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Shri A. C. Aggarwal Sub-Divisional Magistrate, Delhi & ANR Vs. Mst. Ram Kali [1967] INSC 175 (16 August 1967)

16/08/1967 HEGDE, K.S.

HEGDE, K.S.

WANCHOO, K.N. (CJ) BACHAWAT, R.S.

RAMASWAMI, V.

MITTER, G.K.

CITATION: 1968 AIR 1 1968 SCR (1) 205

CITATOR INFO :

R 1975 SC2473 (12) F 1977 SC 740 (10) R 1980 SC 161 (14)

ACT:

Suppression of immoral Traffic in Women and Girls Act (104 of 1956), s. 18(1)--If violative of Art. 14 of the Constitution--Duty of Magistrate when cognizable offence under ss. 3 or 7 disclosed.

HEADNOTE:

Section 18 of the Suppression of Immoral Traffic in Women and Girls Act, 1956, provides for two classes of cases namely, (1) those coming under ss. 3 or 7 as well as under s. 18, and (2) those coming only under s. 18. Sections 3 and 7 provide for the punishment of persons guilty of the offences mentioned therein after a regular trial, with a right of appeal. Section 18 is a preventive measure, dealing with premises, and is intended to minimise the chance of a brothel being run near a public place, and provides for a summary enquiry. [211 D-E; G-H].

In the present case, on the strength of reports submitted by the police to him, the Sub-Divisional Magistrate passed orders under s. 18 (1) with respect to certain premises in the occupation of the respondents. They challenged the validity of the section, and the High Court held that the section violated Art. 14 of the Constitution.

In appeal to this Court, Held,: Section 18 provides for two distinct classes of cases and the classification being reasonable is not violative of Art. 14 of the Constitution. But the proceedings taken by the Magistrate not being in accordance with law should be set aside. The reports disclosed a cognizable offence under s. 3 of the Act and in such a case, the Magistrate cannot ignore the cognizable offence and merely have recourse to s. 18, thus depriving parties of the benefit of a trial and appeal.

The, Magistrate should have taken action under s. 190 (1) (b) of the Criminal Procedure Code after investigation by such police officer as is mentioned in s. 13 of the Act, and it was only after the disposal of the cases against the parties that action could be taken under s. 18 if there was occasion for it. [212 A-D].

State of West Bengal v. Anwar AU Sarkar. [1952] S.C.R. 284 and Delhi Administration v. Ram. Singh. [1962] 2 S.C.R.

694, referred to.

CRIMINAL APPELLATE JURISDICTION: Criminal Appeals No. 76-82 of 1965.

Appeals from the judgment and order dated September 9, 1963 of the Punjab High Court, Circuit Bench at Delhi in Criminal Writs Nos. 3-D, 4-D, 5-D, 6-D, 7-D, 10-D and 12-D of 1962.

B. R. L. Iyengar and R. N, Sachthey, for the appellants (in all the appeals).

G. S. Bawa and Harbans Singh, for the respondents (in Cr. As. Nos. 76, 81 of, 1965).

206 The Judgment of the Court was delivered by Hegde, J.-These are companion appeals. They were brought to this Court on the strength of the certificates issued, by the High Court-of Punjab. The only question that falls for decision in these appeals is whether s.18 of the Suppression of Immoral Traffic in Women and Girls Act, 1956 (hereinafter referred to as the Act) is ultra vires Art. 14 of the Constitution. The attack on the validity of that section on the basis of Art-19(d), (e) and (f) was not pressed at the time of the hearing. Hence there is no need to examine the said plea.

The first appellant in these appeals, Shri A. C. Aggarwal.

Sub-Divisional Magistrate, Delhi, issued notices to the respondents in these appeals--except that in criminal appeal No. 82 of 1965-to show cause why the premises occupied by them should not be attached under . (1) of the Act. Those notices were issued on the basis of police reports that those premises were being used as brothers. In reply amongst other pleas those respondents challenged the validity of s.18. They moved the learned magistrate to refer the question as to the validity of S. 18 to the High Court under s.432 of the Criminal Procedure Code of 1898. As the learned magistrate rejected .that prayer, they moved the High Court under Art. 226 of the Constitution in criminal writs 'Nos. 3D to 7D and 10D of 1962, challenging the vires of s.18. Respondent in criminal appeal No. 82 of 1962 claims to be the tenant in flat No. 54 on the first floor of Japan Building, which premises had been attached in the proceedings against one Mst. Ambar under s.-18(1). His case was that be 'had permitted the said Mst. Ambar to use those premise's temporarily but she lad vacated the same and there for he was entitled to their possession as according to him he was unaware of the fact that Mst.Ambar was using the premises in question for an improper purpose. But the learned magistrate rejected his application holding that(a) there was no satisfactory proof of the 'fact that lie was a tenant in those promises and (b) he was aware of the unlawful use to which the premises in question were being put. Aggrieved 'by that decision, 'he moved the High 'Court of Punjab in Ur. Writ No,. 12-0/62 to quash :the order of the learned Magistrate on the around that S. 18 was ultra vires of Article 14.

The aforementioned writ petitions were heard by Mahajan and Shamsher Bahadur, JJ. and by a common order dated September 9, 1963, they Allowed those petition and quashed the notices issued to the respondents in criminal appeals Nos. 76 to 81 of 1965 . They also quashed the order refusing to raise the attachment in respect of flat No. 154 of which Siri Chand the respondent in Criminal appeal No. 82 / 65 claimed to be the tenant. The learned Judges held that "whenever action is taken under s.18 independently of s.7, 'it would offend Art.14 of the Constitution and to that extent s. 18 would be ultra vires of the Constitution." 207 In the course of their order dated 23rd July, 1963, the learned Judges observed:

"The requirements for taking action under Section 18 or under Section 7 of the Act are identical. The Act leaves the choice of the action under one or the other provision to the executive in the case of persons similarly situate and thus can lead to discrimination without there being any rational basis for the same. The consequences of an action in one case are of an extremely penal nature whereas in the other case, that is, under Section 18, of comparatively inconsequential nature. The discrimination can come about where in the case of a number of prostitutes, who carry on their profession within two hundred yards of a public place, as defined in Section 7, the authorities may take action against some of' them under Section 18 and against the others under Section 7. The fact that this can happen is not controverted by the learned cou nsel for the Delhi State. We also find. no rationable behind this type of discrimination. The, scheme of the Act also does not provide any key for such, sort of discrimination between persons of the same class. and similarly situate".

The inhibition of Art. 14 that the State shall not deny to any person equality before the law or the equal protection of the laws. was resigned to protect all persons against discrimination by the State amongst equals and to prevent any person or class of persons from being singled out as a special subject for discrimination and hostile treatment.

If law deals equally with all of a certain well defined class, it is not obnoxious and it is not open to the charge of denial of equal protection on the ground that it has no application to other persons, for the class for whom the law has been made is different from other persons and, therefore, there is no discrimination against equals. Every classification is in some degree likely to produce some inequality but mere production of inequality is not all by itself enough. The inequality pruduced in order to encounter the challenge of the of the Constitution must be the result of some arbitrary step taken by the State. Reasonable classification is permitted but such classification must be based upon some real and substantial distinction bearing a reasonable and just relation to the thing in respect of which such classification is made. The presumption is always in favour of the constitutionality of an enactment, since it must be assumed that the legislature understands and correctly appreciates the needs of its own people, and its laws are directed to problems made manifest by experience and its discriminations are based on adequate grounds.

The contention advanced on behalf of the respondents and accepted by the High Court, is that s. 18 discriminates against the-, 208 person who is proceeded against under that section, without first being prosecuted under s.3 or s.7 as the case be, though the information laid against him discloses an offence either under s.3 or s.7. Section 18 covers two classes of cases, namely, persons who have been prosecuted and found guilty of an offence either under s.3 or s.7 as well, as persons not dealt with under those provisions. In the case of the former, they have the benefit of regular trial, they can cross examine the prosecution witnesses, adduce defence evidence and also go up in appeal if convicted. In those, cases the result of the proceedings under s.18 largely though not entirely depends on the result of the connected prosecution. But in the case of the latter, i.e., those who are only proceeded against under s.18 they have only a right of 'hearing'. It is further urged on their behalf that under s.3 or s.7 action is taken before a court, whereas the proceeding under S. 1 8 is taken before a magistrate. In the latter case the Act does not lay down the scope of the hearing provided for.

It was lastly urged that the facts to be proved both in prosecutions under ss.3 and 7 and in proceedings under s.18 are identical; hence, there is no justification for adopting two widely different procedures. In support of their contention that the difference in the two procedures prescribed amounts to a discrimination under Art. 14, reliance was placed on the decision of this Court in the State of West Bengal v. Anwar Ali Sarkar(1).

We shall now proceed to examine the correctness of these contentions. The Act was enacted in pursuance of an international convention signed at New York on the 9th day of May, 1950. It provides for the suppression of immoral traffic in women and girls. The sections that are material for our present purpose are 3, 7 and 18. Section 3 provides for punishment for keeping a brothel or allowing premises to be used as a brothel. Section 3(1) provides for the conviction and punishment of a person who keeps or manages ,or acts or assists in the keeping or management of, a brothel. Sub-s.(2) of that section provides for the conviction and punishment of a person who being (a) tenant lessee or occupier or person incharge of any premises, uses or knowingly allows any other person to use, such premises or any part thereof as a brothel,(b) the owner lessor or landlord of any premises or the agent of such owner lessor or landlord, lets the premises or any part thereof with the knowledge that the same or any part thereof is intended to be used as a brothel or is wilfully a party to the use of such premises or any part thereof, as a brothel. "Brothel" is defined in s.2(a) as including a house, room, or place or any portion of any house, room or place, which is used for the purpose of prostitution for the gain of another person or for the mutual gain of two or more prostitutes.

"Prostitute" is defined in s.2(e) as meaning a female who offers her body for promiscuous sexual intercourse for hire whether in money or in kind.

(1) [1952] S.C.R. 284.

209 Section 7 provides for the Punishment of prostitution in or in the vicinity of public places. That section reads:

"(1) Any woman or girl who carries on prostitution, and the person with whom such prostitution is carried on, 'in any premises which are within a distance of two hundred yards of any place of public religious worship, educational institution, hostel, hospital, nursing home or such other public place of any kind as may be notified in this behalf by the Commissioner of Police or District Magistrate in the manner prescribed, shall be punishable with imprisonment for a term which may extend to three months.

(2) Any person who(a) being the keeper of any public place knowingly permits prostitutes for purposes of their trade to resort to or remain in such place; or (b) being the tenant, lessee, occupier or person in charge of any premises referred to in sub-section (1) knowingly permits the same or any part thereof to be. used for prostitution; or (c) being the owner, lessor or landlord of any premises referred to in sub-section (1), or the agent of such owner, lessor or landlord, lets the same or any part thereof with the knowledge that the same or any part thereof may be used for prostitution, or is wilfully a party to such use, shall be punishable on first conviction with imprisonment for a term which may extend to three months, or with fine which may extend to two hundred rupees, or with both, and in the event of a second or subsequent conviction with imprisonment for a term which may extend to six months and also with fine which may extend to two hundred rupees.".

Public place is defined in s. 2(h) as meaning any place intended for use by or accessible to the public and includes and public conveyance.

Now we may refer to s. 18. It reads: " (1) A Magistrate, may, on receipt of information from the police or otherwise, that any house, room, place or any portion thereof within a distance of two hundred yards of any public place referred to in sub-section (1) of section 7, is being run or used as a brothel by any person, or is being used by prostitutes for carrying on their trade, issue notice on the owner, lessor 210 or landlord of such house, room, place or portion or the agent of the owner, lessor or landlord or on the tenant, lessee, occupier of, or any other person in charge of such house, room, place, or portion, to show cause within seven days of the receipt of the notice why the same should not be attached for improper user thereof; and if, after hearing the person concerned, the Magistrate is satisfied that the house, room, place, or portion is being, used as a brothel or for carrying on prostitution, then the Magistrate may pass orders(a) directing eviction of the occupier within seven days of the passing of the order from the house, room, place, or portion;

(b) directing that before letting it out during the period of one year immediately after the passing of the order, the owner, lessor or landlord or the agent of the owner, lessor or landlord shall obtain the previous approval of the Magistrate:

Provided that, if the Magistrate finds that the owner, lessor or landlord as well as the agent of the owner, lessor or landlord, was innocent of the improper user of the house, room, place or portion, he may cause the same to be restored to the owner, lessor or landlord, or the agent of the owner, lessor or landlord, with a direction that the house, room, place or portion shall not be leased out, or otherwise given possession of, to or for the benefit of the person who was allowing the improper user therein.

(2) A Court convicting a person of any offence under section 3 or section 7 may pass orders under sub-section (1), without further notice to such person to show cause as required in that sub-section.

(3) Orders passed by the Magistrate or court under subsection (1) or sub-section (2) shall not be subject to appeal and shall not be stayed or set aside by the order of any court, civil or criminal, and the said orders shall cease to have validity after the expiry of one year:

Provided that where a conviction under section 3 or section 7 is set aside on appeal on the ground that such house, room, place or any portion thereof is not being run or used as a brothel or is not being used by prostitutes for carrying on their trade, any order passed by the trial court under sub-section (1) shall also be set aside.

211 (4) Notwithstanding anything contained in any other law for the time being in force, when a Magistrate passes an order under subsection (1), or a court passes an order under sub-section (2), any lease or agreement under which the house, room, place or portion is occupied at the time shall become void and inoperative.

(5) When an owner, lessor or landlord, or the agent of such owner, lessor or landlord fails to comply with a direction given under clause (b) of sub-section (1) he shall be punishable with fine which may extend to five hundred rupees or when he fails to comply with a direction under the proviso to that subsection, he shall be deemed to have committed an offence under clause (b) of sub-section (2) of section 3 or clause (c) of sub-section (2) of section 7, as the case may be, and, punished accordingly." Sections 3 and 7 provide for the punishment of persons guilty of the offences mentioned therein. Any contravention of the provisions mentioned therein amounts to a cognizable offence in view of section 14, whereas a proceeding under s.18 is in no sense a prosecution. It is a preventive measure. It is intended to minimise the chance of a brothel being run or prostitution being carried on in premises near about public places. Naturally, in the case of prosecutions, a regular trial with a right of appeal is provided for. The enquiry contemplated by s.18 is summary in character.

The attachment contemplated by that section can enure only for a period of one year. Under these circumstances evidently the Legislature thought that a regular trial and an appeal against the order of the magistrate is not called for. In these cases it is unnecessary for us to spell out the scope of the expression "hearing" found in s.18. It is necessary to remember that ss.3 and 7 deal with persons guilty of offences whereas s.18 deals with the premises mentioned therein. It is not correct to say that the set of facts to be proved in prosecutions under ss.3 or 7 and in proceedings under s.18 are identical. In the former the prosecution to succeed has to establish either the intention or knowledge referred to therein but in the latter they are not necessary ingredients. Section 18 provides for two classes of cases namely, (1) those coming either under s. 3 or 7 as well as under s. 18 and (2) those coming only under s. 18. They are two distinct classes of cases-a classification which has reasonable relationship with the object sought to be achieved and therefore falls outside the rule laid down by this Court in Anwar Ali Sarkar's(1) case.

(1) [1962] S.C.R. 284.

(N)1SCI-15(a) 212 From the copies of the reports made in these cases to the magistrate by the police-made available to us at the hearing of these appeals-it is clear that they disclose offences under s.3 against the respondents. Therefore, the question is whether the magistrate can choose to ignore the cognizable offence complained of and merely have recourse to s.18 and thus deprive the parties proceeded against of the benefit of a regular trial as well as the right of appeal in the event of their conviction. Bearing in mind the purpose of these provisions as well as the scheme of the Act and on a harmonious construction of the various provisions in the Act, we are of the opinion that in cases like those before us the magistrate who is also a court as provided in s.22 must at the first instance proceed against the persons complained against under the penal provisions in ss.3 or 7 as the case may be, and only after the disposal of those cases take action under s.18 if there is occasion for it.

Under s.190(1)(b) of the Code of Criminal Procedure, the magistrate is bound to take cognizance of any cognizable offence brought to his notice. The words "may. take cognizance" in the context means "must take, cognizance". He has no discretion in the matter, otherwise that section will be violative of Art. 14. But as laid down in Delhi Administration v. Ram Singh(1) only an officer mentioned in s.13 can validly investigate an offence under the Act.

Hence if the cases before us had been investigated by such an officer, there is no difficulty for the magistrate to take cognizance of those cases. Otherwise it is open to him to direct fresh investigations by competent police officers before deciding whether the facts placed before him disclose any cognizable offence.

In the result, we hold, for the reasons mentioned above, that the proceedings taken by the learned magistrate against the respondents are not in accordance with law as he has proceeded against them under s.18 without first taking action under s.3. For that reason we uphold the conclusions reached by the learned Judges of the Punjab High Court but on grounds other than those relied on by them. But this conclusion of ours does not debar the learned magistrate from taking fresh proceedings against the respondents in accordance with law as explained by us earlier.

In the result, these appeals fail and are dismissed.

Appeals dismissed.

V.P.S.

(1) [1962] 2 S.C.R. 694.

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