Sunny Kamalsingh Mathur vs Office Of The Commissioner Of ...
2008 Latest Caselaw 141 Bom

                                        1




                                                                          
             IN THE HIGH COURT OF JUDICATURE AT BOMBAY

                    CRIMINAL APPELLATE JURISDICTION




                                                  
               CRIMINAL WRIT PETITION NO. 1923  OF 2008

                                                                DIST.: MUMBAI




                                                 
    Sunny Kamalsingh Mathur,                              ]
    Age 45, Indian Inhabitant of Mumbai,                  ]
    Residing at 44/45, Pamak House,                       ]




                                       
    Room No. 209, 2nd Floor, Ram Mandir Road,             ]
    Khardanda, Bandra, Mumbai
                          ig                              ]            ...Petitioner

              Versus
                        
    1. Office of the Commissioner of Police               ]
      for Greater Mumbai, having office at                ]
      Opposite to Crawford Market, D.N. Road,             ]
      Brihan Mumbai                                       ]
       


    2. State of Maharashtra                               ]
    



      through Home Department, Mantralaya,                ]
      Mumbai 400 032                                      ]

    3. Senior Inspector of Police,                        ]





      Anti Trafficking Cell, Social Service Branch,       ]
      Crime Branch, CID, Opposite to Crawford             ]
      Market, Brihan Mumbai                               ]      ...Respondents.





    Mr. M.M. Vashi for the Petitioner

    Dr. F.R. Shaikh, Additional Public Prosecutor, for the State.


                                         CORAM:  B ILAL NAZKI
                                                              and
                                                A.A. KUMBHAKONI, JJ.

DATE OF RESERVING THE JUDGMENT: 25-9-2008

DATE OF PRONOUNCING: 14-10-2008.

JUDGMENT (Per Bilal Nazki, J.):-

1. Rule. Heard forthwith. Respondents waive service.

2. An order passed by the Commissioner of Police in terms of

Section 18 of the Immoral Traffic (Prevention) Act, 1956 (hereinafter

referred to as "the Act") has been challenged in this petition. By the

order under Section 18(1)(b), the Magistrate directed the petitioner that

during the period of one year from the date of the order, he shall obtain

his previous approval before leasing / letting out or handing over the

possession of the said premises to any other person. This order was

passed after a show-cause notice was given to the petitioner, and he

was heard.

3. The allegations against the petitioner were based on a report

received by the Magistrate / Commissioner from the Senior Inspector of

Police, Anti Trafficking Cell. The material placed before the

Commissioner / Magistrate revealed that on 28th August, 2007, the

premises, Bungalow No. 27, 1st Floor, Dr. Ambedkar Road, Pali Village,

Khar (West), Mumbai, were raided and searched under Section 15 of

the Act by the Special Police Officer. During the raid, the petitioner was

found along with his associates (pimps) carrying on prostitution by

keeping three girls. The names of these girls are given. They were

aged between 18 and 19 years, and the girls were rescued from the

aforesaid premises. The petitioner was arrested as the landlord /

owner, his three associates were also arrested as pimps. Then the

Commissioner of Police was satisfied that the petitioner and his

associates were in possession of the premises, which were being used

improperly for prostitution as a brothel for carrying on illegal trade within

the meaning of Section 7(1) of the Act, and the aforesaid premises fall

within two hundred metres from a temple and a sports academy. These

allegations were found substantiated and, therefore, the impugned order

was passed.

4. The learned counsel for the petitioner has only attacked this

order on one ground, which has not been taken in the petition, but has

been argued at length. He submitted that the Hon'ble Supreme Court

has laid down the law that action under Section 18(1) of the Act cannot

be taken till prosecution under Section 3 or 7, as the case may be, is not

initiated and disposed of. In order to appreciate the argument made by

the learned counsel for the petitioner and also to understand the law laid

down by the Hon'ble Supreme Court in its Constitution Bench Judgment

reported in A.C. Aggarwal, Sub-Divisional Magistrate, Delhi, & Anr. v.

Mst. Ram Kali, etc., reported in AIR 1968 S.C. 1, certain provisions of the

Act need to be looked into.

5. Section 3 of the Act lays down as under:-

"Punishment for keeping a brothel or allowing premises to be used as a brothel.--

(1) Any person who keeps or manages, or acts or assists in the keeping or management of, a brothel shall

be punishable on first conviction with rigorous imprisonment for a term of not less than one year and not more than three years and also with fine which may extend to two thousand rupees and in the event of a second or subsequent conviction, with rigorous

imprisonment for a term of not less than two years and not more than five years and also with fine which may extend to two thousand rupees.

(2) Any person who --

(a) being the tenant, lessee, occupier or person in charge of any premises, uses, or knowingly allows any other person to use, such premises or any part thereof as a brothel, or

(b) being the owner, lessor or landlord of any premises 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 is intended to be used as a brothel, or is willfully a party to the use of such premises or any part thereof as a

brothel,

shall be punishable on first conviction with imprisonment for a term which may extend to two years and with fine

which may extend to two thousand rupees and in the event of a second or subsequent conviction, with

rigorous imprisonment for a term which may extend to five years and also with fine.

(2A) For the purposes of sub-section (2), it shall be presumed until the contrary is proved, that any person referred to in clause (a) or clause (b) of that sub-section, is knowingly allowing the premises or any part thereof to

be used as a brothel, or, as the case may be, has knowledge that the premises or any part thereof are

being used as a brothel, if,--

(a) a reprot is published in a newspaper having circulation in the area in which such person resides to

the effect that the premises or any part thereof have been found to be used for prostitution as a result of a search made under this Act; or

(b) a copy of the list of all things found during the search referred to in clause (a) is given to such

person.

(3) Notwithstanding anything contained in any other law for the time being in force, on conviction of any person referred to in clause (a) or clause(b) of sub-section (2) of any offence under that sub-section in respect of any premises or any part thereof, any lease or agreement under which such premises have been leased out or 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."

6. Section 7 reads as follows:

"Prostitution in or in the vicinity of public places.--

(1) Any person, who carries on prostitution and the person with whom such prostitution is carried on, in any premises,--

(a) which are within the area or areas, notified under sub- section (3), or

(b) which are within a distance of two hundred metres 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 magistrate in the

manner prescribed,

shall be punishable with imprisonment for a term which may extend to three moths.

(1A) Where an offence committed under sub-section (1) is in respect of a child or minor, the person committing the offence shall be punishable with imprisonment of either description for a term which shall not be less than seven

years but which may be for life or for a term which may extend to ten years and shall also be liable to fine:

Provided that the court may, for adequate and special reasons to be mentioned in the judgment, impose a sentence of imprisonment for a term of les than seven years.

(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, and if the public place or premises happen to be a hotel, the licence for carrying on the business of such

hotel under any law for the time being in force shall also be liable to be suspended for a period of not less than three months but which may extend to one year:

Provided that if an offene committed under this sub- section is in respect of a child or minor in a hotel, such licence shall also be liable to be cancelled.

Explanation.--For the purposes of this sub-section, "hotel"

shall have the meaning as in clause (6) of section 2 of the Hotel Receipts Tax Act, 1980 (54 of 1980).

(3) The State Government may, having regard to the kinds of persons, frequenting any area or areas in the State, the nature and the density of population therein and other relevant considerations, by notification in the Official Gazette, direct that prostitution shall not be carried on in such ara or areas as may be specified in the notification.

(4) Where a notification is issued under sub-section (3) in respect of any area or areas, the State Government shall

define the limits of such area or areas in the notification with reasonable certainty.

(5) No such notification shall be issued so as to have

effect from a date earlier than the expiry of a period of ninety days after the date on which it is issued."

7. Section 18 is quoted below:-

"Closure of brothel and eviction of offenders from the premises.--

(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 metres 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 sven 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 or in a case where a child or minor has been

found in such house, room, place or portion during a search under section 15, during the period of three years, immediately afer 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 order 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) shal 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 or three years, as the case may be:

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.

(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."

8. The Hon'ble Supreme Court, while analysing these sections,

was of the view that since a complaint made before the Magistrate

would normally disclose an offence under Section 3 or 7, therefore,

magistrate was bound, under Section 190 of the Code of Criminal

Procedure, to take cognizance of the matter, and once cognizance of

the matter was taken, the trial had to proceed and reach its normal

consequences, and if there was conviction, action could be taken under

Section 18(1). In paragraph 13, the Hon'ble Supreme Court

categorically held that the proceedings taken by the Magistrate against

the respondents were not in accordance with law, as he has proceeded

against them under Section 18 without first taking action under Section

3.

9. Therefore, the learned counsel for the petitioner submits that

when you initiate action under Section 3 or 7, you have to wait for its

results to take action under Section 18, and if the facts disclose

cognizable offences within the parameters of Section 3 or 7, then no

order can be passed under Section 18, unless the prosecution succeeds

in the prosecution. There is no doubt that the interpretation placed by

the learned counsel for the petitioner on the judgment of the Hon'ble

Supreme Court is absolutely in order and correct.

10. But the law has undergone a change after the Hon'ble

Supreme Court passed the judgment. The Supreme Court judgment

was passed in 1968. Amendment was carried in Section 22 with effect

from 2nd October, 1979.

11. Section 18(1) refers to a magistrate, and on receipt of

information from police or otherwise that certain premises were being

run as a brothel within two hundred metres of any place mentioned in

Section 7, he can issue notice to lessor, landlord, tenant or agent of

such premises to show cause as to why the property should not be

attached, and then pass appropriate orders under clause (b) of sub-

section (1) of Section 18. The same order, which a magistrate can

pass under clause (b) of sub-section (1) of Section 18 after issuing a

show-cause notice and giving a hearing to the concerned person, can

also be passed under Section 18(2) without giving a show-cause notice

and without hearing such person; but the requirement would be that

such a person should have been convicted under Section 3 or Section 7

of the Act. ig The Hon'ble Supreme Court noticed that once

the magistrate gets an information, which discloses an offence under

Section 3 or 7, he is bound to proceed in the matter in terms of Section

190 of the Code of Criminal Procedure; and, therefore, unless there is

conviction, he should not resort to Section 18(1)(b). Since this is a

judgment of the Hon'ble Supreme Court, nothing more can be said

about it, but after amendment in Section 22, the whole complexion has

changed and a magistrate under Section 18 is not the magistrate under

Section 3 or 7. When the Hon'ble Supreme Court decided the case

referred to above, the magistrate mentioned in the Act under various

provisions was a magistrate within the meaning of Section 2(c).

12. Section 2(c) defines 'magistrate' in the following terms:-

" 'magistrate' means a magistrate specified in the second

column of the Schedule as being competent to exercise the powers conferred by the section in which the expression occurs and which is specified in the first column of the Schedule."

This section makes a reference to the Schedule. Therefore, for

definitions of 'magistrate', one has to look into the Schedule and for

Section 18 as well as Section 7, the District Magistrate was the

concerned magistrate. It is understandable, as, in those days,

Executive Magistrates had also judicial powers. Therefore, when the

Hon'ble Supreme Court held that when facts were brought to the notice

of the magistrate disclosing a cognizable offence, the magistrate was

bound under Section 190 of the Code of Criminal Procedure to take

cognizance of the matter.

13. Things have now changed. Section 22 dealt with trials, and

before amendment, the section read:

"No court, inferior to that of a Magistrate as defined in clause

(c) of Section 2, shall try any offence under section 3, section 4, section 5, section 6, section 7 or section 8."

Going by the definition in Section 2(c) read with unamended Section 22,

the Hon'ble Supreme Court held that the offence must be first tried

before an order under Section 18(1) is passed. But after amendment of

Section 22, the situation changed, and now, Section 22 reads as under:-

"No court, inferior to that of a Metropolitan Magistrate or a Judicial Magistrate of the first class, shall try any offence under section 3, section 4, section 5, section 6, section 7 or section 8."

14. It emerges from the discussion hereinabove that the trial

under Section 22 has to be conducted by a Magistrate or a Judicial

Magistrate, whereas under Section 18(1), the power has to be exercised

by a District Magistrate or a Sub-Divisional Magistrate in terms of the

Schedule of the Act. Therefore, the legislature has takene note of the

fact that whereas power under Section 18(1) is a preventive power,

power under other section like Section 3, 4, 5, 6, 7 or 8 is of penal

nature, which should be given to the Judicial Magistrates. But if a

magistrate does not take action under Section 18(1), the Judicial

Magistrate empowered to conduct trial under the amended provisions of

Section 22 may still take action under Section 18(2) after a person is

convicted by such a Judicial Magistrate under Section 3 or 7. Since

Section 22 has undergone amendment, we do not feel that the judgment

of the Hon'ble Supreme Court will apply to the controversy.

15. In view of a drastic shift that has occurred in the

jurisdiction/power to conduct trials u/ss. 3 and 7 of the Act due to

amendment of S.22 of the Act made effective from 2nd October 1979,

whereby words "a Magistrate as defined in clause (c) of section 2" have

been substituted by words "a Metropolitan Magistrate or a Judicial

Magistrate of First Class", the scheme of S.18 of the Act is now as under

(a)

Sub Section.(1) of s.18 :-

This power is preventive in nature and can be

exercised by "a Magistrate" (S.2(c) r/w the Schedule to the said

Act) i.e. by a District Magistrate or Sub Divisional Magistrate.

Before passing an order, in addition to the other requirements

of this provision, such a Magistrate has to issue a show cause

notice as contemplated by Section 18(1), hear the person

concerned and record his satisfaction as contemplated by the

said provision. An action under this provision can be taken

irrespective of whether an action under sections 3 and/or 7 of

the said Act are taken or not i.e. even when a matter is pending

in the court u/s 3 and/or 7 of the said Act.

(b) Sub section (2) of S.18 :-

This power is punitive in nature and can be exercised

only by "a Court" not inferior to that of a Metropolitan

Magistrate or a Judicial Magistrate of First Class. "A

Magistrate" (S.2(c) r/w the Schedule to the said Act) i.e. a

District Magistrate or Sub Divisional Magistrate cannot exercise

power under this provision. An order can be passed in exercise

of power conferred by this provision under Section 18(1) only

when a person is convicted of an offence u/s 3 or 7 of the said

Act. It is open for such 'a Court' to pass an order in exercise of

power conferred by this provision even without further notice to

such a person against whom the order is being passed, to show

cause as required by sub section 1 of s.18.

16. For these reasons, we do not find merit in the petition.

It is accordingly dismissed. Rule discharged.

Sd/-

BILAL NAZKI, J.

Sd/-

A.A. KUMBHAKONI, J.