ORDER
Hari Shankar Prasad, J.
1. This application under Article 226 of the Constitution of India, has been filed for quashing the entire criminal prosecution including the F.I.R., as contained in Annexure-1, and order dated 21-6-2004, as contained in Annexure-2, passed by the learned Chief Judicial Magistrate, I/C, Ranchi in connection with Chutia P.S. Case No. 39 of 2004 corresponding to G.R. No. 1739 of 2004 under Sections 3, 4, 5 and 6 of Immoral Traffic Act.
2. Facts giving rise to filing of this case are that the Police C.I., Mohan Ram of Chutia P.S. lodged an F.I.R. on 15-6-2004 alleging therein that a registered letter with one C.D. was received by the Senior Superintendent of Police in which petitioner was seen with deceased Sarita alias Gudia committing intercourse with that girl. On investigation, it came to light from the statement of one Shanti Devi that she is doing business of ‘Deh Vyapar’ and for that one house was taken on rent at Ketari Bagan by Paritosh Pal alias Bapi and Sarita was also their partner. Thereafter Shanti Devi was arrested and a seizure list was prepared.
3. It was submitted on behalf of the petitioner that he has been falsely implicated in this case as he is a Government Servant working as Executive Magistrate having unblemished career and in the facts and circumstances of the case, no case is made out against him and he has been made victim of circumstances and he has no criminal antecedent and commands great respect. It was further submitted that first of all, the case was registered under bailable section but at the time of arrest of Shanti Devi, Section 6 of the Immoral Traffic Act was added which is a non-bailable section, although this section is not applicable in the facts and circumstances of the case.
4. It was further submitted that the petitioner has been in Government service since 1988 and all the time he remained posted at Ranchi having good record and contribution in his service except few places. Petitioner is a heart patient and he suffers from other ailment too and is under regular treatment of specialized doctors of the places.
5. It was further pointed out that name of this petitioner has come at the instance of the interested persons. It was further pointed out that criminal prosecution is an abuse of the process of the Court because from the facts alleged in the F.I.R. no case under any of the sections of the Act is made out. In this connection, he referred several sections of the Act such as Sections 4, 5 and 6 of the Immoral Traffic Act. It was also pointed out that for investigation of the case relating to such offence, the investigation will be conducted by an officer of particular rank and in this connection, Section 3(ii/A) provides that Special Police Officer shall not be below the rank of an Inspector of Police and the District Magistrate may if he considers it necessary or expedient so to do, confer upon any retired police or military officer, all or any of the powers conferred by or under this Act on a Special Police Officer, with respect to particular cases or classes of cases or to cases generally. It will be clear from the fact that under the Act, no such notification empowering particular class of police officer not below the rank of Inspector was issued directing to investigate the case and in the instant case, Mohan Ram, who is C.I. at Chutia police, was directed to investigate the case, who is not at all empowered to investigate this case and on this ground, the case is fit to be quashed. In this connection, reliance has been placed upon 1996(2) East Cri C 134 (Pat). It was further pointed out that a notification issued by the State of Bihar has been filed on behalf of the State of Jharkhand showing that all ranks of officers of particular District by that notification, have been made investigating officer of the case falling under this Act but that notification has not been published in the official Gazette and as such, that notification has got no value in the eye of law unless that notification is published in the official Gazette. In this connection, reliance was placed upon AIR 1962 SC 63. It was also pointed out that he is being victimized by the interested persons and therefore, in the facts and circumstances of the case, the entire criminal prosecution including the F.I.R. and order dated 21-6-2004 should be quashed. Reliance has further been placed upon 2003(3) East Cri C 503 : (2004 AIR -Jhar HCR 1933: 2004 Cri LJ 3434) wherein it has been held that as per Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1995 Rule 7, investigation was to be done by the D.S.P. but it was not notified in the Official Gazette conferring power to investigate the case and in non-compliance of Rule 7 of the Rules, the charge sheet submitted under the Act was illegal and charge sheet was quashed.
6. On the other hand, counter-affidavit on behalf of the respondent-Senior Superintendent of Police, Ranchi has been filed, wherein it has been stated that the petitioner may be directed to raise all the points before the learned Court below.
7. The learned G.P. II appearing on behalf of the State has submitted that investigation is in progress and special officer, as per provisions laid down under the Act, has been authorized and entrusted with the Investigation and notification to that effect has been filed in this connection and this notification has been adopted by the State of Jharkhand as per provisions laid down under Section 85 of the Re-organization Act 2000 and is valid. It was also pointed out that due to election which fell at the same time both in the State of Jharkhand and Bihar, the Gazette notification could not be made available and whether that should have been published in official Gazette or not, will be a matter of argument. Learned Counsel further pointed out that in absence of prejudice to the accused, a mere irregularity in the investigation does not vitiate the trial or conviction. In this connection, he placed reliance upon AIR 1973 SC 1379. He further submitted that defect, illegality or irregularity may be cured under Section 465 Cr. PC. In this connection he placed reliance upon 2003(1) East Cri C 491. Both sides placed reliance on number of case laws which I don’t want to refer in view of the fact that at the present moment, I don’t find any merit in this quashing application and it is accordingly dismissed. However, petitioner may raise all the points which have been raised before me, in the learned Court below at the appropriate stage and will also cite all the case laws and the learned Court below without being prejudiced by the order of refusal, will pass a reasoned order on the points raised.