BALKRISHNA CHANDRAKANT SAWANT Vs. STATE OF MAHARASHTRA

JUDGEMENT

(1.) The petitioners (1) Balkrishna Chandrakant Sawant and (2) Vimal B. Sawant are husband and wife and on June 24, 1974 they have been convicted by the learned Presidency Magistrate, 21st Court, Bandra, Bombay, under sections 3, 4 and 5 of the Suppression of Immoral Traffic in Women and Girls Act, 1956, and each of then has been sentenced to suffer rigorous imprisonment for two years. On the following day the learned Police Prosecutor made an application requesting the learned Magistrate to pass an order under section 18, sub-section (2) of the Suppression of Immoral Traffic in Women and Girls Act, 1956, against both these petitioners , who were occupying a flat in Krishna Bhavan situate within distance of 200 yards from a certain educational institution and a number of Nursing Homes in Hindu Colony, Dadar. On receipt of this application from the learned Police Prosecutor, the petitioners-accused were called upon to show cause why an order under section 18(2) of the Suppression of ImmoralTraffic in Women and Girls Act, 1956, should not be passed against them. Being aggrieved by the convictions recorded and the sentence of imprisonment imposed by the learned trial Magistrate, the petitioners-accused preferred an appeal to this Court which was later on transferred to the Sessions Court, Greater Bombay, for disposal according to law. That appeal came to be numbered as Criminal Appeal No. 40 1976 and is still pending in the Sessions Court.

(2.) As the original record and proceedings in the criminal case against the petitioners-accused were sent to the Sessions Court in appeal, the hearing of the application dated June 25, 1974, filed by the learned Police Prosecutor before the learned trial Magistrate was adjourned from time to time. Although the petitioners-accused before the learned Magistrate in response to the show caused notice issued to them, they did not file any written statement or objections to the application filed by the learned Police Prosecutor. On the other hand, they chose to file Revision Application No. 100 of 1976, requesting the learned Additional Sessions Judge, Greater Bombay, to pass an order staying the hearing of the application filed by the learned Police Prosecutor before the learned Magistrate. The learned Additional Sessions Judge heard the learned Counsel for the petitioners-accused and came to the conclusion that the application made by the petitioners-accused was designed to circumvent the operation of section 18 and there was no provision of law permitting stay of the hearing of an application like the one presented before the learned trial Magistrate. He, therefore, passed an order on April 12, 1976, rejecting the revision application filed by the petitioners-accused, who have thereupon filed the present application in this Court on April 19, 1976.

(3.) Mr. Gupte, learned Counsel for the petitioners-accused, urged that an order under section 18, sub-section (2) of the Suppression of Immoral Traffic in Women and Girls Act, 1956, is to be passed by the learned trial Magistrate convicting the accused persons forthwith and not on some subsequent date thereafter. According to Mr. Gupte, a Magistrate while convicting the accused has also to pass an order under section 18(2) of the Suppression of Immoral Traffic in Women and Girls Act, 1956, and that after passing the judgment he becomes functus officio and will have no jurisdiction to pass an order under section 18(2) of the said Act. Mr. Gupte urged that the provisions contained in section 18(2) of the Suppression of Immoral Traffic in Women and Girls Act, 1956, do not contemplate any application by any of the parties moving the Magistrate to pass an order under section 18(2); but, on the other hand, they contemplate that at the time of convicting the accused person the Magistrate is required to pass an order or refuse to pass an order under section 18(2) of the said Act. Mr. Gupte further urged that in this case the learned Police Prosecutor had urged in his arguments that the Magistrate should pass an order under section 18(2) of the Suppression of Immoral Traffic in Women and Girls Act, 1956, and the learned Magistrate not having passed such an order, he must be deemed to have impliedly refused to exercise the jurisdiction vested in him under section 18(2) of the said Act.