In the case on hand according to the respondents the hotel in question was being used as brothel which aspect and so the same has to be examined first. Therefore, the next moot question to be decided is as to whether the hotel was being used as brothel as defined in Section 2(a) of the Act. As envisaged in Section 2, to brand a hotel as a brothel house, the following essential requirements are to be prima facie proved from the records:-
(a)the hotel was used for the purposes of sexual exploitation (or) abuse.
(b) Such use was for gain of another person or for the mutual gain of two or more prostitutes.
17. In the instant case, in our considered opinion, both the above ingredients have not been satisfied by the respondents. First of all, when we analyse the question as to whether the hotel in question was being used for the purpose of sexual exploitation or abuse, it is crystal clear that there are allegations that an attempt was made by the accused in the criminal case to sexually exploit the de facto complainant. Absolutely no material is shown for the same, coupled with the knowledge of the appellant herein or anyone in the management of the day-to-day affairs of the appellant-hotel. In the absence of at least any convince or knowledge on the part of the appellant it can not be said at any stretch of imagination that the hotel was being used by the appellant or allowed to be used for sexual exploitation. Thus, the essentials of Section 2(a) have not been satisfied.
18. Secondly, as per Section 2(a), the hotel should have been used for sexual exploitation or for the gain of another person. In this case, there is absolutely no material to show that the petitioner had gained out of the alleged use of the hotel by the accused for sexually exploiting the girl.
19. In the absence of knowledge on the part of the appellant, the fact that a room was booked for stay, for the purpose of sexual exploitation or abuse of anyone, and mere collection of money for the stay will not amount to gain as envisaged in Section 2 of the Act.
Dated: 31 .08.2012
IN THE HIGH COURT OF JUDICATURE AT MADRAS
Coram:
The Hon'ble Mr.M.Y.EQBAL, CHIEF JUSTICE
and
The Hon'ble Mr.Justice A.ARUMUGHASWAMY
Writ Appeal No. 1749 of 2012
and
M.P.No.1 of 2012
----------
Hotel Sooriya Heritage Inn
vs.
1. The Collector cum District Magistrate,
Government of Puducherry, Puducherry.
Citation;2013 CRLJ 359 Madras
This appeal has been filed against the order dated 31.07.2012 made in W.P.No.8787 of 2012, whereby the learned single Judge has dismissed the writ petition filed by the petitioner challenging the order passed by the first Respondent in Proceedings No.71211/DM/RO/Tah(L&O)/D2/2011 dated 27.03.2012 under Section 18(1)(a)(b) of the Immoral Traffic (Prevention) Act, ordering the closure of the appellant hotel.
2. The Writ Petition came to be filed in the following circumstances:-
One Kasthuri alias Ramya (name changed as Pooja) had preferred a complaint before the Circle Inspector of police, Grand Bazaar Circle on 25.11.2011. In the said complaint, she alleged that due to a petty quarrel with her parents at Chennai, she left her house out of dejection and came out to Puducherry. From Puducherry Bus Stand, she contacted one Mr.M.Kumar, known to her and sought for his help. Mr.Kumar arrived in the bus stand and under the pretext of helping her, took her to a Guest House at Puducherry and made arrangements for her stay in the Guest House. Accordingly, she stayed in the said Guest House Little Pearl Guest House for three days. Thereafter, he brought one Adhavan to the Guest House and introduced her to him. Then leaving her in the company of Mr.Adhavan, Mr.Kumar left from there. After some time, she expressed her desire to return back to her home. But Adhavan threatened her and prevented her from going out. On the same day, around 9.00 P.M. one Senthil @ Arthi claiming to be the friend of Adhavan, came to the Guest House. While she was in the house, a woman by name Julie staying in the Guest House also joined with Adhavan and scolded her.
3. On the next day, i.e. 24.11.2011, Mr.Senthil shifted her to G.Guest House. Julie also was brought to the said Guest House. Thereafter, Senthil, Adhavan and Julie took her to a hotel known as Sooriya Hotel. All these persons wanted her to stay with two known persons. When she declined, they threatened her with dire consequences. At around 12.00 midnight, they brought her again to the G.Guest House, there they compelled her to stay at least with one man for which, she refused. Enraged over the same, Senthil attempted her to molest her. Then they kept her in a room alone and locked the door from out side. The next day i.e. 25.11.2011 at 1.00 A.M., they opened the room and beat her. She was sitting in a corner of the room. While the above persons were talking with each other, she managed to escape from the room and preferred a complaint to the police.
4. On the above complaint, the Sub-Inspector of Police, registered a case in F.I.R.No.514/2011, under Section 366, 342, 354 and 506(ii) r/w 34 IPC at 2.00 P.M. on 25.11.2011.
5. During the course of the investigation the Inspector of Police forwarded the information to the District Magistrate cum District Collector, Puducherry, in respect of the above occurrence requesting appropriate action under Section 18 of the Immoral Traffic (Prevention) Act against the above said Hotel/Guest House.
6. The Appellant/Writ Petitioner is a company known as Hotel Sooriya Hotel, Puducherry. Sooriya Heritage Inn is one of the units run by M/s. Sooriya Hotel. As per the above FIR on information laid by the Inspector of Police to the District Magistrate, the de facto complainant Ramya was kept in the Hotel Sooriya Heritage Inn for the purpose of compelling her to indulge in prostitution. Based on the above information, the District Magistrate by his proceedings, issued show cause notice calling for the petitioner/appellant as to why order should not be passed under Section 18(1) of Immoral Traffic (Prevention) Act against the appellant-hotel.
7. The crux of the allegation is that the appellant-hotel was used as brothel house. The petitioner submitted the explanation on 15.02.2012 stating that a person by name Anil Kumar came to the hotel along with a woman, introduced her as Mrs.Shoba Anil Kumar, his wife and booked a room for their stay on 24.11.2011. To establish their identity, they gave their Mobile Numbers and address. Believing the same to be true, a room was rented out to them, where they stayed. The hotel is very reputed in that locality which had been catering for the accommodation to several families and children. The hotel was never used as brothel house at any point of time either in the past or in the present. Therefore, there were no grounds to issue an order under Section 18 of the Act.
8. Thereafter, a personal enquiry was conducted by the District Magistrate in which the representative of the appellant-hotel participated and produced all the materials in support of the explanation. Finally, the District Magistrate issued the impugned order directing the closure of the hotel for a period of four months. It is this order, which is challenged in the writ petition.
9. In the writ petition it was contended that :-
(i) There was no application of mind on the part of the District Collector cum District Magistrate, Puducherry, with regard to the explanation offered by the petitioners, and he has mechanically reproduced the contentions of the petitioners in the impugned order;
(ii) There is no indication in the impugned order as to whether the Hotel/Guest House of the petitioner is located within a distance of 200 metres of any public place referred to in Section 7 (1) of the Act, so as to enable the District Collector to pass orders under Section 18(1) of the Act;
(iii) Even the complaint lodged by the girl in question did not disclose the commission of any offence under the Immoral Traffic (Prevention) Act, 1956 and hence the invocation of the provisions of the Act is improper; and
(iv) The order of closure of Hotel/Guest House, even before a final report is filed and even before conviction of the accused for an offence under Section 3 or 7 is not valid in the eye of law.
10. The learned single Judge has negatived all the above contentions of the appellant and ultimately dismissed the writ petition. That is why the appellant is before this Court.
11. We have heard Mr.R.Gandhi, learned senior counsel appearing for the appellant and Ms.R.Mala, learned Additional Government Pleader (Puducherry) appearing for the respondents.
12. The foremost contention of the learned senior counsel, appearing for the appellant is that the requirements of Section 18 of the Immoral Traffic (Prevention) Act have not been satisfied and that the District Magistrate had not applied his judicial mind to appreciate the materials placed before him. He would add that if on the face of it, the allegations are accepted to be true, even then, there is nothing to suggest that the petitioner had knowledge that an attempt was made to sexually exploit Ramya, that too for gain, as provided in Section 2 of the Act. He would conclude stating that the learned single Judge has omitted to consider these aspects properly.
13. The learned Additional Government Pleader (Puducherry) appearing for the respondents contended that the materials available on record would go to show that the District Magistrate was satisfied that the hotel was allowed to be used for sexually exploiting Ramya. Thus according to her the order of the District Magistrate and the learned single Judge do not require any interference and the same have to be confirmed.
14. We have considered the above submissions. Before going in to the facts of this case, let us have a bird s eye view of the relevant provisions of the Act.
Section 2(a) of the aforesaid Act defines the term 'brothel' which runs asfollows:-
"(a) 'brothel' includes any house, room, conveyance or place or any portion of any house, room, conveyance or place, which is used for purposes of sexual exploitation or abuse for the gain of another person or for the mutual gain of two or more prostitutes;
Section 18 of the Act under which the order challenged in the writ petition has been passed, runs as follows:-
"(18) Closure of brothel and eviction of offenders from the premises:- (1) that A Magistrate, may, on receipt of information from the police or otherwise, that any house, room, place or any portion thereof within a distance of two hundred meters of any public place referred to in sub-section (1) of Section 7, is being run or used as a brothel by any person, or is being used by prostitutes for carrying on their trade, issue notice on the tenant, lessee, occupier of, or any other person in charge of such house, room, place, or portion, to show cause within seven days of the receipt of the notice why the same should not be attached for improper user thereof; and if, after hearing the person concerned, the Magistrate is satisfied that the house, room, place, or portion is being used as a brothel or for carrying on prostitution, then the Magistrate may pass orders --
(a) directing eviction of the occupier within seven days of the passing of the order from the house, room, place, or portion,
(b) directing that before letting it out during the period of one year or in a case where a child or minor has been found in such house, room, place or portion during a search under Section 15, during the period of three years, immediately after the passing of the order, the owner, lessor or landlord or the agent of the owner, lessor or landlord shall obtain the previous approval of the Magistrate: "
15. A close reading of the above provisions manifestly makes it clear that the District Magistrate can pass an order under Section 18(1)(a)(b) of the Act for the closure of the hotel, provided he is satisfied that the same is being used as brothel for carrying on prostitution or is being allowed for prostitutes for carrying on their trade.
16. In the case on hand according to the respondents the hotel in question was being used as brothel which aspect and so the same has to be examined first. Therefore, the next moot question to be decided is as to whether the hotel was being used as brothel as defined in Section 2(a) of the Act. As envisaged in Section 2, to brand a hotel as a brothel house, the following essential requirements are to be prima facie proved from the records:-
(a)the hotel was used for the purposes of sexual exploitation (or) abuse.
(b) Such use was for gain of another person or for the mutual gain of two or more prostitutes.
17. In the instant case, in our considered opinion, both the above ingredients have not been satisfied by the respondents. First of all, when we analyse the question as to whether the hotel in question was being used for the purpose of sexual exploitation or abuse, it is crystal clear that there are allegations that an attempt was made by the accused in the criminal case to sexually exploit the de facto complainant. Absolutely no material is shown for the same, coupled with the knowledge of the appellant herein or anyone in the management of the day-to-day affairs of the appellant-hotel. In the absence of at least any convince or knowledge on the part of the appellant it can not be said at any stretch of imagination that the hotel was being used by the appellant or allowed to be used for sexual exploitation. Thus, the essentials of Section 2(a) have not been satisfied.
18. Secondly, as per Section 2(a), the hotel should have been used for sexual exploitation or for the gain of another person. In this case, there is absolutely no material to show that the petitioner had gained out of the alleged use of the hotel by the accused for sexually exploiting the girl.
19. In the absence of knowledge on the part of the appellant, the fact that a room was booked for stay, for the purpose of sexual exploitation or abuse of anyone, and mere collection of money for the stay will not amount to gain as envisaged in Section 2 of the Act. Here, the alleged gain should be understood in the context of the use of the room. In our opinion, the gain as reflected in Section 2(a) of the Act should be unlawful gain and not a mere stay of guests in the hotel. Thus the second ingredient of the above section is also not satisfied. Even assuming that one room was being misused by the one of the inmates, it does not mean that the entire hotel consisting of 66 rooms was being used as brothel house. Immediately after the complaint, the investigating agency had not made seizure of any materials in the hotel or room booking register to prove and substantiate the request that was made to the District Magistrate. The District Magistrate also has not mentioned in his proceedings about any gain as envisaged in Section 2 of the Act. The learned single Judge has not dealt with the above aspects. A perusal of the order in the writ petition would go to show that the learned single Judge has dealt with various other aspects which we do not propose to discuss as the same would be only for academic purpose, and we have concluded on the other grounds that the order of the District Magistrate is liable to be interfered with.
20. Therefore, in the absence of sufficient evidence, we have to hold that the appellant-hotel was not being used as a brothel house and so the order of the learned District Magistrate, which was confirmed in the writ petition, is not sustainable. The impugned order passed by the learned District Magistrate as well as the order passed by the learned single Judge is set aside, and the writ appeal is allowed. No costs. Consequently, M.P.No.1 of 2012 is closed.
21. Before parting with the case, we must clarify that this order will not come in the way of the investigating agency to collect the evidence in respect of the charges levelled against the appellant-hotel in the criminal proceedings.
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