RAM KALI Vs. A C AGARWAL

JUDGEMENT

(1.) THIS order must be read in continuation of out order dated the 23rd July, 1963. By this order, Criminal Writ Petitions Nos. 3-D, 4-D, 5-D, 6-D, 7-D, 10-D and 12-D of 1962 will stand dispose of.

(2.) IN order to determine the vires of Section 18 of the Suppression of Immoral Traffic in Women and Girls Act, 1956 (No. 104 of 1956) -hereinafter referred to as the Act -- we issued notice to the Attorney General of India Shri S. V Gupta, Additional Solicitor General, appeared on behalf of the Attorney General and addressed us on the question of the vires of Section18 of the Act.

(3.) THE argument advanced by the teamed counsel is that Section 18 of the Act is directed against premises and not persons and therefore, it cover a separate field than that which is covered by Section 7 of the Act. It was also maintained that it action taken under Section 18 in the first instance it does not debar the Magistrate from taking action under Section 7. It was however, conceded, and rightly, that there is no provision in the Act which makes it incumbent upon the Magistrate having taken action under Section 18 to necessarily take action under Section 7. He may or may not take action under Section 7, just as Magistrate who takes action under Section 7 may take action under Section 18 (2), but no valid argument was addressed to us. which in any way would furnish an answer to the problem that confronted us namely, that the discretion is left with the Magistrate for proceed, in the case of persons similarly situate under Section 7, while in the case of other persons similarly situate under Section 18 There is no criteria laid down in the Act nor was any attempt made by the learned Counsel to indicate to us. from the scheme of the Act any criteria which could be said to be a reasonable criteria for picking and choosing one out of the number of persons similarly situate for being proceeded against under Section 7 and others so similarly situate for being proceeded against under Section 18 It was admitted by the learned Counsel that to bring home the charge under both Sections 7 and 18, the same bundle of facts has to be proved that is, it has first got to be established that the place which is sought to be attached under Section 18 is within 200 yards of a public place and is being run or used as a brothel by any person or is being used by prostitutes for carrying on their trade. That is what has also to be proved in Section 7. The learned Counsel maintained that the proceeding under Section 18 are quasi-judicial in nature and the power to proceed having been entrusted to a Magistrate who is conversant with judicial procedure it is expected that he will follow the rules of natural justice and only come to a finding on proper evidence and not otherwise But that does not solve the problem. The problem is: Why proceedings are sought to be taken against one person under Section 7 and against another under Section 18 when both the persons are identically situate It cannot be overlooked that under Section 7 the the mater has to be tried on evidence which has to be judged in the light of rules of evidence laid down in the Indian Evidence Act. An appeal is provided against conviction. It is no doubt true that no appeal is provided against the order passed under Section 18 and that such a non -provision will not in any Way affect the vires of that1 provision because the consequences which ensue under Section 7 are totally different from those ensuing under Section 18 when the proceedings are taken under either of the store said provisions. That is so, but there is no rational basis for making the selection for proceeding against two persons similarly situate -- one under Section 7 and the other under Section 18 of the Act. Therefore, the choice must inevitably lead to invidious discrimination which discrimination cannot be explained on any rational basis. It is well known that the Magistrates enjoy dual capacity. In one capacity they are the parts of the executive machinery while in the other they act as Courts and try offences under the Code of Criminal Procedure in judicial capacity. This distinction seems to have been maintained in the present Act where the offences under the present Act are triable by Courts and proceedings under Section 18 are to the resorted to by a Magistrate and it, therefore cannot be said that the Magistrate when he is acting under Section 18 is acting as a Court. 11 that were so, in Section 18 the word Court would have been mentioned and not Magistrate the offences under the Act have been made cognizable under Section 14 of the Act Section 29 of the Code of Criminal Procedure, which is in these terms: