Learned Counsel Shri Rajnish Vyas has submitted that the
petitioner was not the sole owner of the premises and therefore, respondent
No.2 was under obligation to issue notices to other owners also. It is
submitted that this fact was brought to the notice of respondent No.2 and
despite having knowledge of the fact that there were other owners of the
premises, respondent No.2 had maliciously avoided to serve them notices
and has passed the order hastily without applying his mind. It was brought
to my notice that the other owners had also filed objections during the
course of hearing before the District Magistrate. In this regard, what is
pertinent to note is that the District Magistrate, in exercise of his powers
under Section 18(1) of the Act, was not under obligation to issue notices to
all the owners of property. What he was under obligation was to issue notice
to the owner, lessor, landlord or agent of owner, lessor or landlord. If the
petitioner was working on behalf of other owners who are not residents of
Nagpur, she can be treated as agent of the other owners and in my opinion,
the order impugned is not vitiated in any manner only because the notices
were not issued to the coowners of the property.
IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
NAGPUR BENCH, NAGPUR.
CRIMINAL WRIT PETITION NO.651 OF 2013
Smt. Sharada wd/o Premlal Chhadi,
VERSUS
State of Maharashtra,
CORAM : M.L. TAHALIYANI, J.
DATED : 25 FEBRUARY, 2014.
Citation; 201ALLMR(cri) 2817 Bom
This petition challenges the order passed by the Commissioner
of Police in exercise of his power as District Magistrate under Section 18 of
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the Immoral Traffic (Prevention) Act, 1956 (in short “the Act”). The
petitioner Smt. Sharada Premlal Chhadi, aged about 65 years, was occupier
of House No.6, City Survey No.175/528, Nagpur and she was allegedly
running brothel in the said premises. The District Magistrate i.e. respondent
No.2 after giving notice to the petitioner, had passed an order on 2692012
directing sealing of the said premises and further directed that the premises
shall not be let out for a period of three years. The said order was
challenged before this Court by the petitioner in Criminal Application (APL)
No.619 of 2012. This Court while disposing of the said application, set aside
the order and directed that respondent No.2 should pass necessary orders
only after giving personal hearing to the petitioner.
4.
Accordingly, respondent No.2 had issued notices to the
petitioner for appearance in person. The petitioner had appeared in person
and after hearing the petitioner, similar order was passed by the successor in
office of the Commissioner of Police.
Learned Counsel Shri Rajnish Vyas appearing on behalf of the
5.
petitioner has submitted that respondent No.2 had no authority to pass order
under Section 18 of the Act as it empowers the District Magistrate only and
not the Additional District Magistrate. My attention was invited to the
impugned order in which the Commissioner of Police has stated 'in exercise
of his power as Executive Magistrate and Additional District Magistrate'. In
this regard, it may be noted here that admittedly the Commissioner of Police
of Nagpur has been conferred with powers of District Magistrate for the
purposes of Section 18 of the Act. Therefore, if there is some typographical
mistake in the order, it cannot be said that the order is vitiated.
6.
Learned Counsel Shri Rajnish Vyas has further submitted that
despite the order of this Court, the petitioner was not given sufficient
opportunity of being heard. She was not allowed to place her case before
respondent No.2. It was pointed out that the petitioner had submitted an
application for engaging a Lawyer and Vakalatnama of a Lawyer had also
been placed before respondent No.2. Learned Counsel Shri Rajnish Vyas has
further submitted that the petitioner has specifically stated in her petition
that she was asked only one question by respondent No.2 and she was
allowed to go out of chamber of respondent No.2. It is submitted by Shri
Rajnish Vyas that action of respondent No.2 obviously was malicious and he
was not honest to his duty as a public servant. It is submitted in the affidavit
filed by respondent No.1 that the petitioner was granted opportunity on
1292013 and 2092013. The petitioner does not deny of having received
the notices for her appearance on 1292013 and 2092013. Learned
Counsel Shri Rajnish Vyas has submitted that the petitioner is an illiterate
lady and therefore, she was unable to address respondent No.2. In the
circumstances, it was necessary for respondent No.2 to allow her to engage a
7.
Lawyer.
After hearing both the sides, I have come to the conclusion that
the proceedings under Section 18 of the Act are miscellaneous proceedings
and are required to be disposed of in summary manner. The subjective
satisfaction of the District Magistrate plays a vital role in decision taken
under Section 18 of the Act. No doubt only subjective satisfaction will not be
sufficient to deprive a person of his property. The District Magistrate is
under obligation to take into consideration all the facts before him and give
finding that the provisions of the Act have been violated and that the
attachment of the premises is necessary. At the same time, it needs to be
stated here that the District Magistrate is not under obligation to give an
elaborate hearing to the occupier of the premises. The requirement of
Section 18 of the Act are as under :
(1)
A Magistrate shall have an information from the police or otherwise,
that any house, room, place or any portion thereof within a distance of two
hundred meters of any public place referred to in subsection (1) of section
7, is being run or used as a brothel by any person, or is being used by
On having received such information, the District Magistrate is under
(2)
prostitutes for carrying on their trade.
obligation 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 in charge of such house,
room, place, or portion.
(3)
A show cause shall call upon the person mentioned in para (2) above,
as to why the premises shall not be attached for improper user thereof.
(4)
The District Magistrate is required to give hearing to the person to
whom a notice has been issued.
8.
If the District Magistrate is satisfied that house, room, place or
portion thereof was being used as brothel or for carrying on prostitution, he
may direct eviction of the occupier within seven days of passing of the order.
He may also direct that such premises shall not be let out during the period
of one year without prior approval of the District Magistrate. In case child or
minor has been found in such house, room, place or portion during a search
under Section 15, the District Magistrate may direct that the premises shall
not be let out for a period of three years without prior approval of the
As such it is abundantly clear from the provisions of Section
9.
Magistrate.
18(1) of the Act that the proceedings under Section 18(1) are summary in
nature and the District Magistrate not necessarily depends on the police
report. He may take action on the basis of receipt of information from some
other source also. As such in a case where the information is received from a
source other than police, the Police Commissioner may not have panchanama
and other documents before him. It, therefore, indicates that subjective
satisfaction of the Police Commissioner/District Magistrate is integral part of
the proceedings under Section 18 of the Act.
10.
As such I have come to the conclusion that a reasonable
opportunity was given to the petitioner by respondent No.2. Issuance of
notices for appearance of petitioner on two occasions i.e. 1292013 and
2092013 by itself are indicative of the fact that respondent No.2 was
anxious to follow the order passed by this Court. If the petitioner adopted
dubious method of delaying the proceedings, respondent No.2 cannot be
responsible for the same.
Learned Counsel Shri Rajnish Vyas has further submitted that
11.
the respondents have not produced the notification issued under Section 7 of
the Act to establish that the place attached by respondent No.2 was within
200 meters of a public place notified under Section 7 of the Act. Section 7 of
the Act runs as under :
“7.
Prostitution in or in the vicinity of public places –
(1) Any (person), who carries on prostitution and the person
with whom such prostitution is carried on, in any premises,
(a) which are within the area or areas, notified under sub
section (3), or
(b) which are within a distance of two hundred meters of any
place of public religious worship, educational institution,
hostel, hospital, nursing home or such other public place of
any kind as may be notified in this behalf by the Commissioner
of Police or Magistrate in the manner prescribed,
shall be punishable with imprisonment for a term which may
extend to three months.
(1A) Where an offence committed under subsection (1) is in
respect of a child or minor, the person committing the offence
shall be punishable with imprisonment of either description for
a term which shall not be less than seven years but which may
be for life or for a term which may extend to ten years and
shall also be liable to fine:
Provided that the Court may, for adequate and special
reasons to be mentioned in the judgment, impose a sentence
of imprisonment for a term of less than seven years.
(2)
(3)
The State Government may, having regard to the kinds
of persons frequenting any area or areas in the State, the
nature and the density of population therein and other
relevant considerations, by notification in the Official Gazette,
direct that prostitution shall not be carried on in such area or
areas as may be specified in the notification.
(4)
(5) ”
Reading of subsections (1) and (3) of Section 7 of the Act
makes it absolutely clear that the area within a distance of 200 meters of any
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public religious worship, educational institution, hostel, hospital, nursing
home is not required to be specifically notified. The Government has
authority to notify any other area within which the prostitution is prohibited.
This notification of Government specifying the area is in addition to the areas
already stated in Section (7)(1)(b) of the Act. In the present case, there was
a Balaji temple at a distance of 90 meters from the premises of the petitioner,
there was Sudarshan Higher Primary School at a distance of 70 meters and
Kamleshababa Dargah at a distance of 45 meters. As such the premises of
the petitioner allegedly used for running brothel was within 200 meters of
the places mentioned in Section 7(1)(b) of the Act. Therefore, the separate
notification was not necessary. As such the argument of learned Counsel Shri
Vyas that it was necessary to issue notification under Section 7(1)(a) of the
Act is devoid of any merit inasmuch as the premises in question were already
within the distance of two hundred meters from educational institution and
the places of public religious worship.
12.
Learned Counsel Shri Rajnish Vyas has also brought to my
notice that the proviso to subsection (1) of Section 18 of the Act empowers
the Magistrate to pass orders directing that the premises shall not be leased
out or otherwise given possession of by the person concerned within one
year or within three years, as the case may be. The limitation of one year is
applicable in normal cases of prostitution and limitation of three years is
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applicable where the child or minor are found in the premises. In the
present case, minor girls were found in the premises, therefore, the
limitation of three years was applicable. The District Magistrate/respondent
No.2 was empowered to issue directions that such premises shall not be let
out or given possession thereof without his permission for a period of three
years. Learned Counsel Shri Rajnish Vyas has brought to my notice that the
District Magistrate has arbitrarily passed the order that the premises in
question shall not be let out for a period of three years. He has not even
placed a rider on the order that the premises could be leased out with prior
permission of the District Magistrate. In this regard, it is sufficient to
mention here that if there is a statutory provision which entitles the
petitioner to move the District Magistrate for letting of the premises, nothing
prevents the petitioner from moving the District Magistrate/respondent No.2
for a necessary relief. I do not think that non placing of rider in the
impugned order vitiates the order any manner. If the statutory provision is
available for necessary relief, same can be availed at any time. The applicant
is always at liberty to move the District Magistrate for grant of approval to let
13.
out the premises.
Learned Counsel Shri Rajnish Vyas has submitted that the
petitioner was not the sole owner of the premises and therefore, respondent
No.2 was under obligation to issue notices to other owners also. It is
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submitted that this fact was brought to the notice of respondent No.2 and
despite having knowledge of the fact that there were other owners of the
premises, respondent No.2 had maliciously avoided to serve them notices
and has passed the order hastily without applying his mind. It was brought
to my notice that the other owners had also filed objections during the
course of hearing before the District Magistrate. In this regard, what is
pertinent to note is that the District Magistrate, in exercise of his powers
under Section 18(1) of the Act, was not under obligation to issue notices to
all the owners of property. What he was under obligation was to issue notice
to the owner, lessor, landlord or agent of owner, lessor or landlord. If the
petitioner was working on behalf of other owners who are not residents of
Nagpur, she can be treated as agent of the other owners and in my opinion,
the order impugned is not vitiated in any manner only because the notices
were not issued to the coowners of the property.
14.
For all these reasons, I do not find any substance in the
petition. The petition stands dismissed. Rule stands discharged.
Learned Counsel Shri Rajnish Vyas prays for four weeks time
15.
and submits that ad interim order granted may be allowed to be continued
for a further period of four weeks. After having come to the conclusion that
the petitioner does not have merits in her case at all, I do not find substance
in the prayer. The prayer stands rejected.
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