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Criminal Miscellaneous No. 2035 of 1964, decided on 1st August 1967.

Ss. 3, 4, S. 6, 7, 8, 9 & 10 read with S. 13, and with Criminal Procedure Code (V of 1898), S. 4(1)(f)‑‑Qualified power of arrest, without warrant, given by S. 13 to certain police officers does not make offences under Ss. 3, 4 etc. cognizable.

A qualified power of arrest is given to certain police officers under section 13 of the Ordinance. It excludes the general power of arrest by the police officers. The Legislature obviously did not intend that these offences should be cognizable offences within the meaning of section 4(1) (f) of the Criminal Pro cedure Code. In this view, the offences under the West Pakistan Suppression of Prostitution Ordinance, 1961, are not cognizable offences.

Raghunath v. Emperor A I R 1932 Bom. 610; Htwan Htin v. King‑Emperor I L R 13 Rang. 130 ; Bhairo Murad Jagirani v. Crown I L R Kar. 324 and Haji Mahmood Khan v. Crown I L R Kar. 94 ref.

Queen‑Empress v. Deodhar Singh and another I L R 27 Cal. 144; Emperor v. Fernard (1907) 31 Bom. 438 ; Emperor v. Abasbhai 50 Bom. 344 --1926 Bom. 195 and Emperor v. Ismail A I R 1930 Bom: 49 considered.

S. 155(2) read with S. 4(1)(f)‑Investigation by police in non‑cognizable case, without permission of a Magistrate, is a nullity and cannot be the basis of a report‑Thing required by law to be done in a certain way must be done in that way or not at all.

It is now a well‑settled proposition of law that where a power is given to do a certain thing in a certain way, the thing must be done in that way or not at all. Other methods of performance of that act are necessarily forbidden. The entire investigation done by the Sub‑Inspector, where he had not obtained permission of the Magistrate, was a nullity and could not be the basis of a report.

Muhammad Rashid v. State P L D 1964 Kar. 381 ; Hussain Bakhsh v. State P L D 1963 Lah. 46 and Lala Dinga Dass v. The Emperor A I R 1943 Lah. 28 ref.

S. 190(a)(b) read with Ss. 4(i)(h), 155(2), 173 & 561‑A‑Police Officer's report under S. 173 to a Magistrate can never be treated as a complaint‑Police report under S. 173 in non‑cognizable case--- Magistrate not legally competent to take cognizance of case Proceedings quashed under S. 561‑A.

The report of a police officer can never be a complaint. If a police officer wants to file a complaint, he should make it clear that it was not his report as a police officer. He should, moreover, submit it directly to the Magistrate as a complaint.

Since it was not competent for the police to make investi gation in the case, they could not validly submit a report, nor could the Magistrate legally take cognizance of the case.

King‑Emperor v. Sada (1901) 26 Bom. 150 distinguished.

The proceedings of the case, merited to be quashed on the ground that they were not validly initiated inasmuch as the Magistrate could not take cognizance under section 190, Cr. P. C. because there was no complaint made to him under clause (a) of section 190, and the report submitted to him by the police was not valid because the case was a non‑cognizable one. The Magistrate, therefore, had no jurisdiction to take cognizance of it under section 190(i)(b).

In the result the proceedings pending against the peti tioners under the West Pakistan Suppression of Prostitution Ordinance, 1961, were quashed.

S. 13‑Offence not committed in Police Sub‑Inspector's view‑Arrests made, "illegal"‑Sub‑Inspector had no legal authority in such case to arrange a raid by way of a trap‑Arrest could be made only in terms of S. 13‑[Madeen v. Nelson and Fort Sheppard Ry. 1899 A C 626; Attorney‑General of Saskatohewan v. Attorney General of Canada A I R 1949 P C 190 and Nazir Ahmad v. King‑Emperor A I R 1936 P C 253 ref.].

S. 4‑Offence alleged to be committed within a house and not in a street, public place, etc., commission of which could not be seen or heard from any such place‑Not covered by S. 4.

Ijaz Hussain Batalvi for Petitioners.

Syed Nasir‑ud‑Din, Advocate‑General assisted by Shamim Ahmad Mirza for the State.

Dates of hearing : 16th February and 18th December 1965.

This is a petition for the quashing of the proceedings under the West Pakistan Suppression of Prostitution Ordinance, 1961, which are pending against Mst. Mumtaz Begum, Mubarik Shah, Sher Yar, Mst. Rabat Kishwar, Mst. Najma and Mst. Tahira Jabeen, in the Court of Mr. Muhammad Aslam Sukhera a local Magistrate.

2. Mst. Mumtaz Begum, petitioner, was living in Bungalow No. 44, Shaukat Hayat Colony, Ferozepur Road, Lahore. It is alleged that she was running a brothel. The Sub‑Inspector of Police, Incharge Ichhra Police Station, received a secret information from somewhere, which information has not been recorded nor is it known as to who gave the information. He serf Mahmood Ahmad with ten‑rupee currency note marked with ho initials to the house of the petitioner. The Station House Officer then raided the house of the petitioner and found Mahmood Ahmad and one Mst. Najma sitting on a charpai in such a manner as she was inducing him to a sexual inter course. He also found one Mubarik Shah with one Mst. Rahat Kishwar lying on a charpai when they were kissing each other and she was inducing him to a similar act. There was also present one Mst. Tahira Jabeen who had done the make‑up and was there in the expectation of some other customer. On these allegations, he submitted a report to the Prosecuting Deputy Superintendent of Police who in turn placed the case before Mr. Muhammad Aslant Sukhera, learned Magistrate. He took cognizance of the matter and issued process against the petitioner.

3. It was contended by the learned counsel for the petitioner that the offences under sections 3, 4, 5, 6 and 10 of 'the Ordinance are non‑cognizable and the police cannot investigate into them unless it obtains under section 152(2) of the Code of Criminal Procedure the prior permission of the Magistrate. The police, according to him, did the entire investigation without such permission, and that the report submitted by them in the case as a result of such investi gation being without lawful authority could not legally act on it to take cognizance of the case under section 190, Cr. P. C.

4. The first question which arises for consideration is whether the offences under the West Pakistan Suppression of Prostitution Ordinance are cognizable offences. Cognizable offence and cognizable case are defined in clause (f) of section 4, Cr. P. C., which reads as:‑

"(f) 'Cognizable offence' means an offence, for, and 'cog nizable case' means a case in which a police officer within or without the presidency‑towns, may, in accordance with the Second Schedule or under any law for the time being in force, arrest without warrant."

Section 13 of the Ordinance lays down the procedure for the arrest of an accused person and is in these terms :‑

"13. If a complaint is made to any gazetted police officer about the commission of any offence punishable under section 3, 4, 5, 6, 7, 8, 9 or 10 or if any such offence is committed in the view of any police officer not below the rank of Sub‑Inspector specially authorised in writing in this behalf by the Superintendent of Police such police officer may arrest without warrant any person accused of the commission of such offence, and shall release such person on bail unless the name and address of such person be unknown to such police officer and cannot be ascer tained by him then and there, or if such police officer has reason to suspect that a false name or address has been given:

Provided that the person arrested by the police officer shall be released on bail if his identity is attested by some other person to the satisfaction of such police officer."

It was argued on behalf of the State that if complaint is made to any gazetted police officer about the commission of an offence punishable under any of these sections and arrests the person accused of an offence without warrant the case would be a cognizable case and likewise if the Sub‑Inspector, duly authorised in this behalf, arrests any person accused of the commission of such an offence the case again will be a cognizable case. According to him, to make a case cogniz able one, it is not necessary that all the police officers should be competent to arrest without warrant, and that an offence may be non‑cognizable but when the power is given to a particular person to arrest without warrant and he effects such an arrest, the same offence will become cognizable case. In Queen‑Empress v. Deodhar Singh and another (I L R 27 Cal. 144) it was held that "an offence under the Gambling Act, being an offence for which the District Superintendent of Police may arrest or by warrant direct an arrest, is a cognizable offence within the meaning of section 4, clause (f) of the Criminal Pro cedure Code. The same view was taken in Emperor v. Fernard ((1907) 31 Bom. 438) and in Emperor v. Abasbhai (50 Bom. 344). Keeping of a Gambling House was punishable under section 4 of the Bombay Prevention of Gambling Act, and the Commissioner of Police in Bombay could authorise a police officer to arrest any person accused of the commission of such an offence. It was also held in Emperor v. Ismail (A I R 1930 Bom. 49) that "the offence punishable under section 4, Bombay Prevention of Gambling Act, 1887, as modified up‑to‑date was a cognizable offence in all cases, and that the Commissioner of Police could therefore arrest with out a warrant.

Learned counsel for the petitioner drew my attention to Raghunath v. Emperor (A I R 1932 Bom. 610). The view taken in Emperor v. Ismail was not approved and it was held that the offences punishable under section 4 were not cognizable offences. He also relied on Htwan Htin v. King‑Emperor (I L R 13 Rang. 130) where it was held "that a qualified power of arrest given to certain police officers for certain offences does not render these offences cognizable offences within the meaning of section 4(l)(f)of the Criminal Procedure Code." In Bhairo Murad Jagirani v. Crown (I L R Kar. 324) it was held that "the power given to particular officers to arrest for certain offences does not make those offences cognizable offences." This question was again considered in Haji Mahmood Khan v. Crown (I L R 1942 Kar. 94) where the entire case‑law on the subject was reviewed and it was held by Davis, C. J., "it is obvious that the special provisions of the Bombay Prevention of Gambling Act are designed to exclude the general powers of arrest generally to be exercised by police officers. It is a special power of arrest to be exercised in special circumstances subject to certain conditions precedent under special authority by certain police officers and Magis trates. I cannot persuade myself that in such circumstances such offences are cognizable offences or were ever intended by the Legislature to be cognizable offences under section 4(1)(f) of the Criminal Procedure Code" and he further held that "an offence under section 5 of the Bombay Prevention of Gambling Act, for which the complainant was arrested, was not a cognizable offence and that the arrest and confinement of the complainant by the Sub‑Inspector was unlawful." A qualified power of arrest is given to certain police officer under section 13 of the Ordinance. It excludes the general power of arrest by the police officers. The Legislature obvious did not intend that these offences should be cognizable offence within the meaning of section 4(1)(f) of the Criminal Pro cedure Code. In this view, the offences under the West Pakistan Suppression of Prostitution Ordinance, 1961, are not cognizable offences.

The Sub‑Inspector was examined by me to know if he treated the cases as cognizable cases. He categorically stated that the offences were non‑cognizable cases. Admittedly, he did not obtain any order under clause (2) of section 155 of the Code of Criminal Procedure which requires that "no police officer shall investigate a non‑cognizable case without the order of a Magistrate of the first or second class having power to try such case or commit the same for trial." It was con tended by the learned counsel for the petitioner that since the police acted in contravention of section 155(2), the entire proceedings which took place as a result of such investigation were a nullity. He relied on Muhammad Rashid v. State (P L D 1964 Kar. 381) which was a case under the West Pakistan Suppression of Prosti tution Ordinance, 1961. It was held : " . .although section 13 of the Ordinance authorised a Gazetted Police Officer and the other officers not below the rank of Sub‑Inspectors of Police to make the arrest of the offenders for offences under this Ordinance in certain circumstances, but still the offences under the Ordinance were non‑cognizable. The police, therefore, were not competent to investigate into the case and challan the accused on the basis of such an information without the sanction under section 155(2) of the Code of Criminal Pro cedure. For the aforesaid reasons it is clear that the proceedings in the case are illegal and require to be quashed under section 561‑A, Criminal Procedure Code." He also relied on the decision in Hussain Bakhsh v. State (P L D 1963 Lah. 46) where it was held " that the action taken by the police in investigating the case under section 290, Pakistan Penal Code, which is a non -cognizable offence, without the order of a competent Magistrate under section 155(2), Criminal Procedure Code, was not in accordance with law. The entire proceedings are, therefore, illegal and without jurisdiction." In Lala Dinga Dass v. The Emperor (A I R 1943 Lah. 28) Din Muhammad and Blacker, JJ., observed that a police officer without' an order of a competent Magistrate could not investigate a non‑cognizable offence and held that the seizure of the books by the police officer in such a case therefore, was illegal. It is now a well‑settled proposition of law that where a power is given to do a certain thing) in a certain way, the thing must be done in that way or not at) all. Other methods of performance of that act are necessarily forbidden. The entire investigation done by the Sub‑Inspector, therefore, in this case, since he had not obtained permission of the Magistrate, was a nullity and could not be the basis of a report.

5. The learned Advocate‑General contended that the Magistrate has taken cognizance in the case and if the Sub -Inspector was not competent to submit the report for the reason that the case was a non‑cognizable one, his report in law would be regarded to be complaint and the Magistrate would be deemed to have taken cognizance under section 190(a) of the Code of Criminal Procedure. Section 190, Cr. P. C. enables a Magistrate to take cognizance of an offence (a) upon receiving a complaint of facts which constitute such offence ; (b) upon a report in writing of such facts made by any police officer ; or (c) upon information received from any person other than a police officer, or upon his own knowledge or suspicion, that such offence has been committed. Class (c) is not attracted to the facts of this case. The Magistrate took cognizance either under clause (a) or clause (b). The learned Advocate‑General wanted me to treat the report of the investigating officer as a complaint under clause (a). He relied on King‑Emperor v. Sada ((1901) 26 Bom. 150) where it was held : ". . . the proceedings show that the police constable purported to file a complaint, and in fact did file a complaint, on which the case was instituted against the accused person." The facts of the case are distinguishable. In that case the police officer had in fact filed the complaint. He did not submit the report as was done in this case.

Complaint is defined in section 4(1)(h) of the Code of Criminal Procedure to mean "the allegation made orally or in writing to a Magistrate with a view to his taking action under this Code, that some person, whether known or unknown hag committed an offence but It does not include the report of a police officer." It will thus be clear that the report of a police officer can never be a complaint. If a police officer wants to file a complaint, he should make it clear that it was not his report as a Police Officer. He should; c moreover, submit it directly to the Magistrate as a complain. Here the police officer submitted a report and not a complaint. The case of the State throughout has been that the petitioner was guilty of offences under the Ordinance which were cog nizable and that the Sub‑Inspector was competent to investigate those offences without the order of the Magistrate. It is, therefore, inconceivable that the police officer should have submitted a formal complaint within the meaning of sec tion 4(1)(h) and not filed the report. It is true that the Sub‑Inspector made a statement that he treated the case as a non‑cognizable one, but it is not understandable that if he thought so why he did not obtain an order of the Magistrate under section 155(2), Cr. P. C. He also did not present any formal complaint to the Magistrate as was done in the case of King‑Emperor v. Sada. He sent the report to the P. D. S. P. which is normally done in all cases where report under section 173, Cr. P. C. is submitted. The P. D. S. P. then forwarded it to the Magistrate. It was to all intents and purposes a report not a complaint under section 4(1)(h). The Magistrate obviously took the cognizance of the case under clause (6) of section 190. It was not competent for him to take cognizance under clause (a) of section 190 because the complaint referred to therein does not include the report of the police officer. Since it was not competent for the police to make investigation in the case, they could not validly submit a report nor could the Magistrate legally take cognizance of the case.

6. The proceedings merit to be quashed on merits as well. The Sub‑Inspector was specially authorised under section 13 by the Superintendent of Police to arrest without warrant if any offence punishable under section 3, 4, 5, 6, 7, 8, 9 or 10 was committed in his own view. The authority given to him was, therefore, limited only to such cases. If an offence was not committed within his view, he could not in the exercise of that authority arrest any person. The Sub- Inspector received a secret information and on that he arranged a raid, and procured a decoy witness to pass on the money which he intended to recover through raid as a piece of evidence against the petitioner. He, therefore, proceeded in the case to arrest the petitioner not because she committed any offence in his presence but he received information that she was committing the offence under the West Pakistan Suppression of Prostitution Ordinance, 1961. The Ordinance; provides that if a Gazetted police officer receives a complaint in writing he can arrest without warrant the person, accused of the com mission of any of the aforementioned offences. The Sub‑Inspec tor received the complaint. It was not even in writing. He obviously, is not a Gazetted officer and, therefore, it was not competent for him to take steps to arrest the petitioners on such information. In fitness of things and to respect the law, he should have asked the informant to make complaint in writing to a Gazetted officer which he did not do. He, under the circumstances, had no legal authority to arrange a raid. He obviously arranged the raid with a view to providing an opportunity to him to see that the offences were committed within his view so that he might in the exercise of the authority given to him by the Superintendent of Police arrest the accused without warrant. It is obvious that no offence under the Ordinance was committed in his view and he manipu lated to create circumstances for such a situation. On the secret complaint of a person unknown to us he adopted an indirect course to arrest the petitioners. It was held in Madden v. Nelson and Fort Sheppard Ry. (1899 A C 626) and Attorney‑General of Saskatohewan v. Attorney‑General of Canada (AIR 1949 P C 190) "What is prohibited being done directly cannot be done indirectly." The object of the law was to suppress prostitution. The makers of the law were, however, particular that in its enforcement it may not be abused or used for ulterior purposes. The Legislature was anxious to maintain the privacy and sanctity of a family life. It was for the reason that the power was not given to the police officers to arrest without a warrant. A Gazetted police officer could arrest only if a complaint was made to him in writing. It was for the obvious reason that if the complaint turns out to be false, the complainant would render himself liable for some sort of penal action. A police officer not below the rank of a Sub‑Inspector, can arrest only if he was specially authorised by the Superintendent of Police and that too when the offence is committed in his presence. It was thus ensured that a person unless he is a Gazetted police officer cannot enter a house to arrest a person doing a prostitution there or keeping a brothel. It may be the object of the law to suppress prostitution but it is equally important to see that in the cover of the. Ordinance the privacy of a family is not disturbed and there is also nothing done to injure the reputation of any person. If it be held that a Sub-Inspector, can arrange the raid like the one he had done with a view to arrest person without warrant in the exercise of the authority given to him by the Superintendent of Police under section 13, it will not be consistent with the intention of the law. It, in fact, may render the safeguards provided therein completely nugatory, and may tantamount to giving a licence to a Sub‑Inspector to arrange raid in any house he may like and in that case the sanctity and the privacy of any person can be placed in jeopardy. The law provides that a Gazetted police officer on a complaint in writing may arrest a person without warrant and a police officer not below the rank of a Sub‑Inspector specially empowered under section 13 can arrest a person if any such offence is committed within his view. This provision clearly prohibits the arrest 'without warrant of a person accused of the commission of the offence under the Ordinance in any other manner. Since it is clearly provided the circumstances under which an arrest can be made, all other methods to effect the same are entirely prohibited.

This was the view taken in Nazir Ahmad v. King‑Emperor (AIR 1936 P C 253). The arrest of the petitioners, therefore, under the circumstances, is illegal.

7. It was argued that even if the arrest of the petitioners was illegal, it would not render the proceedings against them illegal because the question whether or not the petitioners committed the offences, in no way depends on the question of the validity of their arrest. In similar circumstances it was held in Chandrd Bawoo v. Emperor (I L R 49 Bom. 212) "In the present case we have a Bombay Act to consider the effect of. It is a new Act, and, as I read section 10 (it is similar to, if not identical with section 13), it has been deliberately inserted so as to afford reasonable protection to the public. An ordinary police constable is not to be allowed to arrest female in a street unless a complaint has been made to him 'of her conduct, and unless he himself sees the offence committed, and he cannot discover her name and address. Or, on the other hand, the constable must be authorised by the Commissioner of Police, by a special order to effect an arrest of this description, and one can quite understand the reason, for this viz., to ensure that mistakes should not be made and that some innocent woman should not be dragged off to prison or put under arrest in the public street by an ordinary police constable. One knows that mistakes of that kind by the police in England have led to strong public criticism. I remember in particular many years ago one case at Cambridge where ‑a mistake of that nature by the University Proctors led to interference by Parlia ment and a public inquiry, as a result of which the jurisdiction of the University authorities to arrest women in the streets on an accusation of soliciting was taken away from them altogether. I, therefore; regard this case as one of some public importance. I am certainly not inclined to stretch a point and hold that the arrest, though illegally dude, did not affect the powers of the Magistrate subsequently to hear the case." The proceedings of the case, however, merit to be quashed on the ground that they are not validly initiated inasmuch as the Magistrate could not take cognizance under section 190, Cr. P. C., because there was no complaint made to him under clause (a) of section 190, and the report submitted to him by the police was not valid because the case was a non cognizable one. The Magistrate, therefore, had no jurisdiction to take cognizance of it under section 190 (1) (b).

8. The report submitted against Mst. Rahat Kishwar, Mst. Najma and Mst. Tahira Jabeen, petitioners in Criminal Misc. No. 386 of 1965, No. 387 of 1965 and No. 389 of 1965, respectively is under section 4 of the Ordinance, section 4 reads as :‑

"Whoever in any street or public place or place of public resort or within sight of and in such manner as to be seen or heard from any street or public place, whether from within any house or building or not,‑

(a) by words, gestures, wilful and indecent exposure of her person or otherwise attracts or endeavours to attract attention for the purpose of prostitution, or

(b) solicits or molests any person or 'loiters for the purpose of prostitution, shall for a first offence be punished with imprisonment which may extend to six months, or with fine which may extend to two hundred rupees, or with both, and for a subsequent offence with imprison ment which may extend to one year, or with fine which may extend to one thousand rupees, or with both."

A woman renders herself guilty under this section only if she in any street or public place or place of public resort attracts for the purpose of prostitution any person. If she attracts or solicits any person not in any of these paces, she is not guilty under section 4 unless she does these acts within the sight of some person who could see or hear such an act from any street or public place. Thus, if a woman prostitutes in a house or at a place which is not the street or public place or place of public resort and she is also no visible from any street or public place and she also cannot be heard from any street or public place, she is not guilty of offence under section 4. It is not the case of the Sub-Inspector that any of these persons were attracting, in any street, public place or place of public resort, any person for the purpose of prostitution. It is also not his case that he had seen them or he had heard any talk of the petitioners for the purpose from any street or public place. It is only after the door was opened and he entered the house that he noticed the petitioners with certain movements which showed that they were soliciting for the purpose of prostitution. The case of the petitioners does not fall under section 4. They did not commit any offence. The Sub‑Inspector could not arrest them without a warrant. Otherwise, on the facts alleged in the report against the petitioners, no case is made out against them under section 4.

9. In these circumstances, it will be an abuse of the process of the Court and will not serve any ends of justice if the case against the petitioners is permitted to continue in the Court of the learned Magistrate. The result is that the proceedings pending against the petitioners under the West Pakistan Suppression of Prostitutions Ordinance, 1961, are quashed.

Proceedings quashed.

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