1. This is a reference made by the learned Sessions Judge of Rajshahi recommending that the order made by the Deputy Magistrate of Malda, dated the 30th September 1924, under Section 3 of the Eastern Bengal and Assam Disorderly Houses Act (Act II of 1907), be set aside.
2. On a petition submitted to the Magistrate of Malda by 25 residents in the vicinity summonses were served on 31 persons, described as owners and 87 persons described as occupiers directing them to appear before the Magistrate on the 30th September 1924. After questioning the persons who appeared before him and examining witnesses, but without administering any oath to the witnesses, or recording their evidence or the statements of the persons, against whom the proceedings had been taken, the Magistrate passed the following order: 'I am satisfied that the houses occupied by the women named below are used as brothels and for the purpose of habitual prostitution and they and the owners of the houses occupied by them named in the left-hand column are directed to discontinue such use by the 30th October 1924.'
3. In the case of Rajani Khemtawali v. Emperor 5 Ind. Cas. 323 : 37 C. 287 : 14 C.W.N. 404 : 11 C.L.J. 297 : 11 Cr. L.J. 112, it has been held that proceedings under Section 3 of the Eastern Bengal and Assam Disorderly Houses Act of 1907 are not governed by the provisions of the Cr.P.C. It is not necessary for the Magistrate to act only on legal evidence and he need not and possibly he may not administer oaths. But before passing an order he must satisfy himself that the house is used as described in Section 2, Clause (a),(b) or(c) and he may do this in any way that does not violate the ordinary rules of fairness and propriety. In the present case we agree with the learned Sessions Judge that the proceedings taken by the Magistrate do not appear to have been conducted within the ordinary rules of fairness. In the case referred to the order of the Magistrate was upheld on the ground that the principles had not been violated. The Judges had before them a full record not only of the evidence taken but also of a local enquiry held by the Magistrate in those proceedings. In the present case we have no record except the written statement filed by the parties proceeded against and the judgment of the Magistrate. In the present case the Magistrate does not appear to have properly realized that before he can pass an order under Section 3 of the Eastern Bengal and Assam Disorderly Houses Act he must not only be satisfied that the houses are used as brothels or for the purpose of habitual prostitution or as disorderly houses, but he must further find an additional fact to bring it within the provisions of Clause (a), (b) or (c) of Section 2 of the Act. Though in his subsequent explanation the Magistrate refers to the fact which might bring Clause (a) into operation, namely, that the houses are in the vicinity of educational institutions, but at the time of the enquiry the only allegation made before him was that the houses were used as brothels, etc., to the annoyance of the inhabitants of the vicinity. In his judgment he has stated that certain persons named by him have proved that all the women proceeded against with six exceptions are prostitutes and they use the houses occupied by them as' brothals and for the purpose of habitual prostitution to the annoyance of the inhabitants of the vicinity including the witnesses examined by him. But in his final order he simply recorded that he is satisfied that the houses occupied by the women named below are used as brothals and for the purpose of habitual prostitution. He suggests that he has overlooked the importance of finding that each of these houses is used to the annoyance of the inhabitants of the vicinity. Under the law the Magistrate has no power to take action against the keepers of brothels provided that the place is respectably conducted unless it is in the neighbourhood either of an educational institution or of a cantonment so as to draw the operation of Clause (a) or (c).
4. In order to decide whether a brothel is used as such to the annoyance of the inhabitants of the vicinity, there is a great risk of confusion with findings when the cases of such a large number of houses are jointly considered. We do not mean that it is necessary to draw up separate proceedings and hold separate enquiries in the case of each of these houses. But we think in deciding the question whether annoyance was caused the Magistrate should have applied his mind to the case of each house separately. It seems obvious that when there were several brothels in a portion of the town if some of them are used in a disorderly manner to the annoyance of the neighbours the Magistrate, unless he applies his mind to each case separately, is liable to hold that all are similarly used. In fact his finding in his judgment suggests that there has been such confusion. There is no clear finding that every house has been so used as to cause annoyance.
5. We, therefore, accept this Reference and we set aside the order of the Deputy Magistrate of Malda, dated the 30th September 1924, directing the persons named in his order under Section 3 of the Eastern Bengal and Assam Disorderly Houses Act to discontinue the use of the houses as brothels or for, the purpose of habitual prostitution.