The requirement of notice and opportunity of hearing before ordering closure of a brothel under Sec. 18 of the Immoral Traffic (Prevention) Act, 1956.

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. 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