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Feroja Peshakar and ors. Vs. Emperor - Court Judgment

LegalCrystal Citation
CourtKolkata
Decided On
Judge
Reported in16Ind.Cas.499
AppellantFeroja Peshakar and ors.
RespondentEmperor
Excerpt:
eastern bengal and assam disorderly houses act (ii e.b. & a. of 1907), sections 6, 7 - criminal procedure code (act v of 1898), section 190--inquiry under section 7--authority to inquire, whether can be delegated--order to inspector to inquire--inspector directing sub-inspector to inquire--report of sub-inspector--complaint of facts--offence under section 6--complaint to be instituted under criminal procedure code--cognizance to be taken under section 190, criminal procedure code. - .....which is, on the face of it, slightly ambiguous, and this report fortifies us in our opinion that criminal proceedings should only be instituted in the way laid down by section 190, criminal procedure code4. the real basis of the contention in this case is that section 6 of the act creates an offence under a local law, and proceedings can only, therefore, be instituted under the code of criminal procedure, without desiring to lay down that section 190, criminal procedure code, is mandatory or exhaustive and that there are no other ways in heaven or earth to institute criminal proceedings, it appears to us clear that the only way to avoid the difficulties of jurisdiction in working an act of this description, which does not appear to be self-contained as far as the procedure is.....
Judgment:

IN NO. 568 OF 1912.

1. This Rule was issued on the District Magistrate of Rangpur to show cause why these proceedings should not be stayed until proper procedure is taken, on the ground that the Magistrate has no jurisdiction either under Sections 190(a), 190(b) or 190(c) to take cognizance of the offence alleged to have been committed on the report of a Town Sub-Inspector of Police.

2. It appears that certain inhabitants of Rangpur complained that the houses of certain prostitutes, 20 of whose cases are before us in connection with these analogous rules, were used as brothels, or for the purpose of prostitution or as disorderly houses to the annoyance of the inhabitants of the vicinity, and the Magistrate expressly states that he issued an order summoning the tenants to appear and show cause why the use of those houses should not be discontinued for any of those purposes under Clause (6) of Section 2 of the Act. The order was to take effect within one month. But the Magistrate appears to have lost sight of the matter and the proceedings were very much delayed. We may mention that the neighbours originally complained on the 18th August 1911, and then a very long and, in our opinion, unnecessary investigation was gone into by the Magistrate and an immense amount of evidence was taken and the prohibitory order was not issued till the 29th November 1911. There is quite a volume of evidence and a very lengthy order on the subject. Nearly three months after, on the 24th February 1912, the District Magistrate made an order to an Inspector whom he named, authorizing him to make inquiry under Section 7. It is said that this delay was due to the fact that there had been an appeal against the interlocutory order which was dismissed as incompetent on the 1st February 1912.

3. Now the first argument that was addressed to us appeared to contend that Section 7 was a necessary part of the procedure of the Act prior to a prosecution being instituted. But this, we think, clearly is not the case, and it is now practically conceded that this is so. Section 7 is an enabling section. It provides that it shall be lawful for the District Magistrate by an order in writing to authorize any officer not below the rank of a Sub-Inspector of Police to enter and inspect the said house at any time after the expiration of the period specified in the order under Election 3 for the purpose of satisfying himself that the order is being complied with. This does not seem to us to lay down that it is in any way necessary for any body to enter the house if the Magistrate can be satisfied in other ways that the nuisance is still continuing. It is only a protection to the public authorities from a charge of trespass, for it is not lawful to enter a private house without the sanction of the owner, unless the statute expressly gives such authority and the authority which is given by this section clearly cannot be delegated to any other person. If the District Magistrate thinks it necessary for any one to enter and inspect the house, he must authorise some special person or persons not below the rank of a Sub-Inspector of Police to do so, and no other persons can be, held absolved from trespass who purport to act upon that order. But in this case the Inspector asked the Sub-Inspector to make the necessary inquiry, and it does not appear that the Sub-Inspector entered the house, but he made a report which is, on the face of it, slightly ambiguous, and this report fortifies us in our opinion that criminal proceedings should only be instituted in the way laid down by Section 190, Criminal Procedure Code

4. The real basis of the contention in this case is that Section 6 of the Act creates an offence under a local law, and proceedings can only, therefore, be instituted under the Code of Criminal Procedure, Without desiring to lay down that Section 190, Criminal Procedure Code, is mandatory or exhaustive and that there are no other ways in heaven or earth to institute criminal proceedings, it appears to us clear that the only way to avoid the difficulties of jurisdiction in working an act of this description, which does not appear to be self-contained as far as the procedure is concerned, is to make use of that very useful section of the Code of Criminal Procedure.

5. Now comes the question how that section should be made use of. It is open to the District Magistrate to treat the report of the Sub-Inspector as a complaint of facts, which constitute such offence. But in that case, it is obviously necessary for the Magistrate to call upon him to appear, if he so desires, and substantiate that complaint upon oath; and this brings us back to what we have just glanced at, that, as a matter of fact, the present report of the Sub-Inspector does not disclose a complete case under the section; and although it might furnish basis to the Magistrate for directing the Sub-Inspector to come and depose on oath as complainant, it would not in itself fulfil the requirements of the section. For he says that he has personally inquired into the matter at various times during day and night and saw many persons frequent the woman's house and thus he is fully satisfied that she is going on with her profession of prostitution. Now, this is not exactly what the woman was ordered not to do. She was ordered not to use her house to the annoyance of the inhabitants of the vicinity, and it will be necessary for the complainant to show that she was still using her house to the annoyance of the inhabitants in the vicinity. Then, there is another way in which the Magistrate could have taken cognizance, a way which we do not in any way recommend, that is, under Section 155, Criminal Procedure Code, he could have directed the Police to investigate this non-cognizable offence. It would then have been open to the Police to make inquiry and send up a charge sheet if the charge was established, or to report that the case could not go on if they thought the evidence to be insufficient. But this would be giving an amount of discretion to the Police which, we think, in a case of this nature would be extremely undesirable. It would be far better if the Magistrate is satisfied after examining the Sub-Inspector on oath that the annoyance still continues that he should take cognizance upon that complaint. He cannot act under Section 190(c) because the information which he received was received from a Police Officer.

6. We, therefore, think that it is not necessary to stay these proceedings, but the Magistrate should be directed, if he thinks fit to continue this enquiry by calling before him the Sub-Inspector who made the report and examining him on oath, to satisfy himself that there is sufficient ground for taking proceedings under Section 6 of the Act. If he is so satisfied, he can continue those proceedings; if he is not so satisfied he can dismiss the complaint under Section 203, Criminal Procedure Code.

7. This judgment will govern the other 19 Rules Nos. 569 to 587 of 1912.


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