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2020 DIGILAW 438 (CAL)

Md. Faisal Ekram v. State Of West Bengal

2020-03-16

JAY SENGUPTA

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JUDGMENT Jay Sengupta, J. - This is an application for quashing of a proceeding in which a charge sheet was submitted under Sections 366A, 370, 373 read with Section 120B of the Penal Code, Sections 17, 18 and 21 of the Protection of Children from Sexual Offences Act (the POCSO Act, for short) and Sections 3, 4, 5, 6 and 7 (1A) and 18 of the Immoral Traffic (Prevention) Act (the IT (P) Act, for short). 2. Despite service of notice, no one appeared on behalf of the de facto complainant/added opposite party. 3. Mr. Sudipta Moitra, Learned Senior Counsel appearing on behalf of the petitioner submits as follows. The petitioner was a well-known businessman and owned several eateries and guest houses, both in India as well as in the US. Because of his pre-occupation with several other eateries like the Aliah Hotel and the New Aliah Hotel, etc., he was not in a position to personally look after and manage the affairs of the guest house business in question under the name and style M/s. Travel Inn. A co-accused Isha Banerjee approached him for running the guest house on a contractual basis and accordingly, the petitioner leased out/gave licence for the business to her on 01.07.2015 at a monthly consideration of Rs. 50,000/-. On 19.02.2018 the petitioner was surprised to receive a notice from the police under Section 41A of the Code. He complied with it and came to know about the initiation of the present case. The petitioner was absolutely innocent and had no connection with the purported illegal activities carried on at the premises in question. Subsequently, the petitioners application for anticipatory bill was rejected and a charge-sheet was submitted in the case showing him as an absconder. Although copies were, quite obviously, not supplied to him, his Learned Advocate obtained necessary information from the record. There is no material implicating the petitioner in this case as would be evident from a plain reading of the statements recorded under Sections 161 and 164 of the Code. There is no evidence that the petitioner was living out of income earned by prostitution. No statement has come that the petitioner was seen or was known to have been collecting money from the sex workers. As such, no presumption would arise under Section 4 of the IT (P) Act. Reliance was placed on decisions in (i) Mr. There is no evidence that the petitioner was living out of income earned by prostitution. No statement has come that the petitioner was seen or was known to have been collecting money from the sex workers. As such, no presumption would arise under Section 4 of the IT (P) Act. Reliance was placed on decisions in (i) Mr. X Central Kerala Versus State of Kerala, 2009 CrLJ 2321 (Ker) and (ii) Susanta Kumar Patra @ Hemanta Kumar and others Versus State of Orissa, 2000 CrLJ 2689 (Ori) and it was submitted that so far as the present petitioner was concerned there was no evidence available to show that he was involved in the offence in any way. Relying on Mumtaz @ Behri Versus The State (Government of NCT, Delhi), 2003 CrLJ 533 , it was submitted that the mere fact that the accused was the owner of the building (brothel) would not be sufficient to make out an offence under Section 3 of the IT (P) Act in the absence of any definite evidence to show that the place was used for prostitution with the connivance of the accused. Reliance was also placed on Dipak Bhai Jagdish Chandra Patel Versus State of Gujrat and Another, 2019(3) AICLR 123 (SC) and it was submitted that in order to proceed further not only there has to be a strong suspicion but such strong suspicion must be founded on some material. Besides, the investigation of the case was done by an Inspector of Police. However, the offences under the IT (P) Act could be investigated only by a special police officer. As such, the charges, at least under the provisions of the IT (P) Act, ought to be quashed forthwith. 4. Mr. Ranabir Roy Chowdhury, Learned Counsel appearing on behalf of the State, submitted as follows. Reliance was placed on a notification being No. 4466 SW O SW 25/96 dated 27.09.1996 issued by the Government of West Bengal. By such notification, in exercise of the power conferred by sub-section (1) of Section 13 of the IT (P) Act , the Honble Governor was pleased to appoint all officers not below the rank of Inspector of Police under the West Bengal and the Calcutta Police Authority, to act as special police officers in their respective local jurisdiction for dealing with the offences under the IT (P) Act. Therefore, the investigation was validly carried out by the Inspector of Police in the present case. Although it was claimed that the petitioner was not the owner of the premises, but only carried on a business of running a guest house, which he leased out to somebody else, as per a document available from the Kolkata Municipal Corporation as incorporated in the case diary, the petitioner was the actual owner of the said premises. In fact, the certificate of enrolment for the guest house was also in the petitioners name. The agreement for lease with the co-accused for running the business was also executed by the petitioner. Therefore, there are sufficient materials to connect the present petitioner with the instant case. In case of an organised crime including that of illegal prostitution, the kingpin or the owner of the business would hardly be seen by anybody. He would be behind the curtains. However, documentary evidence available in the case diary was sufficient to prima facie implicate the present petitioner. Moreover, the conduct of the petitioner was also not above board. After rejection of his application for anticipatory bail, he absconded. As such, the Investigating Officer was unable to collect further materials against him or interrogate him in custody. Nevertheless, sufficient materials are present in the case diary to proceed against the petitioner for trial. The petitioner was not only the owner of the premises, but was also the owner of the business that he ostensibly licensed out to someone else. 5. I heard the submissions of the Learned Counsels appearing on behalf of the petitioner and the State and perused the revision petition, the supplementary affidavit and the case diary. 6. Although the prime contention of the accused/petitioner was that he was only the owner of a business at the premises in question and had allowed a co-accused to run the business for him at the premises, it appears from copies of official documents present in the case diary that the petitioner was also the owner of the premises in question. 7. It is not that the petitioner was only the owner of house where the illegal prostitution was being run with minor girls, among others. Besides being the owner of the premises, the business of guest house run at the premises was also in the name of the present petitioner. 7. It is not that the petitioner was only the owner of house where the illegal prostitution was being run with minor girls, among others. Besides being the owner of the premises, the business of guest house run at the premises was also in the name of the present petitioner. Even the purported agreement with a co-accused in respect of running of the guest house was in the nature of a licence to use the said premises for the business. As such, being an astute businessman and not a mere pardanashin woman or a name lender, the petitioner would have a right and corresponding obligation in respect of joint control and possession of the premises. That apart, some of the terms contained in the said agreement evoke sufficient suspicion about the petitioners involvement in the illicit trade. At one place in the said agreement it was mentioned that for all the liabilities including police payment and/or dealings with the police, one of the parties shall be particularly responsible. One wonders in what kind of business, a licensor would enter into such a term with a licensee. 8. As has been rightly pointed out by the Learned Counsel for the State, in cases of organised crime including that of running of illegal prostitution racket, the owner or the kingpin would usually not come to the forefront. He would hardly be the person who would come to the poor girls to collect money from them. Therefore, the petitioners contention that there is no evidence available to this effect is quite inconsequential. 9. Witnesses may lie. But documents do not. The documents regarding ownership of the premises and the business by the petitioner and the license agreement clearly point towards a strong suspicion that the petitioner was involved in the offences alleged. As such, this strong suspicion is not an unfounded one, but is based on documentary evidence collected during investigation. 10. It is also significant to note that although a charge-sheet was submitted in 2016 and before that the application for anticipatory bail of the petitioner was turned down, yet the petitioner absconded and choose not to approach a Court of law. After all these years, in 2018 the petitioner thought of filing the present application for quashing of proceeding. 11. It is also significant to note that although a charge-sheet was submitted in 2016 and before that the application for anticipatory bail of the petitioner was turned down, yet the petitioner absconded and choose not to approach a Court of law. After all these years, in 2018 the petitioner thought of filing the present application for quashing of proceeding. 11. Be that as it may, the materials collected during investigation, as are available in the case diary, clearly make out a prima facie case against the accused petitioner. In view of the materials collected against the present petitioner thus far, the plea of the petitioner that he is innocent becomes an extremely disputed question of fact that can be decided only during trial. 12. The decisions relied on behalf of the petitioner are clearly based on different facts and, as such, are quite distinguishable from present case. 13. As regards the technical point raised on behalf of the petitioner that investigation vis-a-vis the IT (P) Act was bad in law, the notification relied upon on behalf of the State clearly takes care of the issue. According to the said notification, any officer of the West Bengal Police or the Calcutta Police who is not below the rank of an Inspector of Police can investigate a case under the IT (P) Act as a special police officer. 14. A proceeding in a criminal case can be quashed by invoking Section 482 of the Code, but in very rare and exceptional cases. In the instant case, I do not find any ground that would warrant invoking of such power. 15. In view of the above discussions, I do not find any merit in the revisional application. Accordingly, the same is dismissed. However, there shall be no order as to cost. 16. Urgent photostat certified copies of this judgment may be delivered to the learned Advocates for the parties, if applied for, upon compliance of all formalities.