Ahid Mandal vs State Of West Bengal & Anr
2021 Latest Caselaw 1536 Cal

Form No. J(2)

IN THE HIGH COURT AT CALCUTTA Criminal Revisional Jurisdiction Appellate Side

Present:

The Hon'ble Justice Jay Sengupta

CRR 1723 of 2020

AHID MANDAL Vs.

STATE OF WEST BENGAL & ANR.

For the Petitioner              :   Mr. Kaushik Gupta
                                    Mr. Arnab Nandi


For the State                  :    Mr. Swapan Banerjee
                                    Ms. Purnima Ghosh

Heard on:                      :    24th February 2021

Judgment on :                  :    24th February 2021


The Court:

This is an application challenging an order dated 16.01.2020

passed by the learned Additional Chief Judicial Magistrate, Basirhat, North

24 Parganas in G.R. -1235 of 2016 under Sections 363, 366 of the Indian

Penal Code, thereby rejecting a prayer or further investigation.

The private opposite party is the accused in this case. It appears

that he could not be arrested. As would be evident from an earlier affidavit

of service, his address could not be located.

No one appears on behalf of the private opposite party.

Learned counsel appearing on behalf of the petitioner submits

as follows. The petitioner is the de facto complainant and the father of the

minor victim girl. During investigation the 15 years old victim girl gave an

exonerative statement, under duress, before the learned Magistrate. She

resiled from the statement soon thereafter and on 16.01.2020 made a

prayer to have her statement recorded under Section 164 of the Code. The

protest petition filed before the learned trial court was erroneously rejected

and the prayer for further investigation was turned down. Furthermore, the

investigation in this case was not done as per the guidelines as laid down

by a Division Bench of this Court on 05.07.2018 in CRM 3697 of 2018. A

Sub-Inspector of Police of the local Police Station investigated the present

case while as per the guidelines, specially trained police personnel of the

Anti Human Trafficking Unit ought to investigate the case. The Investigating

Officer shall not be below the rank of an Inspector and shall preferably be a

female personnel. Besides, no inter-state or inter-country investigation was

done in this case although the alleged offences apparently took place in

different countries. Although the victim was shown to have been recovered

from Basirhat, she had actually been taken to Bangladesh for commercial

sexual exploitation. Moreover, no charge was added under the POCSO

Act, although this is a case where a child was trafficked for commercial

sexual exploitation. No charge under the Immoral Traffic Prevention Act or

the POCSO Act had been added or, for that matter, under Section 376 of

the Penal Code or other grievous sections of the Penal Code.

Learned counsel appearing on behalf of the State relies on the case

diary and submits as follows. The investigation of the case has been

properly done. The victim girl was examined under Section 164 of the Code.

In the event further charges are made out, the same can be added at a

subsequent stage by the learned trial Court.

I have heard the submissions of the learned counsels appearing

of the parties and have perused the petition and the case diary.

A Division Bench of this Court had laid down certain guidelines

on 05.07.2018 in CRM 3697 of 2018, inter alia, directing that the

investigation into offences involving commercial sexual exploitation of

women and children be carried out by a specialized agency by an Anti-

Human Trafficking Unit.

The relevant directions are quoted as under :-

"(a) any First Information Report (for short F.I.R.) registered

under the I.T.(P) Act or under sections 370/372/373 of

I.P.C. or under the provisions of the POCSO Act involving

commercial sexual exploitation of women or children should

be investigated by a specialised agency like Anti-Human

Trafficking Unit;

(b) Such F.I.R.s registered with the local police station must,

within 24 hours thereof, be transferred to the specialised

agencies for further investigation;

(c) In order to facilitate the investigation in these cases,

State Government is directed to set up Anti-Human

Trafficking Units in every district which shall be manned by

specially trained police personnel not below the rank of

Inspector who would be preferably women. These officers

shall be notified as special police officers under section 13

of the I.T.(P) Act."

A serious allegation has been levelled by the de facto complainant that

the victim girl was compelled to give an exonerative statement under

section 164 of the Code. However, she resiled from such statement and

wanted to have another statement recorded before a Learned Magistrate.

It is germane to mention here that although the present case was

initially registered for the commission of offences under sections 363 and

366 of the Penal Code, it purportedly involved commercial sexual

exploitation of a minor girl. Therefore, it was required to be looked into

whether necessary charges under the POCSO Act and the Immoral Traffic

Act and additional charges under the Penal Code including under section

376 of the Code ought to have been added. The alleged offences should

have been properly investigated.

In view of these, the guidelines passed by this Court as referred to

above would also apply in the present case.

It appears that in the present case the investigation was conducted by

a Sub-Inspector of Police, who was not a part of any Anti-Human Trafficking

Unit. But, the guidelines laid down by this Court require that a specially

trained officer, preferably a woman officer, of the Anti-Human Trafficking

Unit should be investigating such offences.

In view of the above, I do not think that the investigation of the case

was done properly by the investigating agency.

The Learned Magistrate erred in not properly appreciating the

grievances of the de facto complainant.

Accordingly, the impugned order and the final report submitted by the

Investigating Agency are set aside.

It is directed that the further investigation of the case shall be handed

over to the Anti Human Trafficking Unit of the concerned district and the

investigation be done as per the guidelines as laid down by a Division

Bench of this Court on 05.07.2018 in CRM 3697 of 2018.

With these observations, the revisional application is disposed of.

Urgent photostat certified copy of this order, if applied for, is to be given

to the parties upon usual undertakings.

(Jay Sengupta,J.) SB