Rehan Ahmad @ Mojahid Rehan Ahmad @ Majid Rehan and ors. Vs. State of Jharkhand - Court Judgment

Excerpt:
- motor vehicles act, 1988[c.a.no.59/1988] section 166; [a.k. patnaik, cj, a.k. gohil & s. samvatsar, jj] application for compensation for personal injury death of injured claimant subsequently for some other reasons held, claim for personal injury will abate on the death of claimant. claim will not survive to his legal representative except as regards claim for pecuniary loss to estate of claimant. - 2 and 3 babu @sarfaraz khan and sadul @sam-sad ahmad on the assurance that the petitioner no. sinha, the learned counsel for the petitioners assailed the en-tire criminal proceeding as well as the order taking cognizance of the offence against the petitioners being not maintainable on the ground that the charge-sheet as submitted under section 173 of cr pc was by an officer of the rank of sub-inspector of police, who was even not a special police officer, as stipulated under section 13 of the immoral traffic (prevention) act. ram singh (supra) still holds good in the instant case. he further submitted that the investigating officer failed to show that there was any government notification in respect of the two alleged place of occurrence viz. similarly search made and seizure list prepared by the investigating officer as well as the informant were not a competent police officer under section 15 of the act and therefore, the institution of the case as well as its investigation suffers from material irregularity and illegality and in view of the lack drop of such irregularity cognizance of the offence taken by the cjm is unsustainable. 9. having regard to the facts and circumstances of the case, i find that the learned cjm failed to take into consideration the provisions of special act while taking cognizance of the offence as against the petitioners.orderd.k. sinha, j.1. the petitioners have invoked the inherent jurisdiction of this court under section 482 of the code of criminal procedure with the prayer for the quashment of the entire criminal proceeding including the first information report of katkamsandi p.s. case no. 158 of 2005 against the petitioners for the offence under section 290 of the indian penal code as also under sections 5, 6 and 7 of the immoral traffic (prevention) act, 1956 and the order taking cognizance passed by the chief judicial magistrate, hazaribagh on 2.12.2005 now pending before the additional sessions judge. ftc vii. hazaribagh.2. the prosecution story in short was that the informant, sub-inspector of police of katkamsandi police station intercepted a maruti van no. br24b/9725 when the vehicle attempted to escape at the sight of the police party by speeding up. on interception, the informant found four persons-sitting there in the vehicle who were the petitioners and one manisha tirkey. on search of the vehicle certain quantity of used and unused condoms were recovered under the seat and on interrogation, the girl manisha tirkey confessed that she was in the trade of flesh (prostitution) for the last two years and on that date (3.10.2005) she was brought to chatra at 9 a.m. from hazaribagh by the petitioner nos. 2 and 3 babu @ sarfaraz khan and sadul @ sam-sad ahmad on the assurance that the petitioner no. 1 would pay rs. 500/- in lieu of satisfaction of his sexual desire. she further confessed that at the chatra house of the petitioner no. 1, all the petitioners had sex with her against the agreement and while returning from chatra the petitioner no. 1 again had his sex with her in the vehicle itself. the vehicle was intercepted at about 7 p.m.3. mr. nikesh kr. sinha, the learned counsel for the petitioners assailed the en-tire criminal proceeding as well as the order taking cognizance of the offence against the petitioners being not maintainable on the ground that the charge-sheet as submitted under section 173 of cr pc was by an officer of the rank of sub-inspector of police, who was even not a special police officer, as stipulated under section 13 of the immoral traffic (prevention) act. 1956. competent to investigate the case under special act. similarly arrest of the petitioners on the search of the maruti van and seizure made whereof were made by the informant, sub-inspector of police who was also not authorized under section 14 of the said act to make search and seizure.4. mr. nikesh kr. sinha further submitted that the apex court in delhi administration v. ram singh, reported in : [1962]2scr694 held the special police officer and his assistant police officers were the only competent persons to investigate offences under the act and that the police officers not specially appointed as special police officer cannot investigate the offences under the act even if they were cognizable offences. such observation was made by the apex court with reference to sections 13(1), 13(3) and 2(1) of suppression of immoral traffic in women and girls act, 1956. mr. nikesh kr. sinha clarified that verbatim of section 13(1) of suppression of immoral traffic in woman and girls act, 1956 and section 13(1) of the immoral traffic (prevention) act, 1956 substituted by act 46 of 1978 with effect from 2.10.1979 were same and similar and therefore, the law as laid down by the apex court in delhi ad-ministration v. ram singh (supra) still holds good in the instant case.5. advancing his argument mr. sinha submitted that power to search without warrant is also vested only with special police and not with general police, there-fore, seizure list prepared by sub-inspector gajanand singh i.e. the investigating officer of the case was illegal. he further submitted that the investigating officer failed to show that there was any government notification in respect of the two alleged place of occurrence viz. first place at chatra and another katkamsandi police station within the district of hazaribagh being notified by the competent authority under section 7(1)(b) of the act to call for the punishment under the act being the public place to call for prevention.6. finally, the learned counsel attracting the attention towards the settled law that when in a case the offence punish-able under the indian penal code includes the offence arising out of occurrence punishable under some special act, the en-tire investigation including that of the special act shall be conducted according to procedure laid down in the special act and not as per the procedure envisaged under the cr pc as laid down in section 4(2) of cr pc. the learned counsel finally submitted that the entire investigation, submission of charge-sheet, order taking cognizance of the offence were illegal and without jurisdiction and the entire proceeding is liable to be set aside and quashed as against the petitioners. non-appeared oik behalf of the state to assist the court.7. it is a matter of surprise that the investigating agency including the prosecution over looked the provisions of special act in respect of competency of a person to institute a case and to file final form under section 173, cr pc after investigation. admittedly, shri gajanand singh s.i. of police was not a special police officer under section 15 of the immoral traffic (prevention) act, 1956 to make search and seizure of the vehicle. similarly, shri b.b. sharma. sub-in-spector of police below the rank of inspector was not a special police officer under section 13 of the special act to submit final form. therefore, the entire criminal proceeding of the petitioners suffers from material irregularity and illegality.8. i have examined the provisions of law carefully and i find substance in the arguments advanced on behalf of the petitioners that the investigation of the instant case, under the special act, was done by the sub-inspector of police and not by a special police officer in contravention of the provision of section 13 of special act. similarly search made and seizure list prepared by the investigating officer as well as the informant were not a competent police officer under section 15 of the act and therefore, the institution of the case as well as its investigation suffers from material irregularity and illegality and in view of the lack drop of such irregularity cognizance of the offence taken by the cjm is unsustainable.9. having regard to the facts and circumstances of the case, i find that the learned cjm failed to take into consideration the provisions of special act while taking cognizance of the offence as against the petitioners. accordingly the entire criminal prosecution of the petitioners including the consequential order of taking cognizance dated 2.12.2005 is set aside. accordingly, this petition is allowed

Judgment:
ORDER

D.K. Sinha, J.

1. The petitioners have invoked the inherent jurisdiction of this Court under Section 482 of the Code of Criminal Procedure with the prayer for the quashment of the entire criminal proceeding including the First Information Report of Katkamsandi P.S. Case No. 158 of 2005 against the petitioners for the offence under Section 290 of the Indian Penal Code as also under Sections 5, 6 and 7 of the Immoral Traffic (Prevention) Act, 1956 and the order taking cognizance passed by the Chief Judicial Magistrate, Hazaribagh on 2.12.2005 now pending before the Additional Sessions Judge. FTC VII. Hazaribagh.

2. The prosecution story in short was that the informant, Sub-Inspector of Police of Katkamsandi police station intercepted a Maruti Van No. BR24B/9725 when the vehicle attempted to escape at the sight of the police party by speeding up. On interception, the informant found four persons-sitting there in the vehicle who were the petitioners and one Manisha Tirkey. On search of the vehicle certain quantity of used and unused condoms were recovered under the seat and on interrogation, the girl Manisha Tirkey confessed that she was in the trade of flesh (Prostitution) for the last two years and on that date (3.10.2005) she was brought to Chatra at 9 a.m. from Hazaribagh by the petitioner Nos. 2 and 3 Babu @ Sarfaraz Khan and Sadul @ Sam-sad Ahmad on the assurance that the petitioner No. 1 would pay Rs. 500/- in lieu of satisfaction of his sexual desire. She further confessed that at the Chatra house of the petitioner No. 1, all the petitioners had sex with her against the agreement and while returning from Chatra the petitioner No. 1 again had his sex with her in the vehicle itself. The vehicle was intercepted at about 7 p.m.

3. Mr. Nikesh Kr. Sinha, the learned Counsel for the petitioners assailed the en-tire criminal proceeding as well as the order taking cognizance of the offence against the petitioners being not maintainable on the ground that the charge-sheet as submitted under Section 173 of Cr PC was by an officer of the rank of Sub-Inspector of Police, who was even not a special police officer, as stipulated under Section 13 of the Immoral Traffic (Prevention) Act. 1956. competent to investigate the case under Special Act. Similarly arrest of the petitioners on the search of the Maruti Van and seizure made whereof were made by the informant, Sub-Inspector of Police who was also not authorized under Section 14 of the said Act to make search and seizure.

4. Mr. Nikesh Kr. Sinha further submitted that the Apex Court in Delhi Administration v. Ram Singh, reported in : [1962]2SCR694 held the special police officer and his assistant police officers were the only competent persons to investigate offences under the Act and that the police officers not specially appointed as special police officer cannot Investigate the offences under the Act even if they were cognizable offences. Such observation was made by the Apex Court with reference to Sections 13(1), 13(3) and 2(1) of Suppression of Immoral Traffic in Women and Girls Act, 1956. Mr. Nikesh Kr. Sinha clarified that verbatim of Section 13(1) of Suppression of Immoral Traffic in woman and Girls Act, 1956 and Section 13(1) of the Immoral Traffic (Prevention) Act, 1956 substituted by Act 46 of 1978 with effect from 2.10.1979 were same and similar and therefore, the law as laid down by the Apex Court in Delhi Ad-ministration v. Ram Singh (supra) still holds good in the instant case.

5. Advancing his argument Mr. Sinha submitted that power to search without warrant is also vested only with Special Police and not with general police, there-fore, seizure list prepared by Sub-Inspector Gajanand Singh i.e. the Investigating Officer of the case was illegal. He further submitted that the Investigating Officer failed to show that there was any Government Notification in respect of the two alleged place of occurrence viz. first place at Chatra and another Katkamsandi police station within the district of Hazaribagh being notified by the competent authority under Section 7(1)(b) of the Act to call for the punishment under the Act being the public place to call for prevention.

6. Finally, the learned Counsel attracting the attention towards the settled law that when in a case the offence punish-able under the Indian Penal Code includes the offence arising out of occurrence punishable under some Special Act, the en-tire investigation including that of the Special Act shall be conducted according to procedure laid down in the Special Act and not as per the procedure envisaged under the Cr PC as laid down in Section 4(2) of Cr PC. The learned Counsel finally submitted that the entire investigation, submission of charge-sheet, order taking cognizance of the offence were illegal and without jurisdiction and the entire proceeding is liable to be set aside and quashed as against the petitioners. Non-appeared OIK behalf of the State to assist the Court.

7. It is a matter of surprise that the Investigating Agency including the prosecution over looked the provisions of Special Act in respect of competency of a person to institute a case and to file final form under Section 173, Cr PC after investigation. Admittedly, Shri Gajanand Singh S.I. of police was not a special police officer under Section 15 of the Immoral Traffic (Prevention) Act, 1956 to make search and seizure of the vehicle. Similarly, Shri B.B. Sharma. Sub-In-spector of police below the rank of Inspector was not a special police officer under Section 13 of the Special Act to submit final form. Therefore, the entire criminal proceeding of the petitioners suffers from material irregularity and illegality.

8. I have examined the provisions of law carefully and I find substance in the arguments advanced on behalf of the petitioners that the investigation of the instant case, under the Special Act, was done by the Sub-Inspector of Police and not by a Special police officer in contravention of the provision of Section 13 of Special Act. Similarly search made and seizure list prepared by the Investigating Officer as well as the informant were not a competent police officer under Section 15 of the Act and therefore, the institution of the case as well as its investigation suffers from material irregularity and illegality and in view of the lack drop of such irregularity cognizance of the offence taken by the CJM is unsustainable.

9. Having regard to the facts and circumstances of the case, I find that the learned CJM failed to take into consideration the provisions of Special Act while taking cognizance of the offence as against the petitioners. Accordingly the entire criminal prosecution of the petitioners including the consequential order of taking cognizance dated 2.12.2005 is set aside. Accordingly, this petition is allowed