Ram Kali vs A.C. Agarwal and Another

D.K. Mahajan, J.

This order must be read in continuation of out order dated the 23rd July, 1963. By this order, Criminal Writ Petitions Nos. 3-D, 4-D, 5-D, 6-D, 7-D, 10-D and 12-D of 1962 will stand dispose of.

In order to determine the vires of Section 18 of the Suppression of Immoral Traffic in Women and Girls Act, 1956 (No. 104 of 1956) -- hereinafter referred to as the Act -- we issued notice to the Attorney General of India Shri S. V Gupta, Additional Solicitor General, appeared on behalf of the Attorney General and addressed us on the question of the vires of Section18 of the Act.

The argument advanced by the teamed counsel is that Section 18 of the Act is directed against premises and not persons and therefore, it cover a separate field than that which is covered by Section 7 of the Act. It was also maintained that it action taken u/s 18 in the first instance it does not debar the Magistrate from taking action u/s 7. It was however, conceded, and rightly, that there is no provision in the Act which makes it incumbent upon the Magistrate having taken action u/s 18 to necessarily take action u/s 7. He may or may not take action u/s 7, just as Magistrate who takes action u/s 7 may take action u/s 18(2), but no valid argument was addressed to us. which in any way would furnish an answer to the problem that confronted us namely, that the discretion is left with the Magistrate for proceed, in the case of persons similarly situate u/s 7, while in the case of other persons similarly situate u/s 18

There is no criteria laid down in the Act nor was any attempt made by the learned Counsel to indicate to us. from the scheme of the Act any criteria which could be said to be a reasonable criteria for picking and choosing one out of the number of persons similarly situate for being proceeded against u/s 7 and others so similarly situate for being proceeded against u/s 18 It was admitted by the learned Counsel that to bring home the charge under both Sections 7 and 18, the same bundle of facts has to be proved that is, it has first got to be established that the place which is sought to be attached u/s 18 is within 200 yards of a public place and is being run or used as a brothel by any person or is being used by prostitutes for carrying on their trade.

That is what has also to be proved in Section 7. The learned Counsel maintained that the proceeding u/s 18 are quasi-judicial in nature and the power to proceed having been entrusted to a Magistrate who is conversant with judicial procedure it is expected that he will follow the rules of natural justice and only come to a finding on proper evidence and not otherwise But that does not solve the problem. The problem is: Why proceedings are sought to be taken against one person u/s 7 and against another u/s 18 when both the persons are identically situate It cannot be overlooked that u/s 7 the the mater has to be tried on evidence which has to be judged in the light of rules of evidence laid down in the Indian Evidence Act. An appeal is provided against conviction. It is no doubt true that no appeal is provided against the order passed u/s 18 and that such a non -provision will not in any Way affect the vires of that1 provision because the consequences which ensue u/s 7 are totally different from those ensuing u/s 18 when the proceedings are taken under either of the store said provisions. That is so, but there is no rational basis for making the selection for proceeding against two persons similarly situate -- one u/s 7 and the other u/s 18 of the Act.

Therefore, the choice must inevitably lead to invidious discrimination which discrimination cannot be explained on any rational basis. It is well known that the Magistrates enjoy dual capacity. In one capacity they are the parts of the executive machinery while in the other they act as Courts and try offences under the Code of Criminal Procedure in judicial capacity. This distinction seems to have been maintained in the present Act where the offences under the present Act are triable by Courts and proceedings u/s 18 are to the resorted to by a Magistrate and it, therefore cannot be said that the Magistrate when he is acting u/s 18 is acting as a Court. 11 that were so, in Section 18 the word Court would have been mentioned and not Magistrate the offences under the Act have been made cognizable u/s 14 of the Act Section 29 of the Code of Criminal Procedure, which is in these terms:

29 (1) Subject to the other provisions of this Code, any offence under any other law shall, when any Court is mentioned in this behalf in such law be tried by such Court.

When no Court is so mentioned, it may be tried by the High Court or (subject as aforesaid) by any Court constituted under this Code by which such offence is shown in the eighth column of the second schedule to be triable" provides for trial of offences under other laws Section 190 of the Code of Criminal Procedure prescribes that any Presidency Magistrate, District Magistrate of Sub-Divisional Magistrate, and any other Magistrate specially empowered in this behalf may take cognizance of any offence upon receiving a complaint of facts which constitute such offence upon a report in writing of facts made by any Police-officer, or upon information received from any person other than a police-officer, or upon his own knowledge or suspicion, that such offence has been committed. Sub-Section(2) of Section 190 of the Code of Criminal Procedure provides that the State Government, or the District Magistrate subject to the general or special orders of the State Government, may empower any Magistrate to take cognizance under Sub-Section (1), Clause (a) or Clause (b) of offences for which he may try or commit for trial. Sub-section (3) of this Section provides similarly for trial or for commitment for trial of offences taken cognizance of under Clause (c) of Sub-section (1) of Section 190. Section 191 of the Code provides for the transfer of case where cognizance has been taken by the Magistrate under Sub-Section (1) Clause (c) of Section 190.

Therefore, it will be clear that when the facts are reported or come to the knowledge of the Magistrate, which facts are common both to Section 7 and Section 18 of the Act, the Magistrate can take action either u/s 7 or u/s 18 of the Act. It is not made incumbent upon him to take action u/s 7 first. In one mariner. Section 18 is complementary to Section 7, but that is only where action is taken u/s 7 in the first instance but where action is taken u/s 18 in the first instance then the Magistrate can, if he is so minded refuse to take action u/s 7. The only difference that I can see why action should be taken under one and not the other provision is that the standard of proof required u/s 7 is the standard which the Courts need when any criminal offence is tried whereas the standard of proof required u/s 18 would not be that standard of proof, or may tall short of that standard of proof. Banning this difference, there seems to be no different why the cases of persons who would on the given set of facts be guilty of offences u/s 7 any liable to be proceeded against u/s 18 should be differently treated. To this extent there seem to be no escape from the conclusion that where recourse is merely had to Section 18 and go by is given to Section 7, it has been done purely on a basis of in various discrimination and not otherwise.

That being so, it must be held that whenever action is taken u/s 18 independently of Section 7 it would offend Article 14 of the Constitution and to that extent Section 18 would be ultra vires the Constitution. But Section 18 must stay on the statute book because action can legitimately be taken under this provision after proceedings have been concluded u/s 7 of the Act for in that matter it is complementary to Section 7. and also that proceeding can simultaneously be started u/s 7 and u/s 18. If the latter course is adopted there would be no scope for the argument based on discrimination. That argument is only available in one contingency that is. where action is taken only u/s 18 and Section 7 is given a go-by. In the light of these observations, these petitions must succeed and the notices issued u/s 18 and the orders passed in consequence thereof must be struck down on the ground that recourse cannot be had to Section 18 divorced from Section 7 of the Act on the ground that such a procedure would offend the provisions of Article 14 of the Constitution being discriminatory vis-a-vis persons similarly situate. These petitions are allowed and the impugned orders are quashed.

Shamsher Bahadur, J.

I agree.