HARBHAJANKAUR Vs. STATE OF MAHARASHTRA

JUDGEMENT

(1.) THIS criminal revision application is filed by the accused who are being tried in the case No. 2470/ P of 1967 in the Court of the Presidency Magistrate, 21st Court, Bandra, Bombay respect of offences under Sections 3, 4 and 5 of the Suppression of Immoral Traffic in Women and Girls Act, 1956 (Act 104 of 1956 ). The Inspector of Police, Vigilance Branch C. I. D. Bombay filed a Charge-sheet on November 22, 1967 in the Court of the Presidency Magistrate, 21st Court, Bandra, Bombay alleging that accused No. 1, Harbhajankaur alias Harbhanskhaur and accused No. 2, Rachana alias Kripla, who were both described in the charge-sheet as Hindu prostitutes, kept a brothel at flat No. 4, first floor, Jambh Nagar, Juhu Raod, Santa Cruz and thereby committed an offence under Section k3 (1) o f the Suppression of Immoral Traffic in Women and Girls Act, 1956 which will be hereafter referred to as " S. I. T. Act. "it was also alleged in the charge-sheet that the said accused between March 1967 and May 15, k1967 did live on the earnings of prostitution of two girls- (1) Kumud alias a Merry jkamil Andrews and (2) Rita alias Lorita Frantk Willianson and thereby they committed an offence under Section 4 (1) of the S. I. T. Act. It was further alleged against them that the accused procured against them that the accused procured against them that the accused procured the said girls for the purpose of prostitution and induced them to do prostitution and thereby the accused committed the offence under Section kj5 (1) of the S. I. T. Act. After filing of the charge sheet, the learned Presidency Magistrate took cognizance of the offence and on hearing arguments framed a charge on April 23, 1968 against the two accused as follows:-"i. Shri S. S. Shinde, Presidency Magistrate, 21st Court, Bandra Bombay, do hereby charge you (1) Harbhajans Kaur and Harbans Kaur w/o Massasingh (2) Rachan @ Kripla d/o Massasingh as follows;-Firstly:-That you on the 15th May of 1967 at Flat No. 4, 1st floor, Jambh Nagar, kjuhu Road Santa Cruz. Bombay, d id keep a brothel and thereby committed an offence punishable under Section 3 (1) of the S. I. T. Act 1956 and within my cognizance. Secondly:-That you on the date and place mentioned above and being over 18 years of age did knowingly live wholly or in part on the earning of prostitution of witnesses Nos. 5 and 6 viz. Kumud @ Mary Camil Andruz and Rita @ Loreta Frank Williamson respectivrely and thereby committed an offence punishable under Section 4 (I) of the S. I. T. Act 1956 and within my cognizance. Thirdly-That you on the date and place mentioned above did cause or induce witnesses Kumud @ Mery Camil Andruz and Rita @ Loreta Frank Willimson to carry on prostitution and thereby committed an offence punishable under Sec. ,5 (1) (d) of the S. I. T. Act and within my cognizance. And, I hereby direct that you be tried by me on the aforesaid charges. " thereafter the case was adjourned for hearing. One witness Krishna Champaya Patel, P. W. I. was examined by the prosecution and cross-examined by the advocate for the accused. The prosecution also examined Kashinath Lalchand Chaudhary, P. W. 2 and in kjturn the Advocate for the accused cross-examined him. But before the cross-examination of this second witnesses was over, an application was filed on May 18, 1968 praying that the Magistrate may drop or quash the proceedings and not proceed further with that trial because the copy of the charge-sheet had not been furnished to the accused along with the copies of police statements and that as a result, after the previous date of hearing on taking inspection, it was found that the charge-sheet in the present case was signed and submitted by the Inspector of Police and not by the special officer, i. e. , the Assistant Commissioner of Police , as contemplated by Section 13 of the Act and thereby the accused were prejudicially affected. It was submitted that as the charge-sheet was not validly and properly filed the taking cognizance of the case by the Magistrate was also illegal and improper.

(2.) THE learned Presidency Magistrate, rejected the application by his order dated May 29, 1968. The learned Presidency Magistrate considered the cases cited before him, viz. Delhi Administration v. Ram Singh, 1962 (1) Cri LJ 106= AIR 1962 SC 63. Smt. Tara V. The State , AIR 1965 All 372=1965 (2) Cri LJ 179 which were relied upon on behalf of the accused. He also considered the contention raised on behalf of the prosecution by the Special Police Prosecutor that the objection raised by the accused was belated and it should have been raised before the trial proceeded. The learned Presidency Magistrate held that there was no substance in this contention because in his opinion , the point raised by the defence was a jurisdictional point and if it was held that the charge-sheet waw not properly filed, then there was no point in going on with the trial. However, the learned Presidency Magistrate while holding that the decision of the Supreme Court laid down that it was only the Special Police Officer who has the power to investigate the offences under the Act, overruled the objection on behalf of the defence on the ground that it was not necessary for the Special Officer to file the charge-sheet merely because of the fact that the Act gave the power to investigate the offence under the Act to the Special Officer. He distinguished the Supreme Court decision by pointing out that in that case the charge-sheet was filed by a police oficer who was not specially empowred or appointed and that the only point for consideration before the Supreme Court was whrether the investigation itself was carried out by an officer who was duly appointed as Special Officer and the Supreme Court held that it was not so and hence the Court could not proceed with the chargers against the accused. The learned Presidency Magistrate, however, held that as the investigation in the present case was carried out by Shri Bagwe, Assistant Commissioner of Police who was appointed as the special officer under the Act and as he was cited as a witness in the charge-sheet and there was nothing on the record before him to show that when the charge-sheet was filed by Inspector, Vigilance Branch, he did so in his own discretion without any orders or guidance from Shri Bagwe, there was nothing on the record before him to show that the decision to file the charge-sheet which was, really speaking, a final report under the Code of Criminal Procedure was taken by the Inspector, Vigilance Branch and not by Shri Bagwe. He also relied on a Notification issued by the Government which was notification No. PPA. 1257/84187-X dated July 22 1958 by which the Government had appointed Superintendents of Police Crime Branch, Bombay as special police officers and had also appointed all police officers subordinate to the Divisional Superintendents of Police in Greater Bombay as assistants to the special police officers and held that there was considerable force in the argument that the Inspector of Police, Vigilance Branch had every right to assit the special police officer in the investigation of a case. The learned Presidency Magistrate refused to follow the decisions of the Allahabad High Court in AIR 1965 All 372 on the ground that the Supreme Court had not laid down in the decision referred to above that the charge-sheet should be filed by special police officer. He relied on a pasage in the judgment of the Supreme Court in Rishbud v. State of Delhi, AIR 1955 SC 196 which runs as follows:-"a defect or illegality in investigation, however serious, has no direct bearing on the competence or the procedure relating to cognizance or trial. No doubt a police report which results from an investigation is provided in Section 190 Criminal Procedure Code as the material on which congnizance is taken. But it cannot be maintained that a valid and legal police report is the foundation of the jurisdiction of the Court to take cognizance. Section 190 Criminal Procedure Code is one out of a group of sections under the heading "conditions requisite for initiation of proceedings". The language of this section is in marked contrast with that of the other sections of the group under the heading, i. e. Sections 193 and 195 to 199. These latter sectios regulate the competence of the Court and bar its jurisdiction in certain cases excepting in compliance therewith. But Section 190 does not. While no doubt in one sense Clauses (a), (b) and (c) of Section 190 (1) are conditions requisite for taking of congnizance, it is not possible to say that cognizance on an invalid police report is prohibited and is therfore 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 trial. To such a situation Section 537 Criminal Procedure Code is attracted". The learned Presidency Magistrate applied these observations to the present case and said that in his opinion, no prejudice was caused to the accused at the stage at which the trial stood and, therefore, he rejected the application made by the accused for quashing the proceedings.

(3.) THE accused have filed this revision application praying that the said order passed by the learned Presidency Magistrate may be set aside and the proceedings pending before him should be quashed on the ground that the charge-sheet in the present case was not filed by the speial officer empowered to deal with the offences under the S. I. T. Act. Mr. Neemuchwalla, the learned Counsel for the accused, has relied on the aforesaid decisions of the Supreme Court and the Allahabad High Court and a decision of the Gujarat High Court in Rasiklal Manilal v. State of Gujarat, 1967 Cri LJ 1105 (Guj) and has contended that in view of these decisions, it is clear that none but the special officer appointed under Section 13 (1) of the S. I. T. Act, could file a charge-sheet. He submitted that filing a charge-sheet was a very important steps in the investigations by the police and as held by the Supreme Court in his Rishbud's case, AIR 1955 SC 196 the officer investigating has to make up his mind whether he would file a chjarge-sheet or not this power could not be exercised by him through someone else. He contended that if the Legislature has specially appointed a special officer to deal with the offences, it must have been intended that that all important steps in the investigations must be taken by the special officer personally. He had to make up his own mind as to whether in the facts and circumstances discovered by him in the course of the investigation it was necessary to file a charge-sheet against the accused. A charge-sheet filed without making up his mind is no charge-sheet at all in law. He has further submitted, in the alternative, that even assuming that the Inspector of Police who filed the charge-sheet in the present case was an officer who was empowered under the aforesaid notification of the Government of Maharashtra to assist the special officer, he could not step into the shoes of the special officer and decide whether to file a charge-sheet or not. He argued that filing of a charge-sheet jeopardized the liberties of a citizen and if the legislature has chosen to entrust this important duty to the special officer, nobody else could file a charge-sheet so as to prejudice the accused. He submits that if the special officer himself had personally considered the matter carefully, perhaps, his client would not have been charge-sheeted at all. He, therefore urged that his clients have been prejudiced by the fact that the special officer has not filed the charge-sheet and hence he submits that the view taken by the Presidency Magistrate of the matter was wrong and the order should be set aside.