Magistrate failed to comply with requirements under Section 18 Immoral Traffic (Prevention) Act and the principles of natural justice
In Sunil Kumar Mishra v. State of Bihar (2024), Patna High Court's Justice Bibek Chaudhuri passed a judgement ordering that the building on which a hotel was run must be released in favour of Sunil Kumar Shukla, the petitioner on giving an undertaking that the said building would not be used in future as hotel and that the building would not be used for immoral purpose in future. Such undertaking shall have to be filed before the learned Sub-Divisional Magistrate, Hajipur at Vaishali. The Court observed that subject to the filing of such undertaking, the building may be released in favour of the petitioner. The entire exercise shall be done within three weeks from the date of this order.
The petitioner has approached this Court under Article 226 of the Constitution of India for issuance of a writ of certiorari calling for the records and directing the respondents to release the hotel/hotel building that was seized and sealed on the basis of an allegation of commission of offence under Sections 3/4/5/7/9 of the Immoral Traffic (Prevention) Act, 1956.
Section 3 of the Act deals with punishment for keeping a brothel or allowing premises to be used as a brothel. Section 2 (a) of the Act defines brothel. "Brothel" includes any house, room, conveyance or place, or any portion of any house, room, conveyance or place, which is used for purposes of sexual exploitation or abuse for the gain of another person or for the mutual gain of two or more prostitutes.
Section 3 reads: (1) Any person who keeps or manages, or acts or assists in the keeping or management of, a brothel shall be punishable on first conviction with rigorous imprisonment for a term of not less than two years and which may extend to three years and also with fine which may extend to ten thousand rupees and in the event of a second or subsequent conviction, with rigorous imprisonment for a term which shall not be less than three years and which may extend to seven years and shall also be liable to fine which may extend to two lakh rupees (2) a any person who,—(a) being the tenant, lessee, occupier or person in charge of any premises, uses, or knowingly allows any other person to use, such premises or any part thereof as a brothel, or (b) being the owner, lessor or landlord of any premises or the agent of such owner, lessor or landlord, lets the same or any part thereof with the knowledge that the same or any part thereof is intended to be used as a brothel, or is wilfully a party to the use of such premises or any part thereof as a brothel, shall be punishable on first conviction with imprisonment for a term which may extend to two years and with fine which fine which may extend to two thousand rupees and in the event of a second or subsequent conviction, with rigorous imprisonment for a term which may extend to five years and also with fine. (2-A) Any person referred to in clause (a) or clause (b) of that sub-section, is knowingly allowing the premises or any part thereof to be used as a brothel or, as the case may be, has knowledge that the premises or any part thereof are being used as a brothel, if,—(a) a report is published in a newspaper having circulation in the area in which such person resides to the effect that the premises or any part thereof have been found to be used for prostitution as a result of a search made under this Act; or (b) a copy of the list of all things found during the search referred to in clause (a) is given to such person. (3) Notwithstanding any thing contained in any other law for the time being in force, on conviction of any person referred to in clause (a) or clause (d) of sub-section (2) of any offence under that sub-section in respect of any premises or any part thereof, any lease or agreement under which such premises have been leased out or held or occupied at the time of the commission of the offence, shall become void and inoperative with effect from the date of the said conviction.
Section 4 deals with punishment for living on the earnings of prostitution. It reads: (1) Any person over the age of eighteen years who knowingly lives, wholly or in part, on the earnings of the prostitution of any other person shall be punishable with imprisonment for a term which may extend to two years, or with fine which may extend to one thousand rupees, or with both, and where such earnings relate to the prostitution of a child, shall be punishable with imprisonment for a term of not less than seven years and not more than ten years. (2) Where any person over the age of eighteen years is proved,— (a) to be living with,or to be habitually in the company of, a prostitute; or (b) to have exercised control, direction or influence over the movements of a prostitute in such a manner as to show that such person is aiding abetting or compelling her prostitution; or (c)to be acting as a tout or pimp on behalf of a prostitute, it shall be presumed, until the contrary is proved, that such person is knowingly living on the earnings of prostitution of another person within the meaning of sub-section (1).
Section 5 deals with procuring, inducing or taking person for the sake of prostitution. It reads: (1) Any person who—(a) procures or attempts to procure a person whether with or without his/her consent, for the purpose of prostitution; or (b) induces a person to go from any place, with the intent that he/she may for the purpose of prostitution become the inmate of, or frequent, a brothel; or (c) takes or attempts to take a person or causes a person to be taken, from one place to another with a view to his/her carrying on, or being brought up to carry on prostitution ; or (d) causes or induces a person to carry on prostitution; shall be punishable on conviction with rigorous imprisonment for a term of not less than three years and not more than seven years and also with fine which may extend to two thousand rupees, and if any offence under this sub-section is committed against the will of any person, the punishment of imprisonment for a term of seven years shall extend to imprisonment for a term of fourteen years: Provided that if the person in respect of whom an offence committed under this subsection, is a child, the punishment provided under this sub-section shall extend to rigorous imprisonment for a term of not less than seven years but may extend to life. (3) An offence under this section shall be triable,—(a) in the place from which a person is procured, induced to go, taken or caused to be taken or from which an attempt to procure or taken such persons made; or (b) in the place to which she may have gone as a result of the inducement or to which he/she is taken or caused to be taken or an attempt to take him/her is made. 5A. Whoever recruits, transports, transfers, harbours, or receives a person forthe purpose of prostitution by means of,—(a) threat or use of force or coercion, abduction, fraud, deception; or (b) abuse of power or a position of vulnerability; or (c) giving or receiving of payments or benefits to achieve the consent of such person having control over another person, commits the offence of trafficking in persons. Explanation.—Where any person recruits, transports, transfers, harbours or receives a person for the purposes of prostitution, such person shall, until the contrary is proved, be presumed to have recruited, transported, transferred, harboured or received the person with the intent that the person shall be used for the purpose of prostitution. 5B. (1) Any person who commits trafficking in persons shall be punishable on first conviction with rigorous imprisonment for a term which shall not be less than seven years and in the event of a second or subsequent conviction with imprisonment for life. (2) Any person who attempts to commit, or abets trafficking in persons shall also be deemed to have committed such trafficking in persons and shall be punishable with the punishment hereinbefore described. 5C. Any person who visits or is found in a brothel for the purpose of sexual exploitation of any victim of trafficking in persons shall on first conviction be punishable with imprisonment for a term which may extend to three months or with fine which may extend to twenty thousand rupees or with both and in the event of a second or subsequent conviction with imprisonment for a term which may extend to six months and shall also be liable to fine which may extend to fifty thousand rupees.
Section 7 deals with prostitution in or in the vicinity of public place. It reads: (1) Any person who carries on prostitution and the person with whom such prostitution is carried on, in any premises: (a) which are within the area or areas, notified under sub-section (3), or (b) which are within a distance of two hundred meters of any place of public religious worship, educational institution, hotel, hospital, nursing home or such other public place of any kind as may be notified in this behalf by the Commissioner of Police or Magistrate in the manner prescribed, shall be punishable with imprisonment for a term which may extend to three months. (1-A) Where an offence committed under sub-section (1) is in respect of a child, the person committing the offence shall be punishable with imprisonment of either description for a term which not be less than seven years but which may be for life or for a term which may extend to ten years and shall also be liable to fine: Provided that the Court may, for adequate and special reasons to be mentioned in the judgment, impose a sentence of imprisonment for a term of less than seven years. (2) Any person who: (a) being the keeper of any public place knowingly permits prostitutes for purposes of their trade to resort to or remain in such place; or (b) being the tenant, lessee, occupier or person in charge of any premises referred to in sub-section (1) knowingly permits the same or any part thereof to be used for prostitution; or (c) being the owner, lessor or landlord of any premises referred to in sub-section (1), or the agent of such owner, lessor or landlord, lets the same or any part thereof with the knowledge that the same or any part thereof may be used for prostitution, or is wilfully a party to such use shall be punishable on first conviction with imprisonment for a term which may extend to three months, or with fine which may extend to two hundred rupees, or with both, and in the event of a second or subsequent conviction with imprisonment for a term which may extend to six months and also with fine, which may extend to two hundred rupees, and if the public place or premises happen to be a hotel, the licence for carrying on the business of such hotel under any law for the time being in force shall also be liable to be suspended for a period of not less than three months but which may extend to one year: Provided that if an offence committed under this sub-section is in respect of a child in a hotel, such licence shall also be liable to be cancelled. Explanation.—For the purposes of this sub-section, “hotel” shall have the meaning as in clause (6) of Section 2 of the Hotel-Receipts Tax Act, 1980 (54 of 1980). (3) The State Government may, having regard to the kinds of persons frequenting any area or areas in the State, the nature and the density of population therein and other relevant considerations, by notification in the official Gazette, direct that the prostitution shall not be carried on in such area or areas as may be specified in the notification. (4) Where the notification is issued under Sub-section (3) in respect of any area or areas, the State Government shall define the limits of such area or areas in the notification with reasonable certainty. (5) No such notification shall be issued so as to have effect from a date earlier than the expiry of a period of ninety days after the date on which it is issued.
Section 9 of the Act deals with "Seduction of a person in custody". It reads: "Any person who having the custody, charge or care of or in a position of authority over any person causes or aids or abets the seduction for prostitution of that shall be punishable on conviction with imprisonment of either description for a term which shall not be less than seven years but which may be for life or for a term which may extend to ten years and shall also be liable to fine: Provided that the court may, for adequate and special reasons to be mentioned in the judgment, impose a sentence of imprisonment for a term of less than seven years."
The counsel of Sunil Kumar Shukla, the petitioner submitted that petitioner is the owner of the piece and parcel of land situated at Vaishali along with structure thereon. The petitioner inducted one Amit Kumar as a tenant in respect of the said building to run residential hotel (Awasiya Hotel) in the said building. The tenancy was granted for 11 months. It is also on record that the Amit Kumar used to run a hotel business under the name and style of Chandra Hotel at Hajipur, in the District of Vaishali.
A raid conducted on June 27, 2022 by the Officer-in-charge of Mahila P.S. and other Officers and the members of the force, it was found that the said hotel was being run for the purpose of immoral trafficking and accordingly Hajipur (Town) P.S. Case No. 482 of 2022, under Sections 114/290/370/509/354/34 of the I.P.C. and Sections 3/4/5/7/9 of the Immoral Traffic (Prevention) Act, 1956 was registered against the apprehended persons as well as the Owner/Manager of the said hotel namely Amit Kumar.
The judgement of the High Court records that Sunil Kumar Shukla being the owner of the land and structure made an application before the Sub-divisional Magistrate, Hajipur for release of the said structure in favour of him on the ground that he did not run immoral trafficking in the said hotel. He was not associated with the hotel business. The house was transferred on rent to one Amit Kumar for 11 months and the said period was over. But the Magistrate refused to release the building in favour of Sunil Kumar Shukla, the petitioner.
Shukla assailed the said order in revision before the Sessions Judge, Hajipur at Vaishali. The Sessions Judge dismissed the said revision on the ground that the same was not maintainable.
It was in this backdrop that the writ petition was filed in the High Court. Shukla's counsel submitted that the Investigating Officer already submitted charge-sheet under Sections 114/290/370/509/354/34 of the I.P.C. and Sections 3/4/5/7/9 of the Immoral Traffic (Prevention) Act, 1956 against one Raju Kumar, Niraj Kumar, Rahul Kumar, Raunak Kumar, Ritik Roushan and Amit Kumar. Amit Kumar is qualified with the words as Owner-cum-Manager of the hotel. Therefore, it is submitted by the petitioner's counsel that charge-sheet has not been filed against Sunil Kumar Shukla and he is entitled to get back his property. He was absolutely unaware about the fact that Amit Kumar allegedly run the hotel business for immoral purpose.
The High Court's judgement refers to provisions of the Immoral Traffic (Prevention) Act, 1956. Section 18 (1) reads: “18. Closure of brothel and eviction of offender from the premises. (1)A magistrate may, on receipt of information from the police or otherwise, that any house, room, place or any portion thereof with a distance of two hundred yards of any public place referred to in sub-section (1) of section 7, is being run or used as a brothel by any person, or is being used by prostitutes for carrying on their trade, issue notice on the owner, lessor or landlord of such house, room, place or portion or the agent of the owner, lessor or landlord or on the tenant, lessee, occupier of, or any other person in charge of such house, room, place, or portion, to show cause within seven days of the receipt of the notice why the same should not be attached for improper user thereof; and if, after hearing the person concerned, the magistrate is satisfied that the house, room, place, or portion is being used as a brothel or for carrying on prostitution, then the magistrate may pass orders- (a) directing eviction of the occupier within seven days of the passing of the order from the house, room, place, or portion; (b) directing that before letting it out during the period of one year immediately after the passing of the order, the owner, lessor or landlord or the agent of the owner, lessor or landlord shall obtain the previous approval of the magistrate: Provided that, if the magistrate finds that the owner, lessor or landlord as well as the agent of the owner, lessor or landlord, was innocent of the improper user of the house, room, place or portion, he may cause the same to be restored to the owner, lessor or landlord, or the agent of the owner, lessor or landlord, with a direction that the house, room, place or portion shall not be leased out, or otherwise given possession of, to or for the benefit of the person who was allowing the improper user therein.”
After referring to the relevant provisions of the Immoral Traffic (Prevention) Act, the Court observed: "It is on record that no action under Section 18 has been taken as yet by the learned Magistrate." It emerges that the Magistrate did not comply with the relevant provisions of the law and the principles of natural justice. As a consequence, Justice Bibek Chaudhuri passed a judgement for release of Vaishali hotel seized under Immoral Traffic (Prevention) Act.
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