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Municipal Committee, Malerkotla Vs. Mohd. Mushtaq - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtPunjab and Haryana High Court
Decided On
Case NumberCriminal Appeal No. 864 of 1957
Judge
Reported inAIR1960P& H18; 1960CriLJ111
ActsPunjab Municipal Act, 1911 - Sections 152, 153 and 228; Pepsu State Vide Patiala Municipal (Executive Officers) Act, 2003 BK. - Sections 19; Code of Criminal Procedure (CrPC) , 1898 - Sections 242; Constitution of India - Article 19 and 19(1)
AppellantMunicipal Committee, Malerkotla
RespondentMohd. Mushtaq
Cases ReferredSona Bai v. Municipality of Agra
Excerpt:
.....in a rowdy and objectionable manner. it certainly is no part of the function of a public body like municipal committee to offer to the prostitutes 'facilities to practice their trade. burah, (1878) 3 ac 889(904). as incidental to the supreme power which the legislature possesses, it has the right to change, modify or abrogate the existing laws and it is well known that later laws repeal earlier laws inconsistent therewith--leges posteriores priores contrarias abrogant. it is also an equally well known maxim of law that constitutiones tempore posteriores potiores sunt his quae ipsas praecesserunt, that later laws prevail over those which preceded them. page 19) (16) bacon in one of his maxims said perpetua lex est, nullam legem humanam ac positivam perpetuam esse, et calusula quae..........judge setting aside the orders of conviction passed by the trial court under s. 152 of the punjab municipal act, no. iii of 1911, and acquitting the accused-respondents.(2) the respondents were prosecuted in pursuance of a resolution of the municipal committee, no. 364, dated 29-10-1956. a complaint under s. 152 of the punjab municipal act, 1911, was presented by p. w. joginder singh. sanitary inspector of the municipal committee, malerkotla,. it was stated in the complaint that he had been duly authorised by the executive officer of the municipal committee to make complaints and to take action under s. 152 of the act as per office order no. 75 of 16-11-1955. the allegation against the female respondents was that they were residing in the area of sunami gate and were practising.....
Judgment:

Tek Chand, J.

(1) These are thirteen Criminal Appeals (Nos. 864 and 865 to 876 of 1957) preferred by the Municipal Committee, Malerkotla, from the order of the Sessions Judge setting aside the orders of conviction passed by the trial Court under S. 152 of the Punjab Municipal Act, No. III of 1911, and acquitting the accused-respondents.

(2) The respondents were prosecuted in pursuance of a resolution of the Municipal Committee, No. 364, dated 29-10-1956. A complaint under S. 152 of the Punjab Municipal Act, 1911, was presented by P. W. Joginder Singh. Sanitary Inspector of the Municipal Committee, Malerkotla,. It was stated in the complaint that he had been duly authorised by the Executive Officer of the Municipal Committee to make complaints and to take action under S. 152 of the Act as per Office Order No. 75 of 16-11-1955. The allegation against the female respondents was that they were residing in the area of Sunami Gate and were practising prostitution there. As against male respondents it was alleged that they had let their premises to be used for the purpose of habitual prostitution and thereby both male and female respondents had committed offence under S. 152 of the Punjab Municipal Act.

At an emergent meeting of the Municipal Committee held on 9-11-1955, a resolution was passed authorising the Executive Officer to take action under Ss. 152 and 153 of the Punjab Municipal Act. The Executive Officer was also authorised to delegate powers to some other officer of the Committee. In pursuance of the above resolution, S. Devindar Singh, Executive Officer, had authorised P. W. Joginder Singh, Sanitary Inspector, to make complaints and to take action under Ss. 152 and 153 of the Act. An attested copy of this authorization has been placed on the record.

(3) On 29-10-1956, resolution No. 364 was passed at a special meeting of the Municipal Committee, Malerkotla, to the following effect:

'In the following areas within the limits of Municipal Committee, Malerkotla City, there should not remain any brother nor should any woman reside for practising prostitution. In pursuance of this a public Notice under S. 152, Punjab Municipal Act, 1911, be issued that after 15 days of the publication of that Notice in the Gazette, there should not be any brothel, nor should any woman reside for practising prostitution.......'

The localities in which prostitution was prohibited were mentioned including the area of Sunami Gate where the respondents in these cases reside. The proceedings of the meeting held on 29-10-1956, were confirmed on 22-11-1956. There was a notification in the Punjab Gazette, dated 30-11-1956, notifying the above resolution. It was notified that any person contravening the provisions of this notice shall be dealt with under S. 152 of the Punjab Municipal Act, 1911, and that the notice would take effect of fortnight, after its publication in the Punjab Gazette.

(4) A copy of the complaint was furnished to the respective respondents and detailed written statements have been filed. The respondents have denied the allegations made in the complaint, and have stated, that no such Act which falls within the mischief of S. 152 of the Act has been committed by them. The female respondents have stated that they do not carry on the profession of prostitution and the male respondents have contended that they do not get prostitution practised. On behalf of the accused-respondents, it was also pleaded, that even if the allegations regarding the carrying on of the profession of prostitution are proved, even then, according to the Constitution of India, such a person has a right to live anywhere she liked and to carry on any profession or trade she liked.

They also objected, that almost the entire limits of the inhabited areas of the Municipal Committee were declared as prohibited areas, where they could not reside and this was contrary to law and against the Constitution of India. They said, that in the locality in question, they have been residing since long, and they were having their own houses there and the locality had been specified for the residence of 'the singers, instrumental musicians and prostitutes by the Nawab of the erstwhile Malerkotla State, by his order dated 28-1-1914, and they have been residing there since long.'

(5) Evidence was recorded by the Magistrate, who in a considered judgment, came to the conclusion that the evidence led by the complainant Committee fully established its case. the female accused were public prostitutes and were residing in the prohibited area in contravention of the notice published in the Punjab Gazette. Both the male and the female respondents were found guilty of the offence under S. 152 of the Act and were convicted. The Magistrate imposed a fine of Rs. 100/- on each respondent, and in default of payment of fine, ordered each of the respondents to undergo simple imprisonment for four days. The respondent against their conviction and sentence went up in appeal to the Sessions Judge, who on grounds to be shortly examined acquitted them.

(6) On the merits, however, the Sessions Judge agreed with the findings of the Magistrate and expressed the view that Mst. Janat, Mst. Rahmat, Mst. Tameezan, Mst. Chander Kala, Mst. Shanti and Mst. Sharifan, appellants before him, were practising prostitution and the other accused persons, namely Abu, Mohammad Arshad, Mohammad Khalil, Mohammad Mushtaq, Mst. Mughal Jan, Maman and Mohammad Ishtiaq, were wilful parties to the continued use of such premises for the purpose of habitual prostitution.

(7) I may now proceed to examine the reasons on which the Sessions Judge, despite the above findings, had allowed the appeal of the accused and had acquitted them. Some of these grounds are so ridiculous and frivolous that they are hardly worth noticing except as illustrations of the absurd limits to which the lower appellate Court has chosen to stretch the case in favour of the accused. Even the learned counsel for the accused-respondents, who argued the case before us, did not consider it proper to support his case on some of the arguments which the lower appellate Court had taken into consideration, as he candidly thought that they could not be pressed into service, not being even remotely helpful or sustainable.

(8) The learned Sessions Judge has expressed the view, that resolution No. 364 passed by the Municipal Committee banning the practising of prostitution in the specified localities of that town, was not a reasonable restriction on the practice of the trade in which the respondents had been engaged. He is of the view that the resolution and the consequences flowing therefrom go against Art. 19 of the Constitution of India. Under Art. 19(1)(g), a citizen has the right to practice any profession or to carry on any occupation, trade or business. Under Clause (6), nothing in sub-clause (g) of clause (1), shall affect the operation of any existing law, in so far as it imposes, or prevent the State from making any law imposing, in the interests of the general public, reasonable restrictions on the exercise of the right conferred by the said sub-clause.

(9) Section 152 of the Punjab Municipal Act, 1911, provides, that the committee may, by public notice, prohibit in any specified part of the municipality:

(a) the keeping of a brothel;

(b) the residence of any person who practises prostitution.

Resolution No. 364 was passed by the Municipal Committee at its special meeting held on 29-10-1956 in pursuance of the provisions of S. 152. There is ample evidence led on the record of each case, to show that outside the areas specified in the resolution mentioned above there are other areas with respect to which there is no prohibition, and they are:

(1) Satta Bazaar;

(2) Railway Station;

(3) Qila Rehmatgarh;

(4) Jamalpur; and

(5) The municipal areas outside the four-walls of the city.

It is also mentioned in the resolution that in the prohibited area, in which the present offence is alleged to have been committed by the respondents, respectable persons now reside. It is in evidence that there is a mosque near the houses of some of the respondents, and there is a school where a number of children receive education. It is also stated that persons of bad character collect in this locality and this had bad effect on school children and other decent residents of the mohalla. It is said, that near about the houses of the respondents, drunkards and other disorderly persons gather, making bargains with female respondents, and this causes great inconvenience and creates nuisance to the respectable passers-by. A witness also stated, that even at prayer time, persons assembled in the mosque are disturbed as persons of bad character after taking liquor indulge in abuses and behave in a rowdy and objectionable manner.

(10) The Sessions Judge has expressed commiseration for the respondents, principally on the ground, that the Ruler of the Malerkotla State in 1914 had specified the locality in question for the residence of persons engaged in the trade. In the words of the Sessions Judge:

'The resolution of the Municipal Committee, No. 364, which bans prostitution in this locality would naturally uproot all these people and compel them to leave this locality without giving them any alternative accommodation elsewhere. It is too obvious that if these people are forced to the necessity of vacating their premises in this locality, because nobody can suffer a punishment of a fine of Rs. 10/- of Rs. 25/- for every day till eternity, irreparable loss may accrue to them and they may neither be able to get accommodation elsewhere or facilities to practise their trade.'

(11) The validity of S. 152 and of the resolution of the Municipal Committee has been impugned by the lower appellate Court on the ground that the effect of the resolution would be to 'uproot all these people and compel them to leave this locality without giving them and alternative accommodation elsewhere.' What is being prohibited is the practice of prostitution and the keeping of brothels in the locality. So long as the respondents are not unwilling to adjure the objectionable occupation, the prohibition which has the sanction of the statute cannot be deemed unreasonable.

Moreover, the Municipal resolution cannot be struck down as violative of any constitutional rights of the respondents simply because the Municipal Committee has not given them any alternative accommodation elsewhere. It has not been contended before us by the learned counsel for the respondents that the Municipal Committee was bound to provide alternative accommodation elsewhere in order to let the respondents pursue their occupation. It certainly is no part of the function of a public body like Municipal Committee to offer to the prostitutes 'facilities to practice their trade.'

(12) What S. 152 of the Punjab Municipal Act, 1911, prohibits is the practice of prostitution and the keeping of a brothel in specified part of the Municipality. If any of the respondents own houses their proprietary rights are not being affected. The prohibition applies to the use of these houses for practising prostitution and as brothels. I see no force whatsoever in the argument which found favour with the learned Sessions Judge that the restriction imposed by the Municipal Committee by its resolution No. 364 is not reasonable.

A Division Bench of Allahabad High Court in Sona Bai v. Municipality of Agra, AIR 1956 All 736, expressed the view that the restriction on carrying on trade of public prostitution within a specified area of the Municipality is eminently a reasonable one, and a Municipal Board has power to frame a bye-law imposing such restriction. It was held that such a restriction is eminently a reasonable one being in the interest of the health and morals of the persons living in that locality and the bye-law was not unconstitutional on the ground that it imposed an unreasonable restriction upon the right of playing the trade of public prostitution.

(13) Resolution No. 364 banning the practise of prostitution in the localities mentioned therein is a reasonable restriction, and without doubt within the ambit of Art. 19 of the Constitution. It is of a restrictive nature and in my judgment does not amount to an unreasonable exercise of the powers of the legislature. The limitations put by at. 19 of the Constitution have not been exceeded and the resolution passed by the Municipality does not overstep the bounds of reasonableness. As the practice of the commercialised vice of prostitution openly outrages decency and is injurious to public morals, its prohibition in the specified localities by the Municipal Committee is a step which is unexceptionable. It is not denied before us or even before the Courts below that the female respondents are prostitutes in the sense that they give themselves up to indiscriminate lewdness and commit fornication for hire as their business or occupation.

(14) The Sessions Judge has placed on the record two documents, Exhibits D. X. and D.Y., which were not filed in the Court of the Magistrate by the respondents. Exhibit D. X. is a notice, dated the 3rd of November, 1913, addressed to one Mst. Azamatan, stating that in accordance with a certain parwana of the State, dated the 5th October, 1913, it had been decided, that all people of the community of 'Kanchans' should be given residence in one locality. It was also mentioned, that as a number of people of 'Kanchan' Community were residing in Sunami Gate area it was desirable that all of them should be made to live there.

Mst. Azamatan, the addressee of this notice, was told that houses had been provided for all other prostitutes and accommodation for her also would be made available. Mst. Azamatan was required by this notice to take up her residence in this locality within a stated period and she was prohibited from residing in any part other than the area of Sunami Gate. Exhibit D. Y. is a sanad, dated the 28th of January, 1914, given to a prostitute by the name of Mst. Gondhan, and it is stated therein, that she had been given a house to live in the area of Sunami Gate in exchange for a house in another locality.

From these two documents the learned Sessions Judge has drawn the conclusion that the respondents have acquired an irrefragable right to live for all times in Sunami Gate area, from which, they can in no future time and under no circumstances, be turned out. Section 152 and resolution No. 364 of the Municipal Committee in pursuance of that provision, do not interfere with the proprietary rights of the respondents in the houses in their occupation in the specified localities. It is the pursuit of a particularly objectionable and immoral occupation which has been prohibited.

(14a) The order of the Nawab of Malerkotla, of 1913, which has not been produced, but to which there is a reference in Exhibits D. X. and D. Y., is not immutable and could not for all times bind the competent legislature from cancelling or amending such an order or from passing law which might take away or interfere with the rights previously conferred upon the people of the 'Kanchan' community. Neither the order, nor its copy has been produced in this case and even assuming that the order was in the language imputed to it, it does not follows, that the legislature could not by enacting subsequent laws revoke or amend the operation of such an order.

Even if it be assumed that the order of the Nawab of Malerkotla had the effect of law, no law can bind a subsequent sovereign legislative body which has the right to make or unmake any law whatever. The legislature, while acting within the ambit of the Constitution has unquestionable authority to make laws, extend, limit or suspend their operation or to repeal or amend them. So long as the prescribed limits have not been exceeded by the State legislature it has plenary and unfettered powers of legislation. Within the circumscribed limits there is no law which, the legislature cannot pass or change.

Reference may be made to R. V. Burah, (1878) 3 AC 889(904). As incidental to the supreme power which the legislature possesses, it has the right to change, modify or abrogate the existing laws and it is well known that later laws repeal earlier laws inconsistent therewith--Leges posteriores priores contrarias abrogant. An earlier Act must give place to a later if the two cannot be reconciled and one Act may repeal another by words express or implied. It is also an equally well known maxim of law that Constitutiones tempore posteriores potiores sunt his quae ipsas praecesserunt, that later laws prevail over those which preceded them.

(15) In the words of Broom:

'To assert that one Parliament can by its ordinances bind another, would in fact be to contradict this plain proposition; if, therefore, an Act, of Parliament contain a clause, 'that it shall not be lawful for the King by authority of Parliament during the space of seven years, to repeal this Act, such a clause, ... ... is void, and the Act may be repealed within seven years,.............'

(Vide: Legal Maxims, 8th Edn. Page 19)

(16) Bacon in one of his maxims said perpetua lex est, nullam legem humanam ac positivam perpetuam esse, et calusula quae abrogationem excludit, ab initio non valet (It is an everlasting law, that no positive and human law shall be perpetual, and a clause which excludes abrogation is not good from its commencement).

(17) The order of the Nawab of Malerkotla, of 1913, is not before us and it cannot be said that it contained a derogatory clause (clausula derogatory) but even if there had been one, that could not in any way bind or restrict the powers of subsequent legislature. Such a clause is void, for, one sovereign legislature cannot by its ordinances bind its successor.

(18) The next objection raised before the lower appellate Court on behalf of the respondents, and which found favour with it, was, that the provisions of S. 242 of the Code of Criminal Procedure had not been complied with in this cases. Section 242 provides that in the trial of summons cases, when the accused appears or is brought before the Magistrate, the particulars of the offence of which he is accused shall be stated to him, and he shall be asked if he has any cause to show why he should not be convicted; but it shall not be necessary to frame a formal charge.

The primary object of the proceedings prescribed by this section is to determine whether the accused pleads guilty to the charge or demands to be tried. In this case not only the particulars of the offence were stated but each accused person was furnished with a copy of the complaint, and I find that all the accused had filed in the Court of the Magistrate detailed written statements denying para wise the allegations made in the complaint. They also in the written statements filed by them raised several other objections which they styled as 'additional pleas'. I do not think that the provisions of section 242, Criminal Procedure Code had been violated in this case either in letter or in spirit.

(19) The lower appellate Court also entertained an objection that though there is a reference to the Government Gazette in which resolution No. 364 had been published, but a copy of the Gazette/Notification did not appear on the record. This objection was not pressed before us by the learned counsel for the respondents as the notification had been duly published in the Gazette which was shown to us.

(20) The next objection, which was entertained by the lower appellate Court, questioned the authority of Joginder Singh, Sanitary Inspector who filed the complaint. Our attention was drawn to a copy of the resolution, No. 277, passed at an emergent meeting of the Municipal Committee, Malerkotla, haled on the 9th of November, 1955, to the effect that the Executive Officer was authorised to take proceedings under Ss. 152 and 153 of the Municipal Act. He was also authorised to delegate these powers to any other officer of the Committee.

Joginder Singh, the Sanitary Inspector, was authorised by the Executive Officer to make complaints and to take action under Ss. 152 and 153 of the Punjab Municipal Act (vide Exhibit P. C.), Joginder Singh has also stated that the Executive Officer by his Office Order No. 75, dated the 16th of November, 1955, had delegated to him the powers under Ss. 152 and 153 of the Municipal Act and that the copy (Exhibit P. C. /1) was correct according to the original. Joginder Singh, Sanitary Inspector, has appeared as a prosecution witness in all these thirteen cases and made deposition to the above effect. Apart from this, S. 228 of the Punjab Municipal Act provides:

'228. Unless otherwise expressly provided, no Court shall take cognizance of any offence punishable under this Act or any rule or any bye-law thereunder, except on the complaint of, or upon information received from the committee or its Executive Officer or some person authorised by the committee or by the Executive Officer in this behalf.

Explanation.--The committee or its Executive Officer may authorise any person and shall be deemed to have authorised any person appointed to this end by the State Government, to make complaints or give information, without previous reference to the committee, either generally in regard to all offences against this Act and the rules or bye-laws thereunder, or particularly in regard only to specified offences or offences of a specified class. The person authorised may be authorised by office, if he is preside, vice-president, Medical Officer of Health or secretary of the committee, or officer in charge of a police-station; in other cases the authority must be personal. The authority must in all cases be in writing, and may at any time be cancelled by the committee.'

This provision along with others was a part of the law in the Pepsu State (vide Patiala Municipal (Executive Officers) Act, No. 6 of 2003 Bk., S. 19). Thus, apart from the specific authorisation referred to above, the authority to the complaints is contained in section 228 as well. This objection is completely devoid of any force.

(21) Having given my careful thought to the judgment of the lower appellate court, I find the reasons given therein for allowing the appeal from the order of the Magistrate convicting the accused, singularly unconvincing and without even a semblance of cogency. In this case the complaint was filed under S. 152 and not under S. 153 of the Municipal Act and the conviction of the accused by the Magistrate was also under the former provision. There is no reference on there cord of this case to S. 153 of the Punjab Municipal Act under which no accused person had been prosecuted, but the lower appellate Court, quite erroneously, assumed that some of the accused, namely, Mohammad Arshad, Abu, Mohammad Khalil, Mohammad Mushtaq, Mst,. Mughal Jan, Maman and Mohamad Ishtiaq had been prosecuted under S. 153 of the Act.

This assumption is entirely without any foundation. All the accused in this case had been proceeded with and convicted under S. 152 of the Municipal Act. A mere glance at the complaint and at the judgment passed by the trial Court was enough, but apparently this escaped the notice of the lower appellate Court. We are aware that the right of appeal against an acquittal is subject to well known limitations. There should be compelling reasons for reversing the order of acquittal passed by the lower appellate Court. In this case the Magistrate had found all the accused guilty and had convicted them. We are agreeing with the reasoning and conclusions of the trial Court.

On the evidence, both the trial Court and the learned Sessions Judge are agreed, that the female respondents are prostitutes and plying their trade in the locality in question and the male accused are abetting and permitting them to do so. The objections which prevailed with the lower appellate Court were mostly of a legal character and in our view the reasoning of the lower appellate Court is basically wrong and perverse. Its conclusions are distorted resulting in a positive miscarriage of justice, and therefore, in our opinion, the decision of the lower appellate Court should be reversed, and the order of the Magistrate upheld.

(22) For the reasons stated above, we allow this appeal, set aside the order of acquittal of the Sessions Judge and uphold the order of conviction passed by the Magistrate. In the result, the sentence of fine of Rs. 100/- imposed on each respondent, and in default simple imprisonment for four days, is restored. Each of the respondents is allowed fifteen days within which he or she may pay the fine.

Khosla, J.

(23) I agree.

(24) Appeal allowed.


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