Bombay High Court
Smt. Sampatti M. Doiphode vs The Incharge on 22 December, 2010
Bench: A.M. Khanwilkar, A.P. Bhangale
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ast IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION
CRIMINAL WRIT PETITION NO.2436 OF 2010
Smt. Sampatti M. Doiphode. ....Petitioner
Vs.
The Incharge, Vishrambhaug Police
Station, Sangli & ors. ....Respondents
Mr. Vijay Killedar, advocate for petitioner.
Mr. D.P.Adsule, APP for State.
ig CORAM:- A.M.KHANWILKAR AND
A.P. BHANGALE, JJ.
DATED:- DECEMBER 22, 2010.
P.C.
1. Heard Counsel for the Petitioner and the learned APP for State.
2. By this Petition under Article 226 of the Constitution of India, exception
is taken to the order passed by the District Magistrate, Sangli dated 14th June,
2010 in exercise of powers under section 18 of the Immoral Traffic(Prevention)
Act, 1956. The only contention that has to be addressed in this Petition as
canvassed before us is that section 18 of the Act could not have been invoked by
the competent authority in the fact situation of the present case, in as much as
the FIR registered against the Petitioner is only in respect of offence under
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section 3,4, 5 and 6 of the Act of 1956 and section 292 read with 34 of I.P.C.
This argument is pressed on the basis of the reference made to section 7 of the
Act in section 18 thereof. The argument though attractive deserves to be
stated to be rejected. It clearly overlooks the assertion made by the Respondents
in paragraph-5 of the reply affidavit, which reads thus:
"5. I say that the notice was issued by the respondent No.2 dated
7.5.2010 to the petitioner as per the application filed by the my
police Station on 6.4.2010 to initiate action under Section 18(1) of
the PITA as the premises, which was used in the above mentioned
offence is situated within the 200 mtrs of the public place as the
said premises situated nearby to the Maruti Temple at East side of
the premises and there is nearby one hospital namely Shradha
Clinic and Dr. Patil's Hospital and apart from that there is on Bal
Vikas Anganwadi are also existence within 200 mtrs. Therefore, the
above mentioned property fall under the public place as per the Sec.
2(c) of the PITA which is required to be raid which Section 7 r/w.
Sec. 18, 20 and 22 of the PITA, which clearly clarified that the
order passed by the Respondent No.2 is proper and the said
preventive action was just necessary."
The factual position so stated on affidavit by the Respondents is not challenged
before us. Going by the said position, it would necessarily follow that the
premises, in respect of which action under section 18 of the Act has been taken
by the competent authority, are falling within the area specified by section 7(1)
of the Act. The fact that the FIR does not specifically refer to the offence under
section 7 of the Act or that the chargesheet also makes no reference to the said
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section, would not extricate the mandate of section 18 of the Act, which applies
to all the premises which are falling within the area specified in section 7(1) of
the Act.
3. We are in agreement with the submission of the learned APP that as soon
as it is noticed by the Magistrate that the premises falling under the specified
area under section 7(1) of the Act are being used for the illegal activities
covered by the Act of 1956, by virtue of sub-section 1 of section 18 of the Act,
it is open to the competent authority, much less obligatory on the part of the
competent authority to immediately initiate action specified thereunder. The
distinction between the sweep of sub-section 2 and sub-section 1 of section 18
of the Act has been noticed by the Division Bench of our High Court in the case
of Sunny Kamalsingh Mathur vs. Office of Commissioner of Police for Greater
Mumbai and ors. reported in 2009 CRI.L.J. 1465. In the penultimate paragraph
of the said decision, the Court has observed that power under sub-section 1 of
section 18 is preventive in nature and can be exercised by a Magistrate by
issuing show cause notice to the person concerned and upon recording his
satisfaction about the necessity of taking action under section 18 of the Act. If
recourse is taken to such measures, the only enquiry that remains to be
undertaken is whether the premises are covered within the area specified under
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sub-section 1 of section 7 of the Act. In the present case the premises are falling
within the area specified by Section 7 of the Act. Further, insofar as the
Petitioner before us is concerned, he claims to be an occupier of the premises.
As against the occupier, the competent authority would be free to invoke action
specified under clause (a) of his eviction from the premises in question.
4. The learned APP on instruction states that the Investigating Officer would
take corrective measures forthwith, so that charge against the Petitioner is also
framed in respect of the offence punishable under section 7 of the Act by taking
out appropriate application before the concerned court. We keep all questions in
that behalf open.
5. Considering the above, there is no merit in this Petition. The same is
rejected.
(A.P.BHANGALE, J.) (A.M.KHANWILKAR, J.)
