minal Appeals No 76 82 of 1965
Appeals from the judgment and order dated September 9 1963 of the Punjab High Court Circuit Bench at Delhi in Criminal Writs Nos
3 D 4 D 5 D 6 D 7 D 10 D and 12 D of 1962
B R L Iyengar and R N Sachthey for the appellants in all the appeals
G section Bawa and Harbans Singh for the respondents in Cr
76 81 of 1965
206 The Judgment of the Court was delivered by Hegde J
These are companion appeals
They were brought to this Court on the strength of the certificates issued by the High Court of Punjab
The only question that falls for decision in these appeals is whether s18 of the Suppression of Immoral Traffic in Women and Girls Act 1956 hereinafter referred to as the Act is ultra vires article 14 of the Constitution
The attack on the validity of that section on the basis of Art 19d e and f was not pressed at the time of the hearing
Hence there is no need to examine the said plea
The first appellant in these appeals Shri A C Aggarwal
Sub Divisional Magistrate Delhi issued notices to the respondents in these appeals except that in criminal appeal No 82 of 1965 to show cause why the premises occupied by them should not be attached under 
1 of the Act
Those notices were issued on the basis of police reports that those premises were being used as brothers
In reply amongst other pleas those respondents challenged the validity of s18
They moved the learned magistrate to refer the question as to the validity of section 18 to the High Court under s432 of the Criminal Procedure Code of 1898
As the learned magistrate rejected that prayer they moved the High Court under article 226 of the Constitution in criminal writs Nos 3D to 7D and 10D of 1962 challenging the vires of s18 Respondent in criminal appeal No 82 of 1962 claims to be the tenant in flat No 54 on the first floor of Japan Building which premises had been attached in the proceedings against one Mst
Ambar under section 181
His case was that be had permitted the said Mst
Ambar to use those premise s temporarily but she lad vacated the same and therefor he was entitled to their possession as according to him he was unaware of the fact that Mst
Ambar was using the premises in question for an improper purpose
But the learned magistrate rejected his application holding thata there was no satisfactory proof of the fact that lie was a tenant in those promises and b he was aware of the unlawful use to which the premises in question were being put
Aggrieved by that decision he moved the High Court of Punjab in Ur
Writ No 12 062 to quash the order of the learned Magistrate on the around that section 18 was ultra vires of Article 14
The aforementioned writ petitions were heard by Mahajan and Shamsher Bahadur JJ
and by a common order dated September 9 1963 they Allowed those petition and quashed the notices issued to the respondents in criminal appeals Nos
76 to 81 of 1965 
They also quashed the order refusing to raise the attachment in respect of flat No 154 of which Siri Chand the respondent in Criminal appeal No 82  65 claimed to be the tenant
The learned Judges held that whenever action is taken under s18 independently of s7 it would offend Art14 of the Constitution and to that extent section 18 would be ultra vires of the Constitution
 207 In the course of their order dated 23rd July 1963 the learned Judges observed The requirements for taking action under Section 18 or under Section 7 of the Act are identical
The Act leaves the choice of the action under one or the other provision to the executive in the case of persons similarly situate and thus can lead to discrimination without there being any rational basis for the same
The consequences of an action in one case are of an extremely penal nature whereas in the other case that is under Section 18 of comparatively inconsequential nature
The discrimination can come about where in the case of a number of prostitutes who carry on their profession within two hundred yards of a public place as defined in Section 7 the authorities may take action against some of  them under Section 18 and against the others under Section 7
The fact that this can happen is not controverted by the learned cou nsel for the Delhi State
We also find
no rationable behind this type of discrimination
The scheme of the Act also does not provide any key for such sort of discrimination between persons of the same class
and similarly situate
The inhibition of article 14 that the State shall not deny to any person equality before the law or the equal protection of the laws
was resigned to protect all persons against discrimination by the State amongst equals and to prevent any person or class of persons from being singled out as a special subject for discrimination and hostile treatment
If law deals equally with all of a certain well defined class it is not obnoxious and it is not open to the charge of denial of equal protection on the ground that it has no application to other persons for the class for whom the law has been made is different from other persons and therefore there is no discrimination against equals
Every classification is in some degree likely to produce some inequality but mere production of inequality is not all by itself enough
The inequality pruduced in order to encounter the challenge of the of the Constitution must be the result of some arbitrary step taken by the State
Reasonable classification is permitted but suchclassification must be based upon some real and substantial distinction bearing a reasonable and just relation to the thing in respect of which such classification is made
The presumption is always in favour of the constitutionality of an enactment since it must be assumed that the legislature understands and correctly appreciates the needs of its own people and its laws are directed to problems made manifest by experience and its discriminations are based on adequate grounds
The contention advanced on behalf of the respondents and accepted by the High Court is that section 18 discriminates against the  208 person who is proceeded against under that section without first being prosecuted under s3 or s7 as the case be though the information laid against him discloses an offence either under s3 or s7
Section 18 covers two classes of cases namely persons who have been prosecuted and found guilty of an offence either under s3 or s7 as well as persons not dealt with under those provisions
In the case of the former they have the benefit of regular trial they can crossexamine the prosecution witnesses adduce defence evidence and also go up in appeal if convicted
In those cases the result of the proceedings under s18 largely though not entirely depends on the result of the connected prosecution
But in the case of the latter ie those who are only proceeded against under s18 they have only a right of hearing 
It is further urged on their behalf that under s3 or s7 action is taken before a court whereas the proceeding under section 1 8 is taken before a magistrate
In the latter case the Act does not lay down the scope of the hearing provided for
It was lastly urged that the facts to be proved both in prosecutions under ss3 and 7 and in proceedings under s18 are identical hence there is no justification for adopting two widely different procedures
In support of their contention that the difference in the two procedures prescribed amounts to a discrimination under article 14 reliance was placed on the decision of this Court in the State of West Bengal vs Anwar Ali Sarkar1
We shall now proceed to examine the correctness of these contentions
The Act was enacted in pursuance of an international convention signed at New York on the 9th day of May 1950
It provides for the suppression of immoral traffic in women and girls
The sections that are material for our present purpose are 3 7 and 18
Section 3 provides for punishment for keeping a brothel or allowing premises to be used as a brothel
Section 31 provides for the conviction and punishment of a person who keeps or manages or acts or assists in the keeping or management of a brothel
Sub s2 of that section provides for the conviction and punishment of a person who being a tenant lessee or occupier or person incharge of any premises uses or knowingly allows any other person to use such premises or any part thereof as a brothelb the owner lessor or landlord of any premises or the agent of such ownerlessor or landlord lets the premises or any part thereof with the knowledge that the same or any part thereof is intended to be used as a brothel or is wilfully a party to the use of such premises or any part thereof as a brothel
Brothel is defined in s2a as including a house room or place or any portion of any house room or place which is used for the purpose of prostitution for the gain of another person or for the mutual gain of two or more prostitutes
Prostitute is defined in s2e as meaning a female who offers her body for promiscuous sexual intercourse for hire whether in money or in kind
1  209 Section 7 provides for the Punishment of prostitution in or in the vicinity of public places
That section reads 1 Any woman or girl who carries on prostitution and the person with whom such prostitution is carried on in any premises which are within a distance of two hundred yards of any place of public religious worship educational institution hostel hospital nursing home or such other public place of any kind as may be notified in this behalf by the Commissioner of Police or District Magistrate in the manner prescribed shall be punishable with imprisonment for a term which may extend to three months
2 Any person who a being the keeper of any public place knowingly permits prostitutes for purposes of their trade to resort to or remain in such place or b being the tenant lessee occupier or person in charge of any premises referred to in sub section 1 knowingly permits the same or any part thereof to be
used for prostitution or c being the owner lessor or landlord of any premises referred to in sub section 1 or the agent of such owner lessor or landlord lets the same or any part thereof with the knowledge that the same or any part thereof may be used for prostitution or is wilfully a party to such use shall be punishable on first conviction with imprisonment for a term which may extend to three months or with fine which may extend to two hundred rupees or with both and in the event of a second or subsequent conviction with imprisonment for a term which may extend to six months and also with fine which may extend to two hundred rupees
Public place is defined in section 2h as meaning any place intended for use by or accessible to the public and includes and public conveyance
Now we may refer to section 18
It reads  1 A Magistrate may on receipt of information from the police or otherwise that any house room place or any portion thereof within a distance of two hundred yards of any public place referred to in sub section 1 of section 7 is being run or used as a brothel by any person or is being used by prostitutes for carrying on their trade issue notice on the owner lessor 210 or landlord of such house room place or por tion or the agent of the owner lessor or landlord or on the tenant lessee occupier of or any other person in charge of such house room place or portion to show cause within seven days of the receipt of the notice why the same should not be attached for improper user thereof and if after hearing the person concerned the Magistrate is satisfied that the house room place or portion is being used as a brothel or for carrying on prostitution then the Magistrate may pass orders a directing eviction of the occupier within seven days of the passing of the order from the house room place or portion b directing that before letting it out during the period of one year immediately after the passing of the order the owner lessor or landlord or the agent of the owner lessor or landlord shall obtain the previous approval of the Magistrate Provided that if the Magistrate finds that the owner lessor or landlord as well as the agent of the owner lessor or landlord was innocent of the improper user of the house room place or portion he may cause the same to be restored to the owner lessor or landlord or the agent of the owner lessor or landlord with a direction that the house room place or portion shall not be leased out or otherwise given possession of to or for the benefit of the person who was allowing the improper user therein
2 A Court convicting a person of any offence under section 3 or section 7 may pass orders under sub section 1 without further notice to such person to show cause as required in that sub section
3 Orders passed by the Magistrate or court under sub section 1 or sub section 2 shall not be subject to appeal and shall not be stayed or set aside by the order of any court civil or criminal and the said orders shall cease to have validity after the expiry of one year Provided that where a conviction under section 3 or section 7 is set aside on appeal on the ground that such house room place or any portion thereof is not being run or used as a brothel or is not being used by prostitutes for carrying on their trade any order passed by the trial court under sub section 1 shall also be set aside
211 4 Notwithstanding anything contained in any other law for the time being in force when a Magistrate passes an order under sub section 1 or a court passes an order under sub section 2 any lease or agreement under which the house room place or portion is occupied at the time shall become void and inoperative
5 When an owner lessor or landlord or the agent of such owner lessor or landlord fails to comply with a direction given under clause b of sub section 1 he shall be punishable with fine which may extend to five hundred rupees or when he fails to comply with a direction under the proviso to that sub section he shall be deemed to have committed an offence under clause b of sub section 2 of section 3 or clause c of sub section 2 of section 7 as the case may be and punished accordingly Sections 3 and 7 provide for the punishment of persons guilty of the offences mentioned therein
Any contravention of the provisions mentioned therein amounts to a cognizable offence in view of section 14 whereas a proceeding under s18 is in no sense a prosecution
It is a preventive measure
It is intended to minimise the chance of a brothel being run or prostitution being carried on in premises near about public places
Naturally in the case of prosecutions a regular trial with a right of appeal is provided for
The enquiry contemplated by s18 is summary in character
The attachment contemplated by that section can enure only for a period of one year
Under these circumstances evidently the Legislature thought that a regular trial and an appeal against the order of the magistrate is not called for
In these cases it is unnecessary for us to spell out the scope of the expression hearing found in s18
It is necessary to remember that ss3 and 7 deal with persons guilty of offences whereas s18 deals with the premises mentioned therein
It is not correct to say that the set of facts to be proved in prosecutions under ss3 or 7 and in proceedings under s18 are identical
In the former the prosecution to succeed has to establish either the intention or knowledge referred to therein but in the latter they are not necessary ingredients
Section 18 provides for two classes of cases namely 1 those coming either under section 3 or 7 as well as under section 18 and 2 those coming only under section 18
They are two distinct classes of cases a classification which has reasonable relationship with the object sought to be achieved and therefore falls outside the rule laid down by this Court in Anwar Ali Sarkar s1 case
1 N1SCI 15a 212 From the copies of the reports made in these cases to the magistrate by the police made available to us at the hearing of these appeals it is clear that they disclose offences under s3 against the respondents
Therefore the question is whether the magistrate can choose to ignore the cognizable offence complained of and merely have recourse to s18 and thus deprive the parties proceeded against of the benefit of a regular trial as well as the right of appeal in the event of their conviction
Bearing in mind the purpose of these provisions as well as the scheme of the Act and on a harmonious construction of the various provisions in the Act we are of the opinion that in cases like those before us the magistrate who is also a court as provided in s22 must at the first instance proceed against the persons complained against under the penal provisions in ss3 or 7 as the case may be and only after the disposal of those cases take action under s18 if there is occasion for it
Under s1901b of the Code of Criminal Procedure the magistrate is bound to take cognizance of any cognizable offence brought to his notice
The words may
take cogni zance in the context means must take cognizance
He has no discretion in the matter otherwise that section will be violative of article 14
But as laid down in Delhi Administration vs Ram Singh1 only an officer mentioned in s13 can validly investigate an offence under the Act
Hence if the cases before us had been investigated by such an officer there is no difficulty for the magistrate to take cognizance of those cases
Otherwise it is open to him to direct fresh investigations by competent police officers before deciding whether the facts placed before him disclose any cognizable offence
In the result we hold for the reasons mentioned above that the proceedings taken by the learned magistrate against the respondents are not in accordance with law as he has proceeded against them under s18 without first taking action under s3
For that reason we uphold the conclusions reached by the learned Judges of the Punjab High Court but on grounds other than those relied on by them
But this conclusion of ours does not debar the learned magistrate from taking fresh proceedings against the respondents in accordance with law as explained by us earlier
In the result these appeals fail and are dismissed
Appeals dismissed


Summary:
Section 18 of the Suppression of Immoral Traffic in Women and Girls Act 1956 provides for two classes of cases namely 1 those coming under sections 3 or 7 as well as under section 18 and 2 those coming only under section 18
Sections 3 and 7 provide for the punishment of persons guilty of the offences mentioned therein after a regular trial with a right of appeal
Section 18 is a preventive measure dealing with premises and is intended to minimise the chance of a brothel being run near a public place and provides for a summary enquiry
211 D E G H
In the present case on the strength of reports submitted by the police to him the Sub Divisional Magistrate passed orders under section 18 1 with respect to certain premises in the occupation of the respondents
They challenged the validity of the section and the High Court held that the section violated article 14 of the Constitution
In appeal to this Court Held Section 18 provides for two distinct classes of cases and the classification being reasonable is not violative of article 14 of the Constitution
But the proceedings taken by the Magistrate not being in accordance with law should be set aside
The reports disclosed a cognizable offence under section 3 of the Act and in such a case the Magistrate cannot ignore the cognizable offence and merely have recourse to section 18 thus depriving parties of the benefit of a trial and appeal
The Magistrate should have taken action under section 190 1 b of the Criminal Procedure Code after investigation by such police officer as is mentioned in section 13 of the Act and it was only after the disposal of the cases against the parties that action could be taken under section 18 if there was occasion for it
212 A D
State of West Bengal vs Anwar AU Sarkar
 and Delhi Administration vs Ram
Singh
1962 2 SCR 694 referred to