Meghalaya High Court
Shri Somnath Barua vs . State Of Meghalaya on 15 November, 2022
Author: W. Diengdoh
Bench: W. Diengdoh
Serial No. 01
Supplementary
List
HIGH COURT OF MEGHALAYA
AT SHILLONG
Crl.Petn. No. 26 of 2022
Date of Decision: 15.11.2022
Shri Somnath Barua Vs. State of Meghalaya
Coram:
Hon'ble Mr. Justice W. Diengdoh, Judge
Appearance:
For the Petitioner/Appellant(s) : Mr. K.Ch. Gautam,Adv.
For the Respondent(s) : Mr. B. Bhattacharjee, AAG. with
Mr. S. Sengupta, Addl. PP
i) Whether approved for reporting in Yes/No
Law journals etc.:
ii) Whether approved for publication
in press: Yes/No
JUDGMENT
1. On 18.10.2021, a complaint was lodged by one Women Police Sub-Inspector WP/SI K.R. Marak before the Officer-in-Charge, Sadar Police Station, Shillong to the effect that on the same day, at about 6:30 pm two police personnel in plain clothes UBC 2706 M.D. Kharkongor and UBC 2736 Y. Raliang while performing their duties at Jail Road and Police Bazar area spotted one girl and two males talking near Vishal Mega Mart 1 after which one of them went with the girl to the compound behind J.K. International Hotel which is suspected to be an area where brothels and places for soliciting sex workers for prostitution takes place. The said police personnel then followed the girl and her companion and saw them entered a room. Later, a search was conducted and the said girl was found to be in the company of Rami Sinha and Sunil Kr. Singha.
2. Accordingly, on receipt of the said complaint, a case was registered being Shillong Sadar P.S. Case No 240 (10) 2021 under Sections 3(2)(a)(b)/4(1) of the Immoral Traffic (Prevention) Act, 1956 and initially four persons were arrested in connection with the said case, including the petitioner herein.
3. The petitioner has approached this Court with this application under Section 482 Cr.P.C seeking exercise of the inherent power to set aside the FIR dated 18.10.2021 and the subsequent proceedings in Shillong Sadar P.S. Case No. 240 (10) 2021 under Sections 3(2)(a)(b)/4(1) of the Immoral Traffic (Prevention) Act, 1956
4. Mr. K.Ch. Gautam, learned counsel for the petitioner has submitted that the process following the investigation of the case registered under the abovementioned sections of the Immoral Traffic (Prevention) Act has totally exposed the irregular approach of the Investigator, inasmuch as, proper procedure has not been followed since the case was 2 not taken up for investigation by a Special Police Officer specifically empowered for that purpose under the Act.
5. It is also submitted that there is nothing to show that the place which belonged to the petitioner is a brothel. In fact, the case relates to only a solitary incident allegedly involving a minor girl who was never produced before the Magistrate as per the provisions of the Code of Criminal Procedure.
6. The learned counsel has stressed that evidence would show that no offence under Section 3(2)(a)(b)/4(1) of the Immoral Traffic (Prevention) Act, 1956 was committed by the petitioner even though he is the owner of the place, he is residing behind the said building and there was a caretaker who is looking after the place. The building was not even sealed and as such, if a Special Police Officer who is trained in the implementation of the Immoral Traffic (Prevention) Act has conducted the investigation, the petitioner would not have been implicated in the case nor arrested thereof.
7. In support of his case, the learned counsel has cited the case of Delhi Administration v. Ram Singh: AIR 1962 SC 63 para 24 and also the case of Ali Ahammed v. State of Kerala: Crl. MC No. 2539 of 2014, Order dated 26.11.2020.
8. Mr. B. Bhattacharjee, learned AAG responding on behalf of the State respondent has submitted that a perusal of the FIR would reveal that 3 specific information have been given indicating that the building of the petitioner herein have been used as a brothel since two persons were caught red handed with a young girl in one of the room of the building. Apart from that, further search of the place resulted in seizure of a number of used condoms which can only be concluded that the building was used for immoral activities.
9. As to the objection that the investigation was not carried out by a police officer duly authorized under the Act, the learned AAG has submitted that a judgment in this regard is cited wherein the Hon'ble Supreme Court has dealt with this issue in the case of R.A.H. Siguran v. Shankare Gowda Alias Shankara & Anr: (2017) 16 SCC 126 particularly para 10.
10. It is also submitted that subsequently, the Government has issued relevant Notification dated 07.03.2022 under the said Immoral Traffic (Prevention) Act, 1956 which is the authorization conferred on certain police officer to carry out investigation as provided under the Act. In view of this submission, this petition is devoid of merits and the same is liable to be dismissed.
11. This Court has given considerable importance to the submission and contention of the parties herein. The learned counsel for the petitioner has submitted that the petitioner was arrested by the police and subsequently released on bail. The police acting on a complaint have 4 arrested five persons in all, including the petitioner herein and have referred their arrest to the provisions of Section 3(2)(a)(b) and 4(1) of the Immoral Traffic (Prevention) Act, 1956.
12. The above Sections reads as follows:
"3. Punishment for keeping a brothel or allowing premises to be used as a brothel. -- (2) Any person who--
(a) being the tenant, lessee, occupier or person in charge of any premises, uses, or knowingly allows any other person to use, such premises or any part thereof as a brothel, or
(b) being the owner, lessor or landlord of any premises or the agent of such owner, lessor or landlord, lets the same or any part thereof with the knowledge that the same or any part thereof is intended to be used as a brothel, or is wilfully a party to the use of such premises or any part thereof as a brothel, shall be punishable on first conviction with imprisonment for a term which may extend to two years and with fine which may extend to two thousand rupees and in the event of a second or subsequent conviction, with rigorous imprisonment for a term which may extend to five years and also with fine.
4. Punishment for living on the earnings of prostitution.--
(1) Any person over the age of eighteen years who knowingly lives, wholly or in part, on the earnings of the prostitution of [any other person] shall be punishable with imprisonment for a term which may extend to two years, or with fine which may extend to one thousand rupees, or with both [and where such earnings relate to the prostitution of a child or a minor, shall be punishable with imprisonment for a term of not less than seven years and not more than ten years]".
13. The petitioner has not denied that the building suspected to have been used as a brothel belongs to him, though he went on to say that it was under the charge of a caretaker and that he has no idea as to what transpired 5 in that building. This according to this Court is the subject of investigation and could not be accepted or rejected at this juncture.
14. The authority cited by the learned counsel for the petitioner that is, the case of Ram Singh(supra) is legally valid and the proposition of law therein is sound, founded on the basis of the provisions of Section 13 that only a special police officer specifically appointed in that regard by the State Government is competent to investigate offences under the said Immoral Traffic(Prevention) Act, 1956.
15. Reference made to the case of Ali Ahammed(supra) where the Hon'ble Kerala High Court has held that it is a settled position of law that the final report filed by an officer who is not a special police officer empowered under Section 13 of the Act is not in compliance with the provisions of the Act and hence is not sustainable in law is also valid.
16. However, as submitted by the learned AAG, the case is only at the stage of investigation and the charge sheet and final report has not been filed. Secondly, it is also the submission of the learned AAG that vide Notification No. HPL.36/2022/5 dated 07.03.2022, issued by the Secretary to the Government of Meghalaya, Home (Police) Department, the Governor was pleased to appoint the police officers noted therein as special police officers under sub-Section 1 and 2 respectively of Section 13 of the Immoral Traffic (Prevention) Act, 1956.
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17. The Hon'ble Supreme Court in the case of R.A.H. Siguran(supra) dealing with the same subject matter, that is, quashment of proceedings on the ground of incompetency of investigating officer to conduct investigation as per the provision of Section 13 of the Immoral Traffic (Prevention) Act, has acknowledged the correct proposition of law in the case of Ram Singh(supra), but has however distinguished the same by noting the judgment in the case of H.N. Rishbud & Anr v. State (UT of Delhi): AIR 1955 SC 196 and has observed that in the case of H.N. Rishbud, the Supreme Court has held that if the plea of invalidity of investigation is raised at sufficiently early stage, the court, instead of taking cognizance, direct reinvestigation by competent investigation officer. But, after cognizance is taken, the trial cannot be quashed for invalidity of investigation.
18. Without proceeding further, suffice it to say that since the stage of the case is that the complicity of the accused/petitioner is still under investigation and no final report has been filed to allow the competent court to take cognizance, it can be said that it is still in the early stages of investigation. This being the case, considering that the accusation against the petitioner herein is serious in nature affecting the person and property of women and children and crime against women and children being taken very seriously in this country, this Court is of the considered opinion that reinvestigation has to be directed.
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19. Again noting that the Government has issued the relevant notification in this regard, notifying the competent special police officer to investigate cases under the Immoral Traffic (Prevention) Act, there is no impediment to direct that the case against the petitioner and others be now investigated by the special police officer.
20. Let copy of this order be issued upon the Superintendent of Police, East Khasi Hills, District, Shillong for taking necessary steps in this regard.
21. Correspondingly, this petition is found to be devoid of merits and the same is hereby dismissed.
22. Petition disposed of. No costs.
Judge Meghalaya 15.11.2022 "D. Nary, PS"
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