A.S. Sarela, J.
8. At the outset the point of law raised by the learned advocate for the appellant may be considered. The appellant was charged, as earlier stated, with offences under Section 366, I.P.C. and Section 5 of the Suppression of Immoral Traffic in Women and Girls Act, 1956 (hereinafter referred to as the Act). The contention is that the investigation in respect of the latter offence is not in compliance with the provisions of the Act. The Act provides for the suppression of immoral traffic in women and girls and was enacted in pursuance of the International Convention signed at New York on the 9th day of May 1950. The Act creates new offences in respect of traffic in women and girls and creates a special machinery in respect, of the inquiry into and trial of these offences. Section 13 of the Act which is relevant in connection with the argument advanced by the advocate of the appellant reads as under:
13. Special police officer and advisory body : (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 of that Government for dealing with offences under this Act in that area.
(2) The special police officer shall not be below the rank of -
(a) an Assistant Commissioner of Police in the presidency towns of Madras and Calcutta;
(b) a Superintendent of Police in the presidency town of Bombay ; and
(c) a Deputy Superintendent 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 think 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 worker wherever practicable) to advise him on questions of general importance regarding the working of this Act.
Therefore, under sub-section d) of Section 13 of the Act, the offences under the Act are to be dealt with by special police officers appointed under that sub-section for the specified area and the officers so appointed as special police officers have to be of the rank specified in sub-s (2), Such officers shall be appointed by or on behalf of the State Government for such area to be specified 'for dealing with offences under this Act in that area'. The expression 'for dealing with offences under this Act' used in Sub-section (1) came for construction before the Supreme Court in Delhi Administration v. Bam Singh : 2SCR694 and the Supreme Court after examining the scheme of the Act held that reading that expression in the light of the other provisions of the Act it was clear that the special police officer appointed under Sub-section (1) of Section 13 was competent to investigate and that he and his assistant police officers (who have been referred to in Sub-section (3) of Section 13) are the only persons competent to investigate the 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.
9. The contentions urged by Mr. Soni on behalf of the appellant are two. His first contention is that there is no officer validly appointed under the Act for the area where this offence took place and his second contention is that at any rate the investigation in this case by the Special Police Officer so appointed has not been done in compliance with the provisions of the Act. I propose to examine these contentions in that order,
10. According to the prosecution Shri Desai, who has been examined as prosecution witness No. 17 and who is the S. D P, O., Western Rail-way, is the special police officer appointed by the State Government in this area for the purposes of the Act. Shri Desai has deposed that he has been so appointed and that appointment is by virtue of his office as S. D. P. O., Western Rail-way. In that connection he has referred to the relevant Notification of the State Government dated 21st August 1968 as amended on 17th of December 1958 under which the S. D. P. Os. Western Railway were appointed Special Officers under the Act in respect of the areas for which they were to function. Shri Desai is an S.D.P O. in charge of the Ahmedabad Sub-Division of the Western Railway which covers the area from Sabarmati to Bulsar. The officers of the rank of S. D. P. Os. are holding the rank either of As. Bistant or Deputy Superintendent of Police. These facts are not disputed. Therefore, if Shri Desai's appointment as a Special Officer by virtue of his office is in accordance with law, it is conceded by Mr. Soni that he was a Special Officer appointed for the area in question for the purposes of the Act. The argument of Mr. Soni is that the Act requires the appointment of a Special Officer not by designation or by office but by name and therefore the notification under which Shri Desai of the Ahmedabad Sub-Division is appointed as the Special Officer under the Act is not in accordance with law. His submission is that the Act creates new offences, provides for a machinery to deal with offences so created, gives special powers to the investigating officers in respect of search and in respect of the removal of the girl concerned and the Act provides for special procedure in respect of certain matters such as the need for presence of a woman panch at the time of the search. The Act therefore contemplates not only that the officers should be of a certain rank or status but also they should have such background as enables them to discharge their functions under the Act effectively. That is why, so he argues, there is also a provision in Section 13 of the Act for associating with the special officers a non-official advisory body. These provisions, according to him, are sufficient to show that there should be a sort of selection for the post of special officers and this element of selection indicates that the special officers should be appointed by name.
11. Now whether or not the Act requires the appointment of a special officer by name must be determined on a consideration of the relevant provisions of the Act. Before I consider those provisions, it would be relevant to refer to Section 15 of the General Clauses Act, 1897. That section reads as under:
15. Power to appoint to include power to appoint ax officio:Where, by any Central Act or Regulation, a power to appoint any person to fill any office or execute any function is conferred, then, unless it is otherwise expressly provided, any such appointment, if it is made after the commencement of this Act, may be made either by name or by virtue of office.
Therefore, under this section an appointment of a person to fill any office or execute any function may be made either by name or by virtue of his office unless it is otherwise expressly provided and the point we have to consider is whether it is so otherwise provided in the Act with which we are concerned Section 2 (i) of the Act defines the expression 'Special Police Officer' as under ;
'Special Police Officer' means a police officer appointed by or on behalf of the State Government to be in charge of police duties within a specified area for the purpose of this Act;
Section 13 (1) provides as earlier stated that there should be for each area to be specified by the State Government in this behalf a special police officer appointed by or on behalf of that Government for dealing with offences under this Act in that area. These two provisions read together show that the special police officer has to be a police officer and his appointment as special police officer is an appointment to a post or office created by this Act. The power of appointment it will be noticed, can be exercised not only by the State Government but also on behalf of the State Government. Clause (e) of Sub-section (2) of Section 23 which provides for making of rates, provides that such rules may provide for the delegation of authority to appoint the special police officer under Sub-section (1) of Section 13. Then again a special police officer is such officer for a particular area which would indicate that the appointment is connected with bringing into force the provisions of the Act in that area. Nona of the provisions of the Act lays down any qualifications for a police officer to be eligible to be appointed as a special police officer. There are no qualifications laid down which have reference to any knowledge relating to the functions to be discharged by the special police officer under the provisions of the Act. The only guiding factor or restriction which is laid down by the Act in respect of the appointment of a Special Police Officer is that he shall not be below the rank specified in Sub-section (2) of Section 13 of the Act. If a special officer was to be appointed by name only the power of appointment would have been left with the State Government alone and some indications would have been given of the necessity of selection from qualified police officers. In fact the provisions just referred to are consistent with the position that the appointment should be either by name or by virtue of office. The Supreme Court also in the 'decision earlier refer-red to has emphasised the rank of the police officers, for they point out at page 67 of the report that as a special police officer is a police) officer and is always of the rank higher than a Sub-Inspector, he can exercise in view of Section 551 of the Criminal Procedure Code, the same powers throughout the local area to which he is appointed as may be exercised by the officer in charge of that police station within the limits of his station. It is true that the Act provides that the offences under the Act in the area concerned are to be dealt with by the special police officer appointed for that area and the Act also makes special provisions as regards search, removal of a girl etc. But it will be noticed that under the Act a special police officer alone is not required to exercise all the powers. Sub-section (3) of Section 13 provides for the special police officer being assisted by such number of subordinate officers as the State Government may think fit and this assistance is for the efficient discharge of his functions in relation to the offences. As the Supreme Court has pointed out in the Delhi Administration Case : 2SCR694 , the 'function in relation to offences' do include his functions connected with the investigation of the offences. Similarly, although the power of arrest without a warrant is vested under Section 11 of the Act with the special police officer it is permissible for him to direct an officer subordinate to him to effect the arrest without warrant if the arrest is under his direction or guidance or even if not in his presence it is under his order in writing specifying the person to be arrested. Similarly, a police officer, not below the rank of sub. Inspector who is specially authorised by the Special Police Officer may, under the proviso (iii) to Section 14, effect an arrest if the conditions of that proviso are satisfied. It is therefore not possible to accept the argument that the scheme of the Act is such that the special police officer must be appointed by name.
12 Reliance is however placed by Mr. Soni in support of that argument on the decision of the Sind Chief Court in Emperor v. Udho AIR 1943 Sind 107. The Court was in that case considering the expression or by an assistant or Deputy Superintendent especially empowered by Government in this behalf used in Section 6(2) of the Bombay Prevention of Gambling Act, 1887 as it then stood. The Court held that the wording implied the exercise by the Government of a certain selection or discrimination as regards an individual on whom this special power is to be conferred and therefore the Assistant or Deputy Superintendent to be specially empowered under that provision by Government should be specially empowered by name. It does not appear that the provisions of Section 15 of the Bombay Genera Clauses Act, 1904 were brought to the notice of the learned Judges of that Court. But assuming that they had that provision in mind and that their decision indicates that in their view the use of the expression 'especially empowered' is an express provision requiring the appointment by name that construction has not been accepts by the Bombay High Court in Emperor v. Savlaram Kashinath Joshi 49 Bom LR 798 : AIR 1948 Bom 156. In that case the expression 'specially empowered' was considered. Examining it in the light of Section 35 of the Criminal Procedure Code, 1898, Section 15 of the Bombay General Clauses Act, 1904 and some of the decided cases under the Opium Act of 1878 where the same expression was used in Section 3, it was held that that expression in Section 6 of the Bombay Prevention of Gambling Act, 1887, means that the empowering of an officer to issue a warrant may be either by name or in virtue of his office. The question whether the appointment of a special police officer under Section 13 of the Act can be by virtue of office specifically came for consideration before this Court in Bachu Lakhman v. State (1960) 1 GUJ LR 128. In that case also the same argument was advanced as was advanced before me and reliance was placed on the decision of the Sind Chief Court just referred to. It appears that the decision of the Bombay High Court in 49 Bom LR 798 : AIR 1948 Bom 158 (supra) was not cited before the Court. Raju J. proceeded on the assumption that the interpretation of Section 6 of the Bombay Prevention of Gambling Act in the said decision of the Sind Chief Court was not incorrect. Even so, he pointed out, that the words 'specially empowered' are not found in the definition of special police officer in Section 2 (1) of the Act and that all that is required is that the State Government can appoint a particular police officer to be in charge of police duties within the specified area for the purposes of the Act. In that case, a Deputy or Assistant Superintendent of Police incharge of the Sub-Division was appointed as a special police officer in the Sub-Division for the purposes of the Act. The Court held that there was no question of selection between the police officers incharge of the Sub-Division and that the appointment by virtue of office was in order. Therefore, the first contention urged by Mr. Soni has, in my opinion, no merit and must be rejected.
13. The next objection is that the investigation in this case is not in accordance with the provisions of the Act as it has not been wholly made by the special police officer. Now, under the Act, a special police officer has to deal with offences under the Act in the area for which he is the Special Police Officer. In Delhi Administration Case : 2SCR694 , the Supreme Court has held that the expression 'dealing with offences under this Act' will include any act which the police officer has to do in connection with the offences under the Act. The Court pointed out that investigation, inquiry and trial were some aspects of 'dealing with' the offences. Now, Mr. Soni argues that investigation under the Criminal Procedure Code covers several stages namely (1) proceeding to the spot, (2) ascertainment of the facts and circumstances of the case, (3) discovery and arrest of the suspected offender, (4) collection of evidence relating to the commission of offence and (5) formation of the opinion as to whether on the material collected there is a case to place the accused before a Magistrate for trial and if so taking the necessary steps for the same by the filing of a charge-sheet, under Section 173. He has in this connection invited my attention to the Supreme Court decision in H. N. Rishbad v. State of Delhi : 1955CriLJ526 . He argues that all these stages of the investigation must be done by the special police officer himself and as in this case it has not been 80 done, there has been non-compliance with the provisions of the Act in respect of 'dealing with' these offences. Now, it is true that all the stages of investigation have not been done by the special police officer himself in this case. The facts are these. The complaint was recorded by Sub-Inspector Jhala. He is admittedly an officer sub-ordinate to the special police officer and assists him. He carried on investigation from 26.2.1965 to 2.3.1965 and again from 7-3.1965 to 28.3.1965. He states in his deposition that immediately on registering the offence against the appellant and on arresting him he bad given information to the S. D. P. O about the same. But that at that time he did not hand over the investigation to the S. D. P. O. He admits that he was not given by the 8 D. P O. any written order for carrying on the investigation in the present case but he states that the S. D. P. O told him that he (Jhala) should continue to investigate the case as it also related to the investigation of offences under Sections 383 and 366. I. P. Code. He handed over the charge of the investigation to the S. D. P. O. on 28.3 1965 and he states that the S. D. P. O. carried on further investigation as the investigation was not over when he handed it over to him. Between 2.3.1965 to 7.3.1965 the investigation was in charge of Sub-Inspector Pathan who states in his deposition that the S. D. P. O. had given him an order to carry on the investigation in the present case and that the said order was received by him on the date he took over the investigation from P. S.I. Jhala. After the investigation was handed over by P. S. I. Jhala to S.D.P.O. Shri Desai on the 28th of March 1965, Shri Desai as the Special Police Officer in this case verified the statements of all the material witnesses particularly the witnesses Somabhai. Ishwarlal C. Shah, Poonamchand, Shanabhai Patel and Chimanlal of whom the first was the pimp and the other 4 the alleged customers. It was he who submitted the charge-sheet on 8th April 1965 He admits that the investigation which he carried on consisted only of verifying the statements of the witnesses after interrogating them and submitting the charge-sheet against the appellant. The question is whether on the facts so proved there has been non-compliance with the provisions of the Act as contended by Mr. Soni.
14. There is no support in the provisions of the Act for the argument of Mr. Soni that all the stages of the investigation must be done by the Special Police Officer himself. As earlier pointed out, Sub-section (3) of the Section 13 provides that the special police officer shall be assisted by such number of subordinate officers as the State Government may think fit for the efficient discharge of his functions in relation to the offences under this Act. This assistance is to be in respect of 'the functions in relation to offences' and that expression as pointed out by the Supreme Court in the Delhi Administration Case does include his functions connected with the investigation of the offences. What the special police officer is to do himself is to take a decision on the question of submitting a charge-sheet and submit the charge-sheet. Before the Supreme Court, in the case earlier referred to one of the arguments advanced against the construction which was being placed by the Supreme Court on the expression 'dealing with the offences' was that in that case the special police officer would be very heavily worked. In connection with that argument Their Lordships observed:
The suggestion that the special police officer would be very heavily worked in case he had to perform all the ordinary duties of the police connected with the investigation of offences in addition to the duties conferred on him under the Act, does not go far in putting a different interpretation on the powers of the special police officer. He is to be assisted by his subordinate police officers. They can investigate both under the implication of the provisions of Section 13 as they are to assist the special police officer, and also on deputation by the special police officer, in view of Section 157 of the Code.
Therefore, according to their Lordships the subordinate police officers are entitled to investigate under the implication of Section 13 of the Act. It may be that certain functions have 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 under his direction or guidance or subject to his prior approval. However, even in respect of arrest without warrant there are provisions in the said Section 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 over all 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,
15. The learned Assistant Government Pleader argued that even on the assumption that there has been an irregularity or illegality in the matter of investigation in this case that defect cannot affect the competency of the court to try the case nor does it vitiate the trial and no benefit can be derived by the accused from that dafect unless it is established that his defence has been prejudiced or there has been a miscarriage of justice resulting from that defect. He has in this connection invited my attention to the decision of the Supreme Court in (S) AIR 1955 SC 198 (supra) where the Supreme Court has held that a defect or illegality in investigation however serious, has no direct bearing on the competence or the procedure relating to cognizance and trial; hence where cognizance of the case has in fact been taken and the case has proceeded to termination, the invalidity of the precedent investigation does not vitiate the result, unless miscarriage of justice has been caused thereby. That view was affirmed by the Supreme Court in Munnalal v. State of U.P. : 1964CriLJ11 That position in law has not been disputed by Mr. Soni on behalf of the appellant. The point was raised in the lower court and the learned Sessions Judge has held that no prejudice has been caused to the appellant. He has in this connection also painted out that this point as to the defect in the investigation was not taken by the accused during the trial. Mr. Soni has not been able to point out in what way the defence has been prejudiced or there has been miscarriage of justice by reason of this defect and therefore the argument relating to the defect in the investigation does not in this case affect the merits of the case.
(After considering the facts and the evidence as recorded in paras 16 to 26 the conviction of the appellant was held to be validly made and was maintained along with the punishment awarded)