The Patna High Court, in a judgment dated 22 January 2021, clarified the power of the Sub-Divisional Magistrate (SDM) to direct eviction and sealing of premises allegedly used for prostitution under Section 18(1) of the Immoral Traffic (Prevention) Act, 1956 (ITPA). The Court held that such preventive action does not have to await the conclusion of a pending criminal trial under Sections 3, 4, 5, or 7 of the ITPA. The writ petition challenging the SDM’s order, as well as the subsequent sealing of a small hotel, was dismissed.
Simplified Explanation of the Judgment
This case arose after local police raided an eight-room hotel and claimed it was being used for prostitution. The authorities registered an FIR and, shortly thereafter, the SDM issued a show-cause notice proposing action under Section 18(1) of the ITPA—an enabling provision that allows a District Magistrate or SDM to order closure of a brothel and eviction of occupants if the premises are being used for prostitution within a restricted vicinity of public places. After considering the response submitted on behalf of the hotel, the SDM directed the premises to be vacated within seven days; when the direction was not complied with, the premises were sealed. The petitioner approached the High Court to quash the SDM’s order and the sealing action.
The petitioner’s main argument was jurisdictional: they contended that the SDM could not exercise powers under Section 18(1) while the criminal case based on the raid was still pending. In essence, the petitioner argued that the preventive proceeding under Section 18(1) must follow (or at least await) a criminal prosecution and conviction under Sections 3 or 7 of the ITPA. The petitioner relied on an older Supreme Court decision (popularly known as Ramkali) to claim that the authority should first proceed under the penal provisions and take Section 18 action only “after” disposal of those cases.
The State opposed this, arguing that Section 18(1) is a preventive, not punitive, remedy. It exists to promptly stop the use of premises for prostitution—especially around public places—without having to go through a full-blown criminal trial. The State emphasized that amendments to the ITPA in 1978 and 1986 changed the statutory scheme considered in earlier case law, and that courts across the country have recognized that the power under Section 18(1) can be exercised independently of the outcome of a criminal trial.
The High Court’s analysis turned on the nature and history of Section 18. The Court explained that Section 18(1) of the ITPA is meant to be a “preventive measure,” intended to minimize the chance of a brothel being run near public places. A proceeding under Section 18(1) is summary and focuses on the improper use of the premises, not on the penal liability of individuals. This is distinct from Sections 3, 4, 5, and 7, which create criminal offences and require a regular trial before a Metropolitan Magistrate or Judicial Magistrate of the First Class (as per Section 22 of the ITPA).
Crucially, the Court noted that after the Supreme Court’s decision in Ramkali, Parliament amended the ITPA through the 1978 and 1986 amendments. These amendments separated the forums and powers: trials for offences under Sections 3 and 7 lie before judicial magistrates, while the power to pass Section 18(1) orders rests with the District Magistrate or SDM. Consequently, the concern in the earlier case—where the same authority could both try the offence and pass preventive orders—no longer applies. As other High Courts (Delhi and Bombay) have already recognized, Section 18(1) and 18(2) now operate independently. Under Section 18(2), a criminal court may also pass an eviction order upon conviction; but Section 18(1) is a standalone preventive power with its own procedure (notice and hearing), and it does not hinge upon a prior conviction.
Applying these principles, the Patna High Court held that the SDM was competent to proceed under Section 18(1) during the pendency of the criminal case. The Court observed that notice was served (received by the petitioner’s family member) and a written reply was submitted through counsel; thus, the principles of natural justice were followed. The SDM relied on the police report regarding the use of the premises and, after affording an opportunity, ordered eviction and consequent sealing for non-compliance—steps squarely contemplated by Section 18(1).
The petitioner also sought a writ of certiorari to quash the SDM’s order. The Court reiterated the limited scope of such writs: certiorari corrects jurisdictional errors or violations of natural justice, and is not an appellate reassessment on merits. Finding no perversity, jurisdictional error, or procedural unfairness, the Court declined to interfere.
In summary, the High Court confirmed that Section 18(1) allows quick, preventive action against premises suspected of being used for prostitution, independent of the timeline of a criminal trial. Where notice, opportunity to reply, and reliance on a police report exist, the SDM’s order does not violate fundamental rights to livelihood or trade. The writ petition was therefore dismissed.
Significance or Implication of the Judgment (For general public or government)
• Clear separation of preventive and punitive tracks: Authorities can use Section 18(1) to promptly stop misuse of premises without awaiting a criminal conviction, while the criminal case proceeds separately. This helps protect neighborhoods and public spaces.
• Due process remains essential: Even though the proceeding is summary, the occupant/owner must receive notice and an opportunity to be heard. Where that basic fairness is met, courts are slow to interfere.
• Guidance for district administration: District Magistrates/SDMs can act on credible police reports to prevent continued misuse, provided they record satisfaction after a proper show-cause process.
• Limits of writ review: Parties should focus on jurisdiction and procedure when challenging Section 18(1) orders; writ courts will not reweigh evidence unless there is a glaring legal flaw.
Legal Issue(s) Decided and the Court’s Decision with reasoning (Use bullet points)
• Whether the SDM can exercise power under Section 18(1) of the ITPA during the pendency of criminal proceedings under Sections 3, 4, 5, 7
— Yes. Section 18(1) is a preventive measure focused on premises, independent of criminal prosecution and conviction. Amendments to the ITPA (1978, 1986) support this separation.
• Whether natural justice was violated in passing the Section 18(1) order
— No. Notice was served (received by a family member); a reply was submitted; the SDM relied on a police report and recorded satisfaction before directing eviction and sealing.
• Whether a writ of certiorari should issue to quash the SDM’s order
— No. The writ court does not sit in appeal; absent jurisdictional error or breach of natural justice, the preventive order stands.
Judgments Referred by Parties (with citations)
• Shri A.C. Aggarwal & Ors. v. Mst. Ramkali (often cited as “Ramkali”), AIR 1968 SC 1 (petitioner relied on the principle that penal proceedings should come first).
Judgments Relied Upon or Cited by Court (with citations)
• Nitu & Ors. v. Govt. of NCT of Delhi, (2016) 226 DLT 457 (DB) / 2016 SCC OnLine Del 21 — Delhi High Court explained post-1978/1986 ITPA scheme where Section 18(1) is independent of conviction under Sections 3 or 7.
• Sunny Kamalsingh Mathur v. Office of Commissioner of Police, 2009 Cri LJ 1465 (Bombay HC) — Similar view after amendments.
• Hari Vishnu Kamath v. Ahmad Ishaque, AIR 1955 SC 233 — Scope of certiorari jurisdiction.
Case Title
Sanjay Prasad @ Sanjay Kumar Gupta v. State of Bihar & Ors.
Case Number
Criminal Writ Jurisdiction Case No. 386 of 2020
Citation(s)
2021(1)PLJR 532
Coram and Names of Judges
Hon’ble Mr. Justice Rajeev Ranjan Prasad
Names of Advocates and who they appeared for
• For the petitioner: Mr. Ansul, Advocate
• For the respondents (State): Mr. Prabhu Narayan Sharma, AC to Advocate General
Link to Judgment
https://patnahighcourt.gov.in/viewjudgment/MTYjMzg2IzIwMjAjMSNO-5kwoda–am1–HCss=
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