Raghubar Dayal, J. - (1.) Krishnamurthy alias Krishnan was convicted by the III Presidency Magistrate, Saidapet, Madras, of the offence under S. 4 (1) of the Suppression of Immoral. Traffic in Women and Girls Act, 1956 (Act 104 of 1956), hereinafter called the Act, and was sentenced to nine months' rigorous imprisonment, though he was charged with an offence under S. 3 (1) of that Act. He appealed against his conviction to the High Court. The State Government appealed to the High Court against the acquittal of the appellant of the offence under S. 3 (1) of the Act. The High Court dismissed the appellant's appeal but allowed the State appeal and altered the appellant's conviction to one under S. 3 (1) of the Act and sentenced him to two years' rigorous imprisonment and a fine of Rs. 50/-as he was a second offender. It is against this order of the High Court that the appellant appeals, by special leave.
(2.) The prosecution case, briefly, is that the Assistant Commissioner of Police (Vigilance), P. W. 4, having information that the house occupied by the appellant was being used as a brothel with three girls, Saroja, Ambika and Lakshmi deputed Shanmugham,P.W.2, as a decoy, on August 22, 1962. Shanmugham was given three marked 10 rupee currency notes by P.W. 4. He went to appellant's place and was shown the three girls. He selected Ambika and paid Rs. 30/- in those marked currency notes to the appellant. He and Ambika then went inside a room. Thereafter, the police party raided the house the decoy Shanmugham and Ambika dishevelled condition in that room. P. W 4 recovered the marked currency notes from the possession of the appellant.
(3.) The main question appeal is whether the facts found make out the offence under S. 3 (1) of the Act. Section .3 (I) reads: "Any person who keeps or manages, or acts or assists in the keeping or management of, a brothel shall be punishable on first conviction with rigorous imprisonment for a term of not less than one year and not more than three years and also with a fine which may extend to two thousand rupees and in the event of a second or subsequent conviction, with rigorous imprisonment for a term of not less than two years and not more than five years and also with fine which may extend to two thousand rupees.''. 'Brothel' is defined in Cl. (a) of S. 2 It includes any house, room, or place or any portion of any house, room or place which is used for purposes of prostitution for the gain of another person or for the mutual gain of two or more prostitutes. One wil1 be guilty of the offence under S. 3 (I) of the Act if he does any of the acts mentioned in that sub-section in relation to a brothel. The appellant's house, on the facts found was being used as a brothel. The girls were offered for the purpose of prostitution. The house was used for such purposes, undoubtedly for the gain of the appellant who pocketed the money which was given by P. W. 2 for committing prostitution on Ambika. Of course, it can be presumed that the girls, who were being offered for the purpose of prostitution, would also obtain monetary gain out of the amount paid by P. W. 2. The appellant can therefore justifiably be said to be -'keeping a brothel' ;