2012 ALL MR (Cri) 1739
IN THE HIGH COURT OF JUDICATURE AT BOMBAY

A.M. KHANWILKAR AND A.P. BHANGALE, JJ.

Smt. Sampatti M. Doiphode Vs. The Incharge, Vishrambhaug Police Station, Sangli & Ors.

Criminal Writ Petition No. 2436 of 2010

22nd December, 2010

Petitioner Counsel: Mr. VIJAY KILLEDAR
Respondent Counsel: Mr. D. P. ADSULE

Immoral Traffic (Prevention) Act (1956), S.18(1) - Power under - Is preventive in nature - Premises in respect of which action initiated falling within area specified under S.7 - Fact that FIR did not mention S.7 or the fact that charge sheet also does not make reference to S.7 would not extricate mandate of S.18 - Competent Authority is obliged to initiate action under S.18. (Para 3)

Cases Cited:
Sunny Kamalsingh Mathur Vs. Office of Commissioner of Police for Greater Mumbai and ors., 2008 ALL MR (Cri) 3363=2009 Cri.L.J. 1465 [Para 3]


JUDGMENT

JUDGMENT :- Heard Counsel for the Petitioner and the learned APP for State.

2. By this Petition under Article 226 of the Constitution of India, exception is taken to the order passed by the District Magistrate, Sangli dated 14th June, 2010 in exercise of powers under section 18 of the Immoral Traffic(Prevention) Act, 1956. The only contention that has to be addressed in this Petition as canvassed before us is that section 18 of the Act could not have been invoked by the competent authority in the fact situation of the present case, in as much as the FIR registered against the Petitioner is only in respect of offence under section 3,4, 5 and 6 of the Act of 1956 and section 292 read with 34 of I.P.C. This argument is pressed on the basis of the reference made to section 7 of the Act in section 18 thereof. The argument though attractive deserves to be stated to be rejected. It clearly overlooks the assertion made by the Respondents in paragraph-5 of the reply affidavit, which reads thus:

"5. I say that the notice was issued by the respondent No.2 dated 7.5.2010 to the petitioner as per the application filed by the my police Station on 6.4.2010 to initiate action under Section 18(1) of the PITA as the premises, which was used in the above mentioned offence is situated within the 200 mtrs of the public place as the said premises situated nearby to the Maruti Temple at East side of the premises and there is nearby one hospital namely Shradha Clinic and Dr. Patil's Hospital and apart from that there is on Bal Vikas Anganwadi are also existence within 200 mtrs. Therefore, the above mentioned property fall under the public place as per the Sec. 2(c) of the PITA which is required to be raid which Section 7 r/w. Sec. 18, 20 and 22 of the PITA, which clearly clarified that the order passed by the Respondent No.2 is proper and the said preventive action was just necessary."

The factual position so stated on affidavit by the Respondents is not challenged before us. Going by the said position, it would necessarily follow that the premises, in respect of which action under section 18 of the Act has been taken by the competent authority, are falling within the area specified by section 7(1) of the Act. The fact that the FIR does not specifically refer to the offence under section 7 of the Act or that the chargesheet also makes no reference to the said section, would not extricate the mandate of section 18 of the Act, which applies to all the premises which are falling within the area specified in section 7(1) of the Act.

3. We are in agreement with the submission of the learned APP that as soon as it is noticed by the Magistrate that the premises falling under the specified area under section 7(1) of the Act are being used for the illegal activities covered by the Act of 1956, by virtue of sub-section 1 of section 18 of the Act, it is open to the competent authority, much less obligatory on the part of the competent authority to immediately initiate action specified thereunder. The distinction between the sweep of sub-section 2 and sub-section 1 of section 18 of the Act has been noticed by the Division Bench of our High Court in the case of Sunny Kamalsingh Mathur vs. Office of Commissioner of Police for Greater Mumbai and ors. reported in 2009 CRI.L.J. 1465 : [2008 ALL MR (Cri) 3363]. In the penultimate paragraph of the said decision, the Court has observed that power under sub-section 1 of section 18 is preventive in nature and can be exercised by a Magistrate by issuing show cause notice to the person concerned and upon recording his satisfaction about the necessity of taking action under section 18 of the Act. If recourse is taken to such measures, the only enquiry that remains to be undertaken is whether the premises are covered within the area specified under sub-section 1 of section 7 of the Act. In the present case the premises are falling within the area specified by Section 7 of the Act. Further, insofar as the Petitioner before us is concerned, he claims to be an occupier of the premises. As against the occupier, the competent authority would be free to invoke action specified under clause (a) of his eviction from the premises in question.

4. The learned APP on instruction states that the Investigating Officer would take corrective measures forthwith, so that charge against the Petitioner is also framed in respect of the offence punishable under section 7 of the Act by taking out appropriate application before the concerned court. We keep all questions in that behalf open.

5. Considering the above, there is no merit in this Petition. The same is rejected.

Petition dismissed.