JUDGMENT

Rajeev Ranjan Prasad, J.

This writ application has been preferred invoking the extraordinary writ jurisdiction of this Court to quash the order as contained in memo no.404 dated 31.10.2019 passed by the Sub-Divisional Magistrate, Sheohar (respondent no.3) as contained in Annexure-5 to the writ application. The petitioner has also prayed for quashing of the order dated 28.06.2020 by which the 'Family Hotel and Restaurant' belonging to the petitioner has been sealed by the Executive Magistrate and the officer in-charge of Sheohar police station in compliance of the order passed by respondent no.3.

Brief Facts of the Case

2. It is the case of the petitioner that he was running his hotel business in the name and style 'Family Hotel and Restaurant'. It is a small eight room hotel and is registered under the Bihar Shops and Establishment Act. The hotel is said to be the only source of livelihood of the petitioner.

3. It is stated that on 17.10.2019 the local police conducted a raid in the hotel and arrested one female and a male and also the petitioner on the allegation that prostitution was going on in the hotel. One F.I.R. (Annexure-2) has been lodged. On going through the F.I.R. it would appear that the female allegedly disclosed the informant police officer that at the instance of the petitioner she had agreed to establish physical relationship with the customer of the hotel on payment of Rs. 1000/-. On the said date also she was called on her mobile at 6.00 am by one staff of the hotel and on his call she had gone to room no.4. She allegedly accepted that she had established physical relationship with the customer.

4. It is the further case of the petitioner that on 18.10.2019 the said female/lady was presented before the learned Magistrate who recorded her statement under Section 164 Cr.P.C. The lady is said to have stated that she was an employee of the hotel and was engaged in cleaning work on payment of Rs. 1200/- per month.

5. The petitioner states that on 21.10.2019 he received a notice from the office of respondent no.3 to show cause as to why his premises be not sealed. A copy of the notice has been enclosed as Annexure-4 to the writ application from which it appears that the said notice has been issued by the respondent no.3 proposing to exercise his power under Section 18 of the Immoral Traffic (Prevention) Act, 1956 (hereinafter referred to as 'the Act of 1956'). Petitioner submitted his reply but respondent no.3 passed the impugned order (Annexure-5) by which the petitioner has been asked to vacate the premises within seven days and directed the Superintendent of Police, Sheohar (respondent no.4) to seal the premises and submit a report.

6. It is the submission of the petitioner that he thought that there was no substance in the matter and for that reason he kept silence, but suddenly on 28.06.2020 the police sealed the premises of the petitioner. A copy of the sealing report dated 28.06.2020 has been enclosed as Annexure-6 to the writ application.

7. Mr. Ansul, learned counsel for the petitioner has submitted that the Sub-Divisional Magistrate could not have proceeded under Section 18 (1) of the Act of 1956 during pendency of the prosecution under Sections 3, 4, 5 and 7 of the Act of 1956. It is his submission, thus that the impugned actions are violative of right to life and the petitioner is being deprived of his fundamental right to earn his livelihood. According to him, the impugned order is fit to be interfered with on the touchstone of the Article 19(1)(g) and 21 of the Constitution of India.

8. In course of argument, Mr. Ansul has relied upon a judgment of the Hon'ble Apex Court in the case of Shri A.C. Aggrawal & Ors. Vs. Mst. Ramkali, AIR 1968 Page 1 (hereinafter referred to as 'Ramkali-2). He has submitted that because the impugned order has been passed by respondent no.3 before conclusion of trial of the main case, the respondent no.3 has committed a jurisdictional error.

9. In opposition Mr. Prabhu Naray