IN THE HIGH COURT AT CALCUTTA
CIRCUIT BENCH AT JALPAIGURI
CRIMINAL REVISIONAL JURISDICTION
Present:
The Hon'ble Justice Rai Chattopadhyay C.R.R. No. 423 of 2024
Apurba Saha.
Vs.
The State of West Bengal.
For the petitioner : Mr. Sudipto Moitra : Mr. Vijay V
: Mr. Dwaipayan Biswas
: Mr. Sourav Lohani
: Mr. Raja Roy
For the State : Mr. Nilay Chakraborty,Ld. APP : Ms. Sukanya Adhikary
Hearing concluded on : 19/02/2025 Judgment on : 19/02/2025 Rai Chattopadhyay, J.
1. The solitary law point involved in this case to be determined by the Court is whether lodging of FIR, and submission of charge-sheet with regard to offence under The Immoral Traffic (Prevention) Act, 1956, by such police officer who is not a Special Police Officer in terms of the provisions under Section 13 of the said Act of 1956, shall be maintainable in the eye of law.
2. An FIR was lodged on June 30, 2024 being New Jalpaiguri P.S. Case No. 644/2024 dated 30.06.2024 under Section 3,4,5,6,7,18 of The Immoral Traffic (Prevention) Act, 1956. The Connected GR Case is GR. No. 3155 of 2024. The case was initially started against the other accused persons. However, after conclusion of investigation the
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petitioner appeared to be one of the accused persons therein against whom the charge-sheet was submitted under the afore-stated provisions of law.
3. Being aggrieved the petitioner has come up in the present revision seeking quashing of the proceeding against him before the Trial Court.
4. Mr. Sudipto Moitra, learned Senior Advocate, has appeared for the petitioner, through video conference. His first contention is that the entire criminal proceeding is vitiated being illegal in so far as, the proceeding has neither been started nor investigated by a competent police officer. Also, that the chargesheet has been submitted by a police officer who is not competent to do so in terms of the relevant provision of law. In this regard Mr. Moitra has relied on the provisions enumerated under Section 13 of The Immoral Traffic (Prevention) Act, 1956. He says that the same has provided for designation of a Special Police Officer who should be specifically appointed for dealing with offence under the said Act, within a stipulated/specified area. He further says that according to Section 13(2) of the Act of 1956, such Special Police Officer should not be below the rank of an Inspector of police.
5. Mr. Sudipto Moitra, learned Senior Counsel, has submitted that not only the FIR was lodged by an incompetent officer but also the investigation has been proceeded with by an Investigating Officer who has not been designated in terms of the provisions of the said Act of 1956. Hence, according to him the entire criminal proceeding including investigation and chargesheet, is rendered to be vitiated due to the manifest, gross and palpable illegality as above.
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6. In this regard Mr. Sudipto Moitra, learned Senior Counsel has relied on the two judgments of the Supreme Court and Allahabad High Court respectively. Those are as follows:
i) D. S. Mathur Tara Vs. State reported in 1965 0 CrLJ 179 and
ii) Delhi Administration Vs. Ram Singh reported in AIR 1962 SC
63.
7. By relying on the judgments as above Mr. Moitra has stated that excepting the case being lodged or investigated by a competent designated police officer, the purposes of the said Act shall be vitiated and hence the entire investigation and the basis on which the trial might have been proceeded with, is a non est in this case, in the eye of law.
8. So far as the merits of the case is concerned, according to Mr. Moitra the FIR has not revealed any cognizable offence against the present petitioner or his direct involvement or role. He says that the petitioner, in furtherance of his business pursuits has purchased a piece of land and constructed a hotel thereupon. Thereafter by dint of a duly executed agreement of licence, the petitioner has appointed a licensee to manage the affairs of the said hotel to which the petitioner has no further involvement or interference, after execution of the said deed of licence. So far as the alleged offence is concerned, according to Mr. Moitra, the petitioner is absolutely innocent in so far as he is absolutely unconnected and in dark as to the kind of operation being continuing in the concerned hotel, since though he is the licensor, but unaware and detached from the affairs of the management of the said hotel which is run by the licensee only. For all these reasons Mr. Moitra has sought for quashing of the criminal case against the present petitioner.
9. Mr. Chakraborty appears for the opposite party/State. Mr. Chakraborty, by relying on the materials in CD submits that so far
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as the plea of the petitioner regarding his innocence or no connection with the affairs of the hotel is concerned, the same can be ignored upon perusal of the materials available in CD. He says that the materials collected during investigation on the basis of which police has submitted chargesheet, against the petitioner along with other accused persons, have sufficiently indicated about his involvement in the commission of the alleged offence, which is no less than heinous in nature.
10. Heard submissions, perused the record and CD. Admittedly, this is a case in which the criminal justice system has been set in motion pursuant to an FIR being New Jalpaiguri P.S Case No. 644/2024 dated 30.06.2024. The FIR was lodged on July 30, 2024 under provisions of The Immoral Traffic (Prevention) Act, 1956. Evidently and admittedly, the FIR was recorded by the Sub-Inspector of Police. A glance to the record of the case does not reveal an iota of evidence that an officer, specially designated by virtue of the provision of the said Act of 1956, has conducted the investigation or submitted the charge-sheet.
11. A preliminary point of maintainability of the criminal proceeding including the chargesheet has been raised by the petitioner for reason of the provisions enumerated under Section 13(1) and (2) of The Immoral Traffic (Prevention) Act, 1956. The said provisions may be extracted as hereinbelow, for the benefit of discussion:
"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 an Inspector of Police.
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12. The Immoral Traffic (Prevention) Act, 1956 is a special statute which has been promulgated pursuant to the international convention signed at New York on May 9, 1950, for the prevention of immortal traffic. The special statute as above has provided for special provisions including appointment of a Special Police Officer of a specified rank, for dealing with offences under the Act. This is for the reason to allow the statute a special status altogether in so far as the same has been promulgated to address the severe social menace and heinous and grievous nature of crime as covered thereunder. Human trafficking is addressed by dint of the said statute. The State cannot afford any relaxation therefor, regarding due compliance with the provisions of the said statute, in so far as by usage of the provision thereunder, the State is supposed to take control over and curb out the social menace like human trafficking. With this purpose in mind the legislature has provided strictest possible arrangement throughout the enactment including that made under Section 13(1) and (2) of the Act of 1956 as stated above. A senior police officer not below the rank of an Inspector of police with his vast experience to deal with the heinous nature of crimes, is to be assigned with the designation of a Special Police Officer under the said Act to function within a specified area as notified. Therefore, appointment of a Special Police Officer not below the rank of Inspector of police is imperative in order to lodging FIR as well as investigate as to an offence under the provisions of the said Act.
13. In this case, firstly no material is available in CD or in any other form that any notification has ever been published for appointment of any police officer not below the rank of an Inspector of police as a Special Officer under the Act, to deal with the offences thereunder, in the area, where the alleged offence has taken place. That being so, the Court is constrained to find that so far as the area where the alleged place of occurrence situates, there is no designated and duly appointed Special Police Officer, under the provisions of The Immoral
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Traffic (Prevention) Act, 1956, for dealing with offences under the said Act. Therefore, the obvious fallout of the same is the FIR in the case having been lodged and the investigation having been proceeded with by an officer, who would not be eligible and competent to do so, so far as allegations of offence under the provisions of 1956 Act.
14. In such backdrop of the events a case is started being New Jalpaiguri P.S Case No. 644/2024 on 30/06/2024, the legality and propriety of which is under challenge in this case.
15. In the present case, which is specifically lodged under the provisions of 1956 Act, the Special Police Officer, so designated under the law, would have been the only persons competent to investigate. In view of the facts that neither the FIR has been registered nor the investigation has been conducted by an officer competent and authorised under the law to do so, the questions raised in this case as to the legality and maintainability of the criminal proceeding, appears to be only justified. In this regard the portion of the judgment of the Hon'ble Supreme Court in the case of Ram Singh (supra) is very relevant, which may be quoted as hereinbelow:
"23. The special police officer is a police officer and is always of the rank higher than a Sub-Inspector and therefore, in view of Section 551 of the Code, can exercise the same powers throughout the local area to which he is appointed as may be exercised by the officer in charge of a police station within the limits of his station.
24. We are therefore of opinion that the special police officer is competent to investigate and that he and his assistant police officers are the only persons competent to investigate 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. The result is that this appeal by the Delhi Administration fails and is hereby dismissed."
16. Therefore, it is the categorical verdict of the Court that unless an officer of the rank of Inspector of police or above, after having been designated as a Special Police Officer under the provisions of this
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Act, no other person shall be eligible and competent to investigate an offence under the said special law.
17. The above being sacrosanct and the settled law, is required to be applied mandatorily in a case like the present one. However, it appears that the police has committed gross error in proceeding with the allegations as made in the present case, without a police officer of appropriate rank and designation being appointed under the provision of the said special statute to deal with the present case. In view of such error apparent, the Court is constrained to find that the entire criminal proceeding is liable to be vitiated being based on the principles as propounded in the well celebrated Bhajanlal's case
[State of Haryana Vs. Bhajan Lal reported in 1992 SCC (Cri)
426] that gross and manifest illegality vitiates the FIR and the entire proceedings.
18. Hence, the Court finds that so far as the present petitioner is concerned the criminal proceeding against him, as above, cannot be held to be sustainable and the same is liable to be vitiated and quashed.
19. On the discussion as made above, this revision is allowed, thereby quashing the entire criminal proceeding as against the petitioner in New Jalpaiguri P.S Case No. 644/2024 dated 30.06.2024 (connected G.R. Case having no. 3155 of 2024.
20. CD be returned.
21. Since no affidavit is invited, the allegations contained in the petition are deemed to have been denied by the respondents including the private respondents.
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22. Urgent certified website copy of this order, if applied for, be supplied to the parties upon compliance with all requisite formalities.
(Rai Chattopadhyay, J.)
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