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Rajani Khemtawali and Vs. Emperor - Court Judgment

LegalCrystal Citation
Decided On
Reported in5Ind.Cas.323
AppellantRajani Khemtawali And; Kamini Baisnabi
eastern bengal and assam disorderly houses act (ii of 1907 e.b. and a.c.),section 2 to 6--court making order under section 3, whether criminal court--magistrate to satisfy himself that house is disorderly--scope of enquiry--criminal procedure code (act v of 1898), sections 435, 439--power of high court to interfere in revision. - .....point, which is, that we have no jurisdiction to deal with this matter under section 435 of the criminal procedure code. this depends on whether the court making an order under section 3 is a criminal court. the point has already been raised before the district magistrate and the sessions judge. the order of the former is not before us, but he refused to interfere. the latter expressed an opinion, which seems to have been held by the district magistrate also, that the court was a criminal court, but, without actually deciding the point, he refused to interfere on the merits.2. the grounds for holding that the deputy magistrate in this case was a criminal court are that by section 2 of the act the information which lies at the root of proceedings, is to be received by the first class.....

1. This case arises under the Eastern Bengal and Assam Disorderly Houses Act, 1907, and raises a question of some importance as to its proper construction. The facts relevant to the point before us are as follows: A complaint was made to the District Magistrate of Rungpur by four householders under Section 5(c) of the Act that certain houses were used by the petitioners before us for the purpose of habitual prostitution to the annoyance of the inhabitants of the vicinity, as mentioned in Section 2(b). The case was, therefore, made over to a Deputy Magistrate, and notices were issued to all the petitioners under Section 2, and, it is said, under Paragraph (c) of that section. On the petitioners appearing before him, the Deputy Magistrate proceeded to hear witnesses on oath on both sides, proceeding as though he were trying persons accused of an offence, and then himself visited the houses of the petitioners and other persons concerned. Acting on the information he received from these two sources, he came to the conclusion that the case fell under Section 2, Paragraphs (a) and (b), and he, therefore, made an order on all the petitioners to discontinue the use of their houses as brothels, or for habitual prostitution, or as disorderly houses, within three weeks of the date of the service of the order. A rule has been granted to show cause why this order should not be set aside on four grounds, which we need not discuss until we have settled a preliminary point, which is, that we have no jurisdiction to deal with this matter under Section 435 of the Criminal Procedure Code. This depends on whether the Court making an order under Section 3 is a Criminal Court. The point has already been raised before the District Magistrate and the Sessions Judge. The order of the former is not before us, but he refused to interfere. The latter expressed an opinion, which seems to have been held by the District Magistrate also, that the Court was a Criminal Court, but, without actually deciding the point, he refused to interfere on the merits.

2. The grounds for holding that the Deputy Magistrate in this case was a Criminal Court are that by Section 2 of the Act the information which lies at the root of proceedings, is to be received by the first class Magistrate, that is, an official whose character is determined by the Criminal Procedure Code, and that Section 5 of the Act mentions prosecutions under Section 2. On the other hand, it is argued by the respondent that the only offence created by the Act is disobedience to an order made under Section 3, which is made punishable by Section 6, and it is argued that no Court can be a Criminal Court unless it is dealing with the commission of an offence, which the Court in this case was not. The scheme of the Act is that a warning may be given under Section 3, and continued disobedience to that warning is an offence. It is to be observed that the Court that convicts under Section 6 need not be the same as that which makes the order under Section 3. Proceedings under Section 2, which are the basis of an order under Section 3, are, no doubt, described as a 'prosecution' in Section 5, but, as fresh proceedings have to be taken in the case of a prosecution under Section 6, the word seems inapt for its purpose and cannot, be taken by itself to show that a Court acting under Section 3 is a Criminal Court within the meaning of Section 435 of the Code.

2. Comparing the weight due to these two sets of arguments, we consider that the first must prevail, on the ground that a first class Magistrate is a Criminal Court. The meaning of the phrase depends entirely on Section 6 of the Criminal Procedure Code, under which a first class Magistrate constitutes one of 'five classes of Criminal Courts' created by law: and there is nothing in the Eastern Bengal Act to deprive the term of its usual meaning, nor can we regard the obvious scope of the Act, which we will consider in a moment, as having this effect. We do not attach much weight to the word 'prosecution' in Section 5, which is plainly a mistake, as the only prosecution possible under the Act is one under Section 6. We consider, therefore, that we have jurisdiction to act under Sections 435 and 439 of the Code.

3. But here we are met with another difficulty. We agree with the contention of the Crown, that Sections 2 and 3 do not create any offence, and that the only offence created by the Act is that created by Section 6. The power conferred by Sections 2 and 3 is not a power to hold a Criminal Court trial or to take any preliminary proceedings under the Criminal Procedure Code. It is a power similar to those conferred on Criminal Courts by Chapters VIII, X, XI, and XII of the Code. But, whereas those chapters describe the procedure that Criminal Courts are to follow in various cases where they are not dealing with the trial of offences, and, therefore, give this Court ground for interfering where the proper -procedure is not followed, no procedure is prescribed by the present Act except such as is indicated by the last paragraph in Section 2 and Sections 4 and 5. Apart from these enactments, the Court in making an order under Section 3 has no duty except to satisfy itself that the house in question is used as described in Clauses (a), (b) and (c) in Section 2. This it may do in any way that is not manifestly improper; but it does not seem that the Court has any power to administer an oath. The effect of Sections 3 and 4 is as follows: By Section 3 the Magistrate may summon the owner etc., of the house to show cause why a certain use of the house should not be discontinued; by Section 4, if the owner does not obey the summons, the Magistrate may make an order ex parte, which must be taken to imply that he may not do so otherwise, and consequently the owner or other person, against whom it is proposed to proceed, must be summoned under Section 3. The course of proceeding to be followed under the Act is, therefore, as follows: On sanction being given or a report or complaint made under Section 5, the Magistrate must, if he means to proceed further, summon the owner or other person mentioned in Section 3 to show cause as described in that section. If he does not appear he may proceed in his absence. He must then satisfy himself that the house is used as described in Section 2 (a), (b) or (c) and he may do this in any way that does not violate ordinary rules of fairness and propriety; but he is not bound to act only on legal evidence and he need not, possibly he may not, administer oaths. He is not acting under the Criminal Procedure Code, but he is in fact performing an administrative and not a judicial duty. If he makes an order under Section 3, disobedience to it will be an offence, but proceedings to punish that offence must be taken independently of proceedings under Sections 2 and 3 and must, of course, be conducted according to the ordinary law. All that is effected by the proceedings under Sections 2 and 3 is, therefore, to lay a foundation for a prosecution under Section 6, and such proceedings need not and probably cannot be carried on in the manner appropriate to proceedings for the actual prosecution of an offence. The grounds stated in the rules are all framed on the contrary assumption and refer to matter which would be of importance in proceedings in the prosecution of an offence but have no importance in relation to the proceedings in this case. The proceedings in this case have been perfectly fair and reasonable in themselves, the only error committed being that the Magistrate had oaths administered to witnesses, which he need not, and possibly ought not, to have done. The result is that no case has been made out for our interference and the rule is discharged.

4. This order will apply to Revision Case No. 1311 of 1909.

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