SHRI A.C. AGGARWAL, SUB-DIVISIONAL MAGISTRATE, DELHI & ANR. versus MST. RAM KALI, ETC.

SBRI A. C. AGGARWAL, SUB-DIVISIONAL MAGISTRATE, DELID &ANR.

MST. RAM KALI, ETC.

August 16, 1967

[K. N. WANCHOO, C. J., R. S. BACHAWAT, V. RAMASWAMI, G. K. MITTER AND K. S. HEGDE, JJ.)

Suppression of Immoral Traffic in Women and Girls Act (104 of 1956), s. 18(1)-If violative of Art. 14 of the Constituti';"'-Dllltli of Magistrate when cognizable offence under ss. 3 or 7 disclosed.

Section 18 of the Suppression o! 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 per· sons guilty of the offences men~iOIIled therein after regular trial, with right of appeal. Section 18 ls preventive measure, dealing with premises, and is intended to minimise the chance of brothel being run near public place, and provides for summary enquiry. r2n !).E; G-Hl-

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 reSPOIII· dents. They challenged the validity of the section, and the High CQUrt held that the section violated Art. 14 of the Constitution.

In appeal to this Court,

Held: Section 18 provides for two distinct ci""8es of cases and the classifica1zibn being reasonable is not violative of Art. 14 of the Constitution. But the proceedings taken by the Magistrate not being in accordanee with Jaw should be set aside. The reports disclosed cognizable offence under s. 3 of the Act and in such case the l\(ql&. Irate cannot ignore the cognizable offence and merely have recourse to s. 18, thus dep~iving parties of the benefit Qf trial and appeal The Magistrate should have taken action under s. 190(11 (b) of the Criminal Procedure Code after investigation by such police ol'llcer as is mentioned in s. 13 of the Act, and It was only after the disposal of the cases agai119\ the parties that action could be taken under s. 18 if there was occasion for it. (212 A-D].

S_tate of ~est ;Bengal v. Anwa" Ali Sarkar, r19521 S.C.R. 284 and Delhi Administration v. Ram Singh. (1962] 2 S.C.R. 6"94, referred to.

~AL 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 Crimi'. nal 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--:Sl of 1965).

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 8 of that section on the basis of Art.I ~(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 respon-dents 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 uuder s.18(1) of the Act. Those notices were issued on the basis of police reports that those premises were being used as brothels. 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 learn-ed magistrate rejected that prayer, they moved the High Court under Art. 226 of the Constitution in criminal writs Nos. 3D to 7D and lOD of 1962, challenging the vires of s.18. Respondent in criminal appeal No. 82 of 1962 claims to be the tenant in fiat 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 he had permitted the said Mst. Ambar to use those premises temporarily but she had vacated the same and therefore he was entitled to their possession, as according to him he was unaware of the fact that Mst. Ambar was "using the pre-mises in question for an improper purpose. But the learned mag-istrate rejected his application holding that (a) there was no satis-I!' factory proof of the fact that he was tenant in those premises 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 Cr. Writ No. 12-D/62 to quash the order of the learned magistrate on the ground that s. 18 was ultra vires of Article 14.

The aforementioned writ petitions were heard by Mahajan and Shamsher Bahadur, JJ. and by common order dated Sep• tember 9, 1963, they, allowed those petitions 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. 54 of which Siri Chand the res-pondent 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.I 4 of the Constitution and to that extent s.18 would be ultra vires of the Constitution."

In the course of their order dated 23rd July, 1963, the learn-. ed 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 simi-B larly situate and thus can lead to discrimination without there being any rational basis for the same. The conse-quences 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 number of prostitutes, who carry on their profession within two hundred yards of public place, as defined in Section 7, the authorities may take action against some of them under Section 18 and against the others under Sec-tion 7. The fact that this can happen is not controverted by the learned counsel for the Delhi State. We also find no ratfonable 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 designed 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 special subject for discrimination and hostile treatment. If law deals equally with all of 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 appli-F cation to other persons, for the class for whom the law has been made is different from other persons and, therefore, there is no· discrimination amongst equals. Every classification is in ¥'me degree likely to produce some inequality but mere production of in-equality is not all by itself enough. The inequality produced in· order to encounter the challenge of the Constitution must be the [result ][of ][some arbitrary step taken by the State. Reasonable· ][classi-· ]fication is permitted but such classification must be based upon some real and substantial distinction bearing 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 reipondents and accepted by the High Court, is thats. 18 discriminates against the

person who is proceeded against under that section, without first

being prosecuted under s.3 or s. 7 as the case be, though the infor· mation 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 ors. 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 right of 'hearing'. It is further urged on their behalf that under s.3 or s.7 action is taken before court, whereas the proceed-ing under s.18 is taken before 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 prosecu-tions 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 discrimination under Art. 14, reliance was placed on the decision of this Court in the State of West Bengal v. Anwar Ali Sarkar(').

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 brothel or allowing premises to be used as brothel. Section 3(1) provides for the conviction and punishment of person who keeps or manages or acts or assists in the keeping or management of, brothel. Sub-s.(2) of that section provides for the conviction and punishment of person who ,being (a) tenant lessee or occupier or person incharge of any premises, 11ses or knowingly allows any other person to qse, such premises or any pa;:t thereof as brothel, (b) the owne~ 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 brothel br is wilfully party to the use of such pre-mises or any part thereof, as brothel. "Brothel" is defined in s.2(a) as including house, rnom, 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 female who oilers her body for promiscuous sexual intercourse for hire whether in money or in kind.

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

Section 7 provides for the punishment of"prostitution in or in the vicinity of public places. That section reads: "(!) Any woman or girl who carries on prostitution, and the person with whom such prostitution is carried on, in any premises which are within 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 t.'iis behalf by the Commissioaer of Police or District Magistrate in the manner prescribed, shall be punishable with imprisonment for tenii which may eltend to three months.

(2) Any person who-

(a) being the keeper of any public place know-ingly 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 (I) knowingly permits the same or any part thereof to be used for prostitution; or

(c) being the owner, lessor or landlord of any pre-mises referred to in sub-section (!), 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 party to such use, shall be punishable on first conviction with imprisonment for terin which may extend to three months, or with fine which may extend to two hundred rupees, or with both, and in the event of second or subsequent conviction with imprisonment for 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 con-veyance.

Now we may refer to s.18. It reads: -

"(!) Magistrate may. on receipt of il'lforma-tion from the police or otherwise, that any house, room, place or any portion thereof with-i!1 distance of two . hundred yards of any ·pub-lic place referred to m sub-section (!) of section 7, is bei!1g "!n or used as brothel by any per-son, o~ 1s be1~ used b>: prostitutes for carrying on their trade, issue· notice on the owner, lessor

L/l'(N) ISCI-16

or landlord of such house, room. place or por· tion or the agent of the owner, lessor or land-lord 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 concern-ed, the Magistrate is satisfied that the hou~. room, place, or portion is being used as brothel or for car:-;ing on prostitution, then the Magi~trate 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 )ear 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 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) Court convicting person of any offence under section 3 or section 7 may pass orders under sub-section (!), 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 (I) 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 crimi-nal, and the said orders shall cease to have validity after the expiry of one year :

Provided that where conviction under section 3 or section 7 is set aside on appeal on the ground that such house, room, place N any portion thereof is n~t being run or used as brothel or is not being used by prosti-tutes for carrying on their trade, any order passed by the trial coort under sub-section (I) shall also be set aside.

(4) Notwithstanding anything conluiii.c.: iii .. uy other law for the time being in force, when Magistrate passes an order under sub-section (I), or 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 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 direction under the pro-viso to thar 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 J and 7 provide for the ·punishment of persons guilty of the offences mentioned therein. Any c6ntravention of the pro-visions mentioned therein amounts to cognizable offence in view of section.14, whereas ·a proceeding under s.18 is in no sense prosecution. It is preventive measure. It is intended to minimise 111 the chance of brothel being run or prostitution being carried on in premises near about public places. Naturally, in the case of prosecutions, regular trial wirh 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 period of one year. Under these circumstances evidently the 'I Legislature rhought that regular trial and an appeal against the order of the magistrate is not called for. In these cases it is un-necessary 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, (I) 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 A.Ii Sarkar's(1) case.

I'r:;m :l:: 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 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 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 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(i)(b) of the Code of Criminal Pro-cedure, the magistrate is bound to take cognizance of any cogniz-able 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(') 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 res-pondents 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 res-pondents in accordance with law as explained by us earlier, In the result, these appeals fail and are dismissed.

Appeals dismissed.