Allahabad High Court
Smt. Lata vs State Of U.P.And Another on 10 November, 2010
HIGH COURT OF JUDICATURE AT ALLAHABAD ?Court No. - 47 AFR Case :- APPLICATION U/S 482 No. - 30421 of 2010 Petitioner :- Smt. Lata Respondent :- State Of U.P.And Another Petitioner Counsel :- Manu Khare Respondent Counsel :- Govt. Advocate Hon'ble Shri Kant Tripathi,J.
1. Heard Mr. Manu Khare for the applicant and the learned AGA for respondent no. 1 and perused the record.
2. This is a petition under section 482 of the Code of Criminal Procedure (in short ?the Code?) for quashing the charge sheet filed in Case Crime No. 206 of 2010 under sections 3/4/5/6 of the Immoral Traffic (Prevention) Act, 1956 (in short ?the ITP Act?), P.S. Sadar Bazar, District Meerut as well as the order dated 11.06.2010 whereby the learned Special Chief Judicial Magistrate, Meerut took cognizance of the offences.
3. Mr. Manu Khare submitted that the FIR lodged by Smt. Atul Sharma, Secretary, Sankalp (a social organization) was not maintainable in view of the fact that only the Special Police Officer had the power to deal with the matter under the Act and it was the Special Police Officer, who could lodge the FIR, therefore, the FIR lodged by a private person was not maintainable and as such the entire investigation undertaken in pursuance of that FIR was a futile exercise, therefore, the charge sheet as well as the proceeding of the criminal case initiated in pursuance of the charge sheet are liable to be quashed.
4. In this connection Mr. Khare referred to the provisions of Sections 13, 14, 15 and 16 of the Act and contended that various provisions of the Act is a complete Code with respect to the offences punishable under the ITP Act. Mr. Khare further submitted that section 5 of the Code of Criminal Procedure (in short ?the Code?) provides that all the offences under the Indian Penal Code as well as under any other law are to be investigated, inquired into, tried and otherwise dealt with according to the provisions of the Code but the position would be different, if the local or special law has specific provisions providing as to how the offences under the concerned law are to be investigated, inquired into, tried or otherwise dealt with and in that situation the matter has to be dealt with according to that law. Mr. Khare next submitted that in view of the fact that the ITP Act provides as to how the investigations, inquiries, trials or other matters are dealt with, the provisions of the Code are not applicable. In support of this submission Mr. Khare placed reliance on Delhi Administration v Ram Singh (1962) 2 SCR 694: AIR 1962 SC 63:(1962) 1 Cr LJ 106. In that case the majority view was expressed in paragraphs 19, 22 and 24 as follows:
?19. According to section 13 of the Act, 'there shall be, for each area to be specified by the State Government, a special police officer appointed by or on behalf of that Government for dealing with offences under the Act in that area'. The expression 'dealing with offences' is of wide import and will include any act which the police has to do in connection with the offences under the Act. In this connection, we have been referred to the provisions of section 5 of the Criminal Procedure Code, which reads:
(1) "All offences under the Indian Penal Code shall be investigated, inquired into, tried, and otherwise dealt with according to the provisions hereinafter contained.
(2) All offences under any other law shall be investigated, inquired into, tried, and otherwise dealt with according to the same provisions, but subject to any enactment for the time being in force regulating the manner or place of investigating, inquiring into, trying or otherwise dealing with such offences."
It is submitted that the expression 'dealt with' must mean something which is not included in investigation, inquiry or trial. This does not necessarily follow from the provisions of this section. The word ,otherwise' points to the fact that the expression 'dealt with' is all comprehensive, and that investigation, inquiry and trial were some aspects of 'dealing with' the offences. Further, according to sub-section. (3) of section 13, the special police officer is to be assisted, for the efficient discharge of his functions in relation to offences under this Act, by a number of subordinate police officers and will be advised by a non-official advisory body. The expression 'functions in relation to offences' do include his functions connected with the investigation of the offences. There is no reason to exclude such functions from the functions contemplated by sub-section. (3).
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22. If the power of the special police officer to deal with the offences under the Act, and therefore to investigate into the offences, be not held exclusive, there can be then two investigations carried on by two different agencies, one by the special police officer and the other by the ordinary police. It is easy to imagine the difficulties which such duplication of proceedings can lead to. There is nothing in the Act to co-ordinate the activities of the regular police with respect to cognizable offences under the Act and those of the special police officer.
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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.?
5. In the aforesaid case, the Apex Court considered the question whether a police officer, who is neither a special police officer under the ITP Act, nor a police officer subordinate to a special police officer, can validly investigate the offences under the aforesaid Act and held that only the Special Police Officer appointed under the ITP Act has power to hold investigation in regard to an offence punishable under the aforesaid Act. Therefore, a police officer who has not been appointed as special police officer, cannot investigate the offence under the ITP Act, even though the offences are cognizable offences. However, according to section 13(3)(a) of the Act, the State Government has power to depute a subordinate police officer, in such number as may be considered fit, for assisting the special police officer and such subordinate police officer may include even woman police officers. But taking of assistance from a subordinate police officer does not in any way affect such powers of the special police officer. In the aforesaid case, the point as to who is competent to lodge the FIR in regard to an offence punishable under the ITP Act was not involved nor answered. According to the scheme of the ITP Act, the main function of the Special Police Officer is to hold the investigation and to carry out searches and seizures etc. and other incidental proceedings. Therefore, the submission that only the Special Police Officer had locus to lodge the FIR, does not appear to be tenable in law.
6. The ITP Act is silent as to how the FIR is to be lodged. It has nowhere provided in the ITP Act that FIR must be lodged by the Special Police Officer. In absence of specific provisions in this regard in the said Act, it can be safely held with the aid of section 5 of the Code that the provisions of section 154 of the Code in regard to lodging of the FIR regarding commission of an offence under the ITP Act are fully applicable. It is also well settled that any person can lodge the FIR regarding commission of a cognizable offence whether he has any interest in the matter or not. The question of locus in such matters does not arise. However, if the relevant law requires lodging of an FIR by a particular person, then and then alone, the question of locus has a relevancy otherwise not. As the ITP Act is silent as to how the FIR is to be lodged, the FIR lodged by a private person, namely, Smt. Atul Sharma cannot be treated as not maintainable, and as such the proceedings held in pursuance thereof are not in any way without jurisdiction.
7. The present case, according to the FIR, is that the complainant got an information that one person along with three minor girls was present at the Bus Stand for taking the girls to some unknown place. The complainant then went to the Bus Stand and found that in the waiting hall three minor girls and one male person had been indulged in gossip. It is also alleged that the minor girls were to be taken to New Delhi for prostitution and this fact was stated by all the minor girls on interrogation. In case, the informant, instead of lodging the FIR, had tried to contact Special Police Officer for lodging the FIR, there was every possibility of moving the accused and girls from the place of occurrence to some unknown place and in that situation no action could be taken against them. In this view of the matter, lodging of the FIR by the complainant was not, in any way, against the law.
8. In my opinion, the charge sheet cannot be quashed only on the ground that the FIR was lodged by a private person.
9. In this case, the investigation was done by a Special Police Officer and the charge sheet has been filed by him, on the basis of the materials collected during the investigation, and from such materials, a prima facie case is made out against the applicant, therefore, I do not consider it proper to interfere with the charge sheet and the proceeding of the criminal case.
10. The petition has no merit and is, accordingly, dismissed.
Order Date :- 10.11.2010 shailesh