Noorjahan Khatoon vs The State Of Bihar Through The ...
2021 Latest Caselaw 5264 Patna

         IN THE HIGH COURT OF JUDICATURE AT PATNA
                   Criminal Writ Jurisdiction Case No.316 of 2021
        Arising Out of PS. Case No.-1069 Year-2018 Thana- SITAMARHI District- Sitamarhi
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1. Noorjahan Khatoon, W/o Late Salim @ Chochhu, R/o Mohalla Islampur Road Nagar Parishad, Sitamarhi, P.S. Sitamarhi, District Sitamarhi.

2. Manju Khatoon, W/o Late Salim @ Chochhu, Resident of Ward No. 9, Mirchaipatti, P.S. and District- Sitamarhi.

... ... Petitioner/s Versus

1. The State of Bihar through the Director General of Police, Patna.

2. The Superintendent of Police, Sitamarhi.

3. The Dy. S.P., Sadar, Sitamarhi.

4. The S.H.O. of Dumra Police Station, Sitamarhi.

5. The S.H.O. of Sitamarhi Police Station, Sitamarhi.

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

     For the Petitioner/s    :        Mr. Ashok Kumar Jha, Advocate
     For the Respondent/s    :        Mr. P.K. Verma, AAG3

====================================================== CORAM: HONOURABLE MR. JUSTICE ANJANI KUMAR SHARAN CAV JUDGMENT Date : 17-11-2021 Heard learned counsel for the parties.

2. In this case, the petitioners have challenged the order

dated 18.06.2019, passed in G.R. No.5002 of 2018, arising out of

Sitamarhi P.S. Case No.1069 of 2018, corresponding to T.R.

No.228 of 2019 whereby and whereunder the petition filed by the

petitioners dated 05.01.2019 and 03.01.2019 for release of the

houses of the petitioners have been rejected without considering

the fact that the petitioners were not involved in the alleged

occurrence nor both the petitioners are named in the FIR even then

the houses of the petitioners were sealed by the respondent SHO, Patna High Court CR. WJC No.316 of 2021 dt.17-11-2021

Sitamarhi P.S. only due to the reason that the houses of the

petitioners were situated in the red light area.

3. The short fact in the present case is that on 23.11.2018

at about 11.30 A.M., the Sub-Divisional Police Officer, Sitamarhi,

Sadar was informed by some persons about confinement of minor

girls in Boha Tola, Khajurbanne where the girls were brought from

Madhya Pradesh, Uttar Pradesh and West Bengal and were

indulged in flesh trade. The information mentioned above was

conveyed to the Superintendent of Police, Sitamarhi by S.D.P.O.,

Sitamarhi Sadar and pursuant to the instruction of the S.P.,

Sitamarhi, the S.D.P.O., Sitamarhi constituted a raiding party. All

the persons of the raiding party assembled at the office of the

S.D.P.O., Sitamarhi Sadar and conducted raid at Boha Tola

(Khajoorbanni), Sitamarhi for verification of the information

received and to take necessary action. The raiding party reached

the house of Chunni Khatoon and searched her house along with

other houses of Boha Tola from where some girls were recovered.

Besides recovery of the minor girls, numerous hazardous materials

were also recovered from the accused and seizure list were

prepared. All the victims were taken in custody and Chunni

Khatoon was arrested by the raiding party and detailed report in

this regard was submitted by S.I., Soni Kumari, Dumra Police Patna High Court CR. WJC No.316 of 2021 dt.17-11-2021

Station, Sitamarhi with entire seizure lists upon which an FIR

bearing Sitamarhi P.S. Case No.1069 of 2018, dated 23.11.2018

was registered under Sections 363, 365, 370, 370(A), 372, 373,

376, 120(B) and 34 of the Indian Penal Code, Sections 3, 4, 5 and

6 of the Immoral Traffic (Prevention) Act, 1956, Sections 4 and 6

of the Protection of Children from Sexual Offences Act, 2012 as

well as under Section 75 of the Juvenile Justice Act by the SHO,

Sitamarhi (Annexure-1 to the writ petition).

4. Mr. Ashok Kumar Jha, learned counsel for the

petitioners submits that the statements of the victims were

recorded under Section 164 Cr.P.C. and they neither disclosed the

names of the petitioners nor they were recovered from the houses

of the petitioners. Learned counsel for the petitioners further

submits that the petitioners are not named in the FIR. Even without

recovery from the houses of the petitioners and without taking any

order of the Magistrate, the houses of the petitioners were sealed

on 03.06.2019 after seven months of the occurrence. The

petitioners filed application before the learned court below for

releasing their houses on 05.01.2019 on which the learned court

below called for a report from the concerned police station and a

report has been submitted with regard to sealing of the house by

referring paragraphs 15, 16, 17, 18, 19 and 93 of the case diary Patna High Court CR. WJC No.316 of 2021 dt.17-11-2021

stating that the victims were recovered from the houses of the

petitioners. It is further submitted that in paragraph 15, there is

specific insertion that from the house of Chunni Khatoon, a girl

was recovered. In paragraph 16, it is mentioned that from the

house of Billo Khalifa, the girls were recovered. Paragraph 17

deals with recovery of the victims from the house of Babar Khan

and paragraph 18 specifically states about the recovery from the

house of Manjur Khalifa and paragraph 19 discloses about the

house of Chanda Khatoon and, as such, from five houses, the

victims were recovered wherein the names of the petitioners do not

find place even then their houses were sealed by the respondent

SHO, Sitamarhi without having any authority to seal the same. It is

also submitted that under Section 18 of the Immoral Traffic

(Prevention) Act, eviction of offenders from a premises or

attachment of premises for improper use can be made subject to

the premises being a brothel. Section 18 in fact relates to closure

of brothel and eviction of offenders from the premises. Section 18

of the Immoral Traffic (Prevention) Act, 1956 is being quoted

below:

"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 Patna High Court CR. WJC No.316 of 2021 dt.17-11-2021

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:"

5. Learned counsel for the petitioners further submits

that the provisions contained in under Section 18 of the Immoral

Traffic (Prevention) Act speaks that the premises in question can

be attached or prohibited if the same is found to be a brothel.

Second, under Section 18, it is only a Magistrate who is

empowered to evict or attach or take any of the actions permitted

under the said section upon a satisfaction arrived at pursuant to a

show cause notice issued to the owner of the premises as to why

the same could not attach for improper use thereof. The said

section also provides that the owner must be issued a show cause Patna High Court CR. WJC No.316 of 2021 dt.17-11-2021

of 7 days and be given a hearing before any action is taken under

the said section but in this case the same has not been followed

and the houses of the petitioners are still in sealed condition. It is

further submitted that the occurrence took place on 23.11.2018 and

the houses of the petitioners were sealed on 03.06.2019 after seven

months of the occurrence. It is lastly submitted by learned counsel

for the petitioners that the police has sealed the houses of the

petitioners which are their residential houses and never used as

brothel houses as alleged by the police. In support of their

contention, the petitioners produced the electric bill, installment of

electric connection, Red Card and Voter I.D. Card.

6. Learned counsel for the State filed counter affidavit

and stated that the S.H.O., Sitamarhi P.S. has given his report

regarding sealed houses and referred in his report paragraphs 15,

16, 17, 18, 19 and 93 of the case diary that the victim girls were

recovered from the sealed houses and the victim girls also stated in

their statements recorded under Section 164 Cr.P.C. about the said

houses that the sealed houses were used for the alleged offences

and have rightly been sealed under Section 18 of the Immoral

Traffic (Prevention) Act, 1956.

7. Having heard learned counsel for the parties and after

perusal of the records, it appears that it is an admitted fact that the Patna High Court CR. WJC No.316 of 2021 dt.17-11-2021

occurrence took place on 23.11.2018 and the houses of the

petitioners were sealed on 03.06.2019, i.e., after seven months of

the occurrence. It is also an admitted fact that there is no recovery

of minor girls from the houses of the petitioners. From perusal of

the impugned order, it transpires that the police has not followed

the provisions of Section 18 of the Immoral Traffic (Prevention)

Act, 1956 in which the Magistrate who is empowered to evict or

attach or take any of the actions permitted under the said section

upon a satisfaction arrived at pursuant to a show cause notice

issued to the owner of the premises. It is admitted fact that no

show cause notice was issued to the petitioners. The said section

also provides that the owner must be issued a show cause of 7 days

and be given a hearing before any action is taken under the said

section. It is also admitted that no procedure, as prescribed under

Section 18 of the Act, was followed in the present case.

8. Taking into consideration the facts and circumstances

of the case, the order dated 18.06.2019, passed in G.R. No.5002 of

2018, arising out of Sitamarhi P.S. Case No.1069 of 2018,

corresponding to T.R. No.228 of 2019 is set aside with a direction

to the authority concerned to unseal the premises in question

within a period of one week from the date of receipt/production of

a copy of this order.

Patna High Court CR. WJC No.316 of 2021 dt.17-11-2021

9. The application stands allowed.

(Anjani Kumar Sharan, J.)

Sanjay/-

AFR/NAFR                NAFR
CAV DATE                01.11.2021
Uploading Date          17.11.2021
Transmission Date       17.11.2021