# A SBRI A. C. AGGARWAL, SUB-DIVISIONAL MAGISTRATE, DELID &ANR v. MST. RAM KALI, ETC

- **Citation:** [1968] 1 S.C.R. 205
- **Court:** Supreme Court of India
- **Decided:** 1967-08-16
- **Case number:** Writs Nos. 3-D, 4-D, 5-D, 6-D, 7-D, 10-D and 12-D of 1962
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/a-sbri-a-c-aggarwal-sub-divisional-magistrate-delid-anr-v-mst-ram-kali-etc-4102
- **Pages:** 8

## Headnote

205
A SBRI A. C. AGGARWAL, SUB-DIVISIONAL MAGISTRATE,
DELID &ANR.
B
v.
MST. RAM KALI, ETC.
August 16, 1967
[K. N.
WANCHOO, C. J., R. S.
BACHAWAT, V.
G. K. MITTER AND K. S. HEGDE, JJ.)
RAMASWAMI,
Suppression of Immoral Traffic in Women and Girls Act (104 of
1956), s. 18(1)-If violative of Art. 14 of the Constituti';"'-Dllltli of
Magistrate when cognizable offence under ss. 3 or 7 disclosed.
Section 18 of the Suppression o! Immoral Traffic in Women and
C Girls Act, 1956, provides for two classes of cases namely, (1) those
coming under ss. 3 or 7 as well as under s. 18, and (2) those coming
only under s. 18. Sections 3 and 7 provide for the punishment of per·
sons guilty of the offences men~iOIIled therein after a regular trial,
with a right of appeal. Section 18 ls a preventive measure, dealing
with premises, and is intended to minimise the chance of a brothel
being run near a public place, and provides for a summary enquiry.
D r2n !).E; G-HlIn the present case, on the strength of reports submitted by the
police to him, the Sub-Divisional Magistrate passed orders under s. 18
(1) with respect to certain premises in the occupation of the reSPOIII·
dents. They challenged the validity of the section, and the High
CQUrt held that the section violated Art. 14 of the Constitution.
In appeal to this Court,
E
Held: Section 18 provides for two distinct ci""8es of cases and
the classifica1zibn being reasonable is not violative of Art. 14 of the
Constitution. But the proceedings taken by the Magistrate not being
in accordanee with Jaw should be set aside. The reports disclosed a
cognizable offence under s. 3 of the Act and in such a case the l\(ql&.
Irate cannot ignore the cognizable offence and merely have recourse
to s. 18, thus dep~iving parties of the benefit Qf a trial and appeal
F The Magistrate should have taken action under s. 190(11 (b) of the
Criminal Procedure Code after investigation by such police ol'llcer as
is mentioned in s. 13 of the Act, and It was only after the disposal of
the cases agai119\ the parties that action could be taken under s. 18 if
there was occasion for it. (212 A-D].
G
B
S_tate of ~est ;Bengal v. Anwa" Ali Sarkar, r19521 S.C.R. 284 and
Delhi Administration v. Ram Singh. (1962] 2 S.C.R. 6"94, referred to.
~AL

## Text

205
A SBRI A. C. AGGARWAL, SUB-DIVISIONAL MAGISTRATE,
DELID &ANR.
B
v.
MST. RAM KALI, ETC.
August 16, 1967
[K. N.
WANCHOO, C. J., R. S.
BACHAWAT, V.
G. K. MITTER AND K. S. HEGDE, JJ.)
RAMASWAMI,
Suppression of Immoral Traffic in Women and Girls Act (104 of
1956), s. 18(1)-If violative of Art. 14 of the Constituti';"'-Dllltli of
Magistrate when cognizable offence under ss. 3 or 7 disclosed.
Section 18 of the Suppression o! Immoral Traffic in Women and
C Girls Act, 1956, provides for two classes of cases namely, (1) those
coming under ss. 3 or 7 as well as under s. 18, and (2) those coming
only under s. 18. Sections 3 and 7 provide for the punishment of per·
sons guilty of the offences men~iOIIled therein after a regular trial,
with a right of appeal. Section 18 ls a preventive measure, dealing
with premises, and is intended to minimise the chance of a brothel
being run near a public place, and provides for a summary enquiry.
D r2n !).E; G-HlIn the present case, on the strength of reports submitted by the
police to him, the Sub-Divisional Magistrate passed orders under s. 18
(1) with respect to certain premises in the occupation of the reSPOIII·
dents. They challenged the validity of the section, and the High
CQUrt held that the section violated Art. 14 of the Constitution.
In appeal to this Court,
E
Held: Section 18 provides for two distinct ci""8es of cases and
the classifica1zibn being reasonable is not violative of Art. 14 of the
Constitution. But the proceedings taken by the Magistrate not being
in accordanee with Jaw should be set aside. The reports disclosed a
cognizable offence under s. 3 of the Act and in such a case the l\(ql&.
Irate cannot ignore the cognizable offence and merely have recourse
to s. 18, thus dep~iving parties of the benefit Qf a trial and appeal
F The Magistrate should have taken action under s. 190(11 (b) of the
Criminal Procedure Code after investigation by such police ol'llcer as
is mentioned in s. 13 of the Act, and It was only after the disposal of
the cases agai119\ the parties that action could be taken under s. 18 if
there was occasion for it. (212 A-D].
G
B
S_tate of ~est ;Bengal v. Anwa" Ali Sarkar, r19521 S.C.R. 284 and
Delhi Administration v. Ram Singh. (1962] 2 S.C.R. 6"94, referred to.
~AL
APPELLATE JURISDICTION: Criminal Appeals No
76--:82 of 1965.
·
Appeals from the judgment and order dated September 9
1963 of the Punjab High Court, Circuit Bench at Delhi in Crimi'.
nal Writs Nos. 3-D, 4-D, 5-D, 6-D, 7-D, 10-D and 12-D of 1962.
B. R. L. Iyengar and R. N. Sachthey, for the appellants (in
all the appeals).
G. S. Bawa and Harbans Singh, for the respondents (in Cr.
As. Nos. 76--:Sl of 1965).
SUPREME COURT REPORTS
[1968] I S.fl.R.
The Judgment of the Court was delivered by
Hegde, J.-These are companion appeals. They were brought
to this Court on the strength of the certificates issued by the High
Court of Punjab. The only question that falls for decision in these
appeals is whether s.18 of the Suppression of Immoral Traffic in
Women and Girls Act, 1956 (hereinafter referred to as the Act) is
ultra vires Art. 14 of the Constitution. The attack on the validity 8
of that section on the basis of Art.I ~(d), (e) and (f) was not pressed
at the time of the hearing. Hence there is no need to examine the
said plea.
The first appellant in these appeals, Shri A. C. Aggarwal,
Sub-Divisional Magistrate, Delhi, issued notices to the respondents in these appeals-except that in criminal appeal No. 82 of C
1965-to show cause why the premises occupied by them should
not be attached uuder s.18(1) of the Act. Those notices were issued
on the basis of police reports that those premises were being used
as brothels. In reply amongst other pleas those respondents
challenged the validity of s.18. They moved the learned magistrate
to refer the question as to the validity of s.18 to the High Court D
under s.432 of the Criminal Procedure Code of 1898. As the learned magistrate rejected that prayer, they moved the High Court
under Art. 226 of the Constitution in criminal writs Nos. 3D to
7D and lOD of 1962, challenging the vires of s.18. Respondent in
criminal appeal No. 82 of 1962 claims to be the tenant in fiat No.
54 on the first floor of Japan Building, which premises had been
attached in the proceedings against one Mst. Ambar under s.18(1). E
His case was that he had permitted the said Mst. Ambar to use
those premises temporarily but she had vacated the same and
therefore he was entitled to their possession, as according to him
he was unaware of the fact that Mst. Ambar was "using the premises in question for an improper purpose. But the learned magistrate rejected his application holding that (a) there was no satisI!'
factory proof of the fact that he was a tenant in those premises
and (b) he was aware of the unlawful use to which the premises in
question were being put. Aggrieved by that decision, he moved
the High Court of Punjab in Cr. Writ No. 12-D/62 to quash the
order of the learned magistrate on the ground that s. 18 was ultra
vires of Article 14.
G
The aforementioned writ petitions were heard by Mahajan
and Shamsher Bahadur, JJ. and by a common order dated Sep•
tember 9, 1963, they, allowed those petitions and quashed the
notices issued to the respondents in criminal appeals Nos. 76 to
81 of 1965. They also quashed the order refusing to raise the
attachment in respect of flat No. 54 of which Siri Chand the resB
pondent in Criminal appeal No. 82 / 65 claimed to be the tenant. The
learned Judges held that "whenever action is taken under s.18
independently of s. 7, it would offend Art.I 4 of the Constitution
and to that extent s.18 would be ultra vires of the Constitution."
·~\
SUB-DIV. MAGISTRATE v. RAM-KALI (Hegde, J.)
20t
A
In the course of their order dated 23rd July, 1963, the learn-.
ed Judges observed :
"The requirements for taking action under Section
18 or under Section 7 of the Act are identical. The Act
leaves the choice of the action under one or the other
B
provision to the executive in the .case of persons similarly situate and thus can lead to discrimination without
there being any rational basis for the same. The consequences of an action in one case are of an extremely
penal nature whereas in the other case, that is, under
Section 18, of comparatively inconsequential nature. The
discrimination can come about where in the case of a
c
number of prostitutes, who carry on their profession
within two hundred yards of a public place, as defined in
Section 7, the authorities may take action against some of
them under Section 18 and against the others under Section 7. The fact that this can happen is not controverted
by the learned counsel for the Delhi State. We also find
D
no ratfonable behind this type of discrimination. The
scheme of the Act also does not provide any key for such
sort of discrimination between persons of the same class
and similarly situate".
The Inhibition of Art. 14 that the State shall not deny to any
E
person equality before the law or the equal protection of the laws
was designed to protect all persons against discrimination by the
State amongst equals and to prevent any person or class of persons
from being singled out as a special subject for discrimination and
hostile treatment. If law deals equally with all of a certain well-.
defined class, it is not obnoxious and it is not open to the·charge·
F
of denial of equal protection on the ground that it has no application to other persons, for the class for whom the law has been
made is different from other persons and, therefore, there is no·
discrimination amongst equals. Every classification is in ¥'me degree
likely to produce some inequality but mere production of inequality is not all by itself enough. The inequality produced in·
order to encounter the challenge of the Constitution must be the
G result of some arbitrary step taken by the State. Reasonable· classi-·
fication is permitted but such classification must be based upon
some real and substantial distinction bearing a reasonable and
just relation to the thing in respect of which such classification is
made. The presumption is always in favour of the constitutionality
of an . enactment, since it must be assumed that the legislature
B understands and correctly appreciates the needs of its own people,
and its laws are directed to problems made manifest by experience·
and its discriminations are based on adequate grounds.
•
The contention advanced on behalf of the reipondents and
•··
accepted by the High Court, is thats. 18 discriminates against the
208
SUl'RE!llil COURT REPORTS
(1968) 1 S.C.R.
person who is proceeded against under that section, without first A
being prosecuted under s.3 or s. 7 as the case be, though the infor·
mation laid against him discloses an offence either under s.3 or s.7.
Section 18 covers two classes of cases, namely, persons who have
been prosecuted and found guilty of an offence either under s.3 ors. 7
as well as persons not dealt with under those provisions. In the case
of the former, they have the benefit of regular trial, they can crossB
-examine the prosecution witnesses, adduce defence evidence and
also go up in appeal if convicted. In those cases the result of the
proceedings under s.18 largely though not entirely depends on the
result of the connected prosecution. But in the case of the latter,
i.e .. those who are only proceeded against under s.18 they have
only a right of 'hearing'. It is further urged on their behalf that
under s.3 or s.7 action is taken before a court, whereas the proceedC
ing under s.18 is taken before a magistrate. In the latter case the
Act does not lay down the scope of the hearing provided for.
It was lastly urged that the facts to be proved both in prosecutions under ss.3 and 7 and in proceedings under s.18 are identical;
hence, there is no justification for adopting two widely different
procedures. In support of their contention that the difference in the D
two procedures prescribed amounts to a discrimination under Art.
14, reliance was placed on the decision of this Court in the State
of West Bengal v. Anwar Ali Sarkar(').
We shall now proceed to examine the correctness of these
contentions. The Act was enacted in pursuance of an international
convention signed at New York on the 9th day of May, 1950. It E
provides for the suppression of immoral traffic in women and girls.
The sections that are material for our present purpose are 3, 7
and 18. Section 3 provides for punishment for keeping a brothel or
allowing premises to be used as a brothel. Section 3(1) provides for
the conviction and punishment of a person who keeps or manages
or acts
or
assists
in
the
keeping
or management of,
a brothel. Sub-s.(2) of that section provides for the conviction and
punishment of a person who ,being (a) tenant lessee or occupier or
person incharge of any premises, 11ses or knowingly allows any
other person to qse, such premises or any pa;:t thereof as a brothel,
(b) the owne~ lessor or landlord of any premises or the agent of
such owner, lessor or landlord, lets the premises or any part thereof
with the knowledge that the same or any part thereof is intended
to be used as a brothel br is wilfully a party to the use of such premises or any part thereof, as a brothel. "Brothel" is defined in
s.2(a) as including a house, rnom, or place or any portion of any
house, room or place, which is used for the purpose of prostitution
F
G
for the gain of another person' or for the mutual gain of two or
more prostitutes. "Prostitute" is defined in s.2(e) •as meaning a B
female who oilers her body for promiscuous sexual intercourse for
hire whether in money or in kind.
(') [1952] S.C.R. 284.
.. •
•
A
B
0
D
E
F
8118. DIV. MAGISTRATE V. RAM KALI (Hegd1, J.)
209
Section 7 provides for the punishment of"prostitution in or in
the vicinity of public places. That section reads:
"(!) Any woman or girl who carries on prostitution,
and the person with whom such prostitution is carried on,
in any premises which are within a distance of two
hundred yards of any place of public religious worship,
educational institution, hostel, hospital, nursing home
or such other public place of any kind as may be notified
in t.'iis behalf by the Commissioaer of Police or District
Magistrate in the manner prescribed, shall be punishable
with imprisonment for a tenii which may eltend to three
months.
(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 subsection (I) 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 (!), 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 terin 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.".
Public place is defined in s. 2(h) as meaning any place intended
C for use by or accessible to the public and includes and public conveyance.
Now we may refer to s.18. It reads: -
G
L/l'(N) ISCI-16
"(!) A Magistrate may. on receipt of il'lformation from the police or otherwise, that any
house, room, place or any portion thereof withi!1 a distance of two . hundred yards of any ·public place referred to m sub-section (!) of section
7, is bei!1g "!n or used as a brothel by any person, o~ 1s be1~ used b>: prostitutes for carrying
on their trade, issue· notice on the owner, lessor
210
SUPREJIB OOUJ\T REPORTS
[1968] 1 8.0.R.
or landlord of such house, room. place or por·
tion 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 hou~.
room, place, or portion is being used as a
brothel or for car:-;ing on prostitution, then the
Magi~trate 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 )ear 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 (!), 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 (I) 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 :
Provided that where a conviction under section 3
or section 7 is set aside on appeal on the ground that such
house, room, place N any portion thereof is n~t 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 coort under sub-section (I) shall also be set aside.
A
B
c
D
F
G
B
• ..
I
' ' {
II
B
a
D
SUJI. DIV. MAGls'IliA'l'E v. l\AM KALI (Hegde, J.)
211
(4) Notwithstanding anything conluiii.c.: iii .. uy
other law for the time being in force, when a
Magistrate passes an order under sub-section
(I), 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 subsection (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 thar 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 subsection (2) of section 7, as the case may be, and
punished accordingly."
Sections J and 7 provide for the ·punishment of persons guilty
of the offences mentioned therein. Any c6ntravention of the provisions mentioned therein amounts to a cognizable offence in view
of section.14, whereas ·a proceeding under s.18 is in no sense a
prosecution. It is a preventive measure. It is intended to minimise
111 the chance of a brothel being run or prostitution being carried on
in premises near about public places. Naturally, in the case of
prosecutions, a regular trial wirh a right of appeal is provided for.
The enquiry contemplated by s.18 is summary in character.
The attachment contemplated by that section can enure only
for a period of one year. Under these circumstances evidently the
'I Legislature rhought 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 s.18. It is necessary to remember that ss.3 and 7 deal .
with persons guilty of offences whereas s.18 deals with the premises
mentioned therein. It is not correct to say that the set of facts to
be proved in prosecutions under ss.3 or 7 and in proceedings under
G s.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, (I) those coming either under
s.3 or 7 as well as under s.18 and (2) those coming only under s.18.
They are two distinct classes of cases-a classification which has
B reasonable .relationship with the object sought to be achieved and
therefore falls outside the rule laid down by this Court in Anwar
A.Ii Sarkar's(1) case.
<'> [1951] s.c.a. 284..
L/!(N)ISCl-15(•)
212
SUl'REME COUB'r RllPOllTS
[1968]jl 8.0.11.
I'r:;m :l:: copies of the reports made in these cases to the A
magistrate by the police-made available to us at the hearing of
these appeals-it is clear that they disclose offences under s.3
against the respondents. Therefore, the question is whether the
magistrate can choose to ignore the cognizable offence complained
of and merely have recourse to s.18 and thus deprive the parties
proceeded against of the benefit of a regular trial as well as the B
right of appeal in the event of their conviction. Bearing
in
mind ,the purpose of these provisions as well as the scheme of the
Act and on a harmonious construction of the various provisions
in the Act, we are of the opinion that in cases like those before us
the magistrate who is also a court as provided in s.22 must at the
first instance proceed against the persons complained against under
the penal provisions in ss.3 or 7 as the case may be, and only
C
after the disposal of those cases take action under s.18 if there is
occasion for it. Under s.190(i)(b) of the Code of Criminal Procedure, the magistrate is bound to take cognizance of any cognizable offence brought to his notice. The words "may take cognizance" in the context means "must take cognizance". He has no
discretion in the matter, otherwise that section will be violative of D
Art. 14. But as laid down in Delhi Administration v. Ram Singh(')
only an officer mentioned in s.13 can validly investigate an offence
under the Act. Hence if the cases before us had been investigated
by such an officer, there is no difficulty for the magistrate to take
cognizance of those cases. Otherwise it is open to him to direct
fresh investigations by competent police officers before deciding E
whether the facts placed before him disclose any cognizable
offence.
In the result, we hold, for the. reasons mentioned above, that
the proceedings taken by the learned magistrate against the respondents are not in accordance with law as he has proceeded
against them under s.18 without first taking action under s.3. For F
that reason we uphold the conclusions reached by the learned
Judges of the PUnjab High Court but on grounds other than those
relied on by them. But this conclusion of ours does not debar the
learned magistrate from taking fresh proceedings against the respondents in accordance with law as explained by us earlier,
In the result, these appeals fail and are dismissed.
G
Appeals dismissed.
V.P.S.
<1> [19621 s s.c.11. 69'.