Decided on September 03,1970

In Re: Devakumar and Ors Appellant


- (1.) The first two appellants are brothers. The other two appellants are their sisters. They were residing at No. 2, Aheyapuram First Street, Kodambakkam, which is at a distance of 50 yards from the Nehru Nursery-School. The first two were prosecuted under Section 3 (1) and the other two under Section 7 (1) of the Suppression of Immoral Traffic in Women and Girls' Act. The prosecution arose in the following circumstances. P.W. 5, Thiru Pappa, the Assistant Commissioner-raw-Special Officer under the Suppression of Immoral Traffic Act had information that the appellants were running a brothel at their aforesaid residence. He made arrangements for a trap on the evening of 17th August, 1968. P.W. 4, a pawnbroker, residing in De Mello's Road, Perambur Barracks, was fixed as a decoy. M.O. 1 series (five 10 rupee currency notes) were entrusted to him with instructions to accompany the informant to the brothel house and to have sexual intercourse, after payment of the amount to one of the girls whom he might choose. P.W. 4 did it. The time was then 3 P.M. The informant introduced him to the first appellant, who was seated in a chair in the main hall. The latter demanded payment at the rate of Rs. 50 per hour for intercourse with any one of the prostitutes who were in that house. P.W. 4 agreed and handed over the amount to him. The first appellant asked the second appellant to fetch the girls. The other two appellants were brought from a room to the hall. On being invited by the first appellant to select any one of them, P.W. 4 chose the third appellant, accompanied her to the adjoining bedroom and bolted the door from inside. He had sexual intercourse with her. The informant proceeded to the playground at Trustpuram and told P.W. 5 and his party what all happened. With P.W. 1, a retired headmistress and others, P.W. 5 proceeded to this house and found the first two appellants and the fourth appellant seated in chairs in the hall. When questioned, the first appellant pointed out the bed-room. P.W. 5 knocked at the door and called P.W. 4 by name. The door was opened. The third appellant was found with skirt and blouse. P.W. 4 was practically naked. Both of them were found hurriedly dressing themselves up. P.W. 4 narrated the entire facts. P.W. 5 demanded the amount from the first appellant. The latter directed the second appellant to bring the money and hand it over to P.W. 5. He took P.W. 5 to the office room adjoining the bed-room and produced the currency notes (M.O. 1 series). They were seized under mahazar Exhibit P-2 and checked with regard to the serial numbers noted in Exhibit P-1. The appellants were arrested, taken to the Station and then put up for trial for the offences aforesaid. When questioned in Court they denied the several acts attributed to them and added that on that day one Inspector came to their and took them to the Station. D.W. 1 was examined by them for substantiating their version. P.W. 4, the decoy, deposed to his visit, his sexual intercourse with the third appellant and to the other facts. P.W. 1 and P.W. 5 stated about the entrustment of the amount, their visit to the house, their seeing P.W. 4 and the third appellant in the bed-room and to the subsequent recovery of M.O. 1 series. P.W. 2, Vadivelu, the brother of the house-owner deposed that the first appellant was a tenant paying a rent of Rs. 175 per month and to his having seen the last two appellants in the house on one occasion when he visited the house. P.W. 3 who lives in the adjacent house stated that he occasionally used to observe some visitors to this house. He could not say anything about the purpose of those visits or the avocation of the appellants. The learned Magistrate acquitted the first two appellants under Section 3(1) of the Act. He convicted them under Section 4(1) and sentenced each to suffer rigorous imprisonment for six months and to pay a fine of Rs. 250 each. Under Section 7(2)(c) he further convicted and sentenced the first appellant to suffer rigorous imprisonment for three months with a fine of Rs. 200. He has however directed that these sentences should be concurrent. The 4th accused was acquitted and the 3rd appellant was convicted and sentenced under Section 7(1) of the Act to undergo rigorous imprisonment for three months. The appellants contend that these convictions are not correct.
(2.) Section 4(1) of the Act says that "any person over the age of 18 years who knowingly lives, wholly or in part, on the earnings of the prostitution of a woman or girl shall be punishable with, imprisonment for a term which may extend to two years or with fine... " 'Prostitution' as defined in Section 2(f) means "the act of female offering her body for promiscuous sexual intercourse: for hire, whether in money or in kind", and 'prostitute' as denned in Section 2(e) means "a female who offers her body for promiscuous sexual intercourse for hire, whether in money or in kind." Section 7(1) reads as follows: 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 in this behalf by the Commissioner of Police or District Magistrate in the manner prescribed, shall be punishable with imprisonment for a term which may extend to three months.
(3.) Prostitution involves indiscriminate employment of a woman's body for hire. Obviously, it excludes intercourse which a person may have with a permanently kept concubine or with a woman without paying any consideration either in cash or in kind. For convicting a person for carrying on prostitution, there must be indiscriminate sexuality requiring more than one customer of the prostitute but a given case where there are circumstances which would legitimately lead to the inference that the person concerned has been indulging in sexual intercourse for money indiscriminately, a conviction can well be sustained on such evidence. As observed in Ratnamala v. State,1961 2 MadLJ 464, the entire scheme behind the Act is not the proof of a single incident of prostitution, or of the activities of a prostitute. Ramaswami, J. in G.A. No. 536 of 1959 has made certain constructive suggestions for the successful working of the Act. Lord Goddard in Brannan v. Peck, 1948 1 KB 68, deprecated the resort to traps on the part of authorities and stressed that besides this the evidence of a different character altogether can also be made available in such cases. For instance, arrangements could be made for maintaining direct observations on the premises, and evidence of such observations could be offered. The history of the tenancy, the particulars of the individual visitors, numbers of men visiting the premises, the hours of visit and the length of stay could all be made relevant in a case of this character.;

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