- (1.) THIS is a petition Under Article 226 of the Constitution, read with Section 491 of the Code of Criminal Procedure containing the prayer that the Petitioners who are 13 in number should be set at liberty forthwith on the ground that they are in unlawful detention.
(2.) THE Special Police Officer, Agra received information oh 14 -12 -1972 that certain keepers of brothels at Agra were using girls, including the Petitioners, in their brothels for purposes of prostitution and thereupon he made an application to the City Magistrate for the issue of 23 Search Warrants which were issued on that date and upon that basis, he made the raids in various houses and arrested 23 girls, including the Petitioners and as required by law, produced them before the City Magistrate who ordered that they should be detained in the Protective Home, Subsequently, various persons came forward volunteering to keep the Petitioners in their custody till such time as the City Magistrate took to pass his final order. Upon such applications being made, the City Magistrate ordered that the Petitioners be taken out of the Protective Home and given into their respective custodies.
(3.) NOT satisfied with this interim arrangement made by the City Magistrate, the Petitioners have filed this petition praying that they be set at liberty forthwith. The contention of the learned Counsel for the Petitioners is that from a perusal of the General Diary report and the evidence of the Special Police Officer recorded before the City Magistrate, no case is made out Under Section 16 of the Suppression of Immoral Traffic in Women and Girls Act, 1955 and on that account the detention of the Petitioners is illegal. This contention was based upon the definition of the word 'prostitution' as occurring in Clause (f) of Section 2 of the Act which says that prostitution means the act of a female offering her body for promiscuous sexual intercourse for hire, whether in money or in kind. The Special Police Officer has power Under Section 16 to detain a girl on the basis of a search warrant issued by the competent Magistrate. That section says that where a Magistrate has reasons to believe, from information received from the police or otherwise, that a girl apparently under the age of 21 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 therefrom such girl and produce her before him. It has been seen above that the Special Police Officer had received information which was laid by him before the City Magistrate and upon his belief that girls below the age of 21 years were likely to be found in various brothels at Agra, he issued the search warrants authorising the Special Police Officer to take them into custody. After they had been taken into custody, the Special Police Officer produced them before the Magistrate and he, in the first instance, directed that they should be kept in the Protective Home. He changed that residence not suo motu but on the basis of applications of persons who volunteered to keep the Petitioners in their custodies. They had filed their Vakalatnamas which showed that they had been authorised to make such applications. Section 17(2) says that when the girl is produced before the appropriate Magistrate he shall, after giving the girl an opportunity of being heard, cause an enquiry to be made as to the correctness of the information received Under Sub -section (1) of Section 16 and the age of the girl and if satisfied that the information received is correct and the girl is under the age of 21 years, he may make an order that such girl be detained for such period as may be specified in the order, in a protective home or such other custody as he, for reasons to be recorded in writing, shall consider suitable. It is quite true to say that there is no express provision enabling the Magistrate to make arrangement for intermediate custody' but there is an implied provision contained in Sub -section (2) of Section 17 when it says that when the girl is produced before him, he may either send her to a protective home or make such other arrangement for her interim custody, as he deemed fit in a particular case. In any case, when the statute confers a power to do a certain thing, it must be taken that that power comprises that doing of things necessary for the exercise of that power or which are consequential or ancillary to the exercise of that power. No exception, therefore, can be taken to the procedure adopted by the learned Magistrate. The law authorises him to make such an arrangement and if he, in his discretion, allowed the girls to be kept in the custodies of various persons who showed an eagerness to have their custodies, such an exercise of power was within the four corners of the law. The detention, therefore, cannot be said to be illegal.;