Munshi Mian vs Emperor

This is a reference by the Sessions Judge of Monghyr recom mending that the order of the Sub- Divisional Magistrate of Monghyr imposing a fine of ten rupees upon one Munshi Mian u/s 2 of the Bengal Disorderly Houses Act, 1906, be set aside, and also the further order of daily fine of five rupees if the prostitutes remained in the house of Munshi Mian after the 2nd September.

Certain persons of Lakhisarai supported by the Sub-Inspector of Police of that place petitioned the Sub Divisional Magistrate in February, 1927, that the petitioner was the owner of a house which was used by prostitutes to the annoyance of the res pectable inhabitants of the neighborhood, Sub-Inspector adding that the house was in the vicinity of an educational institution. The petitioner was summoned u/s 2 of the Bengal Disorderly Houses Act; he appeared and asked for time to remove the prostitutes from the house. Time was allowed till the 4th March with a threat that he would be fined twenty rupees daily if he failed by that date to comply with the order to remove them. Subse quently the Sub-Divisional Magistrate received a report that the prostitutes had been removed, whereupon he noted "No further action is necessary File". An application was, however, made to him in August in continuation of the petition filed in February that he should take steps to remove the prostitutes who had returned to the house and were a nuisance to the respectable inhabitants of the vicinity. The Magistrate thereupon issued notice to the petitioner to show cause why he should not be fined for keeping prostitutes in his house in defiance of the previous order to remove them. The petitioner appeared and denied that the house was occupied by "harlots", whereupon the Magistrate directed an Honorary Magistrate of Lakhisarai to hold a local inquiry and report whether the prostitutes were living in the house or not. On the 24th August the Honorary Magistrate reported that he found the house locked up and that the petitioner told him that on the receipt of the Magistrate''s order he had turned out the prostitutes and the house was vacant, and that on Ist Jeth be had let out the house to one Nairn-ud-din who sublet it to two men who were keeping these prostitutes as their wives. Upon receipt of this report the Magistrate passed the order now under examination.

It is manifest that the order is illegal and must be set aside. In the first place the procedure followed by the Magistrate is not such as is contemplated by law. Section 2(2) of the Bengal Disorderly Houses Act creates an offence within the definition of Section 4(o) of the Code of Criminal Procedure and u/s 5 of that Code the offence is triable according to the provisions of that Code since there is nothing in the Act itself which regulates the manner of trying the offence. The trial must, therefore, be held in accordance with Section 244 of the Code. It is not suggested that there has been any compliance with that provision. The Magistrate has in effect found the petitioner guilty upon the report of an Honorary Magistrate as to what the petitioner had told him. Then it is far from clear that the petitioner admitted that the house was used as a brothel or for the purpose of habitual prostitution or was used by disorderly persons since if a prostitute lives with a man en famille, she does not necessarily come within the category of disorderly persons. The facts obviously require investigation.

Then again there is no proof that the Act has been extended under the provisions of Section 1(3) to Lakhisarai which is not a Municipality.

Accordingly the reference is accepted and the order of the Sub Divisional Magistrate under examination is set aside and the fine, if paid, will be refunded. If it is desired to convict and punish the petitioner u/s 2(2), that can only be done upon regular trial and on proof of the ingredients of an offence under that provision of law.