Prem Shakti vs State
1970 Latest Caselaw 244 Del

ORDER

1. Dr. Prem Shakti has moved this petition under Article 277 of the Constitution of India read with Section 561-A of the Code of Criminal Procedure praying for quashing of the proceedings started against her under Section 18/20 of the Suppression of Immoral Traffic in Women and Girls Act, 1956.

2. The petitioner claims herself to be a doctor running a clinic at her residence M8/A. Greater Kailash, New Delhi along with her husband Dr. Gobind Shakti, who is also alleged to be a doctor. It is alleged that she is the joint secretary of the main market association of the Greater Kailash Market, New Delhi, and that due to political enmity and differences between the landlords and tenants of Greater Kailash a group of the landlords had lodged a false report with the police regarding the activities of the petitioner on the basis of which the Magistrate has summoned her. A copy of the report lodged by the residents of the locality has been annexed to the petition This shows that the persons living in the neighborhood of the petitioner had alleged that the premises were being used by the petitioner and her husband for immoral purposes. The police seems to have forwarded this report to the Magistrate for taking action with their report . The following order was passed by the learned Magistrate on 245-7-1970.

"Complaint received today. To be registered. Summons be issued to the accused for 13-8-1970.

Sd/- K.D. Arrora.

J.M.I.C."    

"Accused not present, P.P. for the State present Summons not received back, Be issued again for 3-9-1970.

Sd/- K.D. Arora, J.M.I.C."    

3. The learned counsel for the petitioner contends that the Magistrate is required under sub-section (1) of Section 20 of the Suppression of Immoral Traffic in Women and Girls Act, 1956 to record the substance of the information received and after having done so only then he has jurisdiction to issue the notice. In the present case no such substance of the information having been recorded, summoning the petitioner to contends that in view of a Divisin Bench judgment of the Punjab High Court in Mst. Ram Kali V. A.C. Agarwal, Air 1964 Punj 518, the Magistrate has no jurisdiction to issue notice under Section 18 of the Suppression of Immoral Traffic in Women and Girls Act only.

4. In order to appreciate the argument it is necessary to reproduce relevant portion of Section 20 of the said Act, which is as under:-

"20 (1) A Magistrate on receiving information that any women or girl residing in or frequenting any place within the local limits of his jurisdiction is a prostitute, may record the substance of the information received and issue a notice to such women or girl requiring her to appear before the Magistrate and show cause why she should not be required to remove herself from the place and be prohibited from re-entering it.

(2) Every notice issued under sub-section (1) shall be accompanied by a copy of the record aforesaid, and the copy shall be served along with the notice on the women or girl against whom the notice is issued.

* * * *

Sub-section (1) of the Section 20 requires the Magistrate to record the substance of the information received by him that the subsection (2) requires him that the notice issued under sub-section (1) shall be accompanied by a copy of the substance of the information so recorded. Now, a magistrate may receive an information either orally or in writing. In case on oral information has been received by him and he decides to take action on the basis of that information it is but necessary that the substance of that information should be recorded by him before issuing the notice so that a copy of the same may be sent to the person concerned who may be in a position to know the allegations made and to meet them properly. However, the Magistrate may receive an information in writing and on the basis of that information decide to issue a notice. The contention of the petitioner is that even in such a case it is the duty of the Magistrate to record the substance of the information received. I find that sub-section (1) of Section 20 of the Act uses the word "may" for recording the substance of the information, received. It shows that a discretion has been given to the Magistrate to take action on the basis of the information received. He may not decide to issue a notice and thus there is no necessity of recording the substance of the information. However if he decides to issue a notice, he will be required to send a copy of the same, i.e. information along with the notice under sub-section (2). In those cases whether the information received by the Magistrate is in writing and he decides to take action on the basis of that information, it is not necessary for him to record the substance of that information since he may decide to sent a copy of the whole of the information received by him in writing along with the notice under sub-section (2).The Magistrate gets the jurisdiction to issue a notice under this section on the basis of the information received by him in writing, or, if received orally, the substance of it has been recorded As already stated, the purposes of recording the substance of the information is to sent a copy of the same along with the notice so that the person concerned may know the allegations made and may be in a position to defend. I see no reason that where the Magistrate has received the information in writing and decides to send a notice on the basis of the same it is necessary for him to record the substance of the same before he can have the jurisdiction to issue the notice. Sending a copy of the information received in writing along with the notice as required under sub-section (2) of Section 20 will meet the requirements of law and the person concerned cannot say that any prejudice has been caused to him. The contention of the learned counsel for the petitioner that recording of the substance of the information under all circumstances is necessary to show that the Magistrate has applied his mind to the facts of the case is without any force. When the Magistrate decides to issue a notice after receiving an information in writing and without recording the substance of that information it is to be assumed that he has gone through the report and after applying his mind has decided to issue the notice.

5. In the instance case it is not the case of the petitioner that she did not receive any copy of the information received by the Magistrate on the basis of which the notice has been issued to her. Under the circumstance no prejudice in any manner, whatsoever, can be said to have been caused to her.

6. Another contention of the learned counsel for the petitioner is that the impugned orders of the Magistrate under the words "accused", "summons" and "complaint" which showed that the Magistrate was treating the matter as a complaint case under the Code of Criminal Procedure and not as proceedings under Section 18 and 20 of the Suppression of Immoral Traffic in Women and Girls Act. Of course, it would have been much better if the learned Magistrate had been careful in using the proper words in his orders but that by itself does not mean that the orders should be quashed. The Supreme Court in Bal Radha v. State of Gujarat, , has held that the provisions of Section 537 of the Code of Criminal Procedure would be applicable to all proceedings, including investigation enquiry and trial of offences under the Women and Girls Act. It is not the case of the petitioner that the error in using the wrong words mentioned above has. In any manner, occasioned failure of justice. The error, if nay is therefore curable under Section 537 of the Code of Criminal Procedure.

7. As regards the contention of the learned counsel for the petitioner in respect of Section 18 of the Act, I am sorry to point out that he was baising his claim on Air 1964 Punj 518 which has been specifically overruled by the Supreme Court in A.C. Aggarwal, Sub-Divisional Magistrate, Delhi v. Mst. Ram Kali, . The view of the Punjab High Court that no action under Section 18 only of the Act could be taken against any person since it offends Article 14 of the Constitution and to that extent Section 189 of the Act would be ultra vires the Constitution has been specifically overruled by the Supreme Court.

8. No other contention was put forward on behalf of the petitioner.

9. The result is that the petition is dismissed.

10. Petition dismissed.