1 criwp-589.11 IN THE HIGH COURT OF JUDICATURE AT BOMBAY, BENCH AT AURANGABAD CRIMINAL WRIT PETITION NO. 589 OF 2011 1. Ajay s/o Manmathappa Shete, age 39 years, occup. business, r/of Samarthnagar, Osmanabad, Taluka and Dist. Osmanabad. Petitioner versus 1. The State of Maharashtra 2. The Sub-Divisional Magistrate, Osmanabad. 3. The Sub Divisional Police Officer, Osmanabad. Respondents ------- Shri C.K. Shinde, Advocate, for the Petitioner. Smt.S.D. Shelke, A.P. P. for the Respondents. ------- Coram: A. H. Joshi and A. R. Joshi, JJ. Date : 20th August 2011. Judgment : ( Per: A.H. Joshi, J.) 1. Rule. Rule made returnable forthwith and heard by consent. 2. Reply of Respondent No. 2 is already on record. 3. The facts, in brief, are that the petitioner is running a Hotel/Lodge at Osmanabad, known as Pratham Lodge. 4. Petitioner was served with a notice of show cause dated 17.2.2011, by the Sub Divisional Magistrate, Osmanabad. It pertained to 2 criwp-589.11 incidents, which occurred in July 2010, of allowing prostitutes to use Rooms in Lodge. Petitioner was called upon to explain as to why action under Section 18(1) of the Immoral Traffic (Prevention) Act, 1956 (for short "ITP Act"), should not be taken against him. It was alleged in the said notice that the premises of Pratham Hotel, run in the petitioner's building, were used for allowing the girls and women for prostitution and the premises are situated within 200 meters of public places. 5. Time of seven days was allowed to the petitioner to submit his say. The petitioner furnished his reply dated 1.3.2011. 6. The Sub Divisional Magistrate, after considering the reply filed by the petitioner to the notices, passed the order dated 18.7.2011, which is under challenge. 7. Learned Advocate for the petitioner has raised, in support of the petition, following points. (i) The incident reported is only and solitary and one case is registered against the accused person under the provisions of the Immoral Traffic (Prevention) Act, 1956. (ii) No case is registered against Shri Arvind Laxman Hiware who is the Manager of the Petitioner's hotel Pratham, and who admitted before the Police in the course of investigation that he had allowed one Gunwant Papa Deshmukh r/of Dhoki, to bring different girls in the hotel and enter in the room occupation register, the fictitious names. 3 criwp-589.11 (iii) The owner of the hotel has not been arrayed as accused. (iv) It is a solitary incident of use of the premises for prostitution. (v) The owner cannot be evicted from the premises under the ITP Act. Such solitary use does not constitute and answer the term "brothel". (vi) The landlord, who is innocent, cannot be held guilty for offence under -Section 18 (1) of the ITP Act and is not liable for action whatsoever. 8. Perusal of the impugned order discloses that it is based mainly on a statement of Arvind Laxman Hiware-the Manager of Pratham Hotel, admitting the incident which had occurred on 3.5.2010 and earlier similar incidents. 9. We have perused the statement of Arvind Laxman Hiware. It contains following version: (i) That on 3.5.2010 at about 12.00 noon one Gunwant Deshmukh, resident of Dhoki, arrived in the Pratham Hotel /Lodge with a girl. He booked room No. 31 in the hotel and they both stayed in the room till 2.30 p.m. The Girl was about 16 to 17 years of age. (ii) Said Gunwant recorded fictitious name for booking the room. (iii) The girl seen by him (Arvind Hiware) at the time of recording of his police statement, was the same. 4 criwp-589.11 (iv) Even earlier, Gunwant Deshmukh came to the hotel on 3 to 4 occasions with different girls and had enrolled himself with fictitious name in the booking register. (v) This was not objected to by him, because Gunwant was frequent and known visitor to the said hotel. 10. Learned Advocate for the petitioner relied on two judgments; one of our High Court in Dhansingh Gopal Chauhan vs. State of Maharashtra 2005 (3) Mh.L.J. 500, and another of Madras High Court in Suseela vs. State 1982 Cri. L. J. 702. 11. On perusal of Section 18 of the ITP Act what reveals, is summarized as follows; (i) Section 18(1) prescribes the procedure for attachment or eviction of the premises consisting of house, room, place or portion that is being used as a brothel or for carrying on prostitution, provided that the owner has proved his innocence, or unconnectivity or involvement in the act complained of. (ii) Sub-section (2) of Section 18 provides for power of the Court to pass an order under sub-section (1), in the event of eviction under Sections 3 and 7 of the ITP Act. 12. Apparently, present is a case falling under sub-section (1) of Section 18 of the ITP Act which refers to the premises being used as brothel or for carrying on prostitution. The order passed under sub-section (1) of Section 5 criwp-589.11 18 is thus capable whenever the use of premises for prostitution or as brothel is done to the satisfaction of the Magistrate. 13. It is seen from the record, that the owner of Pratham Hotel has chosen to rely, before the Magistrate, as well as before this Court, on his own statement of denial or innocence recorded by the Sub Divisional Police Officer, and a written reply furnished by him before the Magistrate, stating that the statement of his Manager Arvind Laxman Hiware does not, in any way, attribute admission/proof of guilt by and on the part of the owner and, therefore, no action whatsoever can be taken against the owner under Section 18 (1) of the ITP Act. 14. It is seen from the statement of Arvind Hiware, a copy whereof is at pages 47/48, that it is not the case of sole or solitary incident of use of hotel rooms as brothel or for prostitution. It is a case, as admitted by Arvind Hiware himself, of repeated use of hotel for prostitution as well as brothel. Earlier, multiple incidents had occurred and last for which case was registered had occurred in the noon on 3.5.2010. 15. In the given situation, the report received by the Magistrate from Sub Divisional Police Officer for taking action under sub section (1) of Sec. 18 of the ITP Act, had gone un-controverted inasmuch that the statements of witnesses recorded by Sub Divisional Police Officer, and relied upon by the Sub Divisional Magistrate are concerned. Even the petitioner has not denied those. 6 criwp-589.11 16. The petitioner, who claimed to be innocent, did not do anything in order to prove his innocence in the course of hearing of proceedings of show cause notice before the Magistrate. 17. In the given situation, therefore, the Magistrate was left with no other option than to proceed on the basis of the notice which was formally contested by reply of denial, as the grounds brought before him in the report of the Sub Divisional Police Officer on the basis of which proceedings were initiated before him, were practically contested merely with words of arguments. 18. In the given circumstances, this court is left with no other option but to hold that the impugned order dated 18.7.2011 passed by the Sub Divisional Magistrate under sub-section (1) of Section 18 of the IPT Act, is based on material on record obtained before him and it has gone uncontested. The order is, therefore, not liable to be faulted with, either in law, or on facts. 19. Insofar as reliance placed by the petitioner on the judgment of this court is concerned, it may be noted that the said judgment refers to the eviction of the landlord from the premises on the ground that the premises were being used as brothel by some other person. In the present case, the use of the room in the hotel, as alleged, is for brothel or prostitution, including by a lady who procures the prostitutes, and those acts were allowed by petitioner's agent and not by a stranger. The case relied upon by the petitioner is of no help to him. 7 criwp-589.11 20. In these circumstances, the case falls in the category of owner permitting the premises to be used for prostitution, though not as a brothel, which itself would not be permissible. 21. We do not find any merits in the petition. The petition is, therefore, dismissed. Rule discharged. (A. R. JOSHI, J.) (A.H. JOSHI, J.) pnd/criwp-589.11