Jagdish Sahai , J. - (1.) These are two connected writ petitions in which a prayer has been made for the issue of a writ of Habeas Corpus. The questions of law involved are common in both the cases. The petitioner, Km. Pokhraj, was arrested on 30th June, 1962, on a warrant issued by the respondent No. 3 Sri V.P. Sharma, City Magistrate, Allahabad, under Sec. 16 of the Suppress ion of Immoral Traffic in Women and Girl's Act, 1956 Act No. 104 of 1956, hereinafter referred to as the Act. Similarly, Sheila Devi, the petitioner in Writ Petition No. 1790 of 1962 has been arrested under the provisions of the same section under an order issued by the same Magistrate. Both these girls were produced before the City Magistrate, Allahabad. He did not conclude the enquiry under Sec. 17(2) against them and has passed an order directing their detention in the Protective Home at Allahabad during the pendency of the enquiry. In both these cases, the enquiry is still pending. The petitions have been founded on the following grounds: (1) That there is no provision under which the City Magistrate had the jurisdiction to direct the detention of the petitioners in the Protective Home at Allahabad and (2) that the provisions of Sec. 17 of the Act infringe Articles 14, 19 and 22 of the Constitution of India. No other ground has been raised before us. Sec. 16 of the Act reads as follows: "16. (1) Where a magistrate has reason to believe, from information received from the police or otherwise, that a girl apparently under the age of twenty-one years, is living, or is carrying on, or is being made to carry on prostitution, in a brothel, he may direct the special police officer to enter such brothel, and to remove there from such girl and produce her before him. (2) The special police officer after removing the girl shall forthwith produce her before the magistrate issuing the order. What shall be done after the girl is produced before the Magistrate issuing the warrant is provided for by Sec. 17 of the Act which reads as follows: * * *
(2.) The argument of the learned counsel who have appeared for the petitioners is that there is nothing either in Sec. 17 or any other section of the Act under which the learned City Magistrate has the jurisdiction to direct that the petitioners shall live in a Protective Home during the pendency of the proceedings under Sec. 17 of the Act. It was contended that the power to put a person in a place against her will amounts to the curtailment of her personal liberty and unless there is a provision in the Act expressly authorising the Magistrate to pass such an order, he has no such authority or jurisdiction. Learned counsel also submitted that even if there is a lacuna in the Act, the petitioners cannot, on that basis, be confined in the Protective Home against their will. On behalf of the State, the submission was that there is no lacuna in the Act and that the power to direct that the arrested girl should remain in a Protective Home or shall be transferred to the custody of some one else, as the Court thinks fit, is conferred expressly by sub-sec. (3) of Sec. 17 of the Act. It is contended that as it is not possible in every case to pass an order under sub-sec. (2) of Sec. 17 of the Act immediately and an adjournment may some times become necessary, there must be implied ancillary power of issuing direction for the custody of the girl rescued pending the decision of the case under Sec. 17(2) of the Act. The learned Government Advocate supplemented his submission by drawing our attention to the provisions of Sec. 17(1) of the Act where it is provided that if the girl cannot, for any reason, be produced before .the Magistrate who issued the order, then she will be produced before another Magistrate who shall pass such orders as he deemes proper for her safe custody until she is produced before the appropriate Magistrate." The learned Government Advocate submitted that when power has been expressly conferred upon another Magistrate to make directions with regard to the interim custody of the girl rescued, it would be erroneous to assume that no such powers has been conferred upon the Magistrate who has passed the order. The learned Government Advocate has also contended that it is not a proper way of interpreting a statute to assume lacuna in the Act.
(3.) Sec. 2(g) of the Act defines Protective Home and reads as follows: "(g) "protective home" means an institution, by whatever name called, in which women and girls may be kept in pursuance of this Act and includes - (i) a shelter where female under-trials may be kept in pursuance of this Act; and (ii) a corrective institution in which women and girls rescued and detained under this Act may be imparted such training and instruction and subjected to such disciplinary and moral influences as are likely to conduce to their reformation and the prevention of offences under this Act." There cannot be any difficulty in holding that the expression "protective home" comprehends a shelter where female under trials are kept. The learned counsel appearing for the petitioners contended that girls rescued under Sec. 16 of the Act are not under trials because they are not accused of any offence. Consequently, a protective home cannot be construed as a shelter for their interim custody during an enquiry against them. In the first place, we are not satisfied that the word 'under trial' has been used in Cl. (g) of Sec. 2 of the Act in the restrictive sense of including only those who are accused of an offence and not those in respect of whom an enquiry is being made under the provisions of Sec. 17 of the Act. Secondly, Sec. 17 provides the procedure under which an enquiry is to be held. It is analogous for all purposes to a trial. It may not be a trial in the same sense in which a person against whom notice is issued under Sec. 112, Cr. P. C. is not an under trial, but we have no doubt that it has all the trappings, the form and the substance of a trial. We are, therefore, of the opinion that inasmuch as Sec. 2(g) of the Act itself speaks of the protective home being a shelter for under trials. the power to direct interim custody therein is apparent in the Act itself and must be deemed to have been expressly conferred. Even if it be assumed that the power has not been expressly conferred, we have no difficulty in coming to the conclusion that such a power exists as an implied ancillary power. That was the view taken by this Court in Smt. Prem v. District Magistrate, A.I.R. 1959 Allahabad 206 = 1958 A.L.J. 869 . Learned counsel for the petitioners have contended that that case has not been correctly decided and we should refer these cases to a Full Bench. We are not satisfied that the case of Smt. Prem v. District Magistrate, A.I.R. 1959 Allahabad 206 = 1958 A.L.J. 869 has not been correctly decided. On the other hand, we have come to the same conclusion to which the learned Judges in that case had arrived at. There is good authority for the proposition that in order to administer a provision effectively, ancillary powers can always be assumed. In Matajog Dobey v. H.C. Bhari, A.I.R. 1956 S.C. 45 their Lordships of the Supreme Court, while dealing with the question relating to ancillary powers, observed as follows: "Where a power is conferred or a duty imposed by a statute or otherwise and there is nothing said expressly inhibiting the exercise of the power or the performance of the duty by any limitations or restrictions, it is reasonable to hold that it carries with it the power of doing all such acts or employing such means as are reasonably necessary for such execution." It is obvious that it is not in every case possible to conclude the enquiry under Sec. 17 of the Act on the very day on which the rescued girl is produced before a Magistrate. The Magistrate has to take the opinion of five persons. The girl may, if she likes, produce evidence and all that may require adjournment of the case.;