Chitan J. Vaswani & ANR Vs. State of
West Bengal & ANR [1975] INSC 257 (10 October 1975)
KRISHNAIYER, V.R.
KRISHNAIYER, V.R.
GUPTA, A.C.
CITATION: 1975 AIR 2473 1976 SCR (2) 300 1975
SCC (2) 829
ACT:
Suppression of Immoral Traffic in Women and
Girls Act (104 of 1956) ss. 3. 7 and 18-Conviction under ss. 3 and 7- Power of
Magistrate to order eviction of keeper or occupier.
HEADNOTE:
The appellants were keepers of a public place
namely, a bar. They were convicted under s. 3(1) of the Suppression of Immoral
Traffia in Women and Girls Act. 1956, for keeping or managing a brothel in the
bar, and under s. 7(2)(a) for knowingly permitting prostitutes for the purpose
of their trade to resort to or remain in the bar. There was also a direction
under s. 18(1) read with s. 18(2) of the Act evicting, the appellants from the
bar.
It was contended that the order of eviction
was bad, because the bar was not within 200 yds. of any public institution of
the type referred to in s. 18(1).
HELD : The Magistrate has power to order
eviction when there is a conviction either under s. 3 or s. 7. [306 E] Under s.
18(1), when a Magistrate receives information that a brothel is being run
within a distance of 200 yds.
from certain specified types of public
institutions, he may order the eviction of the occupier after hearing him.
Under s. 18(2). once a court convicts a person under s. 3 or s. 7, it may pass
orders under s. 18(1) without further notice to such person to show cause as
required in that sub-section. A close reading of s. 18(2), however indicates
that the orders under sub-section (1) referred to therein do not wholesale
import the substantive paragraph of s. 18(1) but only the eviction orders
contained therein. [304 B, G; 305 F-H] (a) The consequence of a conviction
under s. 3 is the invalidation of any lease of the premises where the brothel
is run. The logical consquence must be that the occupier must be thrown out of
such premises. This is achieved by the exercise of the power under s. 18(2).
[305 B] (b) Section 7(1) punishes prostitution in premises within a distance of
200 yds. of specified places. Section 7(2)(b) punishes the person who permits
the use of premises in his occupation for prostitution, and it is an ingredient
of the offence that the premises must be within 200 yards distance of the
specified places; but s. 7(2)(a) punishes the keeper of any public place who knowingly
permits prostitutes to resort to such place for their trade. No question of
distance arises with respect to such a conviction. But s. 18(2) empowers the
court to pass orders under s. 18(1) if there is a conviction under s. 7
regardless of whether it falls under s. 7(2)(a) or (b). [305 C-E] Therefore, s.
18(2) operates not merely on places within the offendin distance of 200 yds.
but in all places where the activity of prostitution had been conducted. [305
G] (c) To dispel the ambiguity in s. 18(2) it must be interpreted in such a way
as to advance the remedy and suppress the evil. If the purpose of extirpating
the commercial vice from a place were to be successful the occupier must be
expelled from there. [304 H] Sub-Div. Magistrate v. Ram Kali, [1968] 1 S.C.R.
205 and Heyden's (1584) 3 Co. Rep. 71, case referred to.
CRIMINAL APPELLATE JURISDICTION: Criminal
Appeal No. 300 of 1975.
Appeal by Special Leave from the Judgment and
Order dated the 17th March, 1975 of the Calcutta High Court in Govt. Appeal No.
9 of 1974 and Criminal Revision Nos. 438 and 524 of 1974.
D. Mookherjee and D. N. Mukherjee, for the
Appellants.
A. K. Sen and D. N. Gupta, for Respondent No.
2.
The Judgment of the Court was delivered by
KRISHNA IYER, J. Not for dramatic effect but to sting social conscience, we set
out the tragic story of this case which is typical of the spreading disease of
immoral traffic, to remedy which the Suppression of Immoral Traffic in Women
And Girls Act, 1956 (for short, the Act) was enacted by Parliament in a mood of
high morality but with such drafting inefficiency that it has pathetically
failed to produce any decline in the malady.
The scene is the Isias Bar, 15, Free School
Street, Calcutta. A hall of enchantment extends nocturnal invitation to have a
nice time with svelte sylphs. The entrance fee is but a paltry Rs. 15/- per man
and inside is served animating liquor. Scantily clad female flesh of sweet
seventeen or thereabouts flit about or sit on laps, to the heady tune of band
music. They solicit carnal custom, and the willing male victims pay Rs. 30/-,
choose whom they fancy, drink together and, taking leave of decencies, indulge
in promiscuous sex exercise legally described as operation prostitution. The
stage is busy with many men and girls moving into rooms, lavatories and
chambers. The curtain rises and a raiding party of police and excise officers
surprise this arotic company drowned in drink and damsels.
This lacherous drama need not detain us
further. The Act went into action, a prosecution was launched against many
under s. 7 resulting in conviction and sentence of two persons, the proprietor
and the manager of the Isias Bar.
Often times, a bar or restaurant is a
euphemism for a brothel and the socialites, unsuspectedly and without smirch,
satisfy their sex in these respectably labellel houses patronised by even
prestigious dignitaries and opulent businessmen.
An appeal to the High Court substantially
failed and the appeal by the State on some counts, partly succeeded. In this
Court, leave was refused regarding the challenge against the guilt and so the
findings sustaining the conviction stand; but it is necessary to clarify that
ultimately the High Court modified the conviction to an extent and we have to
proceed on the footing that the accused, have been found guilty of offenses
under s. 7(2) (a), s. 3(1) but acquitted under s. 7(2)(b). What is most
pertinent to the present appeal is that an order was made under s. 18(1) read
with sec. 18(2) directing "the occupiers of portion of premises Nos. 15
and 15/A, Free School Street commonly known as 'Isias Bar' to be evicted
therefrom within a period of seven days from the 302 date of this order and
restore possession thereof to the owner landlord or his agent and we further
direct that this premises or any portion thereof shall not be leased out, or
otherwise given possession of, to or for the benefit of the person or persons,
who were connected with the improper user thereof." We had granted special
leave limited to the attack on this order for eviction under s. 18(2) read with
s. 18(1). The area of discussion in these arguments is thus confined to the
power to throw out the occupier of the guilty premises on conviction for
offences under ss. 3(1) and 7(2)(a) on top of the sentence imposed.
An appreciation of the legal tangle can be
facilitated by a brief but necessary sketch of the indubitable foundational
facts and the basic legal provisions bearing on the orders under s. 18. The
court, as earlier mentioned, passed an order, following on the sentence, that
since a conviction under ss. 3 and 7 had been rendered, there would be a
direction evicting the appellants-occupiers from the theatre of prostitutional
operation, viz., the Isiah Bar.
The Bar is beyond the offending distance of
200 yards of any 'public place' referred to in sub-s. (1) of s. 7. The said
sub-section itemizes premises such as places of public religious worship,
educational institutions, hostels, hospitals, nursing homes and such other
public places as may be notified by the authority designated. At the same time
it is a proven fact that the appellants have been keeping or managing a brothel
within the meaning of s. 3(1), and are keepers of a public place knowingly
permitting prostitutes for the purposes of their trade to resort to or remain
in such public place viz., the Isiah Bar. Section 18, sub-ss.
(1) to (4) may be reproduced in extenso
before analysing the submissions made by counsel on either side:
"18(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 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;
303 (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 or show cause as required in that sub-section.
(3) Orders passed by the magistrate or court
under sub-section (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.
(4) Notwithstanding anything contained in any
other law for the time being in force, when a magistrate passes an order under
sub-section (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." The project of the statute, to the
extent we are concerned, may now be set out. When a magistrate receives
information that any brothel is being run within a distance of 200 yards of any
public place such as has been mentioned earlier [in sub-s. (1) of s. 7] he may
issue notice to the owner, tenant, occupier or other person in charge of or
connected with the brothel to show cause why it should not be attached for
improper user. After a hearing being conducted, the magistrate, if satisfied,
may order eviction of the occupier and further direct that the owner or
landlord shall not let out the premises for a period of one year after the
passing of the order, without his previous approval.
304 In short, the house of ill-fame where
Mrs. Warren's Profession is carried on is virtually sealed off by attachment by
the magistrate. However, if the owner satisfies the magistrate of his
innocence, it may be restored to him with a direction that it shall not be
leased out to the person who had been improperly using it for immoral purposes.
Section 18(1) proprio vigore applies only to
brothels within the vicious distance of 200 yards of specified types of public
institutions. No criminal prosecution or conviction is necessary for taking
action under s. 18(1).
Strictly speaking, this is not a punitive
provision but a preventive one. This power vested in the magistrate is
calculated to ensure moral hygiene in the locality which is particularly
sensitive. If one may say so, it is a moral scavenging operation, or a
fumigation process whereby the dangerous visitations may be totally inhibited
by a legally enforced closure. So far as we are concerned, the Isiah Bar is not
shown to be within the offending distance and s. 18(1) cannot therefore apply.
Indeed the Magistrate and the High Court have proceeded to exercise powers
under s. 18(2) and the entire controversy before us is as to the real import of
that provision. By way of aside, we may say that plausible submissions were
urged by Shri D. Mukherjee, supported by the language of s. 18(2). Had the
drafting been more careful, and lucid, the argument would have been obviated.
This Court has, more than once, pointed out that lack of legislative simplicity
has led to interpretative complexity. The home truth that legislation is for
the people and must, therefore, be plain enough has hardly been realised by our
law-makers. Judges, looking at statutes, are forced to play a linguistic game
guessing at the general legislative purpose and straining at semantics. In the
present case we have had to reach the conclusion against the appellants by
broadening the dimensions of Heyden's case(1), importing a 'context-purpose'
teleological approach. There are many canons of statutory construction, but the
golden rule is that there are no golden rules-if we may use Shavian language.
We must emphasize once more that legislative
draftsmen and legislators must not confuse each other but start talking to
their real audience-the people, by writing law in unmistakable and simple
language.
Back to s. 18(2). Once a court convicts a
person under s. 3 or s. 7 as in this case, it may pass orders under sub- s. (1)
of s. 18 without further notice to such person to show cause as required in
that sub-section. Shri Mukherjee's submission is that this power of eviction is
conditioned by the limitations of s. 18(1). Orders under sub-s. (1) of s. 18
can, admittedly, be passed only if the brothel is within 200 yards' distance.
Since, in this case, the place is beyond that distance, Shri Mukherjee argues
that sub-s. (2) cannot apply. The words 'pass orders under sub-s.' creates
ambiguity which we have sought to dispel by trying to advance the remedy and
suppress the evil through the interpretative methodology.
305 Shri A. K. Sen has explained-and we think
rightly-that s. 3 punishes persons who keep brothels. Sub-s. (3) of s. 3 lays
down that notwithstanding any other law 'any lease ...
under which such premises ... are held or
occupied at the time of the commission of the offence, shall become void and
inoperative with effect from the date of the said conviction'. It is plain
therefore that the consequence of a conviction under s. 3 is the invalidation
of the lease of the premises where the brothel is run. The logical consequence
must be that the occupier must be thrown out of the prostitutional premises.
This is achieved by exercise of the power under s. 18(2).
Section 7(1) punishes prostitution in
premises within a distance of 200 yards of specified sensitive places set out
therein. Section 7(2) works out a dichotomy: sub-s. (2)(a) punishes the keeper
of any public place who knowingly permits prostitutes to resort to such place
(that is, any public place). No question of distance arises here but sub- s.
2(b) specifically mentions, as an ingredient of the offence, that the premises
must be such as are referred to in sub-s. (1) (that is, within 200 yards
distance). A person convicted either under sub-s. (1) or under sub-s. (2) (a)
or (b) s. 7 will be covered by s. 18(2) because the latter provision empowers
the court to pass orders under s. 18(1) if there is a conviction under s. 7,
regardless of whether it falls under sub-s. (2) (a) or (b) of that section.
Moreover, if we have regard to the wholesome
purpose of cleansing houses of ill-fame, it can be achieved only by a broader
construction of s. 18(2).
This Court in Sub-Div. Magistrate v. Ram
Kali(1) held that s. 18(1) deals with one class and s. 18(2) relates to another
class. Section 18(1) is a summary procedure for closing down obnoxious places
of prostitution, without going through the detailed process of a criminal
prosecution. It is a quick-acting defensive mechanism, calculated to extinguish
the brothel and promote immediate moral sanitation, having regard to the social
susceptibility of places like shrines, schools, hostels, hospitals and the
like, Section 18(2) on the other hand, operates only where persons have been
convicted of offences under s. 3 or s. 7.
Thus the place is found to be put to
prostitutional use, in a criminal trial. It stands to reason that if the
purpose of extirpating the commercial vice from that venue were to be successful,
the occupier must be expelled therefrom. This is precisely what has been done
in the present case. Section 18(2) operates not merely on places within the
offending distance of 200 yards but in all places where the activity of
prostitution has been conducted.
A close reading of s. 18(2) indicates that
the orders under sub-s. (1), referred to therein, do not, wholesale, import the
substantive paragraph of s. 18(1), but only the evicting orders contained in s.
18(2), clauses (a) and (b).
What is, by a process of abbreviation,
imported into s. 18(2) is the decretal part of s. 18(1) to the extent it is
written into s. 18(1), (a) and (b). There is some clumsiness 306 about the
drafting, as we have already stated. Even so, if the purpose is carried to the
meaning that we assign, the section fulfils the social cause.
We are in the International Women's Year-a
circumstance meaningful socially, but not relevant legally. Even so, it is time
to tighten up this statute and we may permit ourselves a few concluding
observations, hopefully. Maybe, there are other provisions of the Act which
have contributed to its dismal failure in the field and the legislature must,
in the International Year of Women, protect the virtue of the weaker sex from
the purchasing power of the takers of virginity who sip every flower and change
every hour.
No nation, with all its boasts, and all its
hopes, can ever morally be clean till all its women are really free- free to
live without sale of their young flesh to lascivious wealth or commerciailsing
their luscious figures. India, to redeem this 'gender justice' and to prescribe
prostitution whereby rich men buy poor women through houses of vice, has salved
its social conscience by enacting the Act. But the law is so ill-drafted and
lacunose that few who follow "the most ancient Profession in the
World" have been frightened into virtue and the customers of
wine-cum-women are catered to respectably in bars, hotels and night-clubs in
sophisticated and subtle ways, especially in our cities.
We dismiss the appeal, upholding the power of
the magistrate to order eviction when there is a conviction under s. 3 or s. 7
confident that public power vested in a public functionary for public benefit
shall be used whenever conditions necessary for the exercise are present, so
that a comprehensive social purpose of moral clean-up of public places is
accomplished.
V.P.S. Appeal dismissed.
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