IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 26TH DAY OF NOVEMBER, 2019 BEFORE THE HON’BLE MR.JUSTICE G.NARENDAR CRL.P.NO.4678/2019 BETWEEN PAUL BESRA S/O DANIEL BASHEER AGED ABOUT 35 YEARS NO.22/1, KALIYAMMA TEMPLE STREET ULSOOR , BENGALURU-560 008 (BY SRI ARUN ASHOK GADAG, ADV.) AND STATE OF KARNATAKA BY INDIRANAGAR POLICE STATION REP BY HIGH COURT GOVERNMENT PLEADER BENGALURU-01.
(BY SRI R.D.RENUKARADHYA, HCGP.) ...PETITIONER …RESPONDENT THIS CRIMINAL PETITION IS FILED UNDER SECTION 482 CR.P.C PRAYING TO QUASH THE FIR NO.424/2016 REGISTERED BY THE RESPONDENT INDIRA NAGAR P.S., FOR THE OFFENCES P/U/S 3,4,5,6 AND 7 OF IMMORAL TRAFFIC PREVENTION ACT, AND SECTION 370 OF IPC INCLUDING CHARGE SHEET PREPARED ON 01.07.2017 FILED BEFORE THE COURT ON 19.08.2017 AND ALL FURTHER PROCEEDINGS PRESENTLY PENDING ON THE FILE OF THE LXXI ADDITIONAL CITY CIVIL AND SESSION JUDGE, BENGALURU CCH-72 IN S.C.NO.298/2018.
THIS CRIMINAL PETITION COMING ON FOR ADMISSION THIS DAY, THE COURT MADE THE FOLLOWING:
ORDER 1. Heard the learned Counsel for the petitioner and the learned HCGP.
2. Learned Counsel for the petitioner submits that the matter is covered by the earlier order of this Court rendered in Crl.P.No.4242/2017 disposed off on 02.06.2017.
3. Learned HCGP would fairly submit that the instant petition could be ordered in terms of the above said order. The submission of the learned HCGP is placed on record.
4. The coordinate bench of this Court has in similar circumstances ordered as under:
“3. The main legal ground urged before this court by the learned counsel for the petitioner is that the entire investigation is vitiated by serious illegality. The person who has investigated and submitted the charge sheet has absolutely no authority under the Act and he is not a Special Officer appointed u/s.13 of the ITP Act. There is no material to show that the person who has submitted the charge sheet has been specially authorized by the Government in this regard to investigate this case under the provisions of the ITP Act.
4. In order to examine the above said contention, it is seen from the charge sheet papers that the entire charge sheet has been filed by the Sub Inspector of Police, Indiranagar Police Station. The Police Inspector, Central Crime Branch (Women and Narcotics Squad), Bengaluru-560 002, has submitted a report to the Inspector of Police, Indiranagar Police Station, Bengaluru, who after receipt of the report registered a case, investigated the matter and submitted a charge sheet for the offence punishable under sections 3, 4, 5 and 7 of ITP Act and u/s.370(2) & (3) of IPC.
5. The said Sub-Inspector of Police in fact has visited the spot, recorded the statement of the witnesses and also drew up the Mahazar and etc., Therefore, the entire investigation done by the Police Inspector, Indiranagar Police Station u/s.13 of ITP Act, says that who are all the Special Officers can investigate the matter and who is competent to appoint the said person. The said provision reads as follows:
SECTION 13 - SPECIAL POLICE OFFICER AND ADVISORY BODY (1) There shall be for each area to be specified by the State Government in this behalf a special police officer appointed by or on behalf of that Government for dealing with offences under this Act in that area.
1[(2) The Special Police Officer shall not be below the rank of an Inspector of Police.
(2A) The District Magistrate may, if he considers it necessary or expedient so to do, confer upon any retired police or military officer all or any of the powers conferred by or under this Act on a Special Police Officer, with respect to particular cases or classes of cases or to cases generally:
Provided that no such power shall be conferred on-
(a) a retired Police Officer unless such officer, at the time of his retirement, was holding a post not below the rank of an inspector;
(b) a retired military officer unless such officer, at the time of his retirement, was holding a post not below the rank of a commissioned officer.] (3) For the efficient discharge of his functions in relation to offences under this Act-
(a) the special police officer of an area shall be assisted by such number of subordinate police officers (including women Police officers wherever practicable) as the State Government may think fit; and (b) the State Government may associate with the Special Police officer a non- official advisory body consisting of not more than five leading social welfare workers of the area (including women social welfare workers wherever practicable) to advise him on questions of general importance regarding the working of this Act.
2[(4) The Central Government may, for the purpose of investigating any offence under this Act or under any other law for the time being in force dealing with sexual exploitation of persons and committed in more than one State, appoint such number of police officers as trafficking police officers and they shall exercise all the powers and discharge all the functions as are exercisable by Special Police Officers under this Act with the modification that they shall exercise such powers and discharge such functions in relation to the whole of India.] The above said provision clearly indicates that each area is specified by the State Government and the State Government has to appoint a Special Police Officer by or on behalf of that Government for dealing with the offences under this Act in that area. It should be specified to the court that sofar as Indiranagar area is concerned. The person who has investigated the matter has not been appointed as a Special Officer. Even there is no specific provision to appoint a Sub Inspector of Police as Special Officer, because sub clause (2) of Section 13 of IPT Act says that the Special Officer shall not be below the rank of an Inspector of Police. Therefore, there is no Notification produced or the learned High Court Government Pleader is unable to produce any special Notification issued in this regard appointing the Police Inspector as Special Officer to investigate the said case. At no stretch of imagination, the court can take cognizance if any Special Officer is appointed below the rank of Inspector of Police. The learned High Court Government Pleader tried to convince this court relying upon Section 14 of the Act, wherein the said provision reads thus:
SECTION 14 -OFFENCES TO BE COGNIZABLE Notwithstanding anything contained in [the Code of Criminal Procedure, 1973 (2 of 1974)], any offence punishable under this Act shall be deemed to be a cognizable offence within the meaning of that Code:
Provided that, notwithstanding anything contained in that Code,-
(i) arrest without warrant may be made only by the special Police Officer or under his direction or guidance, or subject to his prior approval;
(ii) when the special police officer requires any officer subordinate to him to arrest without warrant otherwise than in his presence any person for an offence under this Act, he shall give that subordinate officer an order in writing, specifying the person to be arrested and the offence for which the arrest is being made; and the latter officer before arresting the person shall inform him of the substance of the order and, on being required by such person, show him the order;
(iii) any police officer not below the rank of [sub- inspector] specially authorised by the special police officer may, if he has reason to believe that on account of delay involved in obtaining the order of the special police officer, any valuable evidence relating to any offence under this Act is likely to be destroyed or concealed, or the person who has committed or is suspected to have committed the offence is likely to escape, or if the name and address of such a person is unknown or there is reason to suspect that a false name or address has been given, arrest the person concerned without such order, but in such a case he shall report, as soon as may be, to the special police officer the arrest and the circumstances in which the arrest was made.
6. Even on plain reading of the above provisions, the Special Police Officer appointed u/s.13 of the Act, not below the rank of Police Inspector for the purpose of arrest and produce the accused before the Special Police Officer of an area shall be assisted by such number of subordinate Police Officers. Sub Clause (3) of Section 14 of the Act empowers only such officer who has been specially authorized to arrest the accused can do so, even without such an order under the circumstances stated in the provision. Therefore, it does not mean to say that the Officer who has assisted the Special Officer can be called as an Investigating Officer to investigate and to file the charge sheet u/s.13 of the Act. Section 14 of the Act empowers the Special Police Officer appointed under Section 13, if requires any officer sub- ordinate to him to arrest without warrant otherwise than in his presence any person for an offence under this Act, he shall give that subordinate officer an order in writing, specifying the person to be arrested and the offence for which the arrest being made and when the investigation has been done by a competent authority and a charge sheet is filed by the competent person.
7. In fact, this particular aspect, sofar as Section 13 of the Act is concerned, who can be the authorized officer and who can appoint the Special Officer has been at length considered by this court in a case law reported in 2016(3) KAR.LJ. 513 between Shankare Gowda @ Shankara Vs. State by Madanayakana Halli Police Station, Bengaluru and another, wherein this court has observed in the following manner:
This is not a petition challenging the ambiguity in the notification of the Government dated 02.08.2008, but illegality cannot be allowed to perpetuate even after noticing that very investigation is without jurisdiction. The registration and investigation of the offences under the Act, without authority under Section 13 of the Act, is without Jurisdiction and a wasteful exercise and abuse of public time and energy; villainy smiles while Law fails. Illiteracy and poverty breeds evils of Sexual exploitation of vulnerable Sex, their abuse for commercial purpose in an organized manner. If a case instituted under the Act, shall fails for ambiguity in the Government Order, it is nothing but mockery of democracy. It is high time that the State wakes up and gives effect to the mandate of Section 13 of the Act, by appointing specifically one Special Police Officer for a particular area and sensitize the Special Officers so appointed, so that they strictly abide by the provisions of the Act, in their official functioning to effectuate the scheme of the Act....... So long this business of prostitution is not addressed by strict and firm laws, the right of life and liberty guaranteed under the constitution of India is of no relevance to the suffering lot victims of Immoral Trafficking...... The investigation since not steered by Special Officer appointed by Section 13 of the Act, is illegal and vitiated, though the Trial has already begun, having noticed the basic infirmity allowing the proceedings to continue any more is abused of the process of the Court itself. On that count, petition is liable to be quashed under the jurisdiction of Section 482 of Cr.P.C (Paras 12, 13 and 14).
8. In view of the above said observation and also the decision already rendered by this court, there is no reason to come to the conclusion that the charge sheet filed by the Sub-Inspector of Police is tenable. Hence, the petition deserves to be allowed.
Accordingly, the petition is allowed. The charge sheet filed by the Police Inspector who is incompetent to file the charge sheet under the ITP Act and consequent registration of the Criminal case in CC No.50697/2017 on the file of the X ACMM, Bengaluru, and all further proceedings are seriously vitiated by serious illegalities and the same are liable to be quashed. Accordingly, all further proceedings in CC No.50697/2017 is hereby quashed.”
5. The observations and the reasoning squarely applies to the case on hand. In that view of the matter, this petition also deserves to be allowed. Accordingly, the petition is allowed. All further proceedings in S.C.No.298/2018 pending on the file of the LXXI ADdl. City Civil & Sessions Judge, Bengaluru, stands quashed.
Sd/- JUDGE KK CT-HR