Criminal Writ Petition No. 25 of 2001

24th October, 2001

Petitioner Counsel: Mr. M.S.SONAK
Respondent Counsel: Mr. V.P.THALI

Cases Cited:
A.C.Aggarwal, Sub-Divisional Magistrate, Delhi Vs. Mst. Ram Kali, etc. AIR 1968 SC 1 [Para 8]
Mantoo Rani Dutta Vs. Sovabnath Singh, 1990(1) Crimes 142 [Para 8,18]
Chitan J. Vaswani Vs. State of West Bengal, (1975) 2 SCC 829 [Para 9,19]
Ramaswami Chettiar Vs. The Deputy Superintendent of Police, Salem Town 1978 Cri.L.J. NOC 49(Mad) [Para 9,20]

JUDGMENT

JUDGMENT :- Rule, returnable forthwith. By consent of parties, the petition is heard for final disposal.

2. This petition has been filed under Articles 226 and 227 of the Constitution of India and under Section 482 of the Criminal Procedure Code. This petition is directed against the Judgment/Order passed by the Sub Divisional Magistrate, Margao Sub Division, Margao, Goa, dated 21st September 2001, exercising powers under Section 18(1) of the Immoral Traffic (Prevention) Act, 1956 (hereinafter referred to as 'the Act').

3. The facts necessary to decide the grounds on which the impugned Order issued by the respondent no.2 is assailed in this petition, are set out hereunder :

4. The petitioner herein is a tenant of the third floor of a building known as 'Kadar Manzil' situated at Martires Dias Road, Margao, Goa. In the tenanted premises the petitioner has a bar, restaurant and hotel. On 21st August 2001, the Police Inspector, Margao Town Police Station submitted a report to the Sub Divisional Police Officer, Margao, Goa, alleging therein that vide Crime No. 343/2001 an offence punishable under Sections 3,4,5,6,7 and 8 of the Act had been registered against the petitioner and others. In the said report, which is at Exhibit A, the Police Inspector, Margao Town Police Station has set out the facts which resulted into an offence being registered against the petitioner and others, with a request to the Sub Divisional Police Officer to take steps by informing the Sub Divisional Magistrate, Margao, Goa, respondent no.2 to the petition, for initiating the exercise of powers under Section 18 of the Act. Alongwith the said report, the Police Inspector, Margao Town Police Station had annexed various documents which included statements of the witnesses etc. The Sub Divisional Police Officer, Margao, Goa, by his letter dated 21st August 2001, annexed to the petition as Exhibit B, forwarded the report of the Police Inspector, Margao Town Police Station, alongwith the annexures, to the Sub Divisional Magistrate, South, Margao, Goa and recommended the closure of the premises of the said hotel in public interest and in view of the proximity of school and temple.

5. The respondent no.2, the Sub Divisional Magistrate, Sub Division, Margao, South Goa District, issued a show cause notice, under Section 18 of the Act, to the petitioner. In the said show cause notice it was alleged that Hotel Apsara, which is run by the petitioner, was a brothel carrying on prostitution, situated at a distance of less than 200 metres from the place of religious worship and educational institution in contravention of Section 18(1) and in contravention of the provisions of the Act. By the said show cause notice, the respondent no.2 called upon the petitioner to show cause within 7 days of the receipt of the notice as to why the premises, referred to in the show cause notice, should not be attached for improper use and why the occupiers of the said premises be not evicted forthwith. The said show cause notice issued by the respondent no.2 is annexed to the petition as Exhibit C.

6. On receipt of the said show cause notice, the petitioner filed a reply to the show cause notice. In the reply it was stated by the petitioner that a copy of the information received by the respondent no.2 from the Sub Divisional Police Officer, Margao and the Police Inspector, Margao Town Police Station had not been supplied to him and, therefore, he was reserving his right to give a detailed reply to the show cause notice after receipt of the same. It was also stated in the reply that the petitioner, apprehending his arrest in respect of offences registered against him under the Act had applied for grant of anticipatory bail and was relying on the copy of the bail application and the reply given thereon. The application of the petitioner praying for pre-arrest bail ultimately came to be rejected by the Additional Sessions Judge, Margao, by Order dated 18th August, 2001. In the said reply, the petitioner has raised a preliminary objection that proceedings under Section 18 of the Act are not maintainable once an offence is registered either under Section 3 or Section 7 of the Act and, therefore, contended that the proceedings be dropped or kept in abeyance till the disposal of the case registered under Section 3 or Section 7 of the Act. The reply further discloses that the petitioner has given a detailed parawise reply to the show cause notice. The reply of the petitioner dated 28th August 2001 is annexed to the petition as Exhibit D. The petitioner has also annexed Exhibit E, which is a copy of the First Information Report, on the basis of which an offence vide FIR No. 343/2001 under Sections 3, 4, 5, 6, 7 and 8 of the Immoral Traffic (Prevention) Act, 1956 was registered against the petitioner and others.

7. The respondent no.2 by his Order dated 21st September 2001, under Section 18(1) of the Act, directed the petitioner, his agents and all occupiers of Hotel Apsara situated at 'Kadar Manzil' Martires Dias Road, Margao, to vacate the premises within a period of 7 days from the passing of the Order. The Police Inspector, Margao Town Police Station, was also directed to attach the premises of Hotel Apsara and seal the same for a period of one year from the date of that Order after due inventory of the things within and to deposit the keys in the Court of the respondent no.2 within 7 days. This Order of the respondent no.2 is at Exhibit F.

8. Mr. M.S.Sonak, the learned counsel appearing on behalf of the petitioner, has urged submissions in support of the preliminary objection which was raised by the petitioner in his reply before the respondent no.2, that the proceedings under Section 18(1) were not maintainable if the police report discloses commission of an offence either under Section 3 or Section 7 of the Act. According to Mr.Sonak, the learned counsel appearing for the petitioner, when the police report so disclosed the commission of the offence, the Magistrate exercising jurisdiction under Section 18(1) of the Act, should await the decision of the criminal proceedings before passing Order under Section 18(1) of the Act. In support of his contention Mr.Sonak has placed reliance on the Judgment of the Supreme Court in A.C.Aggarwal, Sub-Divisional Magistrate, Delhi and another v. Mst. Ram Kali, etc., A.I.R. 1968 S.C. 1 and on the decision of the Calcutta High Court in Mantoo Rani Dutta v. Sovanath Singh, 1990(1) Crimes 142.

9. Mr. V.P.Thali, the learned Additional Advocate General, while replying to the grounds urged on behalf of the petitioner, has submitted that in view of the legislative changes which had been brought about by the Amending Act of 1978, the Judgment of the Supreme Court on which reliance is placed by the petitioner can be distinguished. He has further submitted that the provisions of Section 18(1) are preventive in nature and they relate to the premises and not the persons. Therefore, according to him, the exercise of powers by a Magistrate under Section 18(1) are not dependent either on the registration of an offence under the provisions of the Act or the outcome of any trial in respect of the offence under the said Act. In support of his contention he has placed reliance on the Judgment of the Supreme Court in Chitan J. Vaswani and another v. State of West Bengal and another, (1975) 2 S.C.C. 829. Mr. Thali, the learned Additional Advocate General, has also placed reliance on Ramaswami Chettiar v. The Deputy Superintendent of Police, Salem Town and others, 1978 Cri.L.J. NOC 49 (Mad).

10. The respondent no.2, while passing the impugned Order has taken into consideration the aforesaid two Judgments of the Supreme Court and has held that taking into consideration the material annexed alongwith the report of the Police Inspector, Margao Town Police Station where it is revealed that the hotel, run by the petitioner, namely, Hotel Apsara, is a brothel used for prostitution and situated within 200 metres of public places like a temple and school. The respondent no.2 further held :-

"Quick action is hence required to extinguish this brothel and promote immediate moral sanitation with special regard to social susceptibility of places like shrines and schools."

The respondent no.2 then proceeded to pass the Order, which is referred to above by me.

11. In order to appreciate the rival submissions urged before me by Mr. Sonak, the learned counsel for the petitioner and Mr. Thali, the learned Additional Advocate General, it is necessary to refer to certain provisions of the Act. Section 18 of the Act is reproduced below :-

"18. Closure of brothel and eviction of offenders from the premises. - (1) A Magistrate may, on receipt of information from the police 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 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 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.

(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."

12. Sub-section (1) of Section 18 states that a Magistrate may, on the receipt of any information from the police or otherwise, disclosing that any house etc., which is situated at a distance of 200 metres from any public place 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, etc., to show cause within 7 days of the receipt of the notice as to why the premises should not be attached for improper user thereof. The Section further mandates that if, after hearing the person concerned, the Magistrate is satisfied that the premises, referred to in Section 18(1), is being used as a brothel or a place for carrying on prostitution, the Magistrate may pass orders directing the eviction of the occupier and attach the premises with a stipulation that before letting out the said premises during the period of one year the previous approval of the Magistrate would be obtained. Perusal of Sub-Section (2) of Section 18 reveals that a Court convicting a person of an offence either under Section 3 or Section 7 is also empowered to pass orders referable to Section 18(1) of the Act. The second proviso to Section 18 provides that in the event of an acquittal on the ground that the premises as is referred to in Section 18 is either not being run or used as a brothel or is not being used by prostitutes for carrying on their trade, the order of the trial Court passed under Section 18(2) would be set aside. Perusal of Sub-Section (4) of Section 18 reveals that in the event of passing of an order either under Sub-section (1) or Sub-Section (2) of Section 18 any lease or agreement under which the premises was occupied shall become void and inoperative. Sub-section (3) of Section 18 mandates that orders passed either under Sub-section (1) or Sub-Section (2) of Section 18 shall not be subject to appeal and shall not be stayed or set aside by the Order of any Court, Civil or Criminal, and would be valid only for a period of one year or three years respectively. The first proviso to Section 18 adequately covers the cases of the owner, lessor or landlord, etc., if they were unaware of the improper use to which the premises had been put. The said proviso confers jurisdiction on the Magistrate to restore the premises to the owner, lessor or landlord, etc., on certain conditions.

13. The words '200 yards' were substituted by Act 46 of 1978 to '200 metres'. Similarly the words 'expiry of one year or three years, as the case may be' were substituted by Act 44 of 1986 with effect from 26th January 1987.

14. Section 2(c) defines 'Magistrate' to mean :-

"A Magistrate specified in the second column of the Schedule as being competent to exercise the powers conferred by the section in which the expression occurs and which is specified in the first column of the Schedule."

15. This definition was substituted by Act 46 of 1978 with effect from 2nd October 1979. Old Clause (c), prior to the amendment, reads as follows :-

"Magistrate, means a District Magistrate, a Sub-Divisional Magistrate, a Presidency Magistrate or a Magistrate of the first class specially empowered by the State Government, by notification in the official Gazette, to exercise jurisdiction under this Act."

Thus, by the amendment, the jurisdiction to try the offenders in respect of offences under the Act is vested with the Judicial Magistrate, First Class or Metropolitan Magistrate. The jurisdiction to pass orders under Section 18 is vested with the District Magistrate or the Sub-Divisional Magistrate. Thus the Sub-Divisional Magistrate has powers to pass orders under Section 18(1) of the Act. However, he does not have the jurisdiction to try the offenders in respect of the commission of the offence under the Act.

16. In the Judgment of the Supreme Court in A.C. Aggarwal's case (supra) the challenge before the Supreme Court was that provisions of Section 18 of the Suppression of Immoral Traffic in Women and Girls Act, 1956 was ultra vires Article 14 of the Constitution of India. The learned Judges of the High Court of Punjab had held that whenever action is taken under Section 18 independently of Section 7, it would offend Article 14 of the Constitution of India and to that extent Section 18 would be ultra vires to the Constitution. This finding was challenged before the Supreme Court. The Supreme Court has held as under :-

"10. Sections 3 and 7 provide for the punishment of persons guilty of the offences mentioned therein. Any contravention 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 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 with a right of appeal is provided for. The enquiry contemplated by S.18 is summary in character.

11. The attachment contemplated by that section can ensure only for a period of one year. Under the 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 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 S.3 or 7 and in proceedings under 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 later they are not necessary ingredients. Section 18 provides for two classes of cases namely, (1) 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 reasonable relationship with the object sought to be achieved and therefore falls outside the rule laid down by this Court in Anwar Ali Sarkar's case, 1952 SCR 284 : (AIR 1952 SC 75).

12. From the copies of the reports made in these cases to the 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 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 S.3 or 7 as the case may be, and only after the disposal of those cases take action under S.18 if there is occasion for it. Under S.190(1)(b) of the Code of Criminal Procedure, the magistrate is bound to take cognizance of any cognizable offences 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 Art.14. But as laid down in Delhi Administration v. Ram Singh, (1962) 2 SCR 694 : (AIR 1962 SC 63) only an officer mentioned in S.18 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 whether the facts placed before him disclose any cognizable offence."

The Supreme Court in paragraph 13 further has held as under :-

"13. 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 that reason we uphold the conclusion 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."

17. Section 22, after the Amendment Act 44 of 1986, reads as under:-

"22. Trials. - No court, inferior to that of [a Metropolitan Magistrate or a Judicial Magistrate of the first class], shall try any offence under Section 3, Section 4, Section 5, Section 6, Section 7 or Sections 8."

The words 'a Magistrate as defined in Clause (c) of Section 2' as occurring in Section 22 as it stood, have been substituted by the words 'a Metropolitan Magistrate or a Judicial Magistrate of the first class' by Amendment Act 46 of 1978 with effect from 2nd October 1979.

18. Reliance is also placed by Mr. Sonak, the learned counsel appearing for the petitioner, on the decision in Mantoo Rani Dutta v. Sovanath Singh, 1990(1) Crimes 142. The learned Single Judge of the Calcutta High Court relying on the aforesaid Judgment of the Supreme Court has held in paragraph 7 as under :-

"7. In the instant case before me I find that the learned Magistrate has misread and misconstrued the aforesaid Supreme Court decision. I find that the complaint petition and the report of the police officer Mr.Dutt have clearly disclosed the offences punishable under Sections 3 and 7 of the said Act. In fact, this is also the finding of the learned Magistrate. So the only appropriate course before the learned Magistrate was to take cognizance of the offences under Sections 3 and 7 of the Act and to proceed with the trial under those sections and keeping the proceeding under Section 18 in abeyance till the disposal of the proceeding under the former Sections and the learned Magistrate was competent to initiate fresh proceedings against the respondents under Sections 3 and 7 of the Act."

19. Mr.Thali, the learned Additional Advocate General, has placed reliance on the Judgment of the Supreme Court in Chitan J. Vaswani and another v. State of West Bengal and another, (1975) 2 S.C.C. 829. He has relied in particularly on paragraphs 6, 7 and 12 of the Judgment, which are reproduced hereunder :-

"6. The project of the statute, to the extent we are concerned, may now be set out. When a magistrate receive information that any brothel is being run within a distance of 200 yards of any public place such as has been mentioned earlier [in sub-section (1) of Section 7] he may issue notice to the owner, tenant, occupier or other person in charge of or connected with the brothel to show cause why it should not be attached for improper user. After a hearing being conducted, the magistrate, if satisfied, may order eviction of the occupier and further direct that the owner or landlord shall not let out the premises for a period of one year after the passing of the order, without his previous approval. In short, the house of ill-fame where Mrs. Warren's Profession is carried on is virtually sealed off by attachment by the magistrate. However, if the owner satisfies the magistrate of his innocence, it may be restored to him with a direction that it shall not be leased out to the person who had been improperly using it for immoral purposes.

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. 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 law-makers. 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's case, importing a 'context purpose' teleological approach. There are many cannons of statutory construction, but the golden rule is that there are no golden rules - if we may borrow a Shavian epigram.

12. This Court in Sub-Divisional Magistrate v. Ram Kali 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 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."

20. Mr. Thali has also placed reliance on Ramaswami Chettiar v. The Deputy Superintendent of Police, Salem Town and others, 1978 Cri.L.J. NOC 49 (MAD). The learned Single Judge of the Madras High Court has held as under :-

"Section 7 and Section 18 contemplate different situations, the latter being preventive in nature and concerning the premises. Further S.7 and S.18 contemplate different offences; S.7, as against the person, Whereunder a regular prosecution would have to prove the mens rea or the knowledge of the accused, and no such thing arises under S.18. Therefore recourse to S.7 is not a condition precedent for invoking S.18. 1968 Cri.L.J. 82(SC) and 1976 Cri.L.J. 1 (SC) Rel. on."

It is not the numerality of instances by which the offence is made out. Even a single instance is enough, provided that the Magistrate uses his jurisdiction under S.18(1) properly."

21. The Supreme Court in A.C. Aggarwal's case (supra) has held that in cases like those before us the Magistrate who is also a Court as provided in Section 22 must at the first instance proceed against the persons complained under the penal provisions of Section 3 or 7, as the case may be, and only after the disposal of those cases, take action under Section 18 if there is occasion for it. The facts as disclosed in the Judgment were that the copies of the reports made by the Police to the Magistrate - and which were made available to their Lordship at the time of hearing, disclosed an offence under Section 3 against the respondents therein.

22. In paragraph 13 of the Judgment, therefore, the Supreme Court has held the action of the Magistrate was not in accordance with law as he had proceeded against the respondents therein under Section 18 without first taking action under Section 3.

23. In the present case before me the report submitted by the Police Inspector, Margao Town Police Station, certainly discloses the commission of the offence under Sections 3, 4, 5, 6, 7 and 8 of the Act. The cognizance of the facts disclosing the offences had already been taken by a Magistrate empowered under Section 22 of the Act, to try the offences. In fact an offence vide Crime No. 343/2001 was registered against the petitioner and others. Therefore, when the proposal for initiating action under Section 18(1) of the Act was placed before the respondent no.2, cognizance of the offence had already been taken. The respondent no.2, was not a Court within the meaning of Section 22, who could have tried the petitioner and others in respect of the offences punishable under Sections 3 and 7 of the Act. In the Judgment of A.C. Aggarwal (supra) the Supreme Court has held that in cases like those where the Magistrate, who is also a Court as provided in Section 22 must at the first instance proceed against the persons complained against under the penal provision of Section 3 or 7 and only after disposal of those cases take action under Section 18. Thus, from the facts before the Supreme Court, it is clear that in view of Section 22, as it stood prior to the amendment, the Magistrate before whom a police report was submitted could take cognizance of the offences under Sections 3 and 7 and try the offenders. In view of this provision, therefore, the Supreme Court had held that the Magistrate should first take cognizance, try the offenders and then pass the necessary orders under Section 18. The ratio of the Judgment of the Supreme Court in A.C. Aggarwal, therefore, can be distinguished on this ground.

24. In the case of Chitan J. Vaswani (supra) the challenge before the Supreme Court was whether the rider that the premises are situated within '200 yards', referred to in Section 18(1), would also apply for passing orders under Section 18(2). The Supreme Court has thus held:-

" A close reading of Section 18(2) indicates that the orders under sub-section (1), referred to therein, do not, wholesale, import the substantive paragraph of Section 18(1), but only the evicting orders contained in Section 18(1), clauses(a) and (b). What is, by a process of abbreviation, imported into Section 18(2) is the decretal part of Section 18(1) to the extent it is written into Section 18(1)(a) and (b)."

25. In this Judgment a reference is made to A.C. Aggarwal's case and the Supreme Court has held that Section 18(1) is a summary procedure for closing down obnoxious places of prostitution, without going into detailed process of a criminal prosecution.

26. Thus, after amendment to the various Sections of the Act, the position that emerges is that the Sub-Divisional Magistrate and the District Magistrate have the jurisdiction to pass orders under Section 18(1) and other provisions of the Act, but do not have the jurisdiction to try the offenders in respect of the offences punishable under Sections 3 to 8 of the Act. The Judicial Magistrate First Class or the Metropolitan Magistrate has the power of passing orders under Section 18(2) only in the event of a conviction of the accused. Thus, the orders to be passed under Section 18(2) are dependent on the prosecution establishing the offence against a person either under Section 3 or 7 of the Act. Prior to the amendment, a Magistrate, who could pass orders under Section 18(1) was also empowered to try offenders under Section 3 or 7 of the Act. It was in this background, therefore, that the Supreme Court observed that the Magistrate should first take cognizance of the offence and, if he finds the persons guilty of the offence, pass orders accordingly. A report submitted by a police officer before a Sub-Divisional Magistrate or the District Magistrate would invariably disclose the commission of the offence under Section 3 or 7 of the Act. If the Sub-Divisional Magistrate or the District Magistrate is called upon to keep the passing of the orders under Section 18(1) in abeyance till the conclusion of the trial, the exercise of the powers under Section 18(1) would, remain a dead letter as the Court competent to try the offenders is empowered to pass orders in the nature of Section 18(1) after conviction under Section 18(2) of the Act. Mr.Sonak, the learned counsel appearing for the petitioner, has submitted that the authority under Section 18(1) could only pass the orders after the conclusion of the trial as the proviso to Section 3 contemplates setting aside an order passed by the trial Court under Sub-section (1) acquittal by the appellate Court. The concluding part of the proviso reads :-

"....any order passed by the trial Court under Sub-Section (1) shall also be set aside."

The use of the phrase trial Court is very significant. It contemplates an order passed by a Court which was competent to hold the trial of the offenders. The phrase 'Sub-Section (1)'in the proviso does not mean the order passed by a Magistrate exercising jurisdiction under Section 18(1). It contemplates an order which is passed under Section 18(2) by a Court which had held the trial of the offenders. The phrase 'Sub-Section (1) which is used in the proviso relates to the nature of the order which is passed under Sub-Section (1) of Section 18 but by a Court which has been specifically empowered under Section 18(2). Thus, there is no merit in the submission of Mr.Sonak, the learned counsel appearing for the petitioner, that because of the proviso to Sub-Section (3), orders under Section 18(1) could only be passed after conclusion of the trial.

27. Thus, after the amendment to the Sections, which I have referred to above, the Sub-Divisional Magistrate or the District Magistrate are not empowered to take cognizance and try the offenders under Section 3 to 8 of the Act as the jurisdiction is vested with either a Metropolitan Magistrate or a Judicial Magistrate of the first class. The Sub-Divisional Magistrate or the District Magistrate has jurisdiction to pass Orders under Section 18 of the Act. Relying on the Judgment of the Supreme Court in Chitan J. Vaswani, I hold that the District Magistrate or the Sub-Divisional Magistrate before whom a report is submitted, can pass Orders under Section 18(1) of the Act without awaiting the outcome of the prosecution, if any, filed against the offenders for offence under Sections 3 to 8 of the Act. The Respondent no.2, while passing the impugned order has relied on the Judgment of the Supreme Court in Chitan J. Vaswani (supra) to hold that he had the power to pass the Orders under Section 18(1). On a careful consideration of the submissions advanced before me and the authorities cited before me, I am of the opinion that the respondent no.2 has rightly passed the aforesaid Order impugned in this petition. The ratio of the Judgment in A.C.Aggarwal (supra) is, therefore, not applicable to the facts of the present case.

28. It is next contended before me by the learned counsel for the petitioner that the petitioner had not been granted an opportunity of hearing after his preliminary objection was decided by the respondent no.2. I have made a detailed reference to the reply filed by the petitioner in response to the show cause notice. The perusal of the reply shows that apart from the preliminary objection which was raised in the petition, the petitioner had, submitted his parawise statement to the allegations in the show cause notice. In the reply it is no where averred that the petitioner desires to be heard after the decision on the preliminary objection. In fact the reply submitted by the petitioner is an answer to the allegations made in the show cause notice. In such circumstances, it was not incumbent on the respondent no.2 to have heard the petitioner afresh before passing the impugned Order. There has been sufficient compliance and the petitioner has been granted adequate opportunity of putting forth his case.

29. It is stated by the petitioner in his petition that prior to the registration of the offences under Sections 3 to 8 vide Crime No. 343/2001, the petitioner is being prosecuted for another offence registered against him in the year 1999 under Sections 3 to 8 of the Act. It was the commission of the second offence in the year 2001 which had prompted the Police Inspector, Margao Town Police Station, to request the Sub-Divisional Police Officer, to forward the report to the respondent no.2 for passing appropriate Orders under Section 18(1). The respondent no.2 has passed Orders, which are preventive measures, for nipping in the bud, the prostitution which was blatantly carried out within 200 metres of a temple and an educational institution. I have, therefore, no hesitation in holding that the respondent no.2 had the necessary jurisdiction to pass the Order impugned in this petition.

30. In the result, therefore, I find that there is no merit in these submissions canvassed before me by the petitioner and the petition is liable to be dismissed. Accordingly, the petition is dismissed with no order as to costs. Rule discharged.

31. At this stage Mr. Sonak, the learned counsel for the petitioner, prays that the impugned Order passed by Respondent No.2 be stayed for a period of 8 weeks to enable him to file a Special Leave Petition before the Supreme Court. Mr. Thali, the learned Additional Advocate General, very fairly states that the respondents would not implement the Order impugned in this petition for a period of 8 weeks from today. In view of this statement, no formal order of stay is necessary. Certified copy expedited.

Petition dismissed.