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2010 DIGILAW 5023 (MAD)

Poongodi v. The Sub-Collector

2010-11-12

N.KIRUBAKARAN

body2010
Judgment :- 1. The Petitioner challenged the order passed by the First Respondent on 31.10.2009 by which the First Respondent directed the Third Respondent to evict the occupier from the house for conducting the prostitution and attach the property. 2. The Petitioner contends that she is a resident of Cauvery Nagar, Mettur Dam, Salem District and there are certain disputes with the neighbours and therefore, Complaints were filed by the Petitioner against the neighbours in 2003, 2004 & 2005. Her husband, who is a Head Constable attached to Mettur Police Station, is living separately due to difference of opinion. Due to enmity, the local neighours gave a Complaint through one Venkatesh, who is also residing in the same locality, complaining as if, one Venkatachalam was soliciting prostitution along with the Petitioner. The said Complaint was registered on 13.10.2009 in Crime No.496 of 2009 on the file of the Inspector of Police, All Women Police Station, Mettur under Sections 3(1) & 6(i)(a) & (b), Immoral Traffic Act and subsequently altered into 3(1) & 7(i)(a) of Immoral Traffic (Prevention) Act, 1956. The Petitioner contends that she was staying with her daughter in Bangalore and sustained injuries in an accident on the date of Complaint on 12.10.2009 and therefore, it is a false case purposely filed against her. 3. The First Respondent issued a show cause notice dated 22.10.2009 calling upon the Petitioner to show cause as to why her house should not be attached. Petitioner submitted her explanation on 23.10.2009 denying the allegations. As no order was passed, the Petitioner filed a Writ Petition in W.P.No.26695 of 2009 praying for a direction to the First Respondent not to proceed on the basis of show cause notice dated 22.10.2009 as the same was against the decisions of the Supreme Court in A.C. Agarwal, Special Divisional Magistrate and another v. Ramkali, etc., AIR 1968 SC 1 and for further direction not to interfere with her peaceful life and enjoyment of the property. During the hearing of the case, it was submitted that final order was passed on 31.10.2009 and this Court directed the Government Advocate to give a copy of the final order dated 31.10.2009 to the Counsel for the Petitioner and giving liberty to the Petitioner to challenge the said order dismissed the said Writ Petition. The said order dated 31.10.2009 is challenged before this Court. 4. Mr. The said order dated 31.10.2009 is challenged before this Court. 4. Mr. S. Selvathirumurugan, learned Counsel for the Petitioner submitted that the impugned order has been passed without giving personal hearing and therefore, it violates the Principles of Natural Justice. Secondly he submitted that the Petitioner already filed Writ of Mandamus not to proceed on the basis of show cause notice and therefore, opportunity to the Petitioner was given by the First Respondent before passing the order. Thirdly he submitted that the First Respondent based on hearsay evidence passed the order without any proof and did not consider the explanation given by the Petitioner dated 23.10.2009. He relied upon the judgment of a Constitutional Bench of the Hon’ble Supreme Court in A.C. Agarwal Special Divisional Magistrate and another v. Ramkali, etc., AIR 1968 SC 1 . By relying upon the said judgment, he submitted that only after the disposal of the case filed under Sections 3 & 7, action could be taken under Section 18 of the Act. Learned Counsel pointed out that the impugned order has been passed under Section 18(1) of the Act without conviction under Sections 3 & 7 of the Act and therefore, it has to be set aside. 5. On the other hand, Mr. P. Subramanian, learned Additional Government Pleader submitted that one Venkatesh lodged a Complaint to the Inspector of Police, Mettur Police Station, Salem District and based on which a case was registered and the person who was named in the Complaint was arrested and remanded to judicial custody. He also submitted that the Petitioner did not reside at Bangalore at the time of Complaint and she escaped from the place in a scooty when the Police entered in Cauveri Nagar for investigation. An information was received by the Inspector of Police, Mettur, stating that Poonkodi, wife of Govidan, was using the residential house at Door No.17/1A-23, Cauvery Nagar, Mettur Dam, Salem District as a brothel house and requesting to take action under Section 18(1) of the Act. After the reception of information, the show cause notice dated 22.10.2009 was issued and a reply dated 23.10.2009 was received from the Petitioner. Another notice dated 23.10.2009 was issued to the Petitioner to appear for an enquiry on 28.10.2009 and the Petitioner did not appear and therefore, the contention that no opportunity was given is false. 6. After the reception of information, the show cause notice dated 22.10.2009 was issued and a reply dated 23.10.2009 was received from the Petitioner. Another notice dated 23.10.2009 was issued to the Petitioner to appear for an enquiry on 28.10.2009 and the Petitioner did not appear and therefore, the contention that no opportunity was given is false. 6. Learned Additional Government Pleader submitted that the First Respondent held an enquiry and a large number of public represented that the Petitioner was using the said house as brothel house for the past six years, taking advantage of her husband’s service in Police Department and that the said house is being situated near the place of worship, schools and other residential houses. The action under Section 18(1) is with an intention to prevent running of brothel near public places, evict the occupier of the premises and attach their property. 7. It is seen from the records that a Complaint signed by more than 100 general public was given on 16.9.2009 to the Respondents 1 to 3 complaining about the illegal act committed by the Petitioner. Secondly one Mr. Venkatesh gave a Complaint on 12.10.2009 specifically stating that one Mr. Venkatachalam was soliciting for prostitution along with the Petitioner and to use her house for the aforesaid purpose. The Complaint was registered and Mr. Venkatachalam was arrested and remanded to judicial custody on 14.10.2009. The Inspector of Police, Mettur on 13.10.2009 gave information to the First Respondent to take action under Section 18(1). The First Respondent after issuing notice and on receiving reply called upon the Petitioner to appear for enquiry on 23.10.2009. As the premises was locked, notice was pasted on the door which was proved by the endorsement made witnesses. Therefore, to give personal hearing, attempts were made by the First Respondent and the Petitioner did not receive the notice and appeared before the First Respondent deliberately. The communication of the Third Respondent dated 27.10.2009 addressed to the First Respondent discloses that the general public and the Village Administrative Officer, were examined and their statements were obtained. 8. A perusal of the general public statement would reveal that the Petitioner was indulging in prostitution. The communication of the Third Respondent dated 27.10.2009 addressed to the First Respondent discloses that the general public and the Village Administrative Officer, were examined and their statements were obtained. 8. A perusal of the general public statement would reveal that the Petitioner was indulging in prostitution. After issuing show cause notice and affording an opportunity and also relying upon the statements of the general public and their records, the impugned order has been passed by the First Respondent and therefore, it cannot be stated that the impugned order has been passed in violation of Principles of Natural Justice. 9. The impugned order has been passed under Section 18(1) of the Act. Section 18 of the Act is extracted as follows: “18. 9. The impugned order has been passed under Section 18(1) of the Act. Section 18 of the Act is extracted as follows: “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, lesser or landlord of such house, room, place or portion or the agent of the owner, lesser 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 released 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 order 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 case 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 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, and 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) sub-section (2) of Section 7, as the case may be, and punished accordingly”. 10. A reading of Section 18 would disclose that for invoking Section 18(1), the premises where the prostitution is carried on should fall within a distance of 200 meters of any public place as stated in Section 7(1) of the Act and the Magistrate is empowered to give direction to evict the occupier of the premises. Section 7(1) of the Act is extracted as follows: “7. Section 7(1) of the Act is extracted as follows: “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 metres of any place of public religious workship, educational institutional, hostel, hospital, nursing home or such other public place or 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. (1-A) Where an offence committed under sub-section (1) is in respect of a child of 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.” 11. In this case, a number of people living in the area stated by way of Complaint as well as through statements before the First Respondent that the Petitioner has been carrying on prostitution in the residential area. Relevant portions of the statements of the public adduced before the 1st Respondent are extracted as follows: “TAMIL” 12. Aforesaid statements of the General Public including individual and Revenue Inspector, Mettur would show that the Petitioner has been habitually committing the offence and the disputed premises is located in the residential area, which is very close to public place like schools and temples. The aforesaid statements would prove that Immoral acts have been committed against the interests of public and the people are put to fear and threat. Therefore, the First Respondent rightly passed the impugned order under Section 18(1) of the Act. The order is based on evidence and materials and the same cannot be set aside. The First Respondent relying upon the statements of the Police and Tahsildar and public, statutorily concluded the presence of school, public place, worship and Court near the disputed house. Therefore, the First Respondent rightly passed the impugned order under Section 18(1) of the Act. The order is based on evidence and materials and the same cannot be set aside. The First Respondent relying upon the statements of the Police and Tahsildar and public, statutorily concluded the presence of school, public place, worship and Court near the disputed house. With regard to using of house for prostitution was also rightly concluded by R1 based on the statements of public viz. Saritha, Venkatean, Venkatachalam etc., the residents of Kaveri Negar and the reports of Tahsildar and Police. 13. Learned Counsel referred to paragraph 13 of the judgment reported in A.C. Agarwal, Special Divisional Magistrate and another v. Ramkali, etc., AIR 1968 SC 1 and the same is extracted as follows: “13. From the copies of the reports made in these cases to the Magistrate by the Police – made available to us at the hearing of these Appeals – It is clear that they disclose offences under Section 3 against the Respondents. Therefore, the question is whether the Magistrate can choose to ignore the cognizable offence complained of and merely have recourse to Section 18 and thus, deprive the parties proceeded against of the benefit of a regular trial as well as the right of Appeal in the event of their conviction. Bearing in mind the purpose of these provisions as well as the scheme of the Act and on a harmonious construction of the various 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 Section 22 must at the first instance proceed against the persons complained against under the penal provisions in Sections 3 & 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. Under Section 190(1)(b) of the Code of Criminal Procedure, the Magistrate is bound to take cognizance of any cognizable offence brought to his notice. The words “may take cognizance” in the context means “must take cognizance”. He has no discretion in the matter, otherwise that Section will be violative of Article 14. But as laid down in Delhi Administration v. Ram Singh, only an officer mentioned in Section 13 can validly investigate an offence under the Act. The words “may take cognizance” in the context means “must take cognizance”. He has no discretion in the matter, otherwise that Section will be violative of Article 14. But as laid down in Delhi Administration v. Ram Singh, only an officer mentioned in Section 13 can validly investigate an offence under the Act. Hence if the cases before us had been investigated by such an officer, there is no difficulty for the Magistrate to take cognizance of those cases. Otherwise it is open to him to direct fresh investigations by competent Police Officers before deciding whether the facts placed before him disclose any cognizable offence.” Relying upon the said judgment, the learned Counsel submitted without conviction under Sections 3 or 7 of the Act, there cannot be any proceedings under Section 18 of the Act. However, the Constitution Bench Judgment in paragraph 11 & 12 explained about the difference in respect of the action under Sections 3, 7 & 18 of the Act. Paragraph 11 & 12 are extracted as follows: “11. Sections 3 & 7 provide for the punishment of persons guilty of the offenses mentioned therein. Any contravention of the provisions mentioned therein amounts to a cognizable offence in view of Section 14, whereas a proceeding under Section 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 case of prosecutions, a regular trial with a right of Appeal is provided for. The enquiry contemplated by Section 18 is summary in character. 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 necessary for us to spell out the scope of the expression “hearing” found in Section 18. 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 & 7 deal with persons guilty of offences, whereas Section 18 deals with the premises mentioned therein. 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 & 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 Section 18 are identical. In the former the prosecution to succeed has to establish either the intention or knowledge referred to therein but in the letter they are not necessary ingredients. Section 18 provides for two classes of cases namely, (1) those coming only under Section 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 case.” 14. The aforesaid judgment declares that proceedings under Section 18 is not prosecution and only a preventive measures to minimize the chance of brothel being run in the premises near public places and the enquiry under Section 18 is summary in character. Moreover the attachment under Section 18 is only for the period of one year. The said judgment points out the prosecution is contemplated under Sections 3 & 7 against the person. Whereas Section 18 deals with the premises. Therefore, it cannot be said that only after invocation of Sections 3 & 7, proceedings under Section 18 can be taken. 15. Another judgment of the Hon’ble Supreme Court in Chitan J. Vaswani and another v. State of West Bengal and another, 1975 (2) SCC 829 deals with Section 18 of the Act. Paragraphs 7 & 12 reads as follows: “7. Section 18(1) proprio vigore applies only to brothels within the vicious distance of 200 yards of specified types of public institution. No criminal prosecution or conviction is necessary for taking action under Section 18(1). Strictly speaking this is not a punitive provision but a preventive one. This power vested in the Magistrate is calculated to ensure moral hygiene in the locality which is particularly sensitive. If one may say so, it is a moral scavenging operation, or a fumigation process whereby the dangerous visitations may be totally inhibited by a legally enforced closure… 12. Strictly speaking this is not a punitive provision but a preventive one. This power vested in the Magistrate is calculated to ensure moral hygiene in the locality which is particularly sensitive. If one may say so, it is a moral scavenging operation, or a fumigation process whereby the dangerous visitations may be totally inhibited by a legally enforced closure… 12. This Court in Sub-Divisional Magistrate v. Ram Kali held that Section 18(1) deals with one class and Section 18(2) relates to another class. Section 18(1) is a summary procedure for closing down obnoxious places of prostitution, without going through the detailed process of a Criminal prosecution. It is a quick-acting defensive mechanism, calculated to extinguish the brothel and promote immediate moral sanitation, having regard to the social susceptibility of places like shrines, schools, hostels, hospitals and the like. Section 18(2) on the other hand operates only where persons have been convicted of offenses under Section 3 or Section 7. Thus, the place is found to be put to prostitutional use in a Criminal Trial. It stands to reason that if the purpose of extirpating the commercial vice from that venue were to be successful, the occupier must be expelled therefrom. This is precisely what has been done in the present case. Section 18(2) operates not merely on places within the offending distance of 200 yards but in all places where the activity of prostitution has been conducted.” 16. Therefore, the above judgment would make it very clear that the order under Section 18(1) is summary and only preventive in nature. The order is not in violation of the judgment of the Apex Court reported in A.C. Agarwal, Special Divisional Magistrate and another v. Ramkali, etc., AIR 1968 SC 1 . Moreover the order has been passed only in the public interest as per law. It is seen from the evidence available that the Petitioner involved in immoral act. Therefore, no leniency could be shown to the Petitioner. Accordingly the Petition is dismissed. There will be no order as to costs. Consequently the connected M.P. Nos.1 & 2 are closed.