Full Judgment Text
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PETITIONER:
SHRI A. C. AGGARWAL SUB-DIVISIONAL MAGISTRATE,DELHI & ANR.
Vs.
RESPONDENT:
MST. RAM KALI, ETC.
DATE OF JUDGMENT:
16/08/1967
BENCH:
HEGDE, K.S.
BENCH:
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
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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.
JUDGMENT:
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
therefor 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
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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 suchclassification 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.
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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 crossexamine 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
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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 por-
tion 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,
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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 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.
211
(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.
(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 sub-
section, 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
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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 cogni-
zance" 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.
213
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