1. Challenge to the constitutional validity of Section 18, Suppression of Immoral Traffic in Women and Girls Act, 1956, concerning the attachment of premises used as brothels. (Para 1 , 2 )
Back
Next 
1967 Supreme(SC) 220
SUPREME COURT OF INDIA
N. WANCHOO, C.J.I., R.S. BACHAWAT, V. RAMASWAMI, G.K. MITTER AND K.S. HEGDE, JJ.
A. C. Aggarwal, Sub-Divisional Magistrate, Delhi and another (In all the Appeals), Appellants
Versus
Mst. Ram Kali, etc., Respondents.
Criminal Appeals Nos. 76 to 82 of 1965. D/- 16-8-1967
Advocates Appeared
Mr. B. R. L. Iyengar, Senior Advocate ( Mr. R. N. Sachthey, Advocate, with him), for Appellants (In all the Appeals); M/s. G. S. Bawa and Harbans Singh, Advocates, for Respondents (In Cr. As. Nos. 76 to 81 of 1965).
Advocates:
B.R.L.Iyengar, G.S.B.BAVA, HARBANS SINGH, R.N.SACH
B.R.L.Iyengar, G.S.B.BAVA, HARBANS SINGH, R.N.SACH
Section 18 of the Act is a valid preventive measure. However, if facts disclose a cognizable offence under Sections 3 or 7, the Magistrate must first take cognizance of the penal offence before initiating preventive proceedings under Section 18 to avoid violating Article 14.
Headnote:(A) Suppression of Immoral Traffic in Women and Girls Act, 1956 - Sections 3, 7 and 18 - Constitution of India - Article 14 - Validity of Section 18 - Section 18 is a preventive measure intended to minimize the chance of brothels being run or prostitution being carried on in premises near public places, whereas Sections 3 and 7 provide for punishment of offences - The classification between persons prosecuted under penal provisions and those proceeded against under preventive measures is based on a reasonable relationship with the object sought to be achieved and is not discriminatory. (Paras 10, 11)
(B) Criminal Procedure Code - Section 190(1)(b) - Cognizance of offences - Where information discloses a cognizable offence, the Magistrate is bound to take cognizance of the same - The Magistrate cannot ignore the cognizable offence and merely have recourse to preventive measures under Section 18 to deprive parties of a regular trial and right of appeal. (Para 12)
Facts of the case:
Notices were issued to several parties to show cause why premises occupied by them should not be attached under Section 18(1) of the Act, based on reports that the premises were being used as brothels. The parties challenged the validity of Section 18 under Article 14 of the Constitution, contending that it allows for attachment without prior prosecution under Section 3 or 7, thereby creating an arbitrary discrimination between similarly situated persons.
Findings of Court:
Section 18 is not ultra vires Article 14 as it serves a preventive purpose distinct from the penal purpose of Sections 3 and 7. However, the proceedings in the present case were not in accordance with law because the Magistrate proceeded under Section 18 without first taking action under Section 3, despite the reports disclosing a cognizable offence.
Issues: Whether Section 18 of the Act is ultra vires Article 14 of the Constitution and whether a Magistrate can initiate preventive proceedings under Section 18 without first taking cognizance of a cognizable offence disclosed under Section 3 or 7.
Ratio Decidendi: The court held that while Section 18 is a valid preventive measure and not discriminatory, a Magistrate must first proceed under the penal provisions of Section 3 or 7 if the facts disclose a cognizable offence. The duty to take cognizance of a cognizable offence is mandatory, and bypassing this to use summary preventive proceedings would be violative of Article 14.
Result: Appeals dismissed.
Legal Category Hierarchy
- constitutional law
- crime and sentencing
- administrative law
-
practice and procedure
-
criminal procedure
- cognizance of offences (Para 12)
-
criminal procedure
Table of Contents
2. Contention that Section 18 is ultra vires Article 14 for allowing arbitrary choice between summary preventive action and regular penal prosecution for similar facts. (Para 3 , 4 , 6 , 7 )
3. Distinction between penal provisions targeting persons and preventive measures targeting premises; reasonable classification exists based on the different objectives and evidentiary requirements of the sections. (Para 5 , 10 , 11 )
4. Section 18 is constitutionally valid as a preventive measure, but Magistrates must first take cognizance of cognizable offences under Section 3 or 7 before proceeding under Section 18. (Para 11 , 12 )
5. Appeals dismissed; proceedings under Section 18 quashed for failure to first initiate action under Section 3, without prejudice to fresh legal proceedings. (Para 13 , 14 )
6. Is Section 18 of the Suppression of Immoral Traffic in Women and Girls Act, 1956, ultra vires Article 14?
No. Section 18 is a preventive measure intended to minimize brothels near public places, whereas Sections 3 and 7 are penal. This constitutes a reasonable classification based on the distinct objectives of the provisions. (Para 10 , 11 )
7. What is the difference between proceedings under Section 18 and prosecutions under Sections 3 or 7?
Sections 3 and 7 are penal prosecutions requiring proof of intention or knowledge and providing a regular trial. Section 18 is a summary preventive proceeding targeting the premises rather than the person. (Para 10 , 11 )
8. Must a Magistrate initiate penal proceedings before taking preventive action under Section 18?
Yes. If the information discloses a cognizable offence under Section 3 or 7, the Magistrate must first proceed under those penal provisions before taking action under Section 18. (Para 12 )
9. What is the standard for reasonable classification under Article 14?
Classification is permitted if it is based on a real and substantial distinction that bears a reasonable and just relation to the objective the law seeks to achieve. (Para 5 )
Judgement
HEGDE, J.: These are companion appeals. They were brought to this Court on the strength of the certificates issued by the High Court of Punjab. The only question that falls for decision in these appeals is whether S. 18 of the Suppression of Immoral Traffic in Women and Girls Act, 1956 (hereinafter referred to as the Act) is ultra vires Art. 14 of the Constitution. The attack on the validity of that section on the basis of Art. 19(1) (d), (e) and (f) was not pressed at the time of the hearing. Hence there is no need to examine the said plea.
2. The first appellant in these appeals Shri A. C. Aggarwal, Sub-Divisional Magistrate, Delhi, issued notices to the respondents in these appeals-except that in criminal appeal No. 82 of 1965-to show cause why the premises occupied by them should not be attached under S. 18 (1) of the Act. Those notices were issued on the basis of police reports that those premises were being used as brothels. In reply amongst other pleas those respondents challenged the validity of S. 18. They moved the learned Magistrate to refer the question as to the validity of S. 18 to the High Court under S. 432 of the Criminal Procedure Code of 1898. As the learned Magistrate rejected that prayer, they moved the High Court under Art. 226 of the Constitution in Criminal Writs Nos. 3D to 7D and 10D of l962, challenging the vires of S. 18. Respondent in Criminal Appeal No. 82 of 1962 claims to be the tenant in flat No. 54 on the first floor of Japan Building, which premises had been attached in the proceedings against one Mst. Ambar under S. 18 (l). His case was that he had permitted the said Mst. Ambar to use those premises temporarily but she had vacated the same and, therefore, he was entitled to their possession, as according to him he was unaware of the fact that Mst. Ambar was using the premises in question for an improper purpose. But the learned Magistrate rejected his application holding that (a) there was no satisfactory proof of the fact that he was a tenant in those premises, and (b) he was aware of the unlawful use to which the premises in question were being put. Aggrieved by that decision, he moved the High Court of Punjab in Cr. Writ No: 12-D/62 to quash the order of the learned Magistrate on the ground the, S. 18 was ultra vires of Art. 14.
3. The aforementioned writ petitions were heard by Mahajan and Shamsher Bahadur, JJ. and by a common order, dated September 9, 1963, they allowed those petitions and quashed the notices issued to the respondents in criminal appeals Nos. 76 to 81 of 1965. They also quashed the order refusing to raise the attachment in respect of flat No. 54 of which Sri Chand the respondent in Criminal Appeal No. 82/65 claimed to be the tenant. The learned Judges held that "whenever action is taken under S. 18 independently of S. 7, it would offend Art. 14 of the Constitution and to that extent S. 18 would be ultra vires of the Constitution."
4. In the course of their order, dated 23rd July 1963, the learned Judges observed :
"The requirements for taking action under S. 18 or under S. 7 of the Act are identical. The Act leaves the choice of the action under one or the other provision to the executive in the case of persons similarly situate and thus can lead to discrimination without there being any rational basis for the same. The consequences of an action in one case are of an extremely penal nature whereas in the other case, that is, under S. 18 of comparatively inconsequential nature. The discrimination can come about where in the case of a number of prostitutes, who carry on their profession within two hundred yards of a public place, as defined in S. 7, the authorities may take action against some of them under S. 18 and against the others under S. 7. The fact that this can happen is not controverted by the learned counsel for the Delhi State. We also find no rationale behind this type of discrimination. The scheme of the Act also does not provide any key for such sort of
