1. This is a rule obtained by the Superintendent and Remembrancer of Legal Affairs, on behalf of the State of West Bengal, calling upon Sardar. Bahadur Singh and three others, the accused men put up on trial under Sections 3 and 5 of the Suppression of Immoral Traffic in Women and Girls Act, 104 of 1956, and now the opposite party before me, to show, cause why their discharge under Section 251-A, sub-section (2) of the Cr PC, ordered by a learned Presidency Magistrate on April 4, 1968, should not be set aside. The offences under Section 3 (“keeping a brothel or allowing premises to be used as a brothel”) and Section 5 procuring, inducing or taking woman or girl for the sake of prostitution”) are said to have been committed in a boardinghouse under the name and style of Wedgewood Hotel at 5-A Sudder Street within the jurisdiction of Taltola police-station in the presidency town of Calcutta. So, under Sec. 13, sub-section (1) of the Act, there shall be a special police officer appointed by the State Government for dealing with such offences in such area. More, by sub-section (2), Cl. (a), of S. 13, such special police officer shall not be below the rank of an Assistant Commissioner of Police in the presidency town of Calcutta. These two provisions of law have received effect by the State Governments notification No. 1062 S.W/1A-1/58 dated May 7, 1958, published in the Calcutta Gazette, extraordinary, of the same date, appointing, amongst others, all Assistant Commissioners of Police under the control of the Deputy Commissioner of Police, Detective Department, (for short, D.D hereafter), as special police officers for dealing with the offences under the Act in the town of Calcutta.

2. The offences on hand were dealt with by Assistant Commissioner, A.S Sarkar of D.D

3. It is not possible for a special police officer to deal with offences under the Act — often a laborious process—all to himself, without telling on the efficient discharge of his functions, Hence, by sub-section (3), Cl. (a) of Section 13 is provided:

(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. The State Government has thought it fit, as is evidenced by its letter No. 1063/1(17)-SW dated May 7, 1958, to the Commissioner of Police, Calcutta, to direct that each of the special officers, appointed under the notification just noticed (paragraph 2 ante), shall be assisted, in the town of Calcutta, by five classes of subordinate police officers under him:

(a) all inspectors and inspectresses of police,

(b) sub-inspectors and sub-inspectresses of police,

(c) assistant sub-inspectors and sub-inspectresses of police,

(d) head constables, and

(e) constables.

4. Such then is the statute supplemented, in the wake thereof, by the requisite statutory instrument and direction. The direction of the State Government, under Section 13, sub-section (3) Cl. (a), as to the number of subordinate police officers, the special police officer (here Assistant Commissioner Sarkar of D.D) will be assisted by, appears to be a complete answer to the point taken by Mr. Datta on behalf of the opposite party that, in absence of such statutory direction, assistance taken of and rendered by the subordinate police officers, in the course of Assistant Commr. Sarkar's dealing with the offence, comes on the edge of the law. Be it recorded in fairness to Mr. Datta that he does not press it either, so soon as Mrs. Moitra, appearing for the State, produces the aforesaid statutory direction under Section 13, sub-section (3) Clause (a).

5. It is time now to notice why the learned magistrate, well aware of S. 13 and its sub-sections, which he summarises in the order complained of, sees infraction of such, provisions and discharges the accused men before him. The reasons he goes by are—

One, the special police officer was himself present during the search of the boarding-house. But there is nothing to show that the investigation was done by himself or under his guidance or direct supervision.”

6. Two, “the search list shows that the search was done by one Sri N.C Sen.”

7. Three, the search list does not even bear the counter-signature of the special police officer.

8. Four, the statements of witnesses have been recorded by persons other than the special police officer who has not even countersigned them.

9. Ergo, the learned magistrate holds, “there is nothing on record to show that the offences under the Act have been-dealt with by the Special Officer himself or under his guidance or supervision.”

10. Apparently, the learned magistrate rests his reasons on what has now come to be called police papers within the-meaning of Section 173, sub-section (4) of the CPC. To start with, I too do, as the magistrate apparently does, and base my scrutiny on police papers, Mr. Datta having been good enough to hand over to me the copies furnished to his clients in the Court below. Even so, the way in which the magistrate looks at the matter is not, in my judgment, the right way to look at it, Take his reasons seriatim—

11. One, enough its enough if the special police officer was himself present in the course of the search of the boarding-house as the magistrate says he was. What was he there for? Surely, not to have a talk on weather, but to guide and supervise the search while it was on. This little may, in safety, be taken for granted. And not to take it for granted is to make a casualty of a common-sense approach to an elementary problem as this.

12. Two, “one Sri N.C Seri”, who, the search is done by, is not a man on the street, but “Inspr. (Inspector) D.D” as he subscribes himself to be, in the search-list. Such a one is to assist the special police officer for the efficient discharge of his functions in relation to the offences on hand, as the statutory direction under Section is, Sub-section (3) enjoins., Inspector N.C Sen has done no more. It, therefore completely beats me what wrong, he has done in conducting the search and making the list, or the special police officer has done in being assisted so by him.

13. Three, the magistrate is right that the search-list contains no counter-signature of the special police officer. So what? Nowhere does the statute lay down that. He has to countersign the search-list. That apart, he himself was present during the search as the magistrate says he was, to say so at the risk of repetition: That is much more than his counter-signature witch might have been lent without his being physically present at the time of the search.

14. Four, true it is that the statements of witnesses (not all though) have been recorded by persons other than the special police officer. But who are these persons? Going by the police papers, they are B.L Ghosh; H.K Mitra; L.K Seal, subinspectors all of D.D; and, therefore subordinate police officers who the State Government thinks fit, will assist the special police officer, for the efficient discharge of his functions in relation to the offences on hand, just what S. 13, sub-section (3) read with, the State Government's direction thereunder (noticed above) prescribes. So, there appears to be little wrong, either in these subordinate police officers assisting the special police officer, or in the special police officer being assisted by them. The special police officer's countersignature? The learned Magistrate is overborne by the lack of it; I am not. Indeed, I cannot be. The statute does not require it. On top of that, the job is the job of the special police officer in dealing with the offences on hand, no matter what assistance he takes from his subordinate police officers. It is within the law and, therefore, within, the competence of the special police officer to say to on such subordinate officer of his: “Assist me by searching the boarding-house”, and to say to another and more: “Assist me by taking down the statements of the witnesses.” Such subordinate officers render the assistance they are asked to, and thereby participate in the investigation to that extent. That is all. They do no more. But the special police officer, who is dealing with the offences on hand, sees the matter whole, lays down the theme and thread of the operation, throws out a hint here and a hint there, and pulls the radial cords from time to time as prudence and need dictate. What does it matter, therefore, that some of his subordinate police officers assist him by recording the statements of certain witnesses, which they are within their bounds to do, under Section 13, sub-section (3), and the direction of the State Government thereunder. That does not relieve him of the job of dealing with the offences—a job which as his and his alone, assisted no doubt by the subordinate officers under him. If you deny him so little, you will have to write off so much — the whole of Section 13, sub-section (3), while, of course, you cannot.

15. Thus, all the four reasons, the learned magistrate adduces, attributing to the law much more than what it contains, fail the opposite party before me. What fails them still more is the observation the magistrate concludes his re-sons with: that “there is nothing on record” to show the special police officer having dealt with the offences on hand. Now, a record means, amongst other things, a formal writing of any fact or proceeding: anything entered in the rolls of a Court, especially the formal - statements or pleadings of parties in a litigation. Therefore, the very record of this case, bearing no. G.R 200 of 1968 and captioned State v. Sardar Bahadur Singh, is a record par excellence. And what does this record disclose? The challan dated January 30, 1968, apart, submitted by, and over the signature of, the special police officer (A.S Sarkar), there are six remand petitions from April 23, 1967, to December 7, 1967, submitted by him to the Chief Presidency Magistrate, praying for time “for completion of Investigation and submission of charge-sheet” (challan being also the term used by the police and magistracy in Calcutta for charge-sheet)—which, indeed, he did on January 30, 1968, as just noticed, on postponement after postponement prayed for by him and granted by the magistrate. The record reveals another petition yet dated April 23, 1967, by the special police officer for keeping a girl, rescued from the boarding-house, Lakshmi Rani Sarkar by name, in the Government Rescue Home, Lilooah. More, even the police papers reveal that the statements of two witnesses were recorded by the special police officer himself. In view of such illuminating material—and, in particular, in the face of so many remand petitions, which Mrs. Moitra invites my attention to, and which the learned magistrate passes by—it is Impossible to say, as the magistrate does, that “there is nothing on record” to show the special police officer having not dealt with the offences on hand.

16. On this consideration alone, the magistrate's order, complained of by the State, deserves to be upset. But there are other considerations as well. The case of Delhi Administration v. Ram Singh, AIR 1962 SC 63 : (1962) 1 Cri LJ 106, Mrs. Moitra refers me to, appears to be a pointer. There a sub-inspector of police under the Delhi Administration, not appointed, and incapable too of bang appointed a special police officer, under S. 13, sub-ss. (1) and (2), below the rank of a Deputy Superintendent of Police as he was, investigated an offence under S. 8 (“seducing or soliciting for purpose of prostitution”), and submitted the charge-sheet as well. That was struck down by the majority decision, and it was held—

A. The special police officer is competent to investigate.

B. He and his assistant police officers are the only persons competent to investigate the offences under the Act (104 of 1956).

C. Police officers not specially appointed as special police officers cannot investigate the offences under the Act even though they are cognizable offences.

17. It, therefore, follows that the subordinate police officers, whom the learned magistrate does not apparently think much of, are even competent to investigate the offences: Proposition B above. Indeed, to assist the special police officer by conducting the search or by examining witnesses is to participate in investigation, which is only part of the functions, the special police officer has to discharge in relation to the offences under the Act. Part, because by the conjoint operation of Section 2, Cl. (i), and S. 13, sub-s. (1), the special police officer, in charge of police duties within a specified area for the purposes of the Act, shall be dealing with offences under the Act in that area. Both these expressions — “police duties” and “dealing with offences”—are of the widest amplitude and necessarily connote all that the police has to do in connexion with the offences under the Act, including detection, prevention and investigation.

18. Such then is the law laid down by the majority decision of the Supreme Court, no matter that the facts there are different from the facts the case before me reveals: a point Mr. Datta emphasizes. I am concerned, however, with the law laid down. And in the light of that law, the order complained of becomes still more unsustainable.

19. So far then about the police papers and the record of the case. There remains yet the diary of proceedings in investigation under sub-s. (1), S. 172 of the CPC, sub-section (2) of which bears inter alia:

20. Any criminal Court may send for the police diaries of a case under inquiry or trial in such Court, and may use such diaries, not as evidence in the case, but to aid it in such inquiry or trial.

21. Did the learned magistrate call the diary in his aid? He does not record he did. So, I proceed on the footing, he did not, noticing at the same time Mrs. Moitra's submission, on instructions, that he did, and Mr. Datta's submission, on instructions again, that he did not.

22. Mr. Datta reminds me, and very rightly too, that the magistrate could not have used the diary as evidence. But who says he could? Neither Mrs. Moitra nor I. That indeed is the prohibition Section 172, sub-section (2), of the Code enjoins. More it is clear, well-settled and consistent law throughout that a magistrate may, under Section 172, sub-section (2), use the diary, not as evidence in the case, but to and him in the trial, “by suggesting means of further elucidating points which need clearing up and which are material for the purpose of doing justice between the Crown (now the State) and the accused”: Queen-Empress v. Mannu (1897) ILR 19 All 390, (FB) approved by the Judicial Committee of the Privy Council in Dal Singh v. Emperor, ILR 44 Cal 876 : (AIR 1917 PC 25) and by the Supreme Court in Habeeb Mohammad v. State of Hyderabad, (1954) SCA 514 : (AIR 1954 SC 51)—cases Mr. Datta refers me to. Now, the point that was troubling the magistrate, the point, that, therefore, needed clearing up, the point that was material for the purpose of doing justice between the State and the accused men, was supervision or absence of supervision by the special police officer of what his subordinate police officers were doing in recording the statements of witnesses and the like. So, if the magistrate had looked into the diary, he would have found that such supervision was very much there. Indeed, the subordinate police officers were recording the statements of witnesses under the order of the special police officer: vide the diary's pages 2, 3 and 15 to which Mrs. Moitra rightly draws my attention. And all that would have remained for the magistrate to do was to await the evidence of the special police officer to that end, in the trial, elucidating the point he was in doubt of, or if he was in no mind to wait that long, to summon the special officer as his witness under Section 540 of the Code to get this point cleared up.

23. No doubt, under Section 251-A sub-s. (2), a magistrate's consideration in the matter of framing or not framing a charge, is to rest on

(a) All the documents referred to in section 173: the police papers,

(b) the examination, if any, of the accused men, and

(c) the hearing of the prosecution and the accused.

24. The last material: the hearing of the prosecution and the accused: does not mean the hearing of arguments only. It is but a species of the genus which is “hearing.” So this material includes the hearing of evidence as well if needed. And certainly this means hearing the prosecution say to the magistrate: “Look into your own record of the case only to find the special police officer dealing with the offences and praying, by one remand petition after another, for time to complete the investigation and to submit the challan. Look into the case-diary too, and getting the clue therefrom, elucidate, by substantive evidence, the point that is troubling you.” This is one consideration. There is still another: Sec. 251-A, sub-section (2), S. 178, sub-section (2), and S. 540 co-exist, supplementing one another. Not that S. 251-A, sub-section (2), controls S. 178, sub-s. (2), and Sec. 540, where the significant expression that occurs is: “at any stage of inquiry or trial or other proceeding under this Code.” So, the fact that the stage of the trial here was the stage of framing or not framing a charge matters little. It does come under the compendious expression: “any stage.” Section 251-A does not control either the magistrate's obvious powers to look into his own record.

25. Nothing that I see in the two cases relied upon by Mr. Datta runs counter to the view I have expressed in the foregoing lines. One such case is Bholaram Dalmia v. The State, 58 Cal WN 597 : (AIR 1955 Cal 234) where the magistrate goes wrong in treating the statements of certain persons in the police-diary as substantive evidence. This Court sets it right by directing the magistrate to examine those persons and then to consider the evidence they give upon such examination. I am saying as much. The other case is Panchanan Ballav v. The State, 63 Cal WN 195 : (AIR 1959 Cal 207) one under Section 207-A, sub-section (6) of which is somewhat akin to Section 251-A, on the point I am on now. But there neither S. 178 sub-section (2), nor S. 540, comes up for consideration. A case is an authority for the proposition it decides. So, it cannot be an authority binding on me.

26. Thus, whatever way I consider the matter, the order complained of cannot stand. The police papers and the magistrate's own record show the special police officer having dealt with the offences in accordance with law, assisted though he was, as he could be, by his subordinate police officers. The case-diary would have shown just that too, had the magistrate taken the trouble of pressing it into service in the manner permissible by law.

27. Mr. Datta has, however, a new point to urge—a point not covered by the impugned order. He sees infraction of S. 15, sub-ss. (1) and (2), of the Act, in that the special police officer has neither recorded the grounds of his belief that an offence punishable under the Act has been or is being committed in respect of a woman or girl living in the boardinghouse, before entry into and search of the premises, nor called upon at least one woman of the locality to witness the search. Grant this is so, though, in absence of evidence into which the magistrate has yet to enter, I should be slow to come to a firm finding, one way or the other, about the recording of grounds, at any rate. But that cannot render the search illegal. The authorities on the point are ample and clear: Sundar Singh v. State of Uttar Pradesh, AIR 1956 SC 411, Kamalabai Jethmal v. State of Maharashtra, AIR 1962 SC 1189, to cite but two, out of so many decisions, which cluster round the subject. The principle is, as stated by Lord Goddard, C.J speaking for the Board, in Kuruma son of Kainu v. Reginam, (1955) 1 All ER 236 at p. 239:

“………… if the evidence is relevant, it is admissible, and the Court is not concerned with how it is obtained.”

28. Or, to quote Crompton, J.'s dictum in R. v. Leatham, (1861) 8 Cox C.C 498 which his Lordship quotes and approves:

“It matters not how you get it; if you steal it even, it would be admissible.”

29. This is how I answer Mr. Datta's contention. Whether or no this sort of infirmity, if that, will affect the weight of the evidence is to be gone into at the trial after a careful scrutiny of all the materials the Court has had put before it. This can hardly be a ground for supporting the erroneous order of discharge recorded by the learned Magistrate.

30. It will not perhaps be out of place to refer to a very recent decision of the Supreme Court in Bai Radha v. State Of Gujarat , a case under this very Act (104 of 1956), reported in the Statesman, Calcutta edition, of November 21, 1968, at page 4, (Cri. A. No. 1(N) of 1967, D/- 20-11-1968) (SC) by the newspaper's legal correspondent, as under:

“The Supreme Court observed that a mere irregularity in conducting the search by reason of non-compliance with Section 15 of the Act did not vitiate the trial unless it was shown that it caused a miscarriage of justice or prejudiced the accused. In the present case, the failure to comply strictly with the search provisions of the Act did not prejudice the accused and hence her conviction must be upheld.”

31. This appeal was heard by Shah, Ramaswami and Grover, JJ. This is just the principle I have governed myself by.

32. If one has to go strictly by Section 38 of the Evidence Act (1 of 1872), the report of a case in a newspaper does not appear to be relevant, because a news paper cannot be regarded as a book purporting to be a report of the rulings of the Courts. The presumption under Section 84 of the Evidence Act cannot also arise, strictly speaking. All the same, in a case counsel relied on a judgment published only in the Statesman, and Costello, J. allowed the report of the judgment to be placed before him, observing:

“It has been said on high authority that the position of the Statesman is similar to that of the Times.” (Statesman, Calcutta, February 18, 1928, quoted in Sarkar's Law of Evidence, 11th edition, page 453).

33. So, I can well go by the report in the Statesman, as I have gone.

34. The authorities, Mr. Datta relies upon, stand on a different plane, and cannot reach the case on hand. In Nazir Ahmad v. King Emperor, 63 Ind App 372 : (AIR 1936 PC 253 (2)) the appellant's conviction, mainly, if not entirely, on the strength of a confession said to have been made by him to a Magistrate, was set aside, because the procedure laid down with minute particularity in Section 164 and 364 of the CPC was not followed. All the Magistrate did was to make rough notes of what he was told; and, worse still, after dictating to a typist a memorandum from the rough notes, he destroyed them. In that context, was applied, as a matter of good sense and natural construction, the doctrine, that where a power is given to do a certain thing in a certain way the thing must be done in that way or not at all. Good sense and natural construction rule here too, but with this difference that the find of a tangible thing or of a living person as the result of a search, remains, no matter what the illegality is. Infraction of law is not to be encouraged. It is to be deplored. But the evidence, the search yields, such infraction does not wash out; whereas in the Nazir Ahmed's case, 63 Ind App 372 : (AIR 1936 PC 253 (2)) proper evidence, in the shape of a duly recorded confession strictly under Sections 164 and 364, did not come into being at all, because of infraction of law. By parity of reasoning, State of Uttar Pradesh v. Singhara Singh, AIR 1964 SC 358, cannot be assimilated to the facts here.

35. State Of Rajasthan v. Rehman , AIR 1960 SC 210, looks at the matter, not from the viewpoint of, admissibility of evidence obtained by a search infracting the provisions thereon, but from the viewpoint of resistance to a search, in contravention of the provisions of the Code (S. 165), being no offence. That is not the case here. In Commissioner of Commercial Taxes v. Ramkrishan Shrikishan, AIR 1968 SC 59, a case concerning writ petitions, the things recovered on search from “the residential accommodation”, on the strength of a defective search warrant by a Magistrate, who had not applied his mind to the question of issuing it, were directed to be returned. That has little to do with the admissibility in evidence, in a criminal trial, of the things so recovered, as is the case here.

36. Three other contentions of Mr. Datta remain to be noticed. One is: the proviso (ii) to Section 14 of the Act provides for delegation, by the special police officer, of his power to arrest without warrant, to any officer subordinate to him, by an order in writing; whereas S. 13 provides for nothing of the kind. That is no doubt true. But S. 13, sub-section (3), read with the State Government's direction thereunder, does provide for the special police officer being assisted by his subordinate police officers, who have in fact assisted him by conducting the search, making the search-list and recording the statements of witnesses. So no illegality can lurk here, no matter that S. 13, unlike Section 14, does not provide for delegation.

37. Another contention is that whereas Lakshmi Rani Sarkar was taken into custody by the special police officer, the remaining girls were taken into custody and removed from the boarding-house by his subordinate police officers. But when Mrs. Moitra points out that no girl other than Lakshmi Rani was taken into custody, Mr. Datta is good enough not to press the point.

38. The third contention is that some of the witnesses were examined before the lodging of the first information report. They were, presumably for detection of the offences. But that cannot justify the discharge of the accused men, a prima facie case being there. The Magistrate has not discharged them on that ground either.

39. I owe it to Mrs. Moitra to record her alternative contention, on the line of a decision by a Division of this Court: Superintendent and Remembrancer of Legal Affairs, Government of West Bengal v. Kshitish Chandra Roy, AIR 1962 Cal 189, that the learned Magistrate should have stayed the case, without discharging the accused men, directed investigation by an authorized police officer, and then proceeded with the case, after such officer had submitted his report. But since I have found that the special police officer has dealt with the offences, I do not feel called upon to go this way. In the result, the rule succeeds and be made absolute. The Magistrate's order dated April 4, 1968, discharging the accused men be set aside. Let the case be tried by some other Magistrate chosen by, the Chief Presidency Magistrate, Calcutta. Let the records be sent down very, very early.

TVN/D.V.C

40. Petition allowed.