IN THE HIGH COURT OF JUDICATURE AT PATNA Cr.Misc. No.39682 of 2010 SARVESH KUMAR Versus STATE OF BIHAR ----------- For the Petitioner : Shri V.R.P. Singh, Advocate For the State : Shri U. Chand Prasad, APP. --------------- 2/ 1.12.2010 Heard learned counsel for the parties. The orders dated 3.1.2010/ 4.1.2010 passed by the Chief Judicial Magistrate, Muzaffarpur in Mithanpura P.S. Case no. 172 of 2007 / G.R. No. 2852 of 2007 has been brought into question on two grounds that the petitioner, namely, Sarvesh Kumar being a customer, the provision of Immoral Traffic (Prevention) Act, 1956 (hereinafter referred to as the ‘Act’) is not attracted as against him. The second point, which was canvassed before this Court, was that some police officers specially empowered under section 13 of the Act were only competent persons to investigate and submit a report. That not having been done, passing of the summoning order does not appear proper in law. Section 13 of the Act reads thus: “13. Special police officer and advisory body. ---- (1) There shall be for each area to be specified by the State Government in this behalf a special police officer appointed by or on behalf of that government for dealing with offences under this Act in that area. [(2) The special police officer shall not be below the rank of an inspector of Police. (2A) 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 2 cases generally: Provided that no such power shall be conferred on ---- (a) a retired police officer unless such officer, at the time of his retirement, was holding a post not below the rank of an inspector; (b) a retired military officer unless such officer, at the time of his retirement, was holding a post not below the rank of a commissioned officer.] (3) For the efficient discharge of his functions in relation to offences under this Act----- (a) the special police officer of an area shall be assisted by such number of subordinate police officers (including women police officers wherever practicable) as the State Government may think fit; and (b) the State Government may associate with the special police officer a non-official advisory body consisting of not more than five leading social welfare workers of that area (including women social welfare workers wherever practicable) to advise him on questions of general importance regarding the working of this Act. [(4) The Central Government may, for the purpose of investigating any offence under this Act or under any other law for the time being in force dealing with sexual exploitation of persons and committed in more than one State, appoint such number of police officers as trafficking police officers and they shall exercise all the powers and discharge all the functions as are exercisable by special police officers under this Act with the modification that they shall exercise such powers and discharge such functions in relation to the whole of India.]” As may appear from the bare perusal of the above provision, the case has always to be investigated by some special police officer conferred the power to investigate the offence, who shall never be below the rank of Inspector of Police who has all powers of investigating the case as may appear from sections 14 and 3 15 of the Act. Here, in the present case, nothing appears from the record that Sri B.K. Duney, the Officer Incharge of Mithanpura Police Station was specially empowered or authorized duly in the above behalf to investigate the case though he was in the rank of Inspector of Police. Besides the provision of the Act does not bring into its ambit a person who has come to solicit sex with the sex workers. These being the fallacies with the order impugned, the same is quashed as regards petitioner Sarvesh Kumar. The proceedings as against other accused persons shall continue. The petition stands allowed in the above terms. Anil/ ( Dharnidhar Jha, J.)