Sanjay Prasad @ Sanjay Kumar Gupta vs The State Of Bihar Through The ...
2021 Latest Caselaw 261 Patna

         IN THE HIGH COURT OF JUDICATURE AT PATNA
                   Criminal Writ Jurisdiction Case No.386 of 2020
          Arising Out of PS. Case No.-235 Year-2019 Thana- SHEOHAR District- Sheohar
     ======================================================

Sanjay Prasad @ Sanjay Kumar Gupta, S/o Ram Chandra Prasad, Resident of Ward No.10, Zero Mile Chowk, P.S.-Sheohar, District-Sheohar.

... ... Petitioner/s Versus

1. The State of Bihar through the Principal Secretary, Home Department, Governemnt of Bihar, Patna

2. The District Magistrate, Sheohar.

3. The Sub-Divisional Magistrate, Sheohar.

4. The Superintendent of Police, Sheohar.

5. The Officer-In-Charge, Police Station Sheohar, Sheohar.

... ... Respondent/s ====================================================== Appearance :

For the Petitioner/s : Mr.Ansul, Advocate For the Respondent/s : Mr.Prabhu Narayan Sharma, AC to AG ====================================================== CORAM: HONOURABLE MR. JUSTICE RAJEEV RANJAN PRASAD CAV JUDGMENT Date : 22-01-2021

This writ application has been preferred invoking

the extraordinary writ jurisdiction of this Court to quash the

order as contained in memo no.404 dated 31.10.2019 passed by

the Sub-Divisional Magistrate, Sheohar (respondent no.3) as

contained in Annexure-5 to the writ application. The petitioner

has also prayed for quashing of the order dated 28.06.2020 by

which the 'Family Hotel and Restaurant' belonging to the

petitioner has been sealed by the Executive Magistrate and the

officer in-charge of Sheohar police station in compliance of the

order passed by respondent no.3.

Patna High Court CR. WJC No.386 of 2020 dt.22-01-2021

Brief Facts of the Case

2. It is the case of the petitioner that he was

running his hotel business in the name and style 'Family Hotel

and Restaurant'. It is a small eight room hotel and is registered

under the Bihar Shops and Establishment Act. The hotel is said

to be the only source of livelihood of the petitioner.

3. It is stated that on 17.10.2019 the local police

conducted a raid in the hotel and arrested one female and a male

and also the petitioner on the allegation that prostitution was

going on in the hotel. One F.I.R. (Annexure-2) has been lodged.

On going through the F.I.R. it would appear that the female

allegedly disclosed the informant police officer that at the

instance of the petitioner she had agreed to establish physical

relationship with the customer of the hotel on payment of Rs.

1000/-. On the said date also she was called on her mobile at

6.00 am by one staff of the hotel and on his call she had gone to

room no.4. She allegedly accepted that she had established

physical relationship with the customer.

4. It is the further case of the petitioner that on

18.10.2019 the said female/lady was presented before the

learned Magistrate who recorded her statement under Section

164 Cr.P.C. The lady is said to have stated that she was an Patna High Court CR. WJC No.386 of 2020 dt.22-01-2021

employee of the hotel and was engaged in cleaning work on

payment of Rs. 1200/- per month.

5. The petitioner states that on 21.10.2019 he

received a notice from the office of respondent no.3 to show

cause as to why his premises be not sealed. A copy of the notice

has been enclosed as Annexure-4 to the writ application from

which it appears that the said notice has been issued by the

respondent no.3 proposing to exercise his power under Section

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

referred to as 'the Act of 1956'). Petitioner submitted his reply

but respondent no.3 passed the impugned order (Annexure-5) by

which the petitioner has been asked to vacate the premises

within seven days and directed the Superintendent of Police,

Sheohar (respondent no.4) to seal the premises and submit a

report.

6. It is the submission of the petitioner that he

thought that there was no substance in the matter and for that

reason he kept silence, but suddenly on 28.06.2020 the police

sealed the premises of the petitioner. A copy of the sealing

report dated 28.06.2020 has been enclosed as Annexure-6 to the

writ application.

7. Mr. Ansul, learned counsel for the petitioner has Patna High Court CR. WJC No.386 of 2020 dt.22-01-2021

submitted that the Sub-Divisional Magistrate could not have

proceeded under Section 18 (1) of the Act of 1956 during

pendency of the prosecution under Sections 3, 4, 5 and 7 of the

Act of 1956. It is his submission, thus that the impugned actions

are violative of right to life and the petitioner is being deprived

of his fundamental right to earn his livelihood. According to

him, the impugned order is fit to be interfered with on the

touchstone of the Article 19(1)(g) and 21 of the Constitution of

India.

8. In course of argument, Mr. Ansul has relied

upon a judgment of the Hon'ble Apex Court in the case of Shri

A.C. Aggrawal & Ors. Vs. Mst. Ramkali reported in AIR

1968 Page 1 (hereinafter referred to as 'Ramkali-2). He has

submitted that because the impugned order has been passed by

respondent no.3 before conclusion of trial of the main case, the

respondent no.3 has committed a jurisdictional error.

9. In opposition Mr. Prabhu Narayan Sharma,

learned Assisting Counsel to learned Advocate General has

submitted that the respondent no.3 has acted well within his

powers and in accordance with law. It is his submission that the

respondent no.3 has acted under Section 18 (1)of the Act of

1956, therefore he does not violate the right to life of the Patna High Court CR. WJC No.386 of 2020 dt.22-01-2021

petitioner as the petitioner cannot be allowed to violate a law in

the garb of a fundamental right granted to him.

10. It is the submission of Mr. Sharma, learned AC

to learned Advocate General that the police had received

confidential information that the petitioner is involved in the act

of running a brothel and he was committing misdeed in the

hotel, therefore under the supervision of higher police officials a

raid was conducted and several incriminating articles were

recovered from the room which was seized by the police. In

course of investigation, it has been found that the lady who was

caught there was not an employee of the hotel. It is his

submission that in her 164 Cr.P.C. statement the lady has tried to

save her skin and such matters are to be considered in course of

trial.

11. Referring to Section 18 of the Act of 1956,

learned counsel submits that prior to passing of the impugned

order a notice was issued to the petitioner who was in jail

custody, the said notice was received by his son and it is

admitted in paragraph '8' of the writ application that the notice

was received calling upon the petitioner to show cause. In

paragraph '9' of the writ application it is stated that the

petitioner replied to the said notice, therefore the impugned Patna High Court CR. WJC No.386 of 2020 dt.22-01-2021

order has been passed after giving appropriate opportunity to the

petitioner to defend himself.

12. Mr. Sharma has relied upon Hon'ble Division

Bench judgment of the Delhi High Court rendered in WP©

No.4414/2012 (Nitu and Others Vs. The Govt. of NCT of Delhi

and Others) reported in (2016) 226 DLT 457(DB)=2016 SCC

Online Del 21. It is submitted that after 'Ramkali-2' the Act of 1956

has been amended twice and Hon'ble Delhi High Court has

considered the effect of amendments in the case of Nitu & Ors.

(supra). It is his submission that in the facts of the present case

respondent no.3 has rightly exercised his power under Section 18(1)

of the Act of 1956 as according to him, in view of the amended

Section 18 of the Act of 1956 he is not required to wait for

conclusion of trial pending in the court of learned C.J.M., Sheohar

and in which a charge-sheet has been filed against the petitioner

under Sections 3, 4, 5 and 7 of the Act of 1956.

13. In rejoinder to the submission of Mr. Sharma,

learned counsel for the petitioner has submitted that the Hon'ble

Division Bench of the Delhi High Court has, in fact reiterated

that the amendments brought into the Act after the judgment of

the Hon'ble Supreme Court in the case of Ramkali-2 have not

altered the legal position as regards the scope and ambit of

exercise of power by a Magistrate under Section 18(1) of the Patna High Court CR. WJC No.386 of 2020 dt.22-01-2021

Act of 1956.

Consideration

14. After hearing learned counsel for the parties

and upon perusal of the records, this Court finds that the focus

of the submissions on behalf of the petitioner is on the scope

and ambit of Section 18(1) of the Act of 1956. On facts, it is an

admitted position that the trial of the main case is still pending.

The question, thus, which has arisen for consideration by this

Court is as to whether during pendency of the trial of the main

case, respondent no.3 could have passed the impugned order.

15. In order to appreciate the nature of the

impugned order, this Court would extract hereunder the text of

the complete order passed by the respondent no.3 as under:-

vuqeaMy dk;kZy;] f"kogj

xksiuh; iz"kk[kk

[email protected] f"kogj] fnukad%&

izsf'kr] Jh lat; dqekj xqIrk firk& Jh jkepUnz izlkn xqIrk lk0& thjksekbZy] f"kogj okMZ ua0&10 Fkkuk& f"kogj ftyk& f"kogj fo'k;& vuSfrd O;kikj ¼fuokj.k½ vf/kfu;e&1956 dh /kkjk 18 ds varxZr Family Hotel & Resturant dks dqdZ dj vxzsRrj dkjZokbZ djus laca/k esaA mi;qZDr fo'k;d iq0 fu0& lg& Fkkuk/;{k] f"kogj ds izfrosnu Kkikad [email protected] fnukad 19-10-2019 }kjk izfrosfnr fd;k x;k gS fd f"kogj Fkkuk varxZr thjksekbZy ds fudV Family Hotel & Resturant esa vuSfrd nsg O;kikj ds ekeys esa शशवहर थाना मे कांड सं खया [email protected]] शदनांक 19-10-2019 /kkjk 3]4]5 एवं 7 अनै शतक वयापार Patna High Court CR. WJC No.386 of 2020 dt.22-01-2021

¼ शनवारण ½ अशधशनयम 1956 दरर शकया गया है ] शरसके आलोक मे Family Hotel & Resturant को उनके दारा seize करने का अनु रोध शकया गया । अतएव अनै शतक वयापार ¼ शनवारण ½ अशधशनयम 1956 की धारा 18 के उललं घन के आरोप मे श्री सं रय कुमार गु पता (Pro-Family Hotel & Resturant) शपता श्री रामचनद्र प्रसाद गु पता सा० शररोमाईल शशवहर वाडर नं 0 10 थाना - शशवहर शरला शशवहर को कारण पृ चछा@नोशटस रारी शकया गया रो उनके लडके श्री अशभषे क प्रसाद गु पता दारा शदनांक 21-10-2019 को ताशमला शकया गया । ततपशचात श्री सं रय कुमार गु पता (Pro-Family Hotel & Resturant) शपता श्री रामचनद्र प्रसाद गु पता सा० शररोमाईल शशवहर वाडर नं ० 10 थाना शशवहर शरला शशवहर दारा श्री सं रय कुमार शसं ह अशधवकता के माधयम से अधोहसतारकरी को अपना रवाब समशपरत शकया गया है एवं उलले ख शकया गया शक सूचना आवे दक सं रय कुमार गु पता को वयशकतगत रप से हसतगत नहीं करायी गई है A इसशलए होटल सीर करने की प्रशक् रया दशू षत है रो मानय नहीं है ] अतएव उनके पुत्र को नोशटस ताशमल कराया राना यह सं रय के रबाव सं खया 08 को खंशडत करता है । इस सं बंध मे उनके दारा यह dguk शक पु ० शन 0 सह थानाधयक] शशवहर के दारा अनै शतक वयापार ¼ शनवारण ½ अशधशनयम 1956 की धारा 3]4]5 और 7 के उललं घन के आरोप मे दरर शशवहर Fkkuk कांड सं खया [email protected] शदनांक 17-10- 2019 गलत है ,oa शकसी और ds प्रभाव मे शकया गया है ] रो शवशधतः पोषनीय नहीं है । इस सं बंध मे उनका रवाब मानय नहीं है एवं यह सं रय के रवाब la[;k खं ड & -01]02]03]04 एवं 06 dks खंशडत करते है ।

जातवय हो शक अनै शतक वयापार] ¼ शनवारण ½ अशधशनयम 1956 के धारा ¼18½ ¼1½ के तहत अनु मंडल दं डाशधकारी को यह शशकत iznRr है शक पु शलस प्रशतवे दन के आधार पर शकसी भी पशरसर मे रहाँ पर अनै शतd दे ह वयापार चल रहा है उकत पशरसर के माशलक को कारण - पृ चछा पूNs शक D;ksa नहीं पशरसर dks seize कर शदया राय रो श्री सं रय कुमार गु पता (Pro- Family Hotel & Resturant) शपता श्री रामचनद्र प्रसाद गु पता सा0 शररोमाईल शशवहर वाडर नं 0 10 थाना शशवहर शरला शशवहर दारा शलशखत रवाब सं खया 07 का खं डन करता है । पु ० शन0 सह थानाधयक शशवहर के प्रशतवे दन जापांक [email protected] शदनांक 19-10-2019 }kjk प्रापत थाना काड सं खया [email protected] शदनांक 17-10- 2019 मे पयारपत मात्रा मे साकय मौरूद है ] शरससे यह सपषट होता है शक उकत पशरसर esa अनै शतक दे ह वयापार का कारोबार चल रहा था ।

अतः वशणरत पशरपे कय मे अनै शतक वयापार ¼ शनवारण ½ अशधशनयम 1956 dh धारा ¼18½ ¼1½ और धारा ¼1½ ¼b½ के तहत आपको आदे श शदया राता है शक उकत पशरसर ;Fkk Family Hotel & Resturant को इस कायारलय के दारा शनगरत आदे श के 7 शदनो के अं दर खाली कर दे । 7 शदन के उपरांत पु० शन0- सह-

Patna High Court CR. WJC No.386 of 2020 dt.22-01-2021

थानाधयक] शशवहर को आदे श शदया राता है शक उकत पशरसर को खाली कराकर seize करते हुए समपूणर पशरसर की फोटोग्राफी सशहत प्रशतवे दन अधोहसताकरी को समशपरत करे ।

हसताकर असपषट अनु मंडल दं डाशधकारी

शशवहर

जापांक&[email protected] शशवहर] शदनांक 31-10-2019 प्रशतशलशप & पु० शन० -सह - थानाधयक] शशवहर को सूचनाथर एवं अनु पानाथर isf'kr ।

प्रशतशलशप-&अनु मंडल पु शलस पदाशधकारी] शशवहर को सूचनाथर एवं आवशयक काररवाई हे तु प्रेशषत ।

प्रशतशलशप-&पु शलस अधीकक] शशवहर को सादर सूचनाथर समशपरत।

प्रशतशलशप& शरला दं डाशधकारी]शशवहर को सादर सूचनाथर समशपरत हसताकर असपषट 31-10-2019 अनु मंडल दं डाशधकारी शशवहर

16. It is evident from perusal of the impugned

order that the respondent no.3 has proceeded to exercise his

power conferred under Section 18(1) of the Act of 1956 and

directed the petitioner to vacate the premises within a period of

7 days. Since the petitioner failed to comply with the order

impugned, the consequential action of sealing of the premises

has been taken.

17. In order to fully appreciate the relevant

provision of Section 18 of the Act of 1956 it would be required

to be gone into. One thing is apparent on the face of this

provision that it is providing for a kind of preventive measure,

intending to discourage the chance of a brothel being run near a

public place. Section 18 and its various sub-sections as existing Patna High Court CR. WJC No.386 of 2020 dt.22-01-2021

prior to its amendment were as under:-

"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 yards 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 incharge 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 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:

Patna High Court CR. WJC No.386 of 2020 dt.22-01-2021

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: 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 Patna High Court CR. WJC No.386 of 2020 dt.22-01-2021

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. "

18. The aforesaid provision came for

consideration in the case of Mst. Ramkali (supra). The Hon'ble

Supreme Court was considering the submissions one of which

was that Section 18 discriminates against the person who is

proceeded against under that section, without first being

prosecuted under s.3 or s.7 even though the information laid

against him discloses an offence either under s.3 or s.7. It was

contended that Section 18 covers two classes of cases, namely,

persons who have been prosecuted and found guilty of an

offence either under s.3 or s.7 as well, as persons not dealt with

under those provisions. It was contended that in the case of the

former, they have the benefit of regular trial, they can cross- Patna High Court CR. WJC No.386 of 2020 dt.22-01-2021

examine the prosecution witnesses, adduce defence evidence

and also go up in appeal if convicted. In those cases the result of

the proceedings under s.18 largely though not entirely depends

on the result of the connected prosecution. But in the case of the

latter, i.e., those who are only proceeded against under s.18 they

have only a right of 'hearing'. It is further urged on their behalf

that under s.3 or s.7 action is taken before a court, whereas the

proceeding under Section 18 is taken before a magistrate.

19. The Hon'ble Apex Court considered the

submissions and observed inter alia as under:-

" Sections 3 and 7 provide for the punishment of persons guilty of the offences mentioned therein. Any contravention of the provisions mentioned therein amounts to a cognizable offence in view of Section 14, whereas a proceeding under s.18 is in no sense a prosecution. It is a preventive measure. It is intended to minimise the chance of a brothel being run or prostitution being carried on in premises near about public places. Naturally, in the cases of prosecutions, a regular trial with a right of appeal is provided for. The enquiry contemplated by s.18 is summary in character.

The attachment contemplated by that section can enure only for a period of one year. Under these circumstances evidently the Legislature thought that a regular trial Patna High Court CR. WJC No.386 of 2020 dt.22-01-2021

and an appeal against the order of the magistrate is not called for. In these cases it is unnecessary for us to spell out the scope of the expression "hearing" found in s.18. It is necessary to remember that ss.3 and 7 deal with persons guilty of offences whereas s.18 deals with the premises mentioned therein. It is not correct to say that the set of facts to be proved in prosecutions under ss.3 or 7 and in proceedings under s.18 are identical. In the former the prosecution to succeed has to establish either the intention or knowledge referred to therein but in the latter they are not necessary ingredients. Section 18 provides for two classes of cases namely, (1) those coming either under s. 3 or 7 as well as under s.18 and (2) those coming only under s. 18. They are two distinct classes of cases-a classification which has reasonable relationship with the object sought to be achieved and therefore falls outside the rule laid down by this Court in Anwar Ali Sarkar's(1) case reported in [1962] S.C.R. 284."

20. The Hon'ble Apex Court, in the said case

held a view that the facts were disclosing offences under Section

3 against the respondents, therefore, their Lordship held interalia

as follows:-

".....Bearing in mind the purpose of these provisions as well as the scheme of the Act and on a harmonious construction of the various Patna High Court CR. WJC No.386 of 2020 dt.22-01-2021

provisions in the Act, we are of the opinion that in cases like those before us the magistrate who is also a court as provided in s.22 must at the first instance proceed against the persons complained against under the penal provisions in ss.3 or 7 as the case may be, and only after the disposal of those cases take action under s.18 if there is occasion for it...."

21. After the judgment of the Hon'ble Apex

Court in Ramkali-2 the Act of 1956 has been amended twice.

The first amendment took place vide Act 46 of 1978 and then

second amendment was brought by Act 44 of 1986. The

amendments have substituted/inserted/omitted the various

provisions of the Act of 1956. The nomenclature of the Act was

also changed w.e.f. from 26.01.1987 and some of the important

provisions were affected by Act 46 of 1978. It included

substitution of the definition of 'Magistrate' under Section 2 (c)

and insertion of a Schedule to the Act specifying the Magistrates

who are competent to exercise the power under different

provisions of the Act of 1956. Section 22 of the Act which

provides for trial of any offence under Section 3, Section 7 and

etc. has also been suitably amended. The amended Section 2(c),

the Schedule inserted to the Act and Section 22 read as under:

"―Section 2(c) ―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 Patna High Court CR. WJC No.386 of 2020 dt.22-01-2021

expression occurs and which is specified in the first column of the Schedule."

The Schedule

Section Magistrate competent to exercise the powers

xxx xxx xxx

18. District Magistrate or Sub-Divisional Magistrate.

xxx xxx xxx

"Section 22. Trials - 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 7 or Section 8." (emphasis supplied)

22. The effect of the amendments were subject

matter of consideration in the case of Nitu and Others (supra)

before the Hon'ble Delhi High Court. A threadbare discussions

on the amendments may be found in the said judgment. This

Court, having gone through the same would quote paragraph

'16' and '17' from the said judgment hereunder:-

"16. By virtue of Section 22 as amended by Act 46 of 1978, it is clear that the offences under Sections 3 and 7 cannot be tried by any Court inferior to that of a Metropolitan Magistrate or a Judicial Magistrate of the first class.

17. Further, the power under Section 18 to direct closure of brothel and eviction of offenders from the premises is exercisable by a Magistrate, i.e., District Magistrate or Sub- Divisional Magistrate and also a Court convicting a person of any offence under Section 3 or Section 7. While sub-section (1) of Section 18 confers power on the District Magistrate or Sub-Divisional Magistrate, sub-

Patna High Court CR. WJC No.386 of 2020 dt.22-01-2021

Section (2) confers power on the Court which convicted a person of any offence under Section 3 or Section 7."

23. Dealing with the submissions advanced

before the Hon'ble Court, the Delhi High Court observed and

held in paragraphs 28, 29, 30, 31, 32 and 35 as under:-

"28. We may at the outset point out that Sections 3 and 7 of the Act provide for the punishment of persons guilty of the offences mentioned therein and thus they are punitive in nature. The said offences can be tried by no Court inferior to that of a Metropolitan Magistrate or a Judicial Magistrate of First Class in view of Section

22. However, a proceeding under Section 18 is a preventive measure and it is intended to minimise the chance of a brothel being run or prostitution being carried on in a premises within a distance of 200 mtrs. of any public place. The inquiry contemplated by Section 18(1) is summary in nature and the power to pass such an order has been conferred on the District Magistrate or Sub- Divisional Magistrate. Before passing such an order, it is mandatory to issue a notice on the person in occupation or any other person in charge of the premises to show cause and also to give an opportunity of being heard and thereupon if the District Magistrate or Sub-Divisional Magistrate is satisfied that the premises is being used as a brothel or for carrying on prostitution then the order of eviction or not to let out the same for a period of one year without the previous approval of the Magistrate may be ordered. Under the proviso to Section 18(1), in an appropriate case, the Magistrate may also restore the possession of the premises with directions as specified therein.

29. Similar order may also be passed under sub-Section (2) of Section 18 by a Court which convicted a person of any offence under Section 3 or Section 7, as a consequence to the conviction.

Patna High Court CR. WJC No.386 of 2020 dt.22-01-2021

As could be seen, by virtue of the amendment by Act 46 of 1978, sub-Section (1) and sub- Section (2) of Section 18 are made independent of each other. Though the power exercisable under sub-sections (1) and (2) is one and the same, the authorities empowered to exercise the said power are different and the circumstances under which the same can be exercised and the procedure to be followed are entirely different. It may be recalled that before amendment by Act 46 of 1978, the powers under both sub-Sections (1) and (2) of Section 18 were exercisable by a District Magistrate, a Sub-Divisional Magistrate, a Presidency Magistrate or a Magistrate of first class specially empowered by the State Government by notification in the official gazette to exercise jurisdiction under the Act who are also competent to try the offences under Sections 3 and 7. The Division Bench of the High Court of Punjab & Haryana in Ram Kali-1 therefore opined that whenever action is taken under Section 18 independently of Section 7, it would offend Article 14 of the Constitution. Reiterating the same, the Supreme Court in Ram Kali-2 made it clear that the Magistrate who is also a Court as provided in Section 22 must at the first instance proceed against the persons complained against under the penal provisions in Sections 3 or 7 as the case may be and only after the disposal of those cases take action under Section 18, if there is occasion for it.

30. However, now there is a change in the legislation and there is no more overlapping of the powers conferred under sub-Sections (1) and (2) of Section 18. The District Magistrate or Sub-Divisional Magistrate who is conferred with the power to direct eviction under sub-Section 18(1) is not competent to try an offence under Section 3 or 7. Though the Metropolitan Magistrate or a Judicial Magistrate of the first class apart from trying an offence under Section 3 or 7 is also empowered to direct eviction under Section 18(2), the same can be done only if the criminal proceedings resulted in conviction.

31. Therefore, it appears Patna High Court CR. WJC No.386 of 2020 dt.22-01-2021

to us that Section 18(1) as it stands as of today is in conformity with the law laid down in Ram Kali-1 and Ram Kali-2 and the contention that the amendments by Act 46 of 1978 have rendered Ram Kali-2 ineffective is untenable. At any rate, as held in State of Tamil Nadu Vs. State of Kerala; (2014) 6 Scale 380, though the legislature cannot declare any decision of a court of law to be void or of no effect, it can pass an amending Act to remedy the defects pointed out by a court of law. In our considered opinion, the Amendment Act 46 of 1978 has been made only to remedy the defects pointed out in Ram Kali-1 and Ram Kali-2 and the same cannot be held to be impermissible under law.

32. The further contention of the learned Senior Counsel for the petitioners that under the amended provisions absolute discretion is vested on the police administration either to initiate prosecution under Section 3 or Section 7 and then to invoke Section 18(1) or to straightaway invoke the proceedings under Section 18(1) of the Act and the same results in arbitrariness and abuse of power by the Police is equally untenable. Though in a different context, this issue was considered and answered in Ram Kali-2 as under:

"12. The attachment contemplated by that section can enure only for a period of one year. Under these circumstances evidently the legislature thought that a regular trial and an appeal against the order of the Magistrate is not called for. In these cases it is unnecessary for us to spell out the scope of the expression "hearing" found in Section 18. It is necessary to remember that Sections 3 and 7 deal with persons guilty of offences whereas Section 18 deals with the premises mentioned therein. It is not correct to say that the set of facts to be proved in prosecutions under Sections 3 or 7 and in proceedings under S.18 are identical. In the former the prosecution to succeed has to establish either the intention or knowledge referred to therein but in the latter they are not necessary ingredients. Section 18 provides for two classes of cases namely, (1) those coming either Patna High Court CR. WJC No.386 of 2020 dt.22-01-2021

under Section 3 or 7 as well as under Section 18 and (2) those coming only under S. 18. They are two distinct classes of cases-a classification which has reasonable relationship with the object sought to be achieved and therefore falls outside the rule laid down by this Court in Answar Ali Sarkar case.‖"

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35. It is also brought to our notice by the learned ASG that the Division Bench of the Bombay High Court in Sunny Kamal singh Mathur vs. Office of Commissioner of Police and Ors.; 2009 Crl.LJ 1465, having interpreted the effect of the amendments to the Act post Ram Kali-1 and 2 expressed a similar view observing:

"...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 taken note of the fact that whereas power under Section 18(1) is a preventive power, power under other section like Sections 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.‖ .

24. Having considered the materials on the

record wherein this Court finds that the cognizance of the

offences under Section 3, 5, 7 and other provisions of the Act of Patna High Court CR. WJC No.386 of 2020 dt.22-01-2021

1956 has already been taken against the petitioner, the

respondent no.3 was not required to wait for final conclusion of

the trial before exercising his power under Section 18(1) of the

Act of 1956. This Court agrees with the views expressed by the

Hon'ble Delhi High Court in the case of Nitu and Others (supra)

and the same finds support from the judgment of Hon'ble

Bombay High Court in the case of Sunny Kamal Singh Mathur

(supra). The power conferred upon a Magistrate under Section

18(1) of the Act of 1956 is not dependent upon the outcome of

the trial of the main case. Thus, the contention of learned

counsel for the petitioner that the respondent no.3 should have

waited for the final outcome of the main case which is pending

for trial, is not fit to be accepted.

25. Since, the respondent no.3 has acted well

within the powers conferred upon him under Section 18(1) (a)

of the Act of 1956, the impugned orders are not required to be

interfered with on the ground of lack of authority/power upon

the respondent no.3.

26. It is not the case of the petitioner that the

impugned order (Annexure-5) has been passed in violation of

the principles of natural justice. The petitioner has admitted that Patna High Court CR. WJC No.386 of 2020 dt.22-01-2021

his son was served with the notice and had replied to the same.

27. This Court further finds that the respondent

no.3 proceeded to pass the impugned order after receipt of a

report as contained in memo no.2432/19 dated 19.10.2019 from

the officer in-charge, Sheohar police station. The proceeding

initiated under Section 18 is in the nature of a summary

proceeding. In the opinion of this Court principles of natural

justice has been complied with before passing of the impugned

order. No illegality or infirmity may be found with the same on

this score.

28. The basic principles as regards the issuance

of a writ of certiorari enunciated by Article L.A. Rex v.

Electricity Commissioners (1924) 1 K.B. 171) which has been

reiterated by Hon'ble Apex Court in the case of Hari Vishnu

Kamath VS. Ahmad Ishaque reported in AIR 1955 SC 233

remains the same and following propositions are said to be

settled and established: "(1) Certiorari will be issued for

correcting errors of jurisdiction, as when an inferior Court or

Tribunal acts without jurisdiction or in excess of it, or fails to

exercise it. (2) Certiorari will also be issued when the Court or

Tribunal acts illegally in the exercise of its undoubted

jurisdiction, as when it decides without giving an opportunity Patna High Court CR. WJC No.386 of 2020 dt.22-01-2021

to the parties to be heard, or violates the principles of natural

justice. (3) The court issuing a writ of certiorari acts in exercise

of a supervisory and not appellate jurisdiction.

29. In the extraordinary writ jurisdiction while

considering the impugned order for purpose of issuance of a

writ of certiorari, this Court would not act as a court of appeal.

No perversity is found in the impugned order, hence, this Court

is not persuaded to issue a writ of certiorari to quash and cancel

the impugned orders.

30. The writ application is devoid of merit and

it is dismissed accordingly.

(Rajeev Ranjan Prasad, J) arvind/-

AFR/NAFR
CAV DATE             22.12.2020
Uploading Date       22.01.2021
Transmission Date    22.01.2021