Calcutta High Court (Appellete Side)
In Re: Manoj Shaw @ Manoj Kumar Shaw vs Directorate Of Revenue on 22 July, 2019
1 22.07.19 . No.13 d&PA journed] C. R. M. 5927 of 2019 In Re: An application for anticipatory bail under Section 438 of the Code of Criminal Procedure filed on 09.07.2019 in connection with Park Street Police Station/Detective Department (AHTU) Case No. 56 of 2019 dated 18.04.2019 under Sections 120B of the Indian Penal Code read with Section 3/4/5//7/18 of the Immoral Trafficking Act. (G.R. Case No. 477 of 2019) And In Re: Manoj Shaw @ Manoj Kumar Shaw ... ... Petitioner Mr. Souvik Mitter .. Advocate Mr. Satadru Lahiri .. Advocate Md. Zeeshan Uddin .. Advocate Ms. Amrin Khatoon .. Advocate ... ... for the petitioner Mr. Abhratosh Majumder .. Ld. Addl. Advocate General Mr. Saswata Gopal Mukherjee .. Ld. Public Prosecutor Mr. Rudradipta Nandy .. Advocate ... ... for the State Pursuant to our earlier direction, Investigating Officer is personally present before this court. His presence is noted.
Affidavit filed by Joint Commissioner of Police (Crime), Kolkata Police is placed on record wherefrom it appears that notice under Section 41A of the Code of Criminal Procedure was issued pursuant to oral directions given by the learned Chief Judge, City Sessions Court, Calcutta during the hearing of the anticipatory bail application of the petitioner. The said affidavit be kept with the record.
As the police officer had acted in terms of oral desire given by the judicial authority, it would be improper to affix responsibility upon him solely for such action. However, keeping in mind the totality of the facts and circumstances of the case 2 particularly the nature of offence relating to human trafficking and sexual exploitation of women and as the offence under Section 5 of the Immoral Traffic (Prevention) Act, 1956 envisages punishment upto fourteen years in cases of procurement or attempted procurement of persons for sexual exploitation against their will, we have no doubt in our minds that the investigation of the present case where victims were sexually exploited against their will does not call for issuance of notice as it is undoubtedly beyond the pale of Section 41A of the Code of Criminal Procedure.
The expression 'against the will of any person' occurring in the aforesaid section would not only mean procuring the victim for prostitution by use of physical force, threat or violence but would include within its ambit all forms of economic and social exploitation and/or coercion of the victim to compel her to succumb to such prostitution. It must be borne in mind that helpless or mute surrender of victims to the evils of prostitution due to socio economic oppression and other allied factors must be read into the aforesaid expression so that the fullest impact of penal provision prohibiting sexual exploitation of an individual against her will is given its widest amplitude.
We are not unaware of the fact that ordinarily in penal law interpretation of provisions defining culpability ought to receive strict interpretation. However, penal provisions in social legislations particularly ones which have been promulgated to ensure protection of women and children as envisaged under Article 15 of the Constitution of India, ought to yield to purposive interpretation so that the mischief sought to be eradicated is effectively done and the object and purpose of the law is achieved. Reference in this regard may be given to Gurcharan Singh Vs. Directorate of Revenue 3 Intelligence, (2008) 17 SCC 28 (Para 31 & 32) and Rajinder Singh Vs. State of Punjab, (2015) 6 SCC 477 (Para 13 to 20).
In State of West Bengal Vs. Sangita Sahu @ Shaw, 2018 (3) CLJ (Cal) 75, this Court issued various directions to the Investigating Agency to ensure effective investigation of crimes involving human trafficking for sexual exploitation. In addition to the directions given in the aforesaid report, observations made in this order particularly with regard to the expression 'against the will of any person' and inapplicability of Section 41A of the Code of Criminal Procedure in cases, where the victim has been procured for sexual exploitation against her will due to coercive circumstances must be scrupulously borne in mind by the investigating agency.
It is a matter of serious concern that a senior and responsible judicial officer while handling sensitive cases involving human trafficking for sexual exploitation like the present one is alleged to have requested the Investigating Agency to take recourse to Section 41A of the Code of Criminal Procedure as has been averred in the report placed before us. Before expressing any opinion on such issue, we consider it prudent to give an opportunity to the said judicial officer to respond to the role attributed to him in the said report which reads as follows:-
"In compliance with the said order the undersigned went to City Sessions Court on 13/6/19 and met with Chief PP Sri Tamal Mukherjee and briefed him about the details of the case to oppose the bail prayer. During hearing of the petition Ld. Chief Judge asked PP whether the accused Manoj Kr. Shaw has been issued any 41A CrPC notice during investigation. When Ld. PP replied that no notice was issued to the accused u/s. 41A CrPC since he is brothel owner, Ld. Chief Judge directed the undersigned verabally to issue the notice u/s. 41A CrPC to the accused first and only then he will hear the bail petition and fixed the next date on 18/6/19 for further hearing. However, Ld Judge did not give any written order in this regard. Ld. PP Tamal Mukherjee instructed the undersigned to issue a notice u/s. 41A CrPC to the accused Manoj Kr. Shaw on the same day to comply the verbal order of Ld. Chief Judge and appear again on 18/6/19 with the case diary.4
Accordingly, the undersigned issued notice u/s. 41A CrPC to the accused Manoj Kr. Shaw on 13/6/19 and on the next day & the accused complied the directions of the notice and investigation was made on his part into the case. On 18/6/19 the undersigned again went tot he court of City Sessions Calcutta and met with Ld. PP Shri Tamal Mukherjee and apprised him about the facts in compliance of the directions of Ld. Court. During hearing the matter was informed for kind perusal of Ld. Chief Judge. However, due to vigorous objections from Ld. PP the bail petition of accused Manoj Kr. Shaw was rejected."
Learned Chief Judge, City Sessions Court, Calcutta is directed to respond to the aforesaid observations made in the report placed before this court on the next date of hearing.
Learned Registrar General, High Court, Calcutta as well as the department is directed to communicate a copy of this order along with the report to the concerned judicial officer for his explanation.
Let this matter appear under the same heading two weeks hence. Investigating Officer is directed to be personally present before this court on the next date of hearing.
Let photostat plain copy of this order duly countersigned by the Assistant Registrar (Court) be handed over to the parties on usual undertaking.
(Manojit Mandal, J.) (Joymalya Bagchi, J.)