BAI SHANTA Vs. STATE OF GUJARAT
HIGH COURT OF GUJARAT
BAI SHANTA D/O NAMDEV BAVSINGH
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(1.) Mr. Thakore the learned advocate for the appellant raised two contentions. The first is that in view of the Gulam Hussain's evidence at any rate prosecution cannot be said to have established beyond any reasonable doubt that the appellant had accepted the amount of Rs. 7/for offering her body for promiscuous sexual intercourse for hire as required under sec. 7 of the Act. The other contention is that even if that were to be held as established on such evidence one such incident cannot be taken as enough to hold that she was carrying on prostitution as alleged by the prosecution under sec. 7(1) read with the definition of the term prostitution under sec. 2 clause (f) of the Act. I would take up the latter point first. For considering the same it would be essential to refer to section 7(1) as also the definition of the term prostitution given in sec. 2 clause (f) of the Act. Sec. 7(1) of the Act provides as under:-
Any woman or girl who carries on prostitution and the person with whom such prostitution is carried on in any premises which are within a distance of two hundred yards of any place of public religious worship educational institution hostel hospital nursing home or such other public place of any kind as may be notified; this behalf by the Commissioner of Police or District Magistrate in the manner prescribed shall be punishable with imprisonment....... In order to consider the effect of the words carrying on prostitution used in this section we have to turn to clause (f) of sec. 2 which defines prostitution as meaning the act of a female offering her body for promiscuous sexual intercourse for hire whether in money or in kind. It would follow therefrom that the prosecution has to establish firstly that the accused No. 1 was carrying on prostitution and secondly that it was being so carried on in premises which was within a distance of 200 yards of any place such as an educational institution as alleged in this case before she can be convicted of the offence under sec. 7(1) of the Act. As to her house being within a distance of less than 200 yards from the Vishwabharthi Girls School nearby there is enough evidence and over which there is no dispute whatever. It is also not in dispute that the prostitution can as well be said to be carried on either by any woman or girl on herself or in respect of any other woman or girl in such premises. The present case is said to relate to the prostitution by accused No. 1 on herself by accepting money from others by offering her person on hire. What is therefore required to be shown is whether she was carrying on prostitution in her premises in the sense that she was offering her body for promiscuous sexual intercourse for hire whether in money or in kind.
(2.) An emphasis was laid on the word carrying on prostitution in sec. 7 and the term promiscuous used in definition of prostitution under sec. 2 clause 6 of the Act. The effect of the use of these words is said to require that there must be such offer of her body on hire on acceptance of money or so more frequent and that a simple act such as the one alleged in this case cannot be enough to say that she was carrying on prostitution as required under sec. 7(1) of the Act. The term promiscuous is not defined or explained in this Act. In Shorter Oxford English Dictionary the term promiscuous has been explained as. 1 Consisting of members or elements of different kinds massed together without order; of mixed and disorderly composition or character; also of various kinds mixed together b. Rarely of a single thing. 2. That is without discrimination or method confusedly mingled indiscriminate. b. of an agent or agency; Making no distinctions undiscriminating 3. Casual carelessly irregular. The word promiscuous in the context that it is used under sec. 2 clause 6 of the Act would imply ordinarily speaking as indiscriminate employment of the woman's body for hire. This term came to be explained in an unreported decision of Beaumont C. J. of the then High Court of Bombay in Criminal Revision Application No. 157 of 1942 decided on 26-1-1942 by saying that prostitution involves a more or less indiscriminate employment of the woman's body for hire... .....He has then observed that. I do not say that it is a universal definition and I do not suggest that a prostitution is bound to be entirely indiscriminate and to accept the first customer who offers her price like cabman on the rank. But I actually think that prostitution involves more than intercourse with the man. These observations had found approval in some decisions of the Madras High Court as we find it observed in a case of In re Ratanmala and another A. I. R. 1962 Madras 31. As observed in that case the word promiscuous in this context clearly implies indiscriminate and as the definition of prostitution goes it may mean plural and indiscriminate sexuality. It does appear no doubt true as observed in that Madras case that what is aimed at under this Act is not abolition of prostitutes and prostitution as such and make it per se a criminal offence or punish a woman because she prostitutes herself and that the purpose of the enactment was to inhibit or abolish commercialised vice namely the traffic in women and girls for purpose of prostitution as an organised means of living. Various provisions of the Act tend to strengthen such a view. But there has been some exception and that is found in secs. 7 and 8 of the Act. Sec. 7 of the Act makes punishable the practice of prostitution in or in the vicinity of certain public places such as of places of public religious worship educational institutions hospitals etc. This is an illuminating provision throwing light upon the intention of the legislature. This provision therefore inhibits a woman herself from the practice of her profession in contravention of its terms and to that extent renders prostitution a penal offence. In effect therefore and having regard to the use of words carrying on prostitution suggestive of more than a solitary instance of prostitution it is clear that there must be indiscriminate sexuality requiring of more than one customer of the prostitute before she can be held guilty under sec. 7(1) of the Act.
(3.) It was however urged by Mr. Choksi the learned Govt. Pleader that even if such indiscriminate sexuality was required as observed in Madras Case it can be a matter of inference from the facts and it is certainly not necessary that the evidence of more than one customer of the prostitute should be adduced. Besides I was referred to an unreported decision in a case of . where such a point happened to be raised. In that case it was assumed for the purpose of argument that the word prostitute means a woman who offers not once but more than once her body for the purpose of lewdness or for sexual intercourse. However on the facts such as the girl having agreed to let another person to have access to her for payment of money immediately upon that person expressing a desire to have a good time with a girl the inference was raised that the girl must have been doing the same thing before and that it was because she was doing the same thing before that she on that occasion without any hesitation accepted the position in which that person placed her. Now in order to establish such indiscriminate prostitution on the part of any such woman or girl it is difficult to get evidence of different persons and one has therefore to adopt trap evidence. That becomes inevitable and what is essential to be avoided is about the bogus customer not to have actual sexual intercourse with her. That has been so done under instructions of Mr. Jhala in this case so that such a trap-evidence may not be looked upon with contempt as done in several cases by different High Courts. It is not at all necessary that the customer must have been found having sexual intercourse with the woman and it is enough if the circumstances suggest an inference about her having offered her body for immoral purposes on receipt of any money so as to be liable under sec. 7 of the Act. In my opinion therefore though no doubt in order to hold that a woman carries on prostitution plural and indiscriminate sexuality on her part has got to be established but that does not necessarily require that the evidence of more than one customer of the prostitute should be adduced and it would be enough if the facts established entitle the Court to raise an inference to hold that she carries on prostitution as contemplated under sec. 7(1) of the Act. Appeal dismissed.;
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