1. We have been engaged for over an hour and a quarter in considering the question whether an alleged prostitute has been rightly fined Rs. 5. But the apparent minor nature of the offence is quite disproportionate to the points of general jurisdiction and policy involved.
2. Shortly stated, the accused alleges that she was wrongfully arrested under Section 10(1) of Bombay Act XI of 1923 (the Bombay Prevention of Prostitution Act, 1923) and that accordingly the Magistrate had no jurisdiction to hear the case and that consequently her conviction, notwithstanding her protest, was illegal.
3. Now under Section 10(1):--
Any police officer on complaint, and any police-officer authorized in this behalf by the Commissioner of Police by special order without such complaint, may arrest without a warrant any person committing, in his view, any offence punishable under Section 3, if the name and address of such person be unknown to such police-officer and cannot be ascertained by him then and there.
4. The offence in question under Section 3 is, to put it shortly, soliciting. I will assume for a moment that the name and address of the accused were unknown to the police officer who arrested her, and that it could not be ascertained by him then and there It is common ground that this police officer had not been authorised by the Commissioner of Police by any special order to effect such an arrest. So there is no dispute on this point.
5. But it was said that this police officer had arrested her 'on complaint' within the meaning of Section 10(1). As to that it was contended for the accused that the expression 'complaint' meant a formal complaint as defined by Section 4 of the Criminal Procedure Code. It was argued, however, by the prosecution that the true construction of Section 10(1) is that a complaint means a complaint oral or otherwise made to a particular police officer at or about the time when the offence in question is committed, and that it is not confined to a technical complaint within the meaning of Section 4 of the Criminal Procedure Code. Assuming that to be so, there is no evidence here that any such complaint was in fact made to the police officer. Counsel for the accused who was also in the proceedings before the Magistrate tells us that no evidence whatever on that point was ted by the prosecution, and that on the contrary the police admitted that there had been no complaint. The learned Government Pleader on instructions told us in reply that the police had received an allegation about the accused the evening before the arrest and that was why they sent a police constableg to this particular street the nest day. But even if any such allegation made the day before the arrest could be such a complaint as is contemplated by Section 10, as to which I say nothing, there is no evidence on that point, and I accept counsel's statement that in the Court below nothing of the sort was ever said there.
6. That being so, it follows that the police officer in question cannot rely on Section 10 of the 1923 Act to justify the arrest of the accused he made. In other words, the arrest was illegal.
7. That brings us next to Section 190 of the Criminal Procedure Code. That section enables a Magistrate to '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.' Obviously Sub-section (c) does not apply here. And if the arrest was illegal it is not contended that there was a report in writing by a police officer within the meaning of Sub-section (6). But it is said that there was here a 'complaint' within the meaning of Sub-section (a). Now when one turns to Section 4(1)(h) of the Code, 'complaint' means 'the allegation made orally or in writing to a Magistrate, with a view to his taking action under this Code, that some person, whether known or unknown, has committed an offence, but it does not include the report of a police officer.'
8. The answer made by the accused is that the only document before the Magistrate was the charge sheet and that this was not a complaint within the meaning of Section 4(1)(h) and that the report of a police officer is expressly excluded from the definition of a complaint. This charge sheet is the large brown paper document which is the ordinary document by which cognizable cases are put before the Magistrate by the police. But on the above findings this was not a cognizable case.
9. The prosecution next relied on King-Emperor v. Sada I.L.R. (1901) 26 Bom. 150 : 3 Bom. L.R. 586, in which it is said that a police officer can make a formal complaint in a non-cognizable case, and that it would not then be a report within the meaning of Section 4(1)(h). But, as my learned brother pointed out in the argument, the learned Judge says at page 155:
The proceedings show that the Police Constable purported to file a complaint, and in fact did file a complaint, on which the case was instituted against the accused person. The Magistrate to whom the complaint was made, and who took cognizance of the alleged offence, is a Third Class Magistrate. Therefore Section 190(1)(c) is inapplicable (see schedule IV of the Criminal Procedure Code) and thus the Third Class Magistrate could only have taken cognizance under Section 190(a) or (b), that is, upon receiving a complaint, or upon a Police report.
10. It will be seen, therefore, that in that particular case there was an ordinary formal complaint filed in the ordinary way. But here I am unable to look upon this charge sheet as a complaint within the meaning of Section 4(I)(h). It was not intended to be such, nor is that its normal use.
11. Then it was argued that even supposing the arrest was illegal the Magistrate could still hear the case and that the conviction should not be set aside. The only Bombay case cited to us is Emperor v. Vinayak Damodar Savarkar I.L.R. (1910) 35 Bom. 225 : 13 Bom L.R. 296. But that was a totally different case where it was alleged that the arrest of the accused outside British India (viz., in Marseilles) was illegal, and therefore his subsequent arrest in India when the ship reached Bombay was illegal. The Court there held that the Indian Courts were not concerned with the question whether the arrest in a foreign country was legal or illegal. Here we have nothing of that sort whatever. It is the case of an Indian subject being wrongfully arrested in India under Indian law.
12. Then two other cases of Emperor v. Ravalu Kesigadu I.L.R. (1902) 26 Mad. 124 and Emperor v. Madho Dhobi I.L.R. (1903) 31 Cal. 557 were cited. As far as Emperor v. Ravalu Kesigadu is concerned, that was a case under the Madras Abkari Act, and the question there was whether a revenue officer or excise officer had made an arrest outside a particular circle or area. It waa said that there had been a particular Government Notification which narrowed his circle in such a way that the particular place of arrest was outside it and therefore the arrest was illegal. As I read the judgment of the Court they held that this Government Notification did not affect the powers of arrest by this particular officer, whether or no this circle or area was altered in the way I have mentioned. They say (p 125):--
He (the Magistrate), however, acquitted them on the ground that the officer who arreated them was an officer who, under the terms of the notification of November 24, 1899, had only authority within the area of his circle and that when he arrested the accused he was acting outside that area. The notification in question did not, and could not, operate so as to limit the powers conferred upon officers by Section 34 of the Act.
13. That being so, it seems to me that was sufficient to dispose of the case, viz., that the officer had power to arrest. It is true the Court went on to say (p. 125):--
The question whether the officer who effected the arrests was acting within or beyond his powers in making the arrest does not affect the question of whether the accused were guilty or not guilty of the offence with which they were charged. The Magistrate had jurisdiction under Section 190 of the criminal Procedure Code to take cognizance of the oflence.
14. Then in Emperor v. Madho Dhobi I.L.R. (1903) Cal. 557 the judgment at page 560 states:--
Section 55 of the Code is however, expressly applicable; so the arrest of Madho Dhobi by Inspector Hamilton, who says he is in charge of a police-station in Calcutta, appears to have been quite legal.
15. That being so, this appears to me to be another case where the Court on the facts of that particular case came to the conclusion that the arrest was legal. Consequently any observation made to the effect that it did not matter whether the arrest was legal or illegal would appear with great respect, to be obiter.
16. In the present case we have a Bombay Act to consider the effect of. It is a new Act, and, as I read Section 10, it has been deliberately inserted so as to afford reasonable protection to the public. An ordinary police constable is not to be allowed to arrest any female in a street unless a complaint has been made to him of her conduct, and unless he himself sees the offence committed, and he cannot discover her name and address. Or, on the other hand, the constable must be authorized by the Commissioner of Police by a special order to effect an arrest of this description, and one can quite understand the reason for this, viz,, to ensure that mistakes should not be made and that some innocent woman should not be dragged off to prison or put under arrest in the public street by any ordinary police constable.
17. One knows that mistakes of that kind by the police in England have led to strong public criticism. I remember in particular many years ago one case at Cambridge where a mistake of that nature by the University Proctors led to interference by Parliament and a public inquiry, as a result of which the jurisdiction of the University authorities to arrest women in the streets on an accusation of soliciting was taken away from them altogether.
18. I, therefore, regard this case as one of some public importance. I am certainly not inclined to stretch a point and hold that the arrest, though illegally made, did not affect the powers of the Magistrate subsequently to hear the case. And when I find here that the question of jurisdiction was taken before the Magistrate at the outset of the proceedings, then in my opinion the proper course for us to do, if we come to the conclusion as we do that the Magistrate had no jurisdiction to hear the case, is to quash the proceedings and to direct the fine, if paid, to be refunded.
19. That accordingly is the order which I would pass.
20. The question before us is whether the Presidency Magistrate had jurisdiction under Section 190 of the Criminal Procedure Code. The learned Government Pleader argues that whether the accused was validly arrested or not has nothing to do with the question whether she was properly convicted of the offence alleged against her. But in this particular case, in my opinion, the validity of the arrest is a question which does materially affect the question of jurisdiction. It is not the case that a police officer is generally authorised to arrest a person committing in his view the offence of soliciting, which is made punishable by Section 3 of Bombay Act XI of 1923. If that had been so, then no doubt the Government Pleader's argument might be valid. But here a very restricted power of arrest is given and certain conditions are laid down as to the circumstances under which that power can be exercised. The ordinary rule of construction regarding penal Statutes requires that those conditions should be strictly complied with before a Court can hold that there has been a proper arrest. And I shall show shortly why this question of proper arrest affects the question of jurisdiction.
21. When you come to Section 190, in order to bring a case put up in the way, this one was within the cognizance of the Magistrate, it would have to fall under Clause (b) of Section 190, viz., upon a police report of the facts constituting the offence I have not the slightest doubt that the charge sheet, which was the method employed for bringing the accused before the Court, was meant to be an ordinary police report within the meaning of that clause. It is a report made in the form prescribed by Section 72 of the Bombay City Police Act, 1902, containing exactly the information that is there prescribed, viz. (a) the names of the parties; (b) the nature of the information; (c) the names of the persons who appear to be acquainted with the circumstances of the case; and (d) a statement showing whether any person accused in such case has been arrested or has been released on his bond, and if so, whether with or without sureties. That information, including the fact of this accused being arrested, is contained in this document, and it was sent up in the ordinary way as a report by the police in regard to a cognizable offence.
22. I think that is clear, and I do not understand the Government Pleader to have disputed the position, that to bring a report within Clause (b) of Section 190, it must be a report which is validly made in accordance with the law governing a police investigation and the committing of an accused to a Magistrate's Court.
23. That being so, it follows from the provisions of Sub-section 57 and 58 of the Bombay City Police Act, that a valid report by a police officer in the town of Bombay of the kind contemplated by Clause (b) of Section 190 can only be made (1) in the case of a cognizable offence and (2) when it contains information of a cognizable offence which he has been authorized by a Presidency Magistrate to investigate.
24. But the present case satisfies neither of those two conditions. It is not alleged that in this case any authority had been given by the Magistrate to the police to investigate it, and the origin of the charge shows that this could not have been done.
25. We have, therefore, to consider whether this was a cognizable offence, and for that purpose one has to look at Section 3 of the Bombay City Police Act, which says that the phrase 'cognizable offence' shall have the meaning assigned thereto by the Code of Criminal Procedure. Consequently an offence to be cognizable must be one in which a police officer could arrest without a warrant under any law for the time being in force in Bombay City. I have already mentioned that there are very serious limitations on the power of arrest under this Section 10 and I am clearly of opinion that any case where those conditions are not complied with cannot be described as a cognizable case.
26. Here we have the fact, as my learned brother has pointed out, that there is no evidence to show that the police officer who made the arrest did so 'on complaint' within the meaning of Section 10, and the apparent facts go against there having been any such occasion for the arrest. The officer who made the arrest was also not specially authorized in that behalf in the manner required by this section. Therefore in my opinion the police report that was made is not a valid report, which could give the Magistrate jurisdiction under Clause (b) of Section 190.
27. As regards the contention that it can be treated as a complaint under Clause (a) of Section 190, I think it is clear that it was not intended to be such a complaint; it is not in the form in which a complaint is ordinarily made; and the Magistrate was not asked to issue process on the complaint, the accused having already been arrested. The authorities relied upon by the learned Government Pleader in this respect have already been sufficiently commented upon by my learned brother, with whom I agree.
28. Therefore it seems to me that this is a case where the Magistrate had no real jurisdiction, and that consequently it is not one which can be held to fall within the scope of mere irregularities dealt with in Section 537 of the Criminal Procedure Code.
29. In the result I concur with the order proposed by my learned brother. At the same time I quite realise that the Court should not be too technical in matters of this kind, and if it had not been a clear point of jurisdiction I should have been very disinclined to interfere. But the police can easily make arrangements to meet the difficulty that has arisen in this case, and I do not think our decision should result in any material interference with the proper carrying out of their duties under the Act of 1923.