MANGLI Vs. STATE

JUDGEMENT

(1.) The facts which have given rise to this Revision on reference by Shri B.D. Sharma, Sessions Judge, Mahasu District, have been set out fully in the reference order.

(2.) The petitioners, Smt. Mangli and Smt. Nurpu, are the daughters of one Zalmu, resident of village Dashlani, Tehsil Rohru, District Mahasu. They have been living with their mother at Dashlani. On 20-9-1967, one Kalma Singh of the said village filed a complaint in the court of the Magistrate 1st Class, Rohru, alleging that the petitioners are of immoral character and indulge in prostitution. The Magistrate served a notice, which bore no date, upon the petitioners under section 20(1) of the Suppression of Immoral Traffic in Woman and Gills Act, 1956, on 21-9-1967, stating that information was laid before the Magistrate that they are prostitutes, and that they should therefore appear before him at 3 p.m. on the same date and show cause why they should not be required to remove themselves from "this place" (apparently meaning Deshlani) and be prohibited from re-entering the same in future. The petitioners appeared accordingly, and denied that they were prostitutes. They were ordered by the Magistrate to execute personal bonds of Rs. 200.00 each and furnish sureties for like amounts, and they complied with the order. Thereafter, they filed their written statement, and the Magistrate conducted an enquiry. The complainant examined ten witnesses in support of his complaint, and the petitioners examined three witnesses in rebuttal of the allegations in the complaint. On a consideration of the evidence, the learned Magistrate, by his order, dated 6-11-1967, held that the evidence established that The petitioners are prostitutes, and ordered that they should remove themselves on or before 15-14-1967 "from the locality comprising Patwar Circles Rohru, Gangtoli, Batholi and Kaloti", and that they are prohibited from re-entering the same without his written permission.

(3.) Against that order, the petitioners filed a writ petition in the High Court wherein they contended that Section 20 of the Act was violative of Articles 14 and 19 of the Constitution of India. But, in view of the decision of the Supreme Court in State of Uttar Pradesh v. Kaushailya A.I.R. 1964 Supreme Court 416(i) in which Section 20 was held to be intra vires, the learned counsel for the peti- tioners in the writ petition did not press the writ Petition stating that the petitioners would assail the findings of the learned Magistrate by prefering a revision under the Code of Criminal Procedure. The writ petition v/as therefore dismissed by H.R. Khanna, J. (as his Lordship then was) on 25-7-1969. Thereafter, the petitioners preferred a revision, Cr. R. No. 17-H/10 of 1969 to the Court of the Sessions Judge, Mahasu, under sections 435/439 of the Criminal Procedure Code. In that revision, three contentions were advanced on behalf of the state that the Magistrate who passed the order sought to be revised was not acting as a Court and therefore the Revision was not competent, that the Magistrate was not empowered Under Section 2(c) of the Act to exercise jurisdiction under the Act, and was not therefore competent to pass the impugned order, and that the Revision was barred by limitation. All the three contentions were negatived by the learned Sessions Judge, and they no longer survive as the learned counsel for the State did not urge, in my opinion rightly, the said contentions again in the present Second Appeal. On behalf of the petitioners, it was contended before the learned Sessions Judge that the impugned order of the Magistrate was against the procedure and was contrary to the provisions in Section 20 of the Act, that no proper opportunity was given to the petitioners to put up their defence, and that it was not proved that the petitioners were "prostitutes" within the meaning of the Act. The learned Sessions Judge, by his reference order, dated Novemebr 18, 1969, held that the enquiry held by the Magistrate was not proper and the notice served upon the petitioners was defective in that the learned Magistrate was somewhat hasty in issuing the show-cause notice to the petitioners immediately on the receipt of the complaint without verifying its truthfulness by holding a preliminary enquiry, and the notice served on the petitioners did not specify the place from which and the place to which they were to remove themselves, and that the evidence led by the State was not sufficient at all and was not of such positive and convincing character as to hold the petitioners as prostitutes within the meaning of the Act. He thus come to the conclusion that the impugned order of the Magistrate was had in law and liable to be set aside, and made the present reference to this Court with the recommendation that the impugned order to set aside and the notice issued to the petitioners be cancelled. Shri Chitkara, learned counsel for the petitioners, put forward the same contentions which were urged before the learned Sessions Judge on behalf of the petitioners. As regards the view expressed by the learned Sessions Judge that the learned Magistrate acted in a hasty manner in issuing a show-cause notice immediately on receiving the complaint, I consider that it cannot be accepted as correct. As observed by thelearned Sessions Judge himself in his order. Section 20 of the Act is a self-contained provision and lays down the entire procedure. Sub-section(l) of Section 20 provides that a Magistrate on receiving information that any woman or girl residing or frequenting any place within the local limits of his jurisdiction is a prostitute may record the substance of the information received and issue a notice to such woman or girl requiring her to appear before the Magistrate and show-cause why she should not be required to remove herself from the place and be prohibited from re-entering it. The section does not provide that the Magistrate should hold a preliminary enquiry before issuing the notice to the woman or girl. No doubt, as observed by the learned Sessions Judge, the provision might be abused by unscrupulous persons and "any enemy can play any mischief to bring a girl or woman into disrepute for any ulterior motive". But, the Magistrate empowered to act under section 20 is, as defined in Section 2(c) of the Act, either a District Magistrate, or a Sub-Divisional Magistrate or a Presidency Magistrate or a Magistrate of the first class specially empowered by the State Government, and can therefore be expected to act with circumspection. Section 20(1) does not make it obligatory but leaves it to the discretion of the Magistrate to issue a notice to a woman or girl on receiving information that such woman or girl is a prostitute. The Magistrate has therefore to exercise his discretion and issue a notice only when he has reasons to think that the information received by him was reliable. But, that does not mean that he should conduct a preliminary enquiry before issuing a notice undei section 20(1). The Magistrate cannot therefore be said to have acted in a hasty manner in issuing a notice on receiving information, merely because he did not conduct a preliminary enquiry before issuing the notice.