Shri A. C. Aggarwal Sub-Divisional
Magistrate, Delhi & ANR Vs. Mst. Ram Kali  INSC 175 (16 August 1967)
16/08/1967 HEGDE, K.S.
WANCHOO, K.N. (CJ) BACHAWAT, R.S.
CITATION: 1968 AIR 1 1968 SCR (1) 205
CITATOR INFO :
R 1975 SC2473 (12) F 1977 SC 740 (10) R 1980
SC 161 (14)
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
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.
 S.C.R. 284 and Delhi Administration v. Ram. Singh.  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
The first appellant in these appeals, Shri A.
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
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)  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
(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
Public place is defined in s. 2(h) as meaning
any place intended for use by or accessible to the public and includes and
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
(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
(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)  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
(1)  2 S.C.R. 694.