State vs Bal Bibi Rehman

Baxi, J.—This appeal by the State against the acquittal of the Respondent u/s 6(2), Saurashtra Prevention of Prostitution Act, which shall be referred hereafter as the Act, arises under the -following circumstances:

The Inspector of Police, Bhavnagar Division, having received information that the. Respondent was procuring girls for the purpose of prostitution arid that she had actually promised to procure a girl to one Prabhudas, sent Prabhudas to lire with 3 marked one rupee currency note 3. Prabhudas met the Respondent and a Waghari woman Sona and all the three proceeded to a nulla near the Bhavnagar City.

The Respondent sat on the bank while Prabhudas and Sona went into the nulla and Prabhudas hurl sexual intercourse with her there. The Inspector with Panchas and other police officers, who were watching them from some distance, came up mid cftiiifht Prabhudas and Sona in the act The Respondent and Sona were searched and two of the marked currency notes were recovered from her, while the third currency note was recovered from the possession of Sona.

The Respondent was thereafter arrested and produced, before the First Class Magistrate, Bhav-uiigar, and a charge-sheet was submitted against her u/s 5(1) for the offence of living on the earnings of prostitution. The learned Magistrate (mined a charge against her u/s 6(2) ior procuring Sona to Prauhudus for the purposes of prostitution and sentenced her to one month''s rigorous imprisonment and a rine of Rs. 50/-. In default of payment of fine she was ordered to undergo further rigorous Imprisonment tor 15 days.

The Respondent appealed against her conviction to the Sessions Judge Gohilwad Division, who, while uph6lding the Magistrate''s findings of lact, acquitted her on the ground that as the Respondent, had not been legally arrested and committed for trial, the learned Magistrate had no Jurisdiction to try her. The State has preierred this appeal against the learned Sessions Judge''s order of acquittal.

The learned Advocate General argued that, the offence u/s 5(1) for which the Respondent was arrested and the offence u/s 6(2) of which she wan convicted were both cognizable offences und tin: Respondent''s arrest and investigation by the Police and the trial which followed were in accordance with law and the trial could not be said to be without jurisdiction and the Respondent''s acquittal was therefore bad. He argued in the alternative that the invalidity of the Respondent''s arrest and the police investigation and the jurisdiction of the First class Magistrate to try hir wool not affected thereby and the defect in the investigation was cured by Section 537, Code of Criminal Procedure, as it was not shown that any prejudice was caused to the Respondent by her illegal arrest and Investigation.

The offences of living on the earnings of prostitution u/s 5(1) of the Act and of procreation u/s 6(2) are both punishable with imprisonment for a term which may extend to throe years or with fine or with whipping or with any two of these punishments. But the maximum fine prescribed u/s 5(1) is Rs. 100/- while u/s 6(2) it is Rs, 1000/-. The Respondent, be-Oman, is not; liable to be sentenced to whelp filer''s of the Act rtmi facie therefore the of are combinable offences u/s 2, Code of Criminal procedure, But by Section 5(2) of the Code its provisions are subject to any special law creating an offence. It follows therefore that if provisions are made in a special penal enactment with regard to a particular matter, those provisions will prevail in regard to such matter and the provisions of the Code of Criminal Procedure would not apply to that extent. The learned Sessions Judge considered certain special provisions of the Act and came to the conclusion that the police could not arrest the Respondent without a wan-ant and the subsequent investigation was invalid and this vitiated the trial as with, out jurisdiction.

These special provisions are found in Section 6 (l)(a) and Section 18 of the Act. Section 6(l)(a) contains provisions with regard to the offence of procreation and the offence of persuading a girl or a woman to become the inmate of or frequent a brothel for the purpose of prostitution.

Under that, section if a Magistrate of the class specified therein receives information that any person procures or has procured or has beer, attempting to procure or intends to procure any woman or girl, whether with "or without her consent, for the purposes of prostitution or that any person persuades or has persuaded or has been attempting to persuade or intends to persuade any woman tore girl to leave her usual place of abode, with intent, that she may, for the purposes of prostitutions, become the inmate of or frequent a brothel, he may issue a warrant directing such person to be arrested and the woman or the girl produced before him, and after hearing the person and the woman or the girl, and taking necessary evidence, it he satisfies himself that his information was correct, he may release the woman or the girl and send the person in custody to the police officer of the nearest police station with information containing his order of release and that officer shall then investigate and commit the pesron to a competent Court for the trial for the offence referred to in Sub-section (2) or any other offence under this Act or any other law. 01. (b) of Section 6(1) is not material to this appeal.

The above provisions lay down several stages leading to the investigation of the offence or procuring or removing a woman or girl to a brothel with the requisite intention. A warrant has to be issued by the Magistrate for the arrest of person informed against and the person and the woman or the girl are to be brought before him. He has to hold an inquiry by hearing them and taking necessary evidence as to the correctness of the information and if after inquiry he is satisfied about its correctness the person informed against, is to be sent in custody to the Police Officer with information containing his order of release of the woman or girl and it is after these stages have been gone through that the investigation by the Police Officer is to commence, The language of the sub-adoption is positive and it appears that the Intention of the Legislature in laying down the above prerequisites to the commencement of the investigation is to give" protection to persons against arrest and unauthorised Police investigation except at the instance of a Magistrate.

In view of these provisions it cannot be said that the Police may arrest a person for an offence u/s 6(2) without a warrant nor can it be said that Police Officer can investigate the offence without an order of the Magistrate. The offence u/s 6(2) is therefore a non cognizable offence and the Police cannot investigate the offence without an order of a Magistrate.

Section''18 is'' the we which deals with the power of the Police to arrest without a witty. That section contains two Sub-sections. Sub-section (1) empowers any Police Officer on information, and if the offence is committed in his view, any Police Officer specially authorised in this behalf by the inspector General of Police to arrest without a warrant any person committing any offence punish, able u/s 3.

The offence u/s 3, it may be incidentftlly mentioned, is punishable with imprisonment for a term which may extend to six months or ''with fine which may'' extend to five hundred rupees or with both and is therefore a non-cognizable offence within the meaning of Code of Criminal Procedure and the Police may not arrest a person under this section except Jo the extent provided above.

in Chandri Bawoo Vs. Emperor, ), where similar provisions pi Section 3 Boinbay Pretension of prostitution Act were under consideration, it was held that the offence u/s 3 is a non-coguizaoie offence except to the extent provided by Section 10(1) (corresponding with Section 18(1) of the Saurashcra Act. By Sub-section (2) power is given to any Police Omcer to the extent wioned there in to arrest without'' an order from a Magistrate and without & warrant any person for an offence -under Sections 8 and KJ(5).

Suction 18 la the only section which give: the police power to arrest without a Warrant and it Is legitimate to assume that in other cases the Act did not intend to confer chat power upon them. If so, all offences under his Act, except those to the extent mentioned in Section 18, are non-cognizable offences notwithstanding Sch. 2, Criminal P. Therefore by virtue of the provisions of Section 155(2), Code of Criminal Procedure the Police cannot investigate such offences except under an order of a Magistrate.

The provisions ace stricter in the case of an offence u/s 6(2) where an order to investigate can be given only alter the Magistrate himself holds some kind of preliminary inquiry and is prima facie satisfied about the correctness of the imormation. The arrest and investigation by a Polios Officer without a warrant and without an order of the Magistrate for an offence under the Act except to the extent authorised by S. 6(1) (a) and Section 18, are therefore illegal.

This leads us to the question whether such illegal arrest and an invalid investigation by a Police officer vitiate the trial. In Chandri Bawoo Vs. Emperor, it was held that the offence u/s 3, Bombay Prevention of Prostitution Act being non-cognizable, the power of arrest by the Police having been circumscribed by Section 10(1) of that Act, the arrest of the accused and investigation otherwise than strictly in accordance with Section 10(1) were illegal jurisdiction to take cognizance of the offence on the report of the Police based on such investigation and the whole trial was bad for want of jurisdiction.

It may lie stated that in that case objection about the invalidity of the investigation was taken before the Magistrate which is not the case hero. That decision was referred to in Emperor Vs. Abasbhai Abdulhussein and Others, , which was a case under Sections 4 and 5, Bombay Prevention of Gambling Act. The point for decision there was whether in the absence of a warrant legally issued u/s 6, the that was bad iron want to jurisdiction.

The Court held that the defect in the warrant did not take away the Magistrate''s jurisdiction to take cognizance of the offence on a Police report, because the offences under these sections were cognizable offences and the investigation by the Police could not be called into question for want of a Magistrate''s order and the only effect of the defective warrant, it was held, was that no presumption could be made against the accused u/s 7 of the Act.

Candri Bawoo''s case (A) was distinguished on the ground that the offence there was a noncogniza''ole offence Madgavkar J., however, exnressed preference for the view formulated in Bhairab Chandra Barua Vs. Emperor, (O which was cited to show that even in the case of a non-cognizable offence the report of a Police Officer based on an investigation without an order of a Magistrate could be taken as complaint u/s 190 (lKa) or a Police report u/s 190 (1) (b) upon which the Magistrate was competent to take cognizance of the offence and the trial was consequently not without jurisdiction In a decision of this Court in Laohshatuer v. State, 8 8au LR 221 (AIR 1938 &m 42) (DJ the Division Bench, which was constituted by us, took the view that an investigation by a Police Officer into a non-cognizable offence without an order of a Magistrate was illegal and the Magistrate could not take cognizance of the offence "n the Police report based on such investigation and consequently the trial was without jurisdiction. In that case we have referred to decisions of several High Courts.

But this point has now been settled by the ialon of the Supreme Court of Delhi, AiR'' (V,)'' which we case under the Prevention of Corruption Act, I''M''?, There the Investigation into an offence u/s 5(2) of the Act was by a Police officer not author to investigate it except under an order of a First . Class Magistrate. Tho Magistrate''s order was idiot, obtained the investigation was in contravention of Section 5(4) of the Act previous to its amendment by Act 59 of 1952.

The Supreme Court held that the provisions of the section requiring an order of a Magistrate to a Police Officer, not otherwise authorised to investigate the offence, was mandatory and the investigation bore the stamp of illegality.

At the same time it held that an invalid investigation did not necessarily nullify the trial based on such investigation and where cognizance had in fact been taken and the case had proceeded to termination the invalidity of the precedent in ventilation was cured by Section 537, Code of Criminal Procedure, and did not vitiate the result unless miscarrafje of justice had been caused thereby. This was be cause the Magistrate had jurisdiction u/s 190 (1) (b), Code of Criminal Procedure, to take cognizance of the offence on a Police report and there was nothing in the section from which it could be said that a valid and legal Police report was the foundation of the Court''s jurisdiction to take cognizance.

The offence u/s 5(2), Prevention of Corruption Act was no doubt a cognizable offence, bob the principle of the above decision applies equally to non-cognizable offences also. The investigation into an offence under the Prevention of Corruption Act by an officer not authorised to investigate it without an order of the First Class Magistrate stands on the same footing as an investigation by a Police Officer into a non-cognizable offence without an order of a Magistrate under Code of Criminal Procedure. Therefore it makes no difference in principle that In one case the offence is a cognizable offence while in the other case it is a non-cognizable offence.

An arrest by the Police of a person alleged to, be concerned in the commission of a non-cognizable offence and investigation into that offence without an order of a Magistrate do not variable the trial of such person provided the invalidity of the arrest and investigation caused no prejudice to the accused or otherwise resulted in miscarriage of justice.

In the case before us no objection wan taken as to the illegality of the Investigation before the Magistrate and the trial was allowed to proceed to its conclusion. It is also not shown that any prejudice was caused to the Respondent by the in-valid investigation. Her conviction therefore can not be questioned on the ground that her trial was without jurisdiction. The defect or illegality of the investigation was cured by Section 537, Code of Criminal Procedure.

On facts the Respondent has no case. Both Courts have given concurrent findings against her, It is true that Prabhudas could not be examined'' a he had left Saurashtra but the rest of the evident is overwhelmingly against her.

In the result we allow the appeal and set aside under of the learned Sessions Judge and convict, the Respondent u/s 6(2), Act. The offence was committed in June 1953 and in view of this" long lapse o'' time, we do not propose to pass a sentence of imprisonment on the Respondent, she is accordingly sentenced to pay a fine of Rs. 50/- and In default of payment of fine she is ordered to undergo rigorous imprisonment for 15 days. One month''3 time is given to her to pay the fine.

Shah, C.J.

I agree.