(1.) This Rule was issued on the District Magistrate of Rangpur to show cause why these proceedings should not be stayed until proper procedure is taken, on the ground that the Magistrate has no jurisdiction either under Sections 190(a), 190(b) or 190(c) to take cognizance of the offence alleged to have been committed on the report of a Town Sub- Inspector of Police.
(2.) It appears that certain inhabitants of Rangpur complained that the houses of certain prostitutes, 20 of whose cases are before us in connection with these analogous rules, were used as brothels, or for the purpose of prostitution or as disorderly houses to the annoyance of the inhabitants of the vicinity, and the Magistrate expressly states that he issued an order summoning the tenants to appear and show cause why the use of those houses should not be discontinued for any of those purposes under Clause (6) of Section 2 of the Act. The order was to take effect within one month. But the Magistrate appears to have lost sight of the matter and the proceedings were very much delayed. We may mention that the neighbours originally complained on the 18th August 1911, and then a very long and, in our opinion, unnecessary investigation was gone into by the Magistrate and an immense amount of evidence was taken and the prohibitory order was not issued till the 29th November 1911. There is quite a volume of evidence and a very lengthy order on the subject. Nearly three months after, on the 24th February 1912, the District Magistrate made an order to an Inspector whom he named, authorizing him to make inquiry under Section 7. It is said that this delay was due to the fact that there had been an appeal against the interlocutory order which was dismissed as incompetent on the 1st February 1912.
(3.) Now the first argument that was addressed to us appeared to contend that Section 7 was a necessary part of the procedure of the Act prior to a prosecution being instituted. But this, we think, clearly is not the case, and it is now practically conceded that this is so. Section 7 is an enabling section. It provides that it shall be lawful for the District Magistrate by an order in writing to authorize any officer not below the rank of a Sub-Inspector of Police to enter and inspect the said house at any time after the expiration of the period specified in the order under Election 3 for the purpose of satisfying himself that the order is being complied with. This does not seem to us to lay down that it is in any way necessary for any body to enter the house if the Magistrate can be satisfied in other ways that the nuisance is still continuing. It is only a protection to the public authorities from a charge of trespass, for it is not lawful to enter a private house without the sanction of the owner, unless the statute expressly gives such authority and the authority which is given by this section clearly cannot be delegated to any other person. If the District Magistrate thinks it necessary for any one to enter and inspect the house, he must authorise some special person or persons not below the rank of a Sub- Inspector of Police to do so, and no other persons can be, held absolved from trespass who purport to act upon that order. But in this case the Inspector asked the Sub-Inspector to make the necessary inquiry, and it does not appear that the Sub-Inspector entered the house, but he made a report which is, on the face of it, slightly ambiguous, and this report fortifies us in our opinion that criminal proceedings should only be instituted in the way laid down by Section 190, Criminal Procedure Code