Orissa High Court
Sanjit Kumar Choudhury vs State Of Odisha And Another .... ... on 11 August, 2025
Author: Murahari Sri Raman
Bench: Murahari Sri Raman
IN THE HIGH COURT OF ORISSA AT CUTTACK
W.P.(Crl.) No. 34 of 2025
Sanjit Kumar Choudhury .... Petitioner
-Versus-
State of Odisha and another .... Opposite Parties
Advocates appeared in this case:
For Petitioner : Mr. Devashis Panda and
Mr. A. Mehta, Advocates
For Opposite Parties : Mr. Sanjay Rath,
Additional Standing Counsel
CORAM:
HON' BLE THE CHIEF JUSTICE
AND
HON'BLE MR. JUSTICE MURAHARI SRI RAMAN
JUDGMENT
---------------------------------------------------------------------------------
Date of Hearing and Judgment : 11th August, 2025
--------------------------------------------------------------------------------- HARISH TANDON, CJ.
"Children of the world are innocent, vulnerable and dependent. They are all curious, active and full of hope. Their life should be full of joy and peace, playing, learning and growing. Their future should be shaped in harmony and cooperation. Their childhood should mature, as they broaden their perspectives and gain new experience. Abandoning children, excluding good foundation of life for them, is a crime W.P.(Crl.) No. 34 of 2025 Page 1 of 16 against humanity. The children cannot wait till tommorow; they grow everyday; along with them grows their sense of awareness about the surroundings."
--reminded in the judgment rendered in Gaurav Jain v. Union of India reported in (1997) 8 SCC 114.
1. The prelude to the Immoral Traffic (Prevention) Act, 1956 is required to be recapitulated for the purpose of interpreting the various provisions including the powers of the authorities to pass an order for attachment/the closure of the place/hotel as the order passed by the Magistrate is a subject matter of challenge in the instant writ petition.
2. The statement and object underlying the incorporation of the law relating to prevention of immoral trafficking of the girls/children sees its birth in the year 1950 when the Government of India ratified an International Convention for Suppression of Immoral Traffic in Persons and the Exploitation of the Prostitution of Others. Though certain legislations were in existence in several States but the uniformity and the certainty in this regard was felt far cry and in pursuit of preventing and/or protecting the girls or W.P.(Crl.) No. 34 of 2025 Page 2 of 16 the children from immoral trafficking, it was felt necessary to bring a central legislation. The Central Government enacted the Suppression of Immoral Traffic in Women and Girls Act, 1956, being obligated in pursuance of an International Convention as a ratifying State and signatory at the New York Convention held on 9th May, 1950.
2.1. The primary object was to prevent commercialisation of the vice and trafficking among women and girls but later on, it was felt that there are certain lacunae and inadequacies in implementing the Act and the amendments were brought, which not only changes the nomenclature of the Act as Immoral Traffic (Prevention) Act, 1956 but also radical changes have been brought in the different provisions not only to keep the same in tune with the international standards but also to protect the women and the girls of the country and to bring the stringent provisions to provide for certain minimum standards for correctional treatment and the rehabilitation of the victims. The major object and the purpose of bring such legislation is not only to prevent immoral traffic but also to provide a protective umbrella to such victims and the perpetrator of an offence to be dealt with in such manner so as to W.P.(Crl.) No. 34 of 2025 Page 3 of 16 percolate a strong message in the society that the women and the children are not exploited nor to be treated as commodities of easy virtue.
3. With such broad object and the purpose behind the said legislation, the Court must adopt an interpretative tool while construing several provisions, more particularly Section 18 in the instant case, which appears to have been drafted in some what obscure manner, which is also felt by the apex Court in Chitan J. Vaswani v. State of West Bengal reported in (1975) 2 SCC 829 in the following:
"7. Section 18(1) proprio vigore applies only to brothels within the vicious distance of 200 yards of specified types of public institutions. No criminal prosecution or conviction is necessary for taking action under Section 18(1). Strictly speaking, this is not a punitive provision but a preventive one. This power vested in the Magistrate is calculated to ensure moral hygiene in the locality which is particularly sensitive. If one may say so, it is a moral scavenging operation, or a fumigation process whereby the dangerous visitations may be totally inhibited by a legally enforced closure. So far as we are concerned, the Isias Bar is not shown to be within the offending distance and Section 18(1) cannot therefore apply. Indeed the Magistrate and the High Court have proceeded to exercise powers under Section 18(2) and the entire controversy before us is as to the real import of that provision.W.P.(Crl.) No. 34 of 2025 Page 4 of 16
By way of aside, we may say that plausible submissions were urged by Shri D. Mukherjee, supported by the language of Section 18(2). Had the drafting been more careful and lucid, the argument would have been obviated. This Court has, more than once, pointed out that lack of legislative simplicity has led to interpretative complexity. The home truth that legislation is for the people and must, therefore, be plain enough has hardly been realised by our lawmakers. Judges, looking at statutes, are forced to play a linguistic game guessing at the general legislative purpose and straining at semantics. In the present case we have had to reach the conclusion against the appellants by broadening the dimensions of Heydon case [(1584) 3 Co Rep 7a : 76 ER 637] importing a "context-purpose" teleological approach. There are many canons of statutory construction, but the golden rule is that there are no golden rules -- if we may borrow a Shavian epigram."
4. The present writ petition originated from an order dated 27th March, 2025 passed by the Sub-Divisional Magistrate, Puri in Criminal Miscellaneous Case No.128 of 2025 directing the attachment of the hotel/lodge, leased out to the petitioner, for a period of three years from the date of the said order.
5. The writ petitioner pleaded innocence of committing any immoral trafficking and, in fact, running the said hotel/lodge in a decent and proper manner as a citizen who respects law. The petitioner claimed right in respect of the said lodge/hotel as a W.P.(Crl.) No. 34 of 2025 Page 5 of 16 lessee and felt aggrieved by the said order passed by the Magistrate for an offence or the violation of several provisions of the said Act, which was committed by the erstwhile lessee. The pleading revealed that the said lodge was earlier leased out to one Chandrakant Pujari and a police case No.23 of 2025 was initiated against him having allegedly found to have indulged in immoral trafficking of women and also a girl, who did not attain the majority as on the date when the raid was conducted by the police authorities. The lease granted to the said offender was cancelled and the petitioner was granted the lease by the owner of the said hotel/lodge, but was served with a show-cause notice as to why the said hotel/lodge be not sealed and/or closed. The reply to the show-cause was given pleading ignorance and/or having not committed any such offence, but the impugned order was passed attaching the said hotel/lodge having a resulted effect of the closure thereof for a period of three years under Section 18 of the Act.
6. The shelter is taken under Section 18 of the Act containing the headnote "Closure of brothel and eviction of offenders from the premises" that the power of the Magistrate to pass an order W.P.(Crl.) No. 34 of 2025 Page 6 of 16 should be strictly within the purview of sub-Section (1) of Section 18 of the said Act, which does not contemplate the closure or attachment of the premises/property.
7. Before we proceed, it would be profitable to quote Section 18, which runs thus:
"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 meters 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, or in a case where a child or minor has been found in such house, room, place or portion during a search under W.P.(Crl.) No. 34 of 2025 Page 7 of 16 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 order under sub-section (1), without further 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 on 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.W.P.(Crl.) No. 34 of 2025 Page 8 of 16
(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 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."
8. It is sought to be contented that though the headnote exposits the closure of the brothel or the eviction of offenders from the premises but the authority cannot pass an order for closure nor can transgress the boundaries therefrom in the event the order to be passed under the said Section is specified in the said provision.
9. What is sought to be projected before the Court is that the headnote cannot control the substantive provisions contained in the said Section and in the event the nature of the order is specified therein, the authorities cannot usurp power to pass an order as the headnote provides for closure thereof.
W.P.(Crl.) No. 34 of 2025 Page 9 of 16
10. It admits no ambiguity on a proposition of law that where the provision is plain and simple and does not invite more than one interpretation, it has to be interpreted in such way and the headnote or the marginal note cannot guide and/or control the said unambiguous provision. The necessity of applying the hayden rules is only to uphold the basic tenet of the said provision in relation to the object and the purpose sought to be achieved but cannot override the plain and simple words used in the said Section nor control the same as held in Union of India v. National Federation of the Blind reported in (2013) 10 SCC 772 in the following:
"45. It is clear that when the provision is plainly worded and unambiguous, it has to be interpreted in such a way that the court must avoid the danger of a prior determination of the meaning of a provision based on their own preconceived notions of ideological structure or scheme into which the provision to be interpreted is somehow fitted. While interpreting the provisions, the court only interprets the law and cannot legislate it. It is the function of the legislature to amend, modify or repeal it, if deemed necessary.
46. The heading of a section or marginal note may be relied upon to clear any doubt or ambiguity in the interpretation of the provision and to discern the legislative intent.W.P.(Crl.) No. 34 of 2025 Page 10 of 16
However, when the section is clear and unambiguous, there is no need to traverse beyond those words, hence, the headings or marginal notes cannot control the meaning of the body of the section. Therefore, the contention of Respondent 1 herein that the heading of Section 33 of the Act is "Reservation of posts" will not play a crucial role, when the section is clear and unambiguous."
11. Even Justice Krishna Iyer (as His Lordship the then) was in Chitan J. Vaswani (supra) noticed an ambiguity in drafting the legislation, more particularly Section 18(1) of the Act in the following:
"xxxxx. Indeed the Magistrate and the High Court have proceeded to exercise powers under Section 18(2) and the entire controversy before us is as to the real import of that provision. By way of aside, we may say that plausible submissions were urged by Shri D. Mukherjee, supported by the language of Section 18(2). Had the drafting been more careful and lucid, the argument would have been obviated. This Court has, more than once, pointed out that lack of legislative simplicity has led to interpretative complexity. The home truth that legislation is for the people and must, therefore, be plain enough has hardly been realised by our lawmakers. Judges, looking at statutes, are forced to play a linguistic game guessing at the general legislative purpose and straining at semantics. In the present case we have had to reach the conclusion against the appellants by broadening the dimensions of Heydon case [(1584) 3 Co Rep 7a : 76 ER 637] importing a "context- purpose" teleological approach. There are many W.P.(Crl.) No. 34 of 2025 Page 11 of 16 canons of statutory construction, but the golden rule is that there are no golden rules -- if we may borrow a Shavian epigram."
12. Section 18(1) of the Act though contained a word „closure‟ in the headnote but also contained the word „attachment‟ within the provision but restricted the nature of the order to be passed under the aforesaid provision as evident in clause (a) and (b) therefrom. Taking the clue from the same, it is vociferously contended by the petitioner that the order impugned in the instant writ petition for attachment and/or closure of the hotel/lodge for a period of three years is patently illegal as the Magistrate has transgressed the boundaries put forth therein.
13. The Five-Judge Bench of the Supreme Court in A.C. Aggarwal, Sub-Divisional Magistrate, Delhi v. MST. Ram Kali, ETC reported in AIR 1968 SC 1 was considering the question concerning the powers of the Magistrate under Section 18 of the Act in juxtaposition with the proceedings initiated under Sections 3 and 7 thereof. A distinction was made between Sections 3 and 7 in one hand and Section 18 on the other that the former Sections are applicable to a person on the other hand, the later Section concerns about the premises/the place in the following: W.P.(Crl.) No. 34 of 2025 Page 12 of 16
"12. The attachment contemplated by that section can enure only for a period of one year. Under these circumstances evidently the legislature thought that a regular trial and an appeal against the order of the Magistrate is not called for. In these cases it is unnecessary for us to spell out the scope of the expression "hearing" found in Section 18. It is necessary to remember that Sections 3 and 7 deal with persons guilty of offences whereas Section 18 deals with the premises mentioned therein. It is not correct to say that the set of facts to be proved in prosecutions under Sections 3 or 7 and in proceedings under Section 18 are identical. In the former the prosecution to succeed has to establish either the intention or knowledge referred to therein but in the latter they are not necessary ingredients. Section 18 provides for two classes of cases namely, (1) those coming either under Section 3 or 7 as well as under Section 18 and (2) those coming only under Section 18. They are two distinct classes of cases -- a classification which has reasonable relationship with the object sought to be achieved and therefore falls outside the rule laid down by this Court in Answar Ali Sarkar case.(AIR 152 SC 75)"
14. The law enunciated in the above report exposes the line of distinction between the power of the Magistrate to punish a person committing an offence under the said Act and power to attach or close the premises/place used and utilized for improper use forbidden under the said Act. It can be reasonably inferred from the said report that initiation of a criminal case against the offender stands on a separate footing that of exercise of power by the W.P.(Crl.) No. 34 of 2025 Page 13 of 16 Magistrate to close/attach the place/premises used for such immoral purposes. Even though the word „closure‟ is not appearing in the enabling provision, which contains the word „attached‟ yet the sprit and the object has to be born in mind and the interpretative tools are to be set in motion to imbibe within itself such power being eminently present. The observation of the apex Court in Chitan J. Vaswani (supra) can be gainfully applied where it is held that there is no fetter on the part of the Magistrate to pass an order for closing down the obnoxious place of prostitution without going through the detailed process of a criminal prosecution in the following:
"12. This Court in Sub-Divisional Magistrate v. Ram Kali [AIR 1968 SC 1] held that Section 18(1) deals with one class and Section 18(2) relates to another class. Section 18(1) is a summary procedure for closing down obnoxious places of prostitution, without going through the detailed process of a criminal prosecution. It is a quick-acting defensive mechanism, calculated to extinguish the brothel and promote immediate moral sanitation, having regard to the social susceptibility of places like shrines, schools, hostels, hospitals and the like. Section 18(2) on the other hand, operates only where persons have been convicted of offences under Section 3 or Section 7. Thus the place is found to be put to prostitutional use in a criminal trial. It stands to reason that if the purpose of extirpating the commercial vice from that venue W.P.(Crl.) No. 34 of 2025 Page 14 of 16 were to be successful, the occupier must be expelled therefrom. This is precisely what has been done in the present case. Section 18(2) operates not merely on places within the offending distance of 200 yards but in all places where the activity of prostitution has been conducted."
15. The facts emerged from the pleading relates to a rescue of a minor from the said hotel/lodge, who was forced in prostitution and was taken to different places along with her sister. The child, who did not attain majority is not expected to gain such experience in any civilized society before the attainment of majority and the case has been registered under the several provisions of the penal statute which is still at the investigation stage. It is really a disturbing state of the fact that a minor is indulged into prostitution and the place to promote the same cannot be closed or attached under Section 18 (1) of the said Act. The period of three years in case the place is used for such act is provided in the said statute itself, which cannot be said to be immune from being attached and/or closed by the competent authority.
16. In the instant case, the Magistrate after issuing the show- cause notice and inviting the reply, which in fact was given, passed an order for closure/attachment for a period of three years, W.P.(Crl.) No. 34 of 2025 Page 15 of 16 which cannot be said to be excessive or beyond the purview of Section 18(1) of the said Act.
17. We, thus, do not find any infirmity in the said order. The writ petition is accordingly dismissed. No order as to costs.
(M.S. Raman) (Harish Tandon)
Judge Chief Justice
M. Panda
Signature Not Verified
Digitally Signed
Signed by: MRUTYUNJAYA PANDA
Designation: Secretary, Orissa High Court Reason: Authentication Location: High Court of Orissa, Cuttack Date: 26-Aug-2025 17:23:29 W.P.(Crl.) No. 34 of 2025 Page 16 of 16