Delhi High Court
Kamla vs The State & Ors. on 7 November, 2008
Author: Aruna Suresh
Bench: Aruna Suresh
Reportable
* HIGH COURT OF DELHI AT NEW DELHI
+ Crl. Rev. (P). 385/2006
Date of decision: 7th November, 2008
# KAMLA ..... Petitioner
! Through : Mr. Amar Nath Saini, Adv.
Versus
$ THE STATE & ORS. ..... Respondents
^ Through : Mr. O.P. Saxena, APP
Mr. S.K. Sharma, Adv. with
Mr. Dhruv Kumar, Adv.
for R 2 to 6.
%
CORAM:
HON'BLE MS. JUSTICE ARUNA SURESH
(1) Whether reporters of local paper may be
allowed to see the judgment?
(2) To be referred to the reporter or not? Yes
(3) Whether the judgment should be reported
in the Digest ? Yes
JUDGMENT
ARUNA SURESH, J.
1. FIR nos. 126/2001 and 128/2001 were lodged at Police Station Kamla Market against one Pratima, Crl.Rev.P.No.385/06 Page 1 of 17 Anita and Ansuia under Sections 342/363/368/372/373/376/506/323/109/34 Indian Penal Code (hereinafter referred to IPC) and Sections 3,4,5 and 6 of The Immoral Traffic (Prevention) Act, 1956 (hereinafter referred to as ITP Act) that a girl was brought at Kotha no. 50, G.B. Road, Delhi (hereinafter as the premises) 15 days prior and she was forced to prostitution. Case was registered and trial was held in the Sessions Court. Learned Additional Sessions Judge Sh. Chandra Shekhar vide judgment dated 7.10.2004 convicted Anita under Sections 3,4,5 and 6 of ITP Act and Sections 342/368/109/34 IPC for offence of running prostitution in the premises bearing kotha no. 50 GB Road, and acquitted Ansuia, whereas Pratima was declared proclaimed offender and vide sentence dated 12.10.2004 various sentences were inflicted for different offences on Anita.
2. While disposing of application filed by the SHO, in the order on sentence dated 12.10.2004, it was ordered by the Learned ASJ as follows: Crl.Rev.P.No.385/06 Page 2 of 17
"An application is moved by SHO through Niab Court under section 18(2) of ITP Act seeking direction of vacation of Kotha no. 50 GB Road, Delhi. Heard in view of this provision of Section 18(2) of ITP Act, I direct the occupier of Kotha no. 50, first floor, right side, GB Road, Delhi as per site plan Ex. PW 10/C to vacate the said kotha within 7 days of the order and SHO is directed to file the compliance report within two weeks of the order. Copy of the order be sent to SHO immediately for compliance."
3. An application was moved by respondent nos. 2 to 6 on 27.4.2006 and another application by Smt. Kamla/ petitioner on 2.3.2006 under section 18(1)(b) of ITP Act for desealing and for restoration of premises No. 50 GB Road Delhi before Learned ASJ Ms. Sujata Kohli. On 20.5.2006 the ASJ while allowing the application of respondent nos. 2 to 6 directed the SHO to deseal premises bearing Kotha no. 50, first floor, right side, GB Road and hand over the possession of the said premises to respondent nos. 2 to 6 with the condition that respondent nos. 2 to 6 would not lease out or otherwise give possession of the premises to or for the benefit of the person who was allowing Crl.Rev.P.No.385/06 Page 3 of 17 improper user therein. Application of Smt. Kamla was accordingly dismissed. Hence this petition has been filed by Kamla impugning the order dated 20.5.2006
4. It was submitted by the leaned counsel for the petitioner that she was inducted as a tenant in the premises by Late Sh. Raj Nath, the father of respondent nos. 2 to 6 on a monthly rent of Rs. 500/- by way of executing a rent agreement ( Kiraya Nama) from 1.3.1988 onwards for dancing purposes consisting of one big room on first floor of premises No. 5331, G.B. Road, Delhi (Kotha No. 50) and petitioner took physical possession of the premises and rent receipts were issued to the petitioner by late Sh. Raj Nath. It is further submitted by the petitioner's counsel that when FIR no. 127/2001 and 128/2001 was registered against Pratima, Anita and Ansuia, the petitioner had gone to her village whereas Ansuia was left by her for looking after the rented premises.
5. It is also urged by the learned counsel that Crl.Rev.P.No.385/06 Page 4 of 17 petitioner moved an application under section 18(2) ITP Act for desealing and for possession of the premises being lawful occupier in the court of learned ASJ and another set of similar application was filed by the respondent nos. 2 to 6 and the application was decided in favour of respondents and possession was handed over to the respondents, despite the fact that petitioner was lawful tenant which was also verified by the SHO, Kamla Market and under Section 18(2) ITP Act, a lawful lessor/tenant has right to claim possession of the premises and that not only the owner the lessor, tenant, occupier, landlord and their agents are also entitled to claim possession of the premises.
6. The order of the trial court is challenged basically on the ground that petitioner was the tenant in the premises inducted by father of the respondents and was lawful occupier of the same. Further, the learned ASJ has admitted the authenticity of the Will produced by the respondents without taking evidence on record and the learned ASJ failed to Crl.Rev.P.No.385/06 Page 5 of 17 appreciate the rent agreement and rent receipt filed by the petitioner. It is also urged that the learned ASJ failed to appreciate that if there was any dispute between the landlord and the tenant, it was a different issue having no relevance to the present claim of the petitioner while deciding the application under Section 18(2) ITP Act and he also failed to consider that the occupancy of the petitioner of the premises was in a lawful manner.
7. Thus, it is prayed that order dated 20.5.2006 passed By Ld. ASJ be set aside and possession of the premises be given to the petitioner.
8. At the very first instance I would highlight the underpinning for legislation of the Suppression of Immoral Traffic in Women and Girls Act (1956) (now ITP Act, 1986). In 1950 the Government of India ratified an International Convention for the Suppression of Immoral Traffic in Persons and of the Exploitation of the Prostitution of Others. Under Article 23 of the Convention, trafficking in human beings is prohibited and any contravention Crl.Rev.P.No.385/06 Page 6 of 17 of the prohibition is an offence punishable by law and under Article 35. Such a law had to be passed by the Parliament soon after the commencement of the Constitution to sting social conscience and to curb the spreading of disease of immoral traffic. Hence, Act of 1956 was enacted and enforced.
9. Section 18 is reproduced in extenso for lucidly analyzing the submissions of the petitioner :
"18. Closure of brothel and eviction of offenders 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 within a distance of two hundred metres 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 Crl.Rev.P.No.385/06 Page 7 of 17 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, or in a case where a child or minor has been found in such house, room, place or portion during a search under Section 15, during the period of three years, 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.
(2) A court convicting a person of any offence under Section 3 or Section 7 may pass orders under sub-section (1), without further Crl.Rev.P.No.385/06 Page 8 of 17 notice to such person to show cause as required in that sub- section.
(3) Orders passed by the magistrate or court under sub- section (1) or sub-section (2) shall not be subject to appeal and shall not be stayed or set aside by the order of any court, civil or criminal, and the said orders shall cease to have validity after the expiry of one year, or three years, as the case may be:
Provided that where a conviction under Section 3 or Section 7 is set aside in appeal on the ground that such house, room, place or any portion thereof is not being run or used as a brothel or is not being used by prostitutes for carrying on their trade, any order passed by the trial Court under sub-section (1) shall also be set aside.
(4) Notwithstanding anything contained in any other law for the time being in force, when a magistrate passes an order under sub-section (1), or a court passes an order under sub-section (2), any lease or agreement under which the house, room, place or portion is occupied at the time shall become void and inoperative.
(5) When an owner, lessor or landlord, or the agent of such owner, lessor or landlord fails to comply with a direction given under clause (b) of sub-section (1) he shall be punishable with fine which may extend to five hundred rupees or when he fails to comply with a direction under Crl.Rev.P.No.385/06 Page 9 of 17 the proviso to that sub-section, he shall be deemed to have committed an offence under clause (b) of sub-section (2) of Section 3 or clause (c) of sub-
section (2) of Section 7, as the case may be, and punished accordingly."
10. Section 18 provides for the closure of brothels and eviction of offenders from the premises, if such premises are within a distance of two hundred yards from a public place mentioned in sub-section 7(1) and are used or run as a brothel by any person or used by prostitutes for carrying on their trade. The Act was conceived to serve a public social purpose, viz to suppress immoral traffic in women and girls, to rescue fallen women and girls and to prevent deterioration in public morals. The Act clearly defines a "prostitute", and gives definite indications from which places prostitutes should be removed or in respect whereof their movements should be restricted. The object of the Act, as has already been noticed, is not only to suppress immoral traffic in women and girls, but also to improve public morals by removing prostitutes Crl.Rev.P.No.385/06 Page 10 of 17 from busy public places in the vicinity of religious and educational institutions. The differences between these two classes of prostitutes have a rational relation to the object sought to be achieved by the Act. Section 20, in order to prevent moral decadence in a busy locality, seeks to restrict the movements of the second category of prostitutes and to deport such of them as the peculiar methods of their operation in area may demand.
11. Under Section 18(1)(a) of the ITP Act Magistrate has power to pass orders directing eviction of the occupier within 7 days of the passing of the order from the house, place or a portion thereof. What is required under Section 18(1) is that a Magistrate on receipt of information from the police or otherwise that any house, room, place or any portion thereof is being used as a brothel by any person or is being used by prostitutes for carrying on their trade within a distance of two hundred metres of any public place, is required to issue notice to the owner, lessor or landlord of such Crl.Rev.P.No.385/06 Page 11 of 17 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 incharge of such house, room place, or portion, to show cause within seven days of the receipt of the notice as to why the room or place should not be attached for improper user thereof and after hearing the person concerned, if the magistrate is satisfied that the house, room place or portion was being used as brothel or for carrying on prostitution, he might pass orders directing eviction of the occupier. The Occupier though can be anyone.
12. Section 18(2) of the ITP Act becomes operative only when persons have been convicted of offences under Section 3 or Section 7 of the ITP Act and the place is found to be put to prostitutional use in a criminal trial. It is reasonable that if the purpose of extirpating the commercial vice from that venue were to be successful, the occupier must be expelled therefrom. Section 18(2) therefore, operates not merely on places within the offending distance of 200 yards but in all places where the Crl.Rev.P.No.385/06 Page 12 of 17 activity of prostitution has been conducted.
13. Sub-section 4 of Section 18 is non-absentee clause to Section 18. As per this, once a Magistrate passes an order under sub-section 1 or 2 any lease or agreement under which the house, room, place or portion is occupied at the time of the raid, would become void and inoperative. Sub-section 5 of this Section is a penalty clause which a Magistrate can invoke if owner, lessor or landlord, or the agent of such owner, lessor or landlord fails to comply with the directions given by the Magistrate under clause
(b) of sub-section (1).
14. There is no substance in the submission of the petitioner that Ld. ASJ failed to consider that she was a lawful occupier of the premises as a tenant and had a right under Section 18(2) of the ITP Act to claim possession.
15. In Chitan J. Vaswani v. State of W.B. (1975) 2 SCC 829 the Supreme Court observed as follows:
"10......it is plain therefore that the consequence of a conviction Crl.Rev.P.No.385/06 Page 13 of 17 under section 3 is the invalidation of the lease of the premises where the brothel is run. The logical consequence must be that the occupier must be thrown out of the prostitutional premises. This is achieved by exercise of power under Section 18(2)."
16. The learned ASJ in the impugned order considered the evidence placed on record by the petitioner seeking possession of the impugned premises on the basis of her title as an owner. Probably the issue of tenancy was never raised before the trial court. Be that as it may, learned ASJ rightly emphasised on the ownership aspect in its order while restoring the premises in favour of respondent Nos. 2 to 6 in view of the fact that petitioner had failed to place on record any document to prove her ownership of the impugned premises whereas respondent Nos. 2 to 6 established their ownership right on the basis of a Will executed by Sh. Raj Nath; owner of the impugned premises. Respondents No. 2 to 6 being his legal heirs have been rightly handed over the possession of the impugned property. The learned Crl.Rev.P.No.385/06 Page 14 of 17 ASJ was satisfied about the innocence of the respondents regarding improper usage of premises as Sh. Nirankar Nath Vidge, one of the respondents, was examined as prosecution witness by the State. Under the circumstances, the trial court rightly observed:
"17. Even so keeping the object of the act in view i.e. prevention of Immoral Traffic, use of premises for immoral activity like prosecution, it has to be seen as to whether the applicants have established their claim as owners of the premises and further their bonafide that they were not aware about the prostitution going on there and further that they can ensure that no such activity of prostitution shall be carried on or allowed to be carried on in future in the said premises and also that they shall not hand over the possession to any person without the previous permission or approval of the court.
18. Keeping in view the documents of ownership filed by the applicants Sh. Nirankar Nath Vidge etc. and the verification of their authenticity by the SHO concerned, the fact on record that Nirankar Nath Vidge was one of the prosecution witness in the main case supporting the prosecution Crl.Rev.P.No.385/06 Page 15 of 17 case both ownership as well as the bonafide intention of the applicants stand established for the time being. On the other hand there is no merit in the application of Smt. Kamla as she has failed to bring on record any material to show her ownership and also she seems to have been involved throughout and in knowledge of the illegal activity going on in the premises. Both ways there is no merit in her application."
17. The petitioner has challenged the impugned order on the grounds that while deciding the application, the trial court decided the validity of the Will and the title of respondent Nos. 2 to 6 on the basis of the said Will which according to her is not permissible in law. The trial court did not decide the genuineness of the Will but took into consideration the documents placed by respondent Nos. 2 to 6 including the Will executed by Raj Nath in their favour in respect of the impugned property in the light of perspective provisions contained in Section 18 of the ITP Act.
18. Consequently I do not find any infirmity or illegality in the order of the trial court which may need any Crl.Rev.P.No.385/06 Page 16 of 17 interference. Hence, petition is hereby dismissed.
19. Attested copy of the order be sent to the trial court.
ARUNA SURESH (JUDGE) November 07, 2008 jk Crl.Rev.P.No.385/06 Page 17 of 17