SHANTABAI RANI BENOOR Vs. STATE OF MAHARASHTRA

JUDGEMENT

(1.) BY this petn. an order made under Section 9 (1), Bombay Prevention of Prostitution Act, 1923, by the Addl. Dist. Mag. of Poona, is being challenged. The order served upon the petnr. stated that whereas it had been brought to the notice of the Addl. Dist. Mag. that the petnr. resided in or used or frequented in POONa City house No. 402 Budhwar Peth in which the business of a common prostitute was carried on, the Addl. Dist. Mag. directed the petnr. to remove herself from Poona City to a place beyond the radius of five miles from Poona City before 30-9-1950. The order is dated 11. 8-1950.

(2.) MR. Daundkar contends that Section 9 (1) of the Act is void inasmuch as it places an unreasonable restriction upon the right of the citizen conferred upon him by Article 19 (d) and (e) of the Constitution. Section 9 (l) confers upon the Comr. of Police, Greater Bombay, and upon the Dist. Mag- outside Greater Bombay, power to cause a notice to be served upon any person who occupies or manages or acts or assists in the management of, or upon any woman who resides in, uses or frequents, any house, or room or place in which the business of a common prostitute is carried on, requiring such person or woman within a certain period not to reside in, use or frequent any street or place specified in the notice, or directing such person or woman within a certain period to remove himself or herself to such place whether within or without Greater Bombay, by such route or routes and within such time as the Comr. of Police shall prescribe. Undoubtedly, this piece of Legislature is a restriction upon the right of a citizen to move freely through the territory of India and to reside and settle in any part of the territory of India. Bat the right conferred by Article 19 (d) and (e) is not an absolute right. It is controlled by Ssub-clause (5) of Article 19, and it is competent to a Legisliture to impose a reasonable restriction on the exercise of those rights in the interest of the general public. But it is contended by Mr. Daundkar, in view of our judgment in Emperor v. Jeshingbhai Ishwarlal, 52 Bom. L. R. 544 : (A. I. R. (37) 1950 Bom. 363 : 52 Cr. L. J. 120 F. B.) that the restriction imposed by this section is not a reasonable one. It is left to the Comr. of Police or the Dist. Mag. to decide that a particular place is being used for the business of a common prostitute and without giving an opportunity to the party affected to be heard in his or her defence to order him or her to leave the place and to go to such place as he or she may be directed.

(3.) IN answer to this contention, the Govt. Pleader draws our attention to Section 9 (4) of the Act which provides for a prosecution for disobedience of the requisition contained in the notice issued under Section 9 (1), and the Govt. Pleader argues that whether a particular place is used for the business of a common prostitute or not is an objective fact, and if the notice is issued on an incorrect assumption, that fact can be challenged in the prosecution and an adjudication can be obtained in a criminal Ct. Therefore according to the Govt. Pleader it would not be correct to say that the person affected by the notice under Section 9 (1) has no right to be heard in his or her defence. But the Govt. Pleader overlooks the provisions of Section 9 (2) which gives very wide powers to the police. If the notice served under Section 9 (1) is disobeyed, the police have the powers to arrest the person and remove him in police custody to the place prescribed by the notice under Section 9 (1 ). The Govt. Pleader relied on the case of George L'hote v. City of New Orleans, 44 U. S. R. 587. There an ordinance prescribing limits in a city outside of which no woman of lewd character shall dwell was challenged as invading the rights of property owners in or adjacent to the prescribed limits, and one of the grounds urged before the S. C. was that the property owners were not entitled to be heard in protection of their rights and the S. C. rejected this contention. Now, the case bafore the S. C. was entirely different from the case before us. There the law sought to confine prostitutes within territorial limits and the persons who made a grievance were indirectly affected by having their property adjoining to these limits. In the case before us the petnr. is sought to be driven out of her residence pursuant to an order made by the police authorities when she has not been heard in her defence at all. There is a direct invasion of her rights under Article 19 (1) (d) and (e ). These rights may be undoubtedly restricted in public interest, but there would be no prejudice to public interest if the persons sought to be affected are given an opportunity to be heard.