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TMI Blog1965 (11) TMI 160X X X X Extracts X X X X X X X X Extracts X X X X ..... te 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. (2) The special police officer shall not be below the rank of - (a) an Assistant Commissioner of Police in the presidency towns of Madras and Calcutta; (b) a Superintendent of Police in the presidency town of Bombay ; and (c) a Deputy Superintendent of Police elsewhere. (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 that area (including women social welfare worker wherever practicable) to advise him on questions of general importance regarding the working of this Act. Therefore, under sub-section d) of Section 13 of the Act, the offences under the Act are to be dealt with by special police officers a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... k of S. D. P. Os. are holding the rank either of Assistant or Deputy Superintendent of Police. These facts are not disputed. Therefore, if Shri Desai's appointment as a Special Officer by virtue of his office is in accordance with law, it is conceded by Mr. Soni that he was a Special Officer appointed for the area in question for the purposes of the Act. The argument of Mr. Soni is that the Act requires the appointment of a Special Officer not by designation or by office but by name and therefore the notification under which Shri Desai of the Ahmedabad Sub-Division is appointed as the Special Officer under the Act is not in accordance with law. His submission is that the Act creates new offences, provides for a machinery to deal with offences so created, gives special powers to the investigating officers in respect of search and in respect of the removal of the girl concerned and the Act provides for special procedure in respect of certain matters such as the need for presence of a woman panch at the time of the search. The Act therefore contemplates not only that the officers should be of a certain rank or status but also they should have such background as enables them to dis ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ch rules may provide for the delegation of authority to appoint the special police officer under Sub-section (1) of Section 13. Then again a special police officer is such officer for a particular area which would indicate that the appointment is connected with bringing into force the provisions of the Act in that area. Nona of the provisions of the Act lays down any qualifications for a police officer to be eligible to be appointed as a special police officer. There are no qualifications laid down which have reference to any knowledge relating to the functions to be discharged by the special police officer under the provisions of the Act. The only guiding factor or restriction which is laid down by the Act in respect of the appointment of a Special Police Officer is that he shall not be below the rank specified in Sub-section (2) of Section 13 of the Act. If a special officer was to be appointed by name only the power of appointment would have been left with the State Government alone and some indications would have been given of the necessity of selection from qualified police officers. In fact the provisions just referred to are consistent with the position that the appointment ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cially empowered by Government in this behalf used in Section 6(2) of the Bombay Prevention of Gambling Act, 1887 as it then stood. The Court held that the wording implied the exercise by the Government of a certain selection or discrimination as regards an individual on whom this special power is to be conferred and therefore the Assistant or Deputy Superintendent to be specially empowered under that provision by Government should be specially empowered by name. It does not appear that the provisions of Section 15 of the Bombay Genera Clauses Act, 1904 were brought to the notice of the learned Judges of that Court. But assuming that they had that provision in mind and that their decision indicates that in their view the use of the expression 'especially empowered' is an express provision requiring the appointment by name that construction has not been accepts by the Bombay High Court in Emperor v. Savlaram Kashinath Joshi 49 Bom LR 798 : AIR 1948 Bom 156. In that case the expression 'specially empowered' was considered. Examining it in the light of Section 35 of the Criminal Procedure Code, 1898, Section 15 of the Bombay General Clauses Act, 1904 and some of the de ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pects of 'dealing with' the offences. Now, Mr. Soni argues that investigation under the Criminal Procedure Code covers several stages namely (1) proceeding to the spot, (2) ascertainment of the facts and circumstances of the case, (3) discovery and arrest of the suspected offender, (4) collection of evidence relating to the commission of offence and (5) formation of the opinion as to whether on the material collected there is a case to place the accused before a Magistrate for trial and if so taking the necessary steps for the same by the filing of a charge-sheet, under Section 173. He has in this connection invited my attention to the Supreme Court decision in H. N. Rishbad v. State of Delhi 1955CriLJ526 . He argues that all these stages of the investigation must be done by the special police officer himself and as in this case it has not been 80 done, there has been non-compliance with the provisions of the Act in respect of 'dealing with' these offences. Now, it is true that all the stages of investigation have not been done by the special police officer himself in this case. The facts are these. The complaint was recorded by Sub-Inspector Jhala. He is admittedly ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... for the efficient discharge of his functions in relation to the offences under this Act. This assistance is to be in respect of 'the functions in relation to offences' and that expression as pointed out by the Supreme Court in the Delhi Administration Case does include his functions connected with the investigation of the offences. What the special police officer is to do himself is to take a decision on the question of submitting a charge-sheet and submit the charge-sheet. Before the Supreme Court, in the case earlier referred to one of the arguments advanced against the construction which was being placed by the Supreme Court on the expression dealing with the offences' was that in that case the special police officer would be very heavily worked. In connection with that argument Their Lordships observed: The suggestion that the special police officer would be very heavily worked in case he had to perform all the ordinary duties of the police connected with the investigation of offences in addition to the duties conferred on him under the Act, does not go far in putting a different interpretation on the powers of the special police officer. He is to be assisted b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ial and no benefit can be derived by the accused from that defect unless it is established that his defence has been prejudiced or there has been a miscarriage of justice resulting from that defect. He has in this connection invited my attention to the decision of the Supreme Court in (S) AIR 1955 SC 198 (supra) where the Supreme Court has held that a defect or illegality in investigation however serious, has no direct bearing on the competence or the procedure relating to cognizance and trial; hence where cognizance of the case has in fact been taken and the case has proceeded to termination, the invalidity of the precedent investigation does not vitiate the result, unless miscarriage of justice has been caused thereby. That view was affirmed by the Supreme Court in Munnalal v. State of U.P. 1964CriLJ11 That position in law has not been disputed by Mr. Soni on behalf of the appellant. The point was raised in the lower court and the learned Sessions Judge has held that no prejudice has been caused to the appellant. He has in this connection also painted out that this point as to the defect in the investigation was not taken by the accused during the trial. Mr. Soni has not been abl ..... X X X X Extracts X X X X X X X X Extracts X X X X
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