A.K. Das, J.
1. This Revisional application is directed against an order dated January 25, 1968 passed by the Chief Presidency Magistrate, Calcutta, under Section 20 of the Suppression of Immoral Traffic in Women and Girls Act, 1956. The learned Magistrate directed the petitioner to remove herself from premises No. 59. Rafi Ahmed Kidwai Road, Calcutta and also from the area covered by Park Street police station, Calcutta.
2. One Narsing Narayan Singh, landlord of premises No. 59, Rafi Ahmed Kidwai Road, Calcutta, filed a petition against the present petitioner under Section 20 of the Suppression of Immoral Traffic in Women and Girls Act 1956 on the allegation that the petitioner was living a reckless life in one of the suites of that premises and that she used to earn her livelihood by selling her chastity and in the interest of the general public, she should be required to remove herself from the said premises and also for direct-ins her not to re-enter therein. The learned Magistrate served a notice to show cause upon the petitioner. The petitioner appeared and showed cause denying all the allegations. The learned Magistrate, however, found on a consideration of the materials on record that she was earning her livelihood by prostitution and that in the interest of the general public she should not be allowed to carry on prostitution in that locality and particularly in that house.
3. The learned Advocate for the petitioner has challenged the order on the following amongst other grounds: (a) The petition discloses offence under Sections 3 and 7 of the Immoral Traffic in Women and Girls Act, 1956 and the learned Magistrate should have taken cognisance of the offence and proceeded to trial, (b) proceeding under Section 20 of the Act is bad before prosecuting the petitioner under Sections 3 and 7 of the Act and (c) there was no material to find that the petitioner indulged in prostitution, far less prostitution in the room at No. 59, Rafi Ahmed Kidwai Road and the order therefore is illegal and void.
4. The learned Advocate for the petitioner argued that the petition filed by the landlord discloses offence under Sections 3 and 7 i.e. keeping a brothel and allowing a premises to be used as a brothel and also prostitution in and/or in the vicinity of public places. The learned Magistrate should therefore have taken cognisance of the offence under Section 190 (1) (b) of the Code of Criminal Procedure. It was urged that the words 'may take cognisance' in the context means 'must take cognisance' and the Magistrate had no discretion in the matter, otherwise that section would be violative of Article 14 of the Constitution. In support of this the learned Advocate for the petitioner has referred to a decision of the Supreme Court in the case of A. C. Aggarwal v. Mst. Ram Kali, : 1968CriLJ82 . The learned Magistrate started this proceeding under Section 20 of the Act on the complaint of the landlord of the premises in which he alleged that the petitioner was using the premises as a brothel and carried on prostitution in the room. He also alleged that within 200 yards of the premises there were educational institutions and Boarding House, Hostel and Messes used by students beside places of worship. The allegations prima facie make out a case for prostitution under Sections 3 and 7 of the Act. But the learned Magistrate instead of taking cognisance of the offence started a proceeding under Section 20 for throwing her out of the premises. The decision of the Supreme Court however is in respect of proceeding under Section 18 of the Act. Sub-section (2) of Section 18 of the Act provides as follows:
'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'.
5. There is no corresponding provision in Section 20 under which the present proceeding has started. Sub-section (2) of Section 18 virtually made a proceeding under Section 18 consequential to a conviction under Sections 3 and 7 but this cannot be so with respect to a proceeding under Section 20. The Legislature apparently did not provide for a proceeding under Section 20 consequential upon conviction under Sections 3 and 7. The learned Judges pointed out that any other interpretation in respect of Section 18 would make the provision discriminating but this cannot be said of the provision of Section 20. This argument, therefore, does not hold water.
6. It is true that the learned Magistrate did not make any definite finding that the woman indulged in prostitution in the flat No. 59, Rafi Ahmed Kidwai Road. Even if there is such a finding by implication, there is hardly any evidenceto show that she indulged in prostitution in that flat. Prostitution is defined in the Act as an act of female offering her body for promiscuous sexual intercourse for hire, whether in money or in kind and nothing short of that would be prostitution. The learned Magistrate has found on the evidence that various people used to visit the flat and were entertained with drinks. He also found that they created disturbances causing annoyance to other tenants of the house, and several witnesses spoke about great noise coming from inside the room in her occupation. This does not prove that she indulged in prostitution in the room i.e. she offered her body for promiscuous sexual intercourse for money. The prosecution examined P. W. 5, an Assistant Commissioner of Police but he stated that he had no information as to the fact that the woman was using the room in the said premises as a brothel. This is a finding based upon no evidence and a wrong interpretation of the provision relating to prostitution and this Court even in revision will interfere with that finding.
7. The learned Magistrate's order however is illegal and without jurisdiction for other reasons too. The learned Magistrate directed the petitioner to remove herself from the premises No. 59, Rafi Ahmed Kidwai Road and also from the area of the Park Street Police station. She was further prohibited from re-entering in the said house and in the area covered by the Park Street Police station. Sub-section (3) of Section 20 empowers the Magistrate to require the woman after a date:
'to remove herself from the place to such place whether within or without the local limits of his jurisdiction by such route or routes and within such time as may be specified in the order and also prohibit her from re-entering the place without the permission in writing of the Magistrate having jurisdiction over such place'.
The Act is a social legislation and not for throwing a woman out on the street. She was directed to remove from the dace which was her abode on a finding that she was indulging in prostitution in the suite but presumably the legislature did not want to make her a destitute without a shelter to be kicked from place to place by different Magistrates The social legislation was passed with an idea of rehabilitation also The order passed by the learned Magistrate overlooks this aspect of the matter altogether. Will prostitution be stopped by throwing her out on the street The provisions of the law also did not contemplate that Sub-section (3) empowers the Magistrate to direct the girl to remove herself from the place to such place whether within or withoutthe local limits of Ms jurisdiction. The provision, therefore, contemplates not only for removal from one place but the Magistrate is to direct such place whether she has to remove herself. No Magistrate can fix up a place unless the State Government provides for it and apparently the object of the legislation was to provide for such place where the Magistrate shall direct her to remove. 'Such other place' contemplates starting of protective home and 'protective home' is defined in clause (g) of Section 2 as an institution by whatever name called, in which women and girls may be kept in pursuance of this Act and includes (i) a shelter where female undertrials may be kept in pursuance of this Act and (ii) a corrective institution in which women and girls rescued and detained under this Act may be imparted such training and instruction and subjected to such disciplinary and moral influences as are likely to conduce to their reformation and the prevention of offences under this Act.
8. The plain meaning of the clause toremove herself from the place to suchplace whether within or without the Locallimits of his jurisdiction by such route orroutes is that the learned Magistrate willnot only direct her removal from theplace where she was residing but alsospecify the place where she will go andby what route. A social legislation cannothave the object of throwing a woman onthe street nor does the legislation contemplate that one Magistrate will throw herout from his jurisdiction to anotherMagistrate's jurisdiction to be similarlykicked out. A social legislation hasdouble objective both penal and ameliorative and the legislatures not only wantedprostitution to stop but to provide forrehabilitation of prostitutes. The StateGovernment has to provide for protectionbefore enforcing the penal provisions andno tinkering with the problem will servethe purpose. Elaborate Rules have beenframed for running 'protective homes'by the State Government but the Magistrate's order does not disclose the runningof any such Home. If the penal provisionhas to be invoked, the ameliorativemeasure enjoined by the same provisionhas to be undertaken or else the orderbecomes bad in law.
9. In the result, this petition is allowed and the order passed by the learned Magistrate is set aside.
10. The Rule is, made absolute.