Delhi High Court

Kamla vs The State & Ors. on 7 November, 2008

Author: Aruna Suresh

                  Reportable
*     HIGH COURT OF DELHI AT NEW DELHI

+                     Crl. Rev. (P). 385/2006

                          Date of decision: 7th November, 2008


#     KAMLA                                   ..... Petitioner
!                     Through : Mr. Amar Nath Saini, Adv.



                              Versus


$     THE STATE & ORS.              ..... Respondents
^             Through : Mr. O.P. Saxena, APP
                        Mr. S.K. Sharma, Adv. with
                        Mr. Dhruv Kumar, Adv.
                        for R 2 to 6.


%
      CORAM:
      HON'BLE MS. JUSTICE ARUNA SURESH

     (1) Whether reporters of local paper may be
         allowed to see the judgment?

     (2) To be referred to the reporter or not?            Yes

     (3) Whether the judgment should be reported
         in the Digest ?                                   Yes

                            JUDGMENT

ARUNA SURESH, J.

1. FIR nos. 126/2001 and 128/2001 were lodged at

Police Station Kamla Market against one Pratima,

Anita and Ansuia under Sections

342/363/368/372/373/376/506/323/109/34 Indian

Penal Code (hereinafter referred to IPC) and

Sections 3,4,5 and 6 of The Immoral Traffic

(Prevention) Act, 1956 (hereinafter referred to as

ITP Act) that a girl was brought at Kotha no. 50,

G.B. Road, Delhi (hereinafter as the premises) 15

days prior and she was forced to prostitution. Case

was registered and trial was held in the Sessions

Court. Learned Additional Sessions Judge Sh.

Chandra Shekhar vide judgment dated 7.10.2004

convicted Anita under Sections 3,4,5 and 6 of ITP

Act and Sections 342/368/109/34 IPC for offence of

running prostitution in the premises bearing kotha

no. 50 GB Road, and acquitted Ansuia, whereas

Pratima was declared proclaimed offender and vide

sentence dated 12.10.2004 various sentences were

inflicted for different offences on Anita.

2. While disposing of application filed by the SHO, in

the order on sentence dated 12.10.2004, it was

ordered by the Learned ASJ as follows:

"An application is moved by SHO through Niab Court under section 18(2) of ITP Act seeking direction of vacation of Kotha no. 50 GB Road, Delhi. Heard in view of this provision of Section 18(2) of ITP Act, I direct the occupier of Kotha no. 50, first floor, right side, GB Road, Delhi as per site plan Ex. PW 10/C to vacate the said kotha within 7 days of the order and SHO is directed to file the compliance report within two weeks of the order. Copy of the order be sent to SHO immediately for compliance."

3. An application was moved by respondent nos. 2 to

6 on 27.4.2006 and another application by Smt.

Kamla/ petitioner on 2.3.2006 under section

18(1)(b) of ITP Act for desealing and for restoration

of premises No. 50 GB Road Delhi before Learned

ASJ Ms. Sujata Kohli. On 20.5.2006 the ASJ while

allowing the application of respondent nos. 2 to 6

directed the SHO to deseal premises bearing Kotha

no. 50, first floor, right side, GB Road and hand

over the possession of the said premises to

respondent nos. 2 to 6 with the condition that

respondent nos. 2 to 6 would not lease out or

otherwise give possession of the premises to or for

the benefit of the person who was allowing

improper user therein. Application of Smt. Kamla

was accordingly dismissed. Hence this petition has

been filed by Kamla impugning the order dated

20.5.2006

4. It was submitted by the leaned counsel for the

petitioner that she was inducted as a tenant in the

premises by Late Sh. Raj Nath, the father of

respondent nos. 2 to 6 on a monthly rent of Rs.

500/- by way of executing a rent agreement ( Kiraya

Nama) from 1.3.1988 onwards for dancing

purposes consisting of one big room on first floor of

premises No. 5331, G.B. Road, Delhi (Kotha No. 50)

and petitioner took physical possession of the

premises and rent receipts were issued to the

petitioner by late Sh. Raj Nath. It is further

submitted by the petitioner's counsel that when

FIR no. 127/2001 and 128/2001 was registered

against Pratima, Anita and Ansuia, the petitioner

had gone to her village whereas Ansuia was left by

her for looking after the rented premises.

5. It is also urged by the learned counsel that

petitioner moved an application under section

18(2) ITP Act for desealing and for possession of

the premises being lawful occupier in the court of

learned ASJ and another set of similar application

was filed by the respondent nos. 2 to 6 and the

application was decided in favour of respondents

and possession was handed over to the

respondents, despite the fact that petitioner was

lawful tenant which was also verified by the SHO,

Kamla Market and under Section 18(2) ITP Act, a

lawful lessor/tenant has right to claim possession of

the premises and that not only the owner the

lessor, tenant, occupier, landlord and their agents

are also entitled to claim possession of the

premises.

6. The order of the trial court is challenged basically

on the ground that petitioner was the tenant in the

premises inducted by father of the respondents and

was lawful occupier of the same. Further, the

learned ASJ has admitted the authenticity of the

Will produced by the respondents without taking

evidence on record and the learned ASJ failed to

appreciate the rent agreement and rent receipt

filed by the petitioner. It is also urged that the

learned ASJ failed to appreciate that if there was

any dispute between the landlord and the tenant, it

was a different issue having no relevance to the

present claim of the petitioner while deciding the

application under Section 18(2) ITP Act and he also

failed to consider that the occupancy of the

petitioner of the premises was in a lawful manner.

7. Thus, it is prayed that order dated 20.5.2006

passed By Ld. ASJ be set aside and possession of

the premises be given to the petitioner.

8. At the very first instance I would highlight the

underpinning for legislation of the Suppression of

Immoral Traffic in Women and Girls Act (1956)

(now ITP Act, 1986). In 1950 the Government of

India ratified an International Convention for the

Suppression of Immoral Traffic in Persons and of

the Exploitation of the Prostitution of Others.

Under Article 23 of the Convention, trafficking in

human beings is prohibited and any contravention

of the prohibition is an offence punishable by law

and under Article 35. Such a law had to be passed

by the Parliament soon after the commencement of

the Constitution to sting social conscience and to

curb the spreading of disease of immoral traffic.

Hence, Act of 1956 was enacted and enforced.

9. Section 18 is reproduced in extenso for lucidly

analyzing the submissions of the petitioner :

"18. 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 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 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 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 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 orders 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) shall 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 in 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."

10. Section 18 provides for the closure of brothels and

eviction of offenders from the premises, if such

premises are within a distance of two hundred

yards from a public place mentioned in sub-section

7(1) and are used or run as a brothel by any person

or used by prostitutes for carrying on their trade.

The Act was conceived to serve a public social

purpose, viz to suppress immoral traffic in women

and girls, to rescue fallen women and girls and to

prevent deterioration in public morals. The Act

clearly defines a "prostitute", and gives definite

indications from which places prostitutes should be

removed or in respect whereof their movements

should be restricted. The object of the Act, as has

already been noticed, is not only to suppress

immoral traffic in women and girls, but also to

improve public morals by removing prostitutes

from busy public places in the vicinity of religious

and educational institutions. The differences

between these two classes of prostitutes have a

rational relation to the object sought to be achieved

by the Act. Section 20, in order to prevent moral

decadence in a busy locality, seeks to restrict the

movements of the second category of prostitutes

and to deport such of them as the peculiar methods

of their operation in area may demand.

11. Under Section 18(1)(a) of the ITP Act Magistrate

has power to pass orders directing eviction of the

occupier within 7 days of the passing of the order

from the house, place or a portion thereof. What is

required under Section 18(1) is that a Magistrate

on receipt of information from the police or

otherwise that any house, room, place or any

portion thereof is being used as a brothel by any

person or is being used by prostitutes for carrying

on their trade within a distance of two hundred

metres of any public place, is required to issue

notice to 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 incharge of such

house, room place, or portion, to show cause within

seven days of the receipt of the notice as to why

the room or place should not be attached for

improper user thereof and after hearing the person

concerned, if the magistrate is satisfied that the

house, room place or portion was being used as

brothel or for carrying on prostitution, he might

pass orders directing eviction of the occupier. The

Occupier though can be anyone.

12. Section 18(2) of the ITP Act becomes operative only

when persons have been convicted of offences

under Section 3 or Section 7 of the ITP Act and the

place is found to be put to prostitutional use in a

criminal trial. It is reasonable that if the purpose

of extirpating the commercial vice from that venue

were to be successful, the occupier must be

expelled therefrom. Section 18(2) therefore,

operates not merely on places within the offending

distance of 200 yards but in all places where the

activity of prostitution has been conducted.

13. Sub-section 4 of Section 18 is non-absentee clause

to Section 18. As per this, once a Magistrate

passes an order under sub-section 1 or 2 any lease

or agreement under which the house, room, place

or portion is occupied at the time of the raid, would

become void and inoperative. Sub-section 5 of this

Section is a penalty clause which a Magistrate can

invoke if owner, lessor or landlord, or the agent of

such owner, lessor or landlord fails to comply with

the directions given by the Magistrate under clause

(b) of sub-section (1).

14. There is no substance in the submission of the

petitioner that Ld. ASJ failed to consider that she

was a lawful occupier of the premises as a tenant

and had a right under Section 18(2) of the ITP Act

to claim possession.

15. In Chitan J. Vaswani v. State of W.B. (1975) 2

SCC 829 the Supreme Court observed as follows:

"10......it is plain therefore that the consequence of a conviction

under section 3 is the invalidation of the lease of the premises where the brothel is run. The logical consequence must be that the occupier must be thrown out of the prostitutional premises. This is achieved by exercise of power under Section 18(2)."

16. The learned ASJ in the impugned order considered

the evidence placed on record by the petitioner

seeking possession of the impugned premises on

the basis of her title as an owner. Probably the

issue of tenancy was never raised before the trial

court. Be that as it may, learned ASJ rightly

emphasised on the ownership aspect in its order

while restoring the premises in favour of

respondent Nos. 2 to 6 in view of the fact that

petitioner had failed to place on record any

document to prove her ownership of the impugned

established their ownership right on the basis of a

Will executed by Sh. Raj Nath; owner of the

impugned premises. Respondents No. 2 to 6 being

his legal heirs have been rightly handed over the

possession of the impugned property. The learned

ASJ was satisfied about the innocence of the

respondents regarding improper usage of premises

as Sh. Nirankar Nath Vidge, one of the

respondents, was examined as prosecution witness

by the State. Under the circumstances, the trial

court rightly observed:

"17. Even so keeping the object of the act in view i.e. prevention of Immoral Traffic, use of premises for immoral activity like prosecution, it has to be seen as to whether the applicants have established their claim as owners of the premises and further their bonafide that they were not aware about the prostitution going on there and further that they can ensure that no such activity of prostitution shall be carried on or allowed to be carried on in future in the said premises and also that they shall not hand over the possession to any person without the previous permission or approval of the court.

18. Keeping in view the documents of ownership filed by the applicants Sh. Nirankar Nath Vidge etc. and the verification of their authenticity by the SHO concerned, the fact on record that Nirankar Nath Vidge was one of the prosecution witness in the main case supporting the prosecution

case both ownership as well as the bonafide intention of the applicants stand established for the time being. On the other hand there is no merit in the application of Smt. Kamla as she has failed to bring on record any material to show her ownership and also she seems to have been involved throughout and in knowledge of the illegal activity going on in the premises. Both ways there is no merit in her application."

17. The petitioner has challenged the impugned order

on the grounds that while deciding the application,

the trial court decided the validity of the Will and

the title of respondent Nos. 2 to 6 on the basis of

the said Will which according to her is not

permissible in law. The trial court did not decide

the genuineness of the Will but took into

consideration the documents placed by respondent

Nos. 2 to 6 including the Will executed by Raj Nath

in their favour in respect of the impugned property

in the light of perspective provisions contained in

Section 18 of the ITP Act.