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2022 DIGILAW 1275 (BOM)

Maqsood Mohammed Mustak v. State of Maharashtra

2022-05-02

N.J.JAMADAR

body2022
JUDGMENT 1. Rule. Rule made returnable forthwith. With the consent of the Counsel for the parties, heard finally at the stage of admission. 2. The challenge in this Petition is to the judgment and order dtd. 4/8/2021 passed by the learned Special Judge in Special POSCO Case No.297 of 2015, to the extent the learned Special Judge directed the closure of the brothel i.e. Room No.15 and 17, Pandu Maharaj Chawl, Sukhalaji Street, Kamathipura, Nagpada, Mumbai, in exercise of the powers under Sec. 18 of the Immoral Traffic (Prevention) Act, 1956 ('PITA'). 3. In the said Special POSCO Case No.297 of 2015, the accused namely Moti @ Babu Baleshwar Razak @ Dhobi and Mr. Pintu Mathura Sav, were prosecuted for the offences punishable under Sec. 370 read with Sec. 34 of the Indian Penal Code, 1860 (Penal Code) and Ss. 3, 4, 5, 6(3)(a) of the Immoral Traffic (Prevention) Act, 1956 and under Ss. 4, 6, and 17 of the Protection of Children from Sexual Offences Act, 2012 (POSCO). The learned Special Judge returned the finding of guilt against the accused for the offences punishable under Sec. 370 read with Sec. 34 of the Indian Penal Code and Ss. 3, 4, 5 and 6(3)(a) of the PITA. The accused were, however, acquitted of the offences punishable under Sec. 7 of the PITA and Ss. 4, 6 and 17 of the POSCO Act. 4. The learned Special Judge further recorded that it was proved that the premises i.e. Room Nos.15 and 17, Pandu Maharaj Chawl, was being run as a brothel. Thus, in exercise of the power under Sec. 18 of the PITA, the learned Special Judge directed the closure of the said premises (subject premises). 5. The Petitioner, who claims to be the holder of Room No.17, has invoked the writ jurisdiction of this court, asserting that in the year 2014, he had shifted to his native place at Jarkhand. At that time, he had given the said Room No.17 to Mr. Pintu, the accused No.2, in the above numbered Special Case, for residential purpose, on license, under the leave and license agreement. He claimed to have learnt in May 2015 that the said Pintu Sav came to be apprehended for running a brothel in the said premises. At that time, he had given the said Room No.17 to Mr. Pintu, the accused No.2, in the above numbered Special Case, for residential purpose, on license, under the leave and license agreement. He claimed to have learnt in May 2015 that the said Pintu Sav came to be apprehended for running a brothel in the said premises. Thereupon, he got the said premises vacated and had since been residing thereat, till the said premises came to be sealed pursuant to the impugned Order dtd. 4/8/2021. The Petitioner avers, despite being the owner of the subject premises, he was never given any notice of proposed action under Sec. 18 of the PITA. He was totally unaware of the impending action. He was neither arraigned as an accused, nor summoned as a witness in the said prosecution. Thus, the impugned order impinges upon his rights and deprives him of lawful use and occupation of the subject premises without an effective opportunity of hearing. Hence, this Petition. 6. I have heard Mr. Dave, learned Counsel for the Petitioner and Mr. Aagarkar, learned APP for the State, at some length. With the assistance of the learned Counsel for the parties, I have also perused the material on record. 7. The learned Counsel for the Petitioner submitted that the impugned judgment and order which is prohibitory in nature, has been passed by the learned Special Judge in breach of the fundamental principles of judicial process. Mr. Dave would urge that the material on record does not indicate that the learned Special Judge had embarked upon an inquiry as contemplated by subSec. (1) of Sec. 18 of the PITA. In the absence of any notice to the Petitioner, the learned Special Judge could not have ordered closure of the premises. It was further submitted that the incident in question had allegedly occurred in the year 2015. In the intervening period, the Petitioner had been in the lawful occupation of the subject premises. In the circumstances, ordering the closure of the subject premises, at this length of time, was wholly unwarranted. 8. The learned APP, on the other hand, attempted to support the impugned judgment and order. 9. Before adverting to consider the rival submissions, it may be apposite to extract the relevant part of the impugned judgment and order, which reads as under : "Closure of Brothel : 48. Vide order dtd. 8. The learned APP, on the other hand, attempted to support the impugned judgment and order. 9. Before adverting to consider the rival submissions, it may be apposite to extract the relevant part of the impugned judgment and order, which reads as under : "Closure of Brothel : 48. Vide order dtd. 28/7/2021, report was called from Nagpada Police Station, as to whether any stay order has been passed by Hon'ble High Court in respect of Room No.15 and 17, Pandu Maharaj Chawl, Sukhlaji Street, Kamathipura, Mumbai. It has been reported vide Exhibit 59 that there is no civil/criminal petition sub-judice in respect of premises in question i.e. Room Nos.15 and 17, Pandu Maharaj Chawl, Sukhlaji Street, Kamathipura, Mumbai before the Hon'ble High Court of Bombay neither any stay order in respect of premises in question. 49. Thus, having regard to the fact that it has been proved on record that premises in question i.e. Room Nos.15 and 17, Pandu Maharaj Chawl, Sukhlaji Street, Kamathipura, Mumbai, was being run as a brothel, I deem it appropriate to exercise my powers under Sec. 18 of Immoral Trafficking (Prevention) Act, 1956 and direct closure of the said brothel. Senior Inspector of Nagpada Police Station, shall, after evicting the occupiers of the said Brothel i.e. Room No.17, Pandu Maharaj Chawl, Sukhlaji Street, Kamathipura, Mumbai, ensure closure of the said premises within a periodof 07 days from the date fo this order, under intimation to this Court." 10. From the bare perusal of the aforesaid observations, it becomes evident that the learned Special Judge had sought a report from the Nagpada Police as to whether there was any order passed by the High Court with regard to the subject premises and Nagpada Police had reported that no civil/criminal proceedings was sub-judice in respect of the subject premises, nor any stay order was operative. Recording thus, the learned Special Judge proceeded to direct the closure of the subject premises holding that it was proved that the subject premises was being run as a brothel. 11. Whether the aforesaid approach of the learned Special Judge, is justifiable ? 12. Sec. 18 of the PITA, which empowers the Magistrate and Court to direct the closure of brothel and eviction of offenders from the premises, reads thus : "18. Closure of brothel and eviction of offenders from the premises. 11. Whether the aforesaid approach of the learned Special Judge, is justifiable ? 12. Sec. 18 of the PITA, which empowers the Magistrate and Court to direct the closure of brothel and eviction of offenders from the premises, reads thus : "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-sec. (1) of Sec. 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 passed 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 sec. 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 sec. 3 or sec. 7 may pass order under sub-sec. (1) without further notice to such person to show cause as required in that sub-sec. . (3) Orders passed by the magistrate or court under sub-sec. (1) or sub-sec. (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 Sec. 3 or Sec. 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 for is not being used by prostitutes for carrying on their trade, any order passed by the trial court under sub-sec. (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-sec. (1) or a court passes an order under sub-sec. (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 order, lessor or landlord, or the agent of such owner, lessor or landlord fails to comply with a direction given under clause (b) of sub-sec. (1) or a court passes an order under sub-sec. (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 order, lessor or landlord, or the agent of such owner, lessor or landlord fails to comply with a direction given under clause (b) of sub-sec. (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-sec. , he shall be deemed to have committed an offence under clause (b) of sub-sec. (2) of sec. 3 or clause (c) of sub-sec. 2 of sec. 7, as the case may be, and punished accordingly." 13. The text of Sec. 18 would indicate that sub-sec. (1) thereof empowers a Magistrate to direct eviction of the occupier of the premises which is being used or run as a brothel by any person or is being used by prostitutes for carrying on their trade, after giving notice to the owner, lessor or landlord, or the tenant, lessee of the occupier of such premises, to show cause as to why the same should not be attached for improper use thereof. It further empowers a Magistrate to direct that the owner, lessor or landlord or the agent of the owner, shall obtain previous approval of the Magistrate before letting out such premises. 14. Sub-sec. (2) of Sec. 18 empowers a court convicting a person of any any offence punishable under Sec. 3 or Sec. 7 to pass an order under sub-sec. (1), without further notice to such person to show cause, as required by sub-sec. (1). Sub-sec. (3) provides that such an order under sub-sec. (1) or sub-sec. (2), shall not be subject to appeal, nor such an order be stayed or set aside by the order of any court and it shall cease to have validity after the expiry of one year or three years, as the case may be. 15. From the phraseology of Sec. 18 extracted above, it becomes abundantly clear that sub-sec. (1) and sub-sec. (2) of Sec. 18, operate in different spheres and address distinct situation. Sub-sec. 15. From the phraseology of Sec. 18 extracted above, it becomes abundantly clear that sub-sec. (1) and sub-sec. (2) of Sec. 18, operate in different spheres and address distinct situation. Sub-sec. (1) empowers a Magistrate to pass an order of attachment, direct eviction of the occupier and also make the owner, lessor or landlord to obtain prior approval before letting out the premises, where he is satisfied that the premises was being run or used as a brothel or used by prostitutes for carrying on their trade, only after giving an opportunity to show cause. Sub-sec. (1) of Sec. 18, thus, contemplates an opportunity of hearing in the nature of show cause notice, based on the information received by the magistrate that the premises was being put to such improper use. 16. Sub-sec. (2) of Sec. 18, on the other hand, empowers the court convicting a person of any offence punishable under Sec. 3 or Sec. 7 to pass an order contemplated by subsec. (1). Under sub-sec. (2) of Sec. 18, the requirement of notice, as envisaged by sub-sec. (1) is, however, done away with. The reason is not far to seek. The order under sub-sec. (2) of Sec. 18, can be passed by a court only against the person who is convicted for the offence punishable under Sec. 3 or 7 of the PITA, namely, keeping a brothel or allowing the premises to be used as a brothel, and carrying on prostitution in or in the vicinity of public places, respectively. Evidently, a person who is found guilty of running a brothel need not be again provided an opportunity of hearing, as envisaged by sub-sec. (1) of Sec. 18 of the Act. However, where an order of closure of the premises operates to the prejudice of the occupier, who is not prosecuted for the offence punishable under Sec. 3 or Sec. 7 of the PITA, different considerations come into play. In such a situation, the requirement of opportunity of hearing, postulated by sub-sec. (1) of Sec. 18, cannot be dispensed with. 17. Reverting to the facts of the case, the material on record, does not indicate that either the Petitioner was impleaded as an accused or cited as a witness in the abovenumbered Special POSCO Case No.297 of 2015 or any notice, as contemplated under subsec. (1) of Sec. 18, was given to the Petitioner. 17. Reverting to the facts of the case, the material on record, does not indicate that either the Petitioner was impleaded as an accused or cited as a witness in the abovenumbered Special POSCO Case No.297 of 2015 or any notice, as contemplated under subsec. (1) of Sec. 18, was given to the Petitioner. It does not appear that any opportunity of hearing, much less, an effective one was provided to the Petitioner. The impugned order, extracted above, also does not indicate that the learned Special Judge considered the period for which the said order of closure would operate. Since the accused in the said Special case were acquitted of the offences punishable under Ss. 4, 6 and 17 of the POSCO Act and a finding has been recorded that none of the victims was minor, the later part of clause (b) of sub-Sec. (1) of Sec. 18, may not operate. At best, the order would operate for the period of one year. 18. In the aforesaid view of the matter, the impugned order of the closure of the subject premises, without providing an opportunity of hearing to the Petitioner, does not appear to be legally sustainable. Hence, the Petition deserves to be allowed. Thus, the following order : : ORDER : (i) The Petition stands allowed. (ii) The direction for clousre of the subject premises i.e. Room No.17, Pandu Maharaj Chawl, Sukhalaji Street, Kamathipura, Nagpada, Mumbai, stands quashed and set aside. (iii) Resultantly, the jurisdictional police shall deseal the aforesaid premises i.e. Room No.17, Pandu Maharaj Chawl, Sukhalaji Street, Kamathipura, Nagpada, Mumbai. Rule is made absolute in the aforesaid terms.