Proprietor of a spa ordered shut down by the Sub Divisional Magistrate under Section 18 of the Immoral Traffic (Prevention) Act challenged the order for lack of consideration of his explanation. The High Court did not disturb the findings but directed a rehearing and fresh reasoned order within 10 days.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE DEVAN RAMACHANDRAN
FRIDAY, THE 9TH DAY OF FEBRUARY 2024 / 20TH MAGHA, 1945
WP(C) NO. 1631 OF 2024
PETITIONER:
XXX
XXX
XXX
XXX
BY ADVS.
M.BAIJU NOEL
T.S.LIKHITHA
ASWIN K. BENZEER
RESPONDENTS:
1 SUB DIVISIONAL MAGISTRATE THALASSERY SUB DIVISIONAL MAGISTRATE THALASSERY, KANNUR DISTRICT, PIN – 670101.2 STATION HOUSE OFFICER, THALASSERY POLICE STATION THALASSERY POLICE STATION, KANNUR DISTRICT, PIN – 6701013 THALASSERY MUNICIPALITY THALASSERY MUNICIPALITY REPRESENTED BY ITS SECRETARY THALASSERY, KANNUR DISTRICT, PIN – 670101.BY ADV.SMT.VIDYA KURIAKOSE, GP
THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON
09.02.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
WP(C) NO. 1631 OF 2024
-2-
JUDGMENT
The petitioner, who is stated to be the
Proprietor of a Spa at Thalassery, alleges that
he has been imputed with malicious allegations
by the official respondents and thus burdened
with Ext.P4 order, whereby, his establishment
has been ordered to be shut down, under the
provisions of the Immoral Traffic (Prevention)
Act, 1956 (hereinafter referred to as ‘the Act’
for short).
2.The petitioner explains that, when one
of his employees made a complaint against a
customer – who had come to avail spa services –
regarding sexual assault and misbehaviour,
instead of proceeding with the investigation in
the proper perspective, the Police Authorities
began to target him with the intent to extort
money; and that when he did not accede to the
same and challenged such actions before this
WP(C) NO. 1631 OF 2024
Court by filing WP(C)No.31785/2023, a report was
filed before the Sub Divisional Magistrate,
Thalassery, that his institution is being used
as a brothel and hence liable to be shut down
under the provisions of Section 18 of the ‘Act’.
3.The petitioner says that he has
preferredExt.P3 explanation to the notice
issued to him by the Magistrate; but that
without even considering the same, the impugned
Ext.P4 order has been issued; and thus prays
that it be set aside, asserting that he is not
an accused in any criminal case and that all
allegations against him are foisted only for the
afore reason by the Police Authorities.
4.However,inresponse,Smt.Vidya
Kuriakose –learned Government Pleader,
submitted that the afore assertion of the
petitioner, that he has not been implicated as
an accused in any crime, stands belied by
WP(C) NO. 1631 OF 2024
-4-
Ext.R1(a) FIR, as also Ext.R1(c)complaint
received against him from certain other persons.
She added that, in fact, the petitioner has been
arrayed as an accused upon recording Section 164
of the Cr.PC statement by the de facto
complainant.She then submitted that, apart from
the Crime mentioned in Ext.R1(a), another Crime
– bearing No.990/2023, has also been registered
against him; and thus contended that the Sub
Divisional Magistrate has acted without error
since, as luculent from Ext.P4 itself, he has
found, after proper enquiries, that the Spa did
not maintain any of the relevant information as
required in law and that customers were never
given any receipt for the services. She added
that there were four women found on the Pay Roll
of the Spa, who, in fact, belong to Bengal, but
whose addresses are shown to be from Bangalore;
and predicated that, therefore, when the Sub
WP(C) NO. 1631 OF 2024
-5-
Divisional Magistrate has such large volume of
information before him, he was obligated in law,
particularly under Section 18 of the Act, to
issue apposite orders, which he has done through
Ext.P4. she, therefore, prayed that this Writ
Petition be dismissed.
positions that, on one hand, the petitioner says
that he is not arrayed as an accused in any
case; while, the Authorities take a contrary
stand, relying upon Exts.R1(a) and R1(c).
However, the question is not whether the
petitioner is arrayed as an accused, but whether
his institution can be branded to be a
‘brothel’, within the ambit of Section 18 of the
‘Act’.
6.As manifest from the afore provision, a
Magistrate may, on receipt of information from
the Police or otherwise, that any house, room,
WP(C) NO. 1631 OF 2024
place, or any portion thereof, within a distance
of 200 metres of any public place, is being run
or used as a brothel by any person, or is being
used by prostitutes for carrying on their trade,
issue notice to the owner, lessor or landlord to
show cause why action should not be taken to
evict him or shut it down.
that he caused Ext.P3 explanation to a notice,
that was issued to him, within the ambit of the
aforesaid provision and asserts that it has not
been properly considered.
8.I have, therefore, examined Ext.P4,
which is the order assailed.
very grievous allegations against the petitioner
and also goes on to record that, under the guise
of massage, what is being done in the
institution appears to be prostitution; and
WP(C) NO. 1631 OF 2024
therefore, that it falls within the purlieus of
the definition of ‘brothel’.
10.I do not propose to interdict the
findings in Ext.P4 in any manner on their
merits, nor do I propose to enter into the
evaluation of the truth of the same, at this
stage. However, there is one forensic issue I
see with Ext.P4, namely that, even though it
says that the explanation of the petitioner was
considered and he heard, it does not contain any
evaluation of the same, or the opinion of the
Authority on its specific contents.
11.This is crucial because, in Ext.P3, the
petitioner says that he was implicated in the
Crime by a Police Officer, solely because he did
not agree to certain unlawful demands made
against him. He also says that he has preferred
W.P(C)No.31785/2023 before this Court against
certain Police Officers. The question is not
WP(C) NO. 1631 OF 2024
whether these contentions are right or wrong, or
whether they have been proved or otherwise; but
whether the Sub Divisional Magistrate has
considered the same in its proper perspective
and answered them in his order.
12.To such extent, certainly Ext.P4 is
lacking. However, this is not to mean that the
petitioner can be given any latitude at this
stage, or to be enabled to open his Spa without
further proof.
13.As matters now stand, this Court cannot
find favour with Ext.P4 solely for the afore
reason; and I am consequently of the view that
the entire matter requires to be reconsidered by
the Sub Divisional Magistrate, within the strict
time frame, after hearing the petitioner and
after evaluating Ext.P3 explanation, in a
comprehensive manner.
Solely for the afore and in order to ensure
WP(C) NO. 1631 OF 2024
-9-
that procedural fairness is maintained at every
stage, I allow this writ petition, directing the
Sub Divisional Magistrate to rehear the
petitioner and examine Ext.P3 explanation given
by him; thus culminating in a further order,
either modifying Ext.P4, or confirming it, for
reasons that he will record specifically
therein. This shall be done by the said
Authority as expeditiously as is possible, but
not later than 10 days from the date of receipt
of a copy of this judgment.
Needless to say, since I have not set aside
or interdicted Ext.P4 as of now, it will hold
effect until such time as the afore exercise is
completed and the resultant order communicated
to the petitioner.
Sd/-
DEVAN RAMACHANDRAN
JUDGE
akv
WP(C) NO. 1631 OF 2024
-10-
APPENDIX OF WP(C) 1631/2024
PETITIONER EXHIBITS
EXHIBIT -P1TRUE COPY OF THE LICENSE
NO130221222300189 DATED 19-04-2023
ISSUED BY THE 3RD RESPONDENT
EXHIBIT – P2TRUE COPY OF FIR IN CRIME NO.990/2023
DATED 26.07.2023
EXHIBIT -P3TRUE COPY OF THE EXPLANATION LETTER
DATED 10.11.2023 SUBMITTED BY THE
PETITIONER BEFORE THE THALASSERY SUB
DIVISIONAL MAGISTRATE
EXHIBIT -P4TRUE COPY OF THE ORDER BY SUB
DIVISIONAL MAGISTRATE THALASSERY DATED
24.11.2023 (REF NO. RDOTLY/1823/23-M)
RESPONDENT EXHIBITS
EXHIBIT R1(A)TRUE COPY OF FIR
EXHIBIT R1(B)TRUE COPY F THE REPORT REPORT
SUBMITTED BY THE 2ND RESPONDENT
EXHIBIT R1(C)TRUE COPY F THE COMPLAINT RECEIVED
FROM ADV SHAJU JOSEPH
2 issues framed by the court
Whether the Spa establishment can be shut down as a 'brothel' under Section 18 of the Immoral Traffic (Prevention) Act, 1956.
Whether the Sub Divisional Magistrate adequately considered the petitioner's Ext.P3 explanation before issuing Ext.P4.
1 provisions across 1 enactments
XXX
Sub Divisional Magistrate Thalassery
Station House Officer, Thalassery Police Station
Thalassery Municipality
Devan Ramachandran
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court