon the special police officer, to record the grounds for believing that the offence punishable under the Act has been or was being committed in respect of a woman or girls living in any premises and that search of the premises with warrant cannot be made without undue delay. It is, therefore submitted by the learned Government Pleader that if the legislature had intended that the filing of the charge-sheet or making of the report was to be done only by the special police officer, the legislature would have expressly said so. He argues that in the absence of any such express provision requiring the special police officer to do so, a police officer assisting the special police officer could file a charge-sheet . In my opinion this contention is valid and must be accepted in view of the scheme of the S. I. T. Act crating the , special police machinery to deal with the offences under the Act.

9. The contention on behal fo the accused that the accused are prejudiced because a special police officer did nto apply his mind to the facts and circumstances of the case before the charge-sheet was filed in Court is perhaps prematiure. The special police officer Mr. Bagwe has been cited as a witness in the chargesheet in the present case, There is nothing before the court to indicate that he had nto applied his mind to the facts and circumstances of the case before filing the charge-sheet The learned Presidency Magistrate was, therefore, right in holding that there was nothing on record before him to show that the on record before him to show that the decision to file the charge-sheet which was really speaking a final report under the Code of Criminal Procedure was taken kby the Inspector of police who filed the charge-sheet and not by Mr. Bagwe.

10. Mr. Neemuchwalla has urged that the decision of the Gujarat High Court in supports his contention that no police officer other than the special police officer appointed under Section 13 can file a chargesheet in respect of the offence under S.I.T. Act. Now the facts of that case were that the accused Rasiklal Manilal was convicted under Section 336 of the I.P.C. and Section 5 of the S. I. T. Act in proceedings started ona complaint by one S, who alleged inter alia that Rasiklal by deceitful means caused her to leave her place of residence and go to different places where she was forced to subject herself to sexual intercourse with different persons for money. She had further alleged that Rasiklal was helped by a pimp and Rasiklal was keeping all the money obtained from customers with himself. The police after completing the investigation into the complaint handed over the case to a special police officer who submitted a charge-sheet against Rasiklal and at the trial, Rasiklal was convicted by the City Sessions Judge., Ahmedabad and Rasiklal filed an appeal before the Gujarat High Court. The matter came before a single Judge. It was contended before him that there was no officer validly appointed under the S. I. T. Act for the area where the offence took place and also, that, at anyrate, the investigation in the case by the special police officer so appointed had not been done in compliance with the provisions of the Act. The first contention was founded on the the fact that no particular special officer was designated by his name and the learned Judge, Sarela, J. overruled that contention holding that the scheme of the Act was not such that the special police officer must be appointed byname. Regarding the second contention, relying on the decision of the Supreme Court in : [1962]2SCR694 it was contended that all the stages of investigation must be done by the special police officer himself. The learned Judge observed that in the facts and circumstances of the case, the provisions of the Act in so far as they required the special officers to deal with the offences were complied with inasmuch as in that particular case, the charge-sheet itself was filed by the special police officer and his subordinates had carried our the investigation under his orders and after verification of the statement, he had decided to file the chargesheet. In the result, the appeal filed by Rasiklal was dismissed. This case, therefore, was decided on different facts and the question which is agitated before me was not considered by the learned Judge, although the learned Judge has observed in the course of his judgment.

' It may be that certain functions to be done by the special police officer himself for instance, Section 14 goes to show that an arrest without warrant is to be made only by the special police officer or uder direction or guidance or subject to his prior approal. However, even in respect of arrest without warrant there are provisions in the said S. 14 which permit such arrest without warrant by another officer in the circumstances set out in Clauses (ii) and (iii) of the proviso to that Section. It is also possible to take the view that the powers for search, which are exercisable on the special officer entertaining reasonable grounds of belief as set out therein , have to be therefore, exercised by the special officer himself and such officer would also exercise the power of removal of the girl under that section. But these provisions would go to show that all other powers not expressly or by necessary implication required to be exercised by the special police officer can be exercised by his assistants under the implication of Section 13. No doubt the assistants have to do so with a view to assist the special police officer and therefore the overall charge or supervision must be with the special police officer. If subject to these limitations, the subordinates of the special police officer who are to assist him, carry on investigation under the orders of the special police officer and thereafter hand over the charge papers to him and it is he who after verification of the statements decides whether or not to submit the charge-sheet, it must be held that the provisions of the Act in so far as they require the special officer to deal with the offences have been complied with.'

11. The next case relied upon by Mr. Neemuchwalla is the decision of the Allahabad High Court in : AIR1965All372 . That case arose out of an application filed by the accused aginst the Magistrate's order proceedings with the trial under Section 5 of Suppression jof Immoral Traffic Act and refusing to quash the charge-sheet submitted. by the police. The police report in that case was submitted by a police officer who was not a special police officer appointed by or on behal fo the State Government under section 13 (1) of the S. I. T . Act for dealing with the offences under the Act. The Magistrate before whom the report was filed took cognizance of the police report and when an objection was a raised to his taking cognizance of the offence, he proceeded with the trail on the ground that there was no legal bar to his taking cognizance of the offence on a report submitted by a police officer other than a special police officer other than a special police oficer. The accused went upon revision before the Sessions Judge who dismissed the revision summarily on the ground that the Supreme Court decision in : [1962]2SCR694 did not lay down that the Magistrates could nto take cognizance of the offence under other clauses of Section 190 (1), Criminal Procedure Code. The Sessions Judge placed reliance upon the observations of the Supreme Court in : 1955CriLJ526 referred to above. The High Court however, set aside the order of the lower courts on the ground that the Magistrate could not take cognizance of the offence under S. I. T. Act on the basis of the report of an ordinary police officer and he had no option except to drop the proceedings when an objection to his jurisdiction was raised. With respect, the judgment of the Allahabad High Court is based on the decision of the Supreme Court in : [1962]2SCR694 and in the facts and circumstances jof the case before tall Allahabad High Court, the proceeding before the Magistrate were rightly qushed. The facts in the present case are, however, different. Here, the charge-sheet is filed not by an ordinary police officer but by a police officer who has been appointed to assiting the special police officer under S. 13 (1) . I am , therefore of the view that the said decision kof the Allahabad High Court cannot assiting Mr. Neemuchwalla and cannot be considered as an authority for defining the powers and duties of a police officer appointed to assist the special police officer under Section 13 of the Act.

12. In the : [1962]2SCR694 the facts were that one Ram Singh was suspected of having committed an offence under Section 8 of the A. I. T. Act. Jet Ram, Sub Inspector, who had not been appointed a special police officer by the State Government, investigated the case and submitted a charge-sheet to the Magistrate. The Magistrate quashed the charge-sheet holding that the special police officer alone was competent to investigate the case and that Jet Ram could not have investigated it. On revision by the State, the High Court agreed with the view of the Magistrate and dismissed the revision. The matter was carried to the Supreme Court by the Delhi Administration and the only point which was urged before the Supreme Court was as to whether a police officer who was neither a special police officer under the S. I. T. Act nor a police officer assisting the special police officer could validly investigate the offence under the Act. The majority of the Court in that case held:

' We are therefore of opinion that the special police officer is competent to investigate and that he and his assistant police officers are the only persons competent to investigate offences under the Act and that police officers not specially appointed as special police officers cannot investigate the offences under the Act even though they are cognizable offences. The result is that his appeal by the Delhi administration fails and is hereby dismissed.'

With respect, the Court was not concerned in that case as to whether a charge-sheet was to be filed by a police officer who was assisting the special police officer under Section 13 of the S. I. T. Act. However, the view of their Lordships that the special police officer and his assistant police officers are competent to investigate offences under the Act is based on the interpretation of the Act and if an assistant to the special officer can investigate, as stated by me above, there is nothing in the Act to prevent him from filing a charge-sheet against the accused.

13. Regarding the point as to whether the Magistrate could in the circumstances, rely on the observations in Rishbud's case : 1955CriLJ526 and take cognizance of the offence independently of the police report, under Section 190 (1) (c) of the Criminal Procedure code, it must be said that the observations of their Lordships in Rishbud's case : 1955CriLJ526 were made in the context of the provisions of the Prevention of Corruption Act, 1947 which do not contain provisions similar to the provisions of Section 13. In : [1962]2SCR694 after Lordships came to the conclusion that the charge-sheet was not filed by officers who had power s to investigate, they confirmed the order quashing the proceedings based on the said charge-sheet. In view of this decision the learned Presidency Magistrate was perhaps, not right in holding that he could, even in the charge sheet was filed by a police officer who was not authorised to investigate into the offence, take cognizance of the offense under Section 190 (1) (c) of the Criminal Procedure Code. However. I do not wish to deal with this point finally in the present case. as, in my view, there can be no doubt that in : [1962]2SCR694 , the Supreme Court has clearly laid down that the police officers appointed to assist the special police officer are entitled to investigate. Hence it is not necessary to deal with the point, in view of the facts of the present case, Further a proper consideration of the relevant sections in the S. I. T. Act, viz. Sections k13, 14, and 15 leaves no doubt in my mind that there is nothing in the S. I. T. Act which bars the filing of a charge sheet by an officer appointed to assist the special police officer under Section13 of the Act.

14. In the result, the criminal reviison. application filed by the accused is dismissed. Rule discharged

DVT/D.V.C.

15. Petition dismissed.


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