Bombay High Court
P. Anita Shriniwas Rao And Anr vs State Of Maharashtra on 26 July, 2022
Bench: Prakash Deu Naik
34-WP-2297-2022.doc
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION
CRIMINAL WRIT PETITION NO. 2297 OF 2022
1. P. Anita Shriniwas Rao
2. Paramata Srinivasarao ...Petitioners
Versus
State Of Maharashtra ...Respondent
....
Mr. Prabhanjay R. Dave, Advocate for the Petitioners.
Mr. Arfan Sait, APP for the Respondent - State.
....
CORAM : PRAKASH D. NAIK, J.
DATE : 26th JULY, 2022.
PER COURT:
1. The petitioners have challenged the order dated 21 st April,
2021 passed by the Special Judge, under POCSO Act, 2012, Greater
Mumbai in POCSO Special Case No.527 of 2015 to the extent of
directions issued to Senior Inspector of Nagpada Police Station,
about the closure of Room Nos. 11 and 12, situated at Bori Chawl,
1st Floor, Opposite Apollo Hotel, 11th Lane, Kamathipura, Nagpada,
Mumbai, within a period of 7 days from the date of order. The said
order was passed in exercise of powers under Section 18 of the
Immoral Traffic (Prevention) Act, 1956 (for short 'PITA Act').
2. The petitioners contend that, they were required to shift at
her native place in Andhra Pradesh and let out their room premises
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bearing Room Nos. 11 and 12, Bori Chawl, 1st Floor, Opposite
Apollo Hotel, 11th Lane, Kamathipura, Nagpada, Mumbai, to
Sandhya Satyanarayan Gauda for residential purpose. Leave and
License agreement was executed between petitioners and the
licensee. Subsequently, the petitioners learnt that the officers of
Nagpada Police Station raided the said premises and accosted 2
Bangladeshi women indulging in prostitution activity. The licensee
Sandhya Satyanarayan Gauda was arrested in the said case. The
FIR was registered on 21st July, 2015 vide C.R. No.309 of 2015.
The petitioners directed the tenant to vacate the premises and took
the possession of the said premises. The petitioners occupied the
said premises. On completing investigation, police filed charge-
sheet. Accused Sandhya Satyanarayan Gauda was prosecuted for
offences punishable under Section 370 of Indian Penal Code and
Section 6 r/w 16 of the Protection of Children from Sexual
Offences Act, 2012 (for short "POCSO Act") and Sections 3, 4, 5, 6
& 7 of the The Immoral Traffic (Prevention) Act, 1956 (for short
'PITA Act').
3. Vide judgment and order dated 21st April, 2022 the accused
was convicted for offence punishable under Section 370 of Indian
Penal Code and Sections 3, 4, 5(1)(a) of the PITA Act and they
were sentenced to suffer imprisonment. Vide judgment and order
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dated 21st April, 2022 the Special Court also directed the Senior
Inspector of Nagpada Police Station that, after evicting the
occupiers of brothels i.e. Room Nos. 11 and 12, Bori Chawl, 1st
Floor, Opposite Apollo Hotel, 11th Lane, Kamathipura, Nagpada,
Mumbai, ensure closure of the said premises within a period of 7
days from the date of the order.
4. Learned Advocate for the petitioners submitted that the order
evicting the occupiers of the premises is illegal. The petitioners
were neither the accused nor the witnesses in the said prosecution.
They were unaware about the status of the investigation. The
premises was let out on leave and license basis. They are the
owners and occupiers of Room Nos. 11 and 12, Bori Chawl, 1 st
Floor, Opposite Apollo Hotel, 11th Lane, Kamathipura, Nagpada,
Mumbai. The statements of the petitioners were not recorded
during investigation. No inquiry was conducted under Section 18
of the PITA Act. The FIR was registered in 2015. The order under
Section 18 of the PITA Act passed on 21 st April, 2022, the
petitioners have been evicted from the said premises. In similar
case the owner of the premises i.e. Room Nos.15 & 17 Situated at
Pandu Maharaj Chawl, Sukhalaji Street, Kamathipura, Mumbai,
were directed to be closed vide the said judgment and order dated
4th August, 2021. One of the aggrieved person had preferred the
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petition before this Court viz. Criminal Writ Petition No.808 of
2022. The said petition has been allowed by order dated 2 nd May,
2022 by setting aside the direction of closure of the premises
bearing Room No.17, situated at Pandu Maharaj Chawl, Sukhalaji
Street, Kamathipura, Mumbai, and this Court had directed to
deseal the said premises.
5. Learned APP submitted that the premises was used as
brothel. The petitioners had let out the premises to the accused.
They cannot feign ignorance.
6. The observations made in order dated 2 nd May, 2022 are
squarely applicable in the present case. This Court had observed
that, Section 18 of the PITA Act, empowers the Magistrate to direct
eviction of the occupier of the premises which is being used as
brothel by any person or used by prostitutes for carrying
prostitution activities, after giving notice to the owner, lessor,
landlord, tenant or lessee of the occupier of such premises to show
cause on the premises should not be attached for improper use.
The provision also empowers the Magistrate to direct that the
owner, lessor, landlord or agent of the owner shall obtain previous
approval of the Magistrate before letting out the premises. The
provision also empowers a Court convicting a person of any offence
punishable under Section 3 or Section 7 to pass an order under
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sub-section (1) of Section 18 without further notice to such person
to show cause, as required by sub-section (1). Sub-section(3)
provides that, such an order sub-section (1) or sub-section (2) shall
not be subject to appeal, nor such an order be stayed or set aside by
the order of any Court and it shall cease to have validity after the
expiry of one year or three years as the case may be. It is further
observed that the sub-section (1) and sub-section (2) of Section 18,
operate in different spheres. The order under sub-section (2) of
Section 18 can be passed by a Court only against the person who is
convicted for the offences punishable under Sections 3 or 7 of the
PITA Act. Where an order of closure of the premises operates to the
prejudice of the occupier, who is not prosecuted for offence
punishable under Sections 3 or Section 7 of the PITA Act, different
considerations came into play. In such a situation, the requirement
of opportunity of hearing under sub-section (1) of Section 18 is
mandatory.
7. The aforesaid observations are applicable to the present case.
The petitioners were not impleaded as accused or cited as a witness
in the aforesaid case. No notice under sub-section (1) of Section
18 was given to the petitioners. No opportunity of hearing was
given to the petitioners. The impugned order does not indicate
that the Court had considered the period for which the order of
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closure would operate. The accused in the said case were acquitted
for offences punishable under Sections 4, 6 & 17 of the POCSO Act.
None of the victims were minor. At the most the order would have
been in operation for one year. Hence, the impugned order of the
closure of the premises deserves to be set aside.
ORDER
i. Criminal Writ Petition No.2297 of 2022 is allowed;
ii. The directions issued by the learned Special Judge
under POCSO Act, Greater Bombay, in POCSO Special Case
No.527 of 2015 vide judgment and order dated 21st April,
2022, to the extent of directing Senior Inspector of Nagpada
Police Station to close the Room Nos. 11 and 12, situated at
Bori Chawl, 1st Floor, Opposite Apollo Hotel, 11 th Lane,
Kamathipura, Nagpada, Mumbai, after evicting the occupiers
is set aside.
iii. The premises viz. Room Nos. 11 and 12, situated at
Bori Chawl, 1st Floor, Opposite Apollo Hotel, 11 th Lane,
Kamathipura, Nagpada, Mumbai, be de-sealed and handed
over to the petitioners;
iv. Criminal Writ Petition No.2297 of 2022 is disposed of.
(PRAKASH D. NAIK, J.)
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