MD. FAISAL EKRAM Vs. STATE OF WEST BENGAL

JUDGEMENT

(1.) 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 petitioner's 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. 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.