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Judgment
Mohan, J.—The Writ Petition is one for the issue of a certiorari to quash the order of the second Respondent in Cr. M.P. No. 995 of 1974
dated 15th February, 1975. The Criminal Miscellaneous Petition filed under Sections 397 and 482 of the Crl. P.C. is for the same relief.
Therefore, both can be dealt with together.
The short facts are as follows: The Petitioner is the owner of ''Midland Annexe'' at Door No, 36, Subbarayan Road, Salem-1, which is a
Boarding and Lodging House. It is owned by a firm of partners consisting of (1) Thangaraj. (2) S. Arumugbam and (3) the petitioner .The firm is a
registered partnership. A notice was issued on 30ib December, 1974, calling upon the writ Petitioner to show cause as to why the premises should
not be attached for the improper use thereof. The instances of improper use were listed out in the show cause notice, which was to the effect that
the lodge was being run or used as a brother by allowing the rooms of the lodge to be used by prostitutes for carrying on prostitution during the
year 1973-1974. On the basis of this show-cause notice, a prosecution was launched against the Petitioner u/s 18(1) of the Suppression of
Immoral Traffic in Women and Girls Act, 1956 (hereinafter referred as the Act) which was taken up in Crl. M.P. No. 995 of 1974. The Chief
Judicial Magistrate, Salem, passed an order dated 15th February, 1979 (which it the subject-matter of the writ petition as well as the Criminal
Miscellaneous Petition before this Court), holding that the offence complained of had been made out and directed the eviction of the Petitioner u/s
18(1)(a) and further gave a direction u/s 18(l)(b).
Though initially the writ Petitioner challenged the vires of Section 18(1) of the Act, when the matter was taken up for hearing, Mr. Nainar
Sundaram, learned Counsel for the writ Petitioner, conceded that his client was no longer interested in challenging the vires of the Act. This
obviated the necessity of the first Respondent filing a counter-affidavit. Consequent upon this stand, arguments were addressed on behalf of the
Petitioner as follows:
(1) Having regard to the ruling reported in Shri A.C. Aggarwal, Sub-divisional Magistrate, Delhi and Another Vs. Mst. Ram Kali, etc., it was
incumbent upon the prosecution to have resorted to S. 7 of the Act before proceeding to take action u/s 18(1). since Section 7 would have
enabled the Petitioner to prove his innocence, and in the event of he being found guilty under S .7, he would have had an opportunity to come up in
appeal, of which be has now been deprived by the prosecution having resorted to S, 18.
2 Some instance listed out in the show-cause notice of December, 1974, did not relate to ''Midland Annexe'', of which alone the Petitioner is the
owner and therefore the show cause notice was not proper.
The learned Chief Judicial Magistrate has not taken into consideration the proviso to S. 18(1)(b) not with standing his further direction u/s 18(1)
(b).
The learned Government Pleader, in countering these arguments, would submit that it was open to the prosecution to have recourse either to S.
7 or to S. 18, that these are distinct in nature, the former relating to an offence against the person, under which the prosecution would be required
to establish the mens rea of the accused, and the latter concerning the premises in question, and that, therefore, the contention of the Petitioner that
resort must have been had to S. 7 is not correct. Nextly, all the instances quoted in the show-cause notice of December, 1974, did relate to the
Petitioner, notwithstanding the misdescription of the property as merely ''Midland Lodge'' and therefore no exception could be taken to the same.
Lastly it is urged that the applicability of the proviso to S. 18(1)(b) is not available to an owner of the premises at all, in this case, it is the owner
who was running the lodge and therefore there was no scope for applying this proviso. This was perhaps the reason why no such argument was
advanced in this regard either before the Criminal Court or even a ground taken in the Writ Petition.
The learned Public Prosecutor, while supporting the arguments of the learned Government Pleader would also draw my attention to the decision
in Chitan J. Vaswani and Another Vs. State of West Bengal and Another, and submit that S. 7 and Section 18 contemplate different situations, the
latter being preventive in nature and concerning the premises.
On a careful consideration of the above arguments, I find no substance either in the Writ Petition or in the Criminal Miscellaneous petition.
Certainly, there is no warrant for the submission of learned Counsel for the Petitioner that only after resorting to S. 7, Section 18 could be invoked.
As has been pointed out in Shri A.C. Aggarwal, Sub-divisional Magistrate, Delhi and Another Vs. Mst. Ram Kali, etc., and Chitan J. Vaswani and
Another Vs. State of West Bengal and Another, and S. 18 contemplate different offences, S. 7, as against the person, whereunder a regular
prosecution would have to prove the mens rea or the knowledge of the accused, and no such thing arising u/s 18. As pointed oat by the Supreme
Court, S. 18 is purely preventive in nature. On a reading of the decision in Shri A.C. Aggarwal, Sub-divisional Magistrate, Delhi and Another Vs.
Mst. Ram Kali, etc., I see no warrant for the extreme submission. Therefore, this argument fails.
May be, in some of the instances listed out in the show cause notice of 30th Decembers 1974, the description of the property is only ''Midland
Lodge''. It is not the case of the Petitioner that the ''Midland'' belongs to somebody else. Even otherwise, there were certainly instances which
directly related to ''Midland Annexe'', which is admittedly owned by the Petitioner. It is not by the numerology of the instances by which the
offence under the section is made out; but even a single instance is enough, provided the Magistrate exercises his jurisdiction u/s 18 (1) properly. In
this case, I have little hesitation in holding that the discretion has been exercised properly.
Regarding the applicability of the proviso to S. 18(1)(b), first of all that stage has not arisen, since under that section, the writ Petitioner, viz ,
owner, will have to obtain the previous approval of the Magistrate and then it will be time trough for the Magistrate to consider the applicability of
the proviso. Whether it is applicable to ''owner'', I say nothing at present. Therefore, this argument also fails.
Consequently, the writ petition will stand dismissed. I make no order as to costs.
In view of my order in the writ petition, the Criminal Miscellaneous Petition will also stand dismissed.