1. This revisional application was filed by the Superintendent and Remembrancer of Legal Affairs, West Bengal, against the order of Shri S. N. Chanda, 7th Presidency Magistrate, filing a case under the Suppression of Immoral Traffic in Women and Girls Act, after he had framed charges against the accused in that case.
2. The facts are briefly as follows :
3. On a certain information, the Assistant Commissioner (II) Central, Calcutta Police and some other Police Officers raided the flat in the first floor of the premises at No. 1 Free School Street, Calcutta at about 3-45 p.m. on 20-12-58. Opposite Party No. 1 Khitish Chandra Roy and Opposite Party No. 2 Malati Roy said to be husband and wife are the tenants in respect of the flat. The police officers found opposite party No. 3 Sushila Bala Dasi in a compromising position with another man who was not ultimately sent up by the police. As a result of investigation, the police came to the conclusion that the flat in question was used for the purpose of prostitution, and opposite Party No. 3 Sushila Bala Dasi was one of the girls who was allowed to use the premises for the purpose of prostitution. Accordingly, a chargesheet under Section 3(2)(a) and Section 7(2)(b) of the Suppression of Immoral Traffic Act was submitted against opposite party Nos. 1 and 2 and under Section 7(1) of the Act against opposite party No. 3. The learned Magistrate framed charges against these accused opposite parties on 9-3-59 and fixed 6th, 7th and 8th April for evidence. On 6th a legal objection was raised on behalf of the accused opposite parties, and the learned Magistrate heard the objection, and heard the lawyers of both sides further on the next day, 7-4-59, and came to the conclusion that as the case had been investigated fay the officer-in-charge of Taftala Police station, who was an officer subordinate to the Assistant Commissioner of police appointed as Special Police Officer to deal with the offences under the Supression of Immoral Traffic Act, and was not himself such special police officer, the investigation was illegal. Accordingly, the learned Magistrate ordered that the case be filed for the present and discharged the sureties from their bailbonds. He observed that the proper police might re-investigate and submit fresh charge-sheet after proper investigation.
4. Mr. H. Chatterji appearing for the State of West Bengal has urged that under the provisions of the Suppression of Immoral Traffic in Women and Girls Act, 1956, investigation of an offence under the Act is not necessarily to be done by a Special Police Officer appointed under the Act for dealing with the offences under the Act, but that such Special Police Officers alone have the special powers conferred on them by Sections 14 and 15 of the Act; but that when a case has been started in consequence of any action taken under those sections by the Special Police Officers, the regular police force have the power to investigate the offence and submit charge-sheet. Mr. Chatterji has pointed out that unlike the 'Prevention of Corruption Act; the Suppression of Immoral Traffic Act does not specifically provide tor the investigation being done by a special class of officers, but Section 13 of the Act only provides that the State Government shall appoint a special Police Officer for each area for dealing with offences under this Act on that area. Mr. Chatterji submits that the term 'dealing with the offences' does not necessarily include investigation.
5. But it should be pointed out that in Section 2 Clause (i) of the Suppression of Immoral Traffic Act, 1956, a special police officer is defined to mean a police officer appointed by the State Government to be in charge of police duties within a specified area for the purpose of the Act. The police duties for the purpose of the Act must include the investigation of offences under the Act. It is true that in relation to the investigation there is no express provision in the Suppression of Immoral Traffic Act, 1956, to the effect that the regular police force shall have no power of investigation. But when Section 13 provides that for each area the State Government shall appoint a special police officer to deal with offences under the Act for that area and that the special police officer shall not be below the rank of Assistant Commissioner of Police in the Presidency Town or Deputy Superintendent of Police in the District, by necessary implication it follows that it is intended to exclude the general police from taking cognizance and investigating offences under the Immoral Traffic Act. In this connexion, we may refer to the decision of Soma-sundaram, J,. in the case In re. Kuppammal, : AIR1959Mad389 . Therein the view was taken that the term 'dealing with the offence' under the Act would include investigating the same and that offences under the Act could not be investigated by the regular police. Mr. Chatterji has referred to an Allahabad decision (Smt. Prem v. District Magistrate, Meerut), : AIR1959All206 , in support of his contention that the provisions of Section 5(2) of the Code of Criminal Procedure would apply even to proceedings under the Suppression of Immoral Traffic Act and that therefore offences under other laws, i.e., laws other than the Indian Penal Code, may also be investigated according to the same procedure as offences under the Indian Penal Code, that is, the provisions laid down under the Code of Criminal Procedure that the regular police have power to investigate into cases of all cognizable offences. But Section 5(2) lays down that this shall be subject to any enactment for the time being in force regulating the manner or place of investigating, inquiring into, trying or otherwise dealing with such offences. Therefore where any special Act contains special provisions for the purpose of investigation, the special provisions have to be followed for investigation of offences under the special Act. Further it may be pointed out that in the Allahabad case, their Lordships were concerned with the power of a Magistrate who had himself taken the necessary steps under Section 16 of the Immoral Traffic Act to rescue a minor girl from a brothel. Section 16 provides that where a Magis-trate has reason to believe from information received from the police or otherwise that a girl apparently under the age of twenty-one years, is being made to carry on prostitution in a brothel, he may direct the special police officer to enter into the brothel and remove the girl therefrom and produce her before him. The facts in the Allahabad case were that for a particular area no special police officer had been appointed, and the Magistrate took it upon himself on receiving information to remove the girl from the brothel. It was held by their Lordships that the Magistrate was empowered to-do so, because under Section 65 of the Code of Criminal Procedure any Magistrate may at any time arrest Or direct the arrest, in his presence, within the local limits of his jurisdiction, of any person for whose arrest he is competent at the time and in the circumstances to issue a warrant.
6. In the present case, we are concerned not with the powers of a Magistrate to do a part of the investigation or to arrest himself, but with the power of the regular police to do investigation in respect of the offences under the Suppression of Immoral Traffic Act. We must hold that in view of the specific provisions of that Act, Section 5(2) of the Code of Criminal Procedure does not confer a power on the regular police force to investigate offences under that special Act. Mr. Chatterji has pointed out that the words 'dealing- with offences' in Section 5(2) of the Code of Criminal Procedure has been used along with the three other terms 'investigating', 'enquiring into', and 'trying offences'. Mr. Chatterji has therefore urged that the words 'dealing with the offences' have to be distinguished from' investigating the offences. As used in Section 5(2), no doubt the words 'dealing with offences' have to be distinguished from investigating offences, but the words do not necessarily have the same sense in all contexts. In Section 13(1) of the Suppression of Immoral Traffic Act, where the special Act provides that the State Government is to appoint special police officers for dealing with offences under the Act and where it is also provided that the special police officer shall not be below a certain rank, it is clear that the words 'dealing with the offences' must necessarily include investigation. The meaning, therefore, of the term in Section 13 of the Suppression of Immoral Traffic Act must be held to be different from the meaning of the same term as used in Section 5(2) of the Code of Criminal Procedure. It may be pointed out also that in the case of Sakina Bibi v. The State, Criminal Revn. No. 1395 of 1958 D/-19-5-1960 (Cal.) by a Division Bench of this Court it was assumed without any discussion that the words 'dealing with the offences' under the Act, as used in Section 13 of the Suppression of Immoral Act, would include investigation of the offences under the Act. After carefully considering the arguments advanced by Mr. Chatterji, we see no reason to differ from the position of law as assumed in the above Division Bench decision of this Court, as was also deduced after a certain amount of discussion in the Madras High Court case In re Kuppammal. We must, therefore, agree with the learned Presidency Magistrate in holding that the investigation in the present case, not having been done by a special police officer appointed under the Act, was illegal. It may be pointed out in this connection that the offences in the case detected by an Assistant Commissioner of Police, Calcutta, who is a special police officer empowered under the Act (Vide Government Notification No. 1062/1(19)SW/1-A-1-58 of 7.5.58). After having detected the commission of the offences by a search under Section 15 of the Act, which he was empowered to hold, it was not necessary for him to record any first information report. He could take cognizance of the offence as soon as it came to his notice, but it was necessary for him to complete the investigation himself and then submit the report for prosecution against the accused. A first information report in respect of such an offence has to be recorded only when the offence is detected by somebody else, e.g., an Inspector of Police who acts under Section 14(iii) of the Act or when the offence is reported by somebody who has been affected by an offence under the Act. Even such a case, it is hardly necessary to add that the cognizance of the offence must be taken and investigation must be done by a special police officer appointed under the Act.
7. Next, we have to consider the question whether the learned Magistrate was right in discharging the sureties. By discharging the sureties, he apparently meant to discharge the accused although he did not say so specifically. Even though investigation of the case might be bad, the cognizance taken by the Magistrate on the report of the police was not bad. This was laid down by the Supreme Court in the case of H.N. Rishbud v. State of Delhi : 1955CriLJ526 , it was observed as follows:
'While no doubt, in one same, Clauses (a), (b) and (c) of Section 190(1) are conditions requisite for taking of cognizance, 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 that to such a situation Section 537 Cr. P. C. is attracted.'
At page 269, the Supreme Court gave direction a.s to what should be done by the court in such a case. It was laid down that the invalidity of the investigation should not be completely ignored by the court during the trial when the breach of a mandatory provision was brought to the knowledge of the Court at an early stage; in that case the Court must take necessary steps to get the illegality cured find defect rectified by ordering such investigation as the circumstances of an individual case may call for. In the present case, therefore, the learned Magistrate having already taken cognizance and framed the charges against the accused be could not discharge the accused when he found out that the police report had been submitted after the investigation by an officer who was not authorised to hold the investigation. He should merely have stayed the case at that stare without discharging the accused or the sureties, and directed further investigation by a special police officer appointed under the Act; and he might proceed with the trial after such special police officer had submitted his report of investigation. No fresh cognizance would have to be taken, as cognizance had already been taken. The learned Magistrate apparently followed the line of action adopted in the Madras Case In re Kuppammal, where the charge was quashed in view of the fact that the investigation was done by a police officer not competent to investigate. But in view of the direction of the Supreme Court is Rishbud's case indicated above, this direction must be followed by the learned Magistrate.
8. The order of the learned Magistrate must, therefore, be rectified to that extent. It must be made clear that the arrest of the accused opposite parties will stand good and they will still be regarded as accused under the Act. If they have, been discharged, they may be rearrested. The learned Magistrate should require the special police officer for the area to submit a report after further investigation and then proceed with the trial of the case on the basis of the charges he has already framed.
9. The Rule is made absolute in part accordingly.
K.C. Sen, J.
10. I agree.