I have examined the materials on record including the impugned judgment.
Although there is a general discussion of the evidence on record, the issue which
primarily weighed with the learned trial Judge in acquitting the accused persons
was that investigation was not conducted by a competent agency in the instant
case. Such proposition of law is contrary to the ratio of the Apex Court in the case
of H. N. Rishbud – Vs. - State of Delhi reported in A.I.R. 1955 SC 196 (paragraph
9).
In the said report the Apex Court held that the illegality in the course of
investigation would not vitiate the trial until and unless the same has occasioned
miscarriage of justice.
IN THE HIGH COURT AT CALCUTTA
CRIMINAL REVISIONAL JURISDICTION
Present :
The Hon’ble Justice Joymalya Bagchi
C.R.R. No. 3274 of 2010
Ashok Hazra
-VersusThe
State of West Bengal & Ors.
Judgment on: November 10, 2014.
Joymalya Bagchi, J.:
Citation;2015 CRLJ(NOC)489 Cal
The judgment and order dated 29.06.2010 passed by the learned Additional
Sessions Judge, 3rd Fast Track Court, Lalbagh, Murshidabad in S.S.L No. 44/07 –
S.T. No. 11 of February 2008 – G.R. 764/04, T.R. 314/05 acquitting the
respondents for commission of offence punishable under Section 3/4/5/6/7 of the
Prevention of Immoral Traffic Act, 1956.
The prosecution case is to the effect that opposite party no.6 runs a hotel
named and styled as Arnapurna Hotel situated at Ajimganj City, near Ajimganj
Railway Station, Police Station – Jiaganj, District – Murshidabad. It is alleged that
local people had made complaints against such immoral activities of opposite
party no.6. On the basis of such complaint, raid was conducted at the premises by
Sri Bhaskar Goswami, C.I. of Police, Lalbagh, Murshidabad on 12.01.2004 at 2
about 14:30 hours along with other Officers attached to Jiaganj Police Station. In
course of raid it was found that opposite party nos.2, 3 and 4 had been procured
by the opposite party no.6 for the purpose of carrying on prostitution in the said
Hotel and the opposite party nos.4 and 5 were found to be present in the said
Hotel as customers. The raiding party arrested the aforesaid persons, seized
incriminating articles from the Hotel and on the basis of the written complaint of
Bhaskar Goswami, C.I. of Police, Lalbagh, Murshidabad Jiaganj Police Station
Case No. 63 of 2004 dated 13.10.2004 under Sections 3/4/5/6/7 of the
Prevention of Immoral Traffic Act, 1956 was registered for investigation.
In conclusion of investigation, charge-sheet being Charge-sheet No.
83/2004 dated 26.12.2004 under Sections 3/4/5/6/7 of the Prevention of
Immoral Traffic Act, 1956 (hereinafter referred to as the Act of 1956) was
submitted before the Court of the learned Sub-Divisional Judicial Magistrate,
Lalbagh, Murshidabad. The case was committed to the Court of Sessions and
transferred to the Court of learned Additional Sessions Judge, 3rd Fast Track
Court, Lalbagh, Murshidabad for trial and disposal.
Charges were framed under Sections 3/4/5/6/7 of the Act of 1956 against
the opposite party nos.2 to 6 herein. The opposite party nos.2 to 6 pleaded not
guilty and claimed to be tried. In course of trial, the prosecution examined as
many as ten witnesses and exhibited a number of documents. The trial Court,
however, by the impugned judgment and order acquitted the opposite party nos.2
to 6 herein of the charges, as aforesaid.
Mr. Sanyal, learned counsel appearing for the petitioner submitted that the
order of acquittal was patently illegal, perverse and contrary to law, inasmuch as,
as the prosecution case was thrown out on the ground that the Investigating
Officer Debabrata Dubey, Inspector-of-Police (PW-10) was not competent to
investigate offences under the Act of 1956 in view of Section 13 of the said Act.
Mr. Banerjee, learned Additional Public Prosecutor, High Court, Calcutta
supported such submission and submitted that such finding of the learned Court
below was incorrect in view of the Notification dated 27th September, 1996 issued
on behalf of the Government of India in exercise of power under Section 13 of the 3
aforesaid Act empowering all Police officers not below the rank of Inspector-ofPolice
as Special Police Officers to investigate offences under the said Act.
In spite of notice, nobody appears on behalf of the opposite parties.
I have examined the materials on record including the impugned judgment.
Although there is a general discussion of the evidence on record, the issue which
primarily weighed with the learned trial Judge in acquitting the accused persons
was that investigation was not conducted by a competent agency in the instant
case. Such proposition of law is contrary to the ratio of the Apex Court in the case
of H. N. Rishbud – Vs. - State of Delhi reported in A.I.R. 1955 SC 196 (paragraph
9).
In the said report the Apex Court held that the illegality in the course of
investigation would not vitiate the trial until and unless the same has occasioned
miscarriage of justice.
That apart the State has placed on record a Notification being No. 4466 SW
O SW 25/96 dated 27th September, 1996 whereby the State of West Bengal has
empowered all Police Officers not below the rank of Inspector of Police under the
West Bengal Police and Calcutta Police Authority, to act as Special Police Officers
in their respective local jurisdiction for dealing with offences under the Immoral
Traffic (Prevention) Act, 1956.
For better appreciation the aforesaid Notification is set out below:
“GOVERNMENT OF WEST BENGAL
DEPARTMENT OF SOCIAL WELFARE
WRITERS’ BUILDINGS, CALCUTTA
NO. 4466 SW O SW 25/96
DATED CALCUTTA 27TH SEPTEMBER, 1996
NOTIFICATION
In exercise of the power conferred by Sub-Section (1) of section 13 of
the Immoral Traffic (Prevention) Act, 1956, the Governor is pleased hereby to
appoint all officers not below the rank of Inspector of Police under the West
Bengal Police and Calcutta Police Authority, to act as Special Police Officers 4
in their respective local jurisdiction for dealing with offences under the
Immoral Traffic (Prevention) Act, 1956 with immediate effect.
This issues in cancellation of all previous order, issued in this respect.
By order of the Governor.
Sri S. Kar
Jt. Secy. to the Govt. of West Bengal”
Admittedly, the Investigating Officer (PW-10) is an Inspector of Police
attached to West Bengal Police and in view of the aforesaid Notification it cannot,
therefore, be disputed that he is a special Police Officer empowered to investigate
offences under the aforesaid law.
The very substratum on which the opposite parties have been acquitted is
therefore contrary to law and is liable to be set aside. The impugned order of
acquittal is accordingly set aside.
The matter is remanded before the trial Court for retrial and the Court is
directed to proceed with the hearing of the case on the basis of evidence adduced
on record and concluded the same within three months from the date of
communication of this order.
The revision petition is accordingly allowed.
Department is directed to send down Lower Court record at once along with
a copy of this order for necessary action.
Urgent photostat certified copy of this order, if applied for, be supplied to
the parties as early as possible.
Print Page
Although there is a general discussion of the evidence on record, the issue which
primarily weighed with the learned trial Judge in acquitting the accused persons
was that investigation was not conducted by a competent agency in the instant
case. Such proposition of law is contrary to the ratio of the Apex Court in the case
of H. N. Rishbud – Vs. - State of Delhi reported in A.I.R. 1955 SC 196 (paragraph
9).
In the said report the Apex Court held that the illegality in the course of
investigation would not vitiate the trial until and unless the same has occasioned
miscarriage of justice.
IN THE HIGH COURT AT CALCUTTA
CRIMINAL REVISIONAL JURISDICTION
Present :
The Hon’ble Justice Joymalya Bagchi
C.R.R. No. 3274 of 2010
Ashok Hazra
-VersusThe
State of West Bengal & Ors.
Judgment on: November 10, 2014.
Joymalya Bagchi, J.:
Citation;2015 CRLJ(NOC)489 Cal
The judgment and order dated 29.06.2010 passed by the learned Additional
Sessions Judge, 3rd Fast Track Court, Lalbagh, Murshidabad in S.S.L No. 44/07 –
S.T. No. 11 of February 2008 – G.R. 764/04, T.R. 314/05 acquitting the
respondents for commission of offence punishable under Section 3/4/5/6/7 of the
Prevention of Immoral Traffic Act, 1956.
The prosecution case is to the effect that opposite party no.6 runs a hotel
named and styled as Arnapurna Hotel situated at Ajimganj City, near Ajimganj
Railway Station, Police Station – Jiaganj, District – Murshidabad. It is alleged that
local people had made complaints against such immoral activities of opposite
party no.6. On the basis of such complaint, raid was conducted at the premises by
Sri Bhaskar Goswami, C.I. of Police, Lalbagh, Murshidabad on 12.01.2004 at 2
about 14:30 hours along with other Officers attached to Jiaganj Police Station. In
course of raid it was found that opposite party nos.2, 3 and 4 had been procured
by the opposite party no.6 for the purpose of carrying on prostitution in the said
Hotel and the opposite party nos.4 and 5 were found to be present in the said
Hotel as customers. The raiding party arrested the aforesaid persons, seized
incriminating articles from the Hotel and on the basis of the written complaint of
Bhaskar Goswami, C.I. of Police, Lalbagh, Murshidabad Jiaganj Police Station
Case No. 63 of 2004 dated 13.10.2004 under Sections 3/4/5/6/7 of the
Prevention of Immoral Traffic Act, 1956 was registered for investigation.
In conclusion of investigation, charge-sheet being Charge-sheet No.
83/2004 dated 26.12.2004 under Sections 3/4/5/6/7 of the Prevention of
Immoral Traffic Act, 1956 (hereinafter referred to as the Act of 1956) was
submitted before the Court of the learned Sub-Divisional Judicial Magistrate,
Lalbagh, Murshidabad. The case was committed to the Court of Sessions and
transferred to the Court of learned Additional Sessions Judge, 3rd Fast Track
Court, Lalbagh, Murshidabad for trial and disposal.
Charges were framed under Sections 3/4/5/6/7 of the Act of 1956 against
the opposite party nos.2 to 6 herein. The opposite party nos.2 to 6 pleaded not
guilty and claimed to be tried. In course of trial, the prosecution examined as
many as ten witnesses and exhibited a number of documents. The trial Court,
however, by the impugned judgment and order acquitted the opposite party nos.2
to 6 herein of the charges, as aforesaid.
Mr. Sanyal, learned counsel appearing for the petitioner submitted that the
order of acquittal was patently illegal, perverse and contrary to law, inasmuch as,
as the prosecution case was thrown out on the ground that the Investigating
Officer Debabrata Dubey, Inspector-of-Police (PW-10) was not competent to
investigate offences under the Act of 1956 in view of Section 13 of the said Act.
Mr. Banerjee, learned Additional Public Prosecutor, High Court, Calcutta
supported such submission and submitted that such finding of the learned Court
below was incorrect in view of the Notification dated 27th September, 1996 issued
on behalf of the Government of India in exercise of power under Section 13 of the 3
aforesaid Act empowering all Police officers not below the rank of Inspector-ofPolice
as Special Police Officers to investigate offences under the said Act.
In spite of notice, nobody appears on behalf of the opposite parties.
I have examined the materials on record including the impugned judgment.
Although there is a general discussion of the evidence on record, the issue which
primarily weighed with the learned trial Judge in acquitting the accused persons
was that investigation was not conducted by a competent agency in the instant
case. Such proposition of law is contrary to the ratio of the Apex Court in the case
of H. N. Rishbud – Vs. - State of Delhi reported in A.I.R. 1955 SC 196 (paragraph
9).
In the said report the Apex Court held that the illegality in the course of
investigation would not vitiate the trial until and unless the same has occasioned
miscarriage of justice.
That apart the State has placed on record a Notification being No. 4466 SW
O SW 25/96 dated 27th September, 1996 whereby the State of West Bengal has
empowered all Police Officers not below the rank of Inspector of Police under the
West Bengal Police and Calcutta Police Authority, to act as Special Police Officers
in their respective local jurisdiction for dealing with offences under the Immoral
Traffic (Prevention) Act, 1956.
For better appreciation the aforesaid Notification is set out below:
“GOVERNMENT OF WEST BENGAL
DEPARTMENT OF SOCIAL WELFARE
WRITERS’ BUILDINGS, CALCUTTA
NO. 4466 SW O SW 25/96
DATED CALCUTTA 27TH SEPTEMBER, 1996
NOTIFICATION
In exercise of the power conferred by Sub-Section (1) of section 13 of
the Immoral Traffic (Prevention) Act, 1956, the Governor is pleased hereby to
appoint all officers not below the rank of Inspector of Police under the West
Bengal Police and Calcutta Police Authority, to act as Special Police Officers 4
in their respective local jurisdiction for dealing with offences under the
Immoral Traffic (Prevention) Act, 1956 with immediate effect.
This issues in cancellation of all previous order, issued in this respect.
By order of the Governor.
Sri S. Kar
Jt. Secy. to the Govt. of West Bengal”
Admittedly, the Investigating Officer (PW-10) is an Inspector of Police
attached to West Bengal Police and in view of the aforesaid Notification it cannot,
therefore, be disputed that he is a special Police Officer empowered to investigate
offences under the aforesaid law.
The very substratum on which the opposite parties have been acquitted is
therefore contrary to law and is liable to be set aside. The impugned order of
acquittal is accordingly set aside.
The matter is remanded before the trial Court for retrial and the Court is
directed to proceed with the hearing of the case on the basis of evidence adduced
on record and concluded the same within three months from the date of
communication of this order.
The revision petition is accordingly allowed.
Department is directed to send down Lower Court record at once along with
a copy of this order for necessary action.
Urgent photostat certified copy of this order, if applied for, be supplied to
the parties as early as possible.
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