Decided on December 18,1967

PATHUMMA Respondents


- (1.) BOTH these appeals are by the State against the order of acquittal passed by the appellate Judge in a case charged under Section 7 (1) and (2) of the Suppression of Immoral Traffic in Women and Girls-Act, 1956 (shortly stated 'the Act' ). The-accused in the case were : (1) P. Rajan, aged 26, (2) C. Pathumma, aged 23, and (3) P. Balararnan, aged 23. The last-mentioned person is the watchman of the Corporation Rest-house, Calicut.
(2.) THE case is that accused Nos. 1 and 2 were found carrying on prostitution in room No. 3 of the rest-house and that the third accused was instrumental in bringing, them together and encouraging them to carry on prostitution. At 2 a. m. on 26. 1. 1966, P. W. 1, the Dy. S. P. made a surprise raid of the room and accused 1 and 2 were caught red-handed in the act of prostitution. Room No. 3 is a suite of rooms with a main room and a dressing room attached to it. The dressing room is on the southern side and it leads to the bath-room and the closet on the western side. The western wall of the main room has two windows. The western window was not completely closed. P. W. 1 peeped through the window and saw accused 1 and 2 lying, on the cot in a state of complete undress. Light was burning in the room and they were actually engaged in sexual act. The Sub-Inspector and the witnesses present outside were also brought to the window and shown what was happening inside. P. W. 1 then got into the room and seeing him, the parties rose up suddenly. The saree, skirt and blouse of the woman and the shirt, banian, dhoti and trousers of the man were all hanging on the mosquito top-of the cot. They were allowed to dress up. On further examination, P. W. 1 found 12 5-rupee notes folded and tucked at one corner of the saree, and on the table he found a purse with two 10-rupee notes, four 5-rupee notes, six 1-rupee notes and a few small coins in it. The necessary mahazar,. etc. , were prepared and the case was taken-against the accused. The first accused,. Rajan, denied the crime in its entirety. According to him P. Ws. 1 and 2 have given false evidence. It is true that he had gone to the rest-house that night, but for a different purpose altogether. He wanted to meet the third accused and after that he was sleeping on the verandah of the rest-house. From there he was arrested on suspicion. The second accused, Fathumma, stated that she and her husband Alikoya had taken a room in the rest-house for the day and she was arrested from her room where she was alone at the time. Alikoya had gone out to purchase beedi. No money was recovered from her. The third accused supported the second accused in her statement that herself and Alikoya had taken a room; but he was not sure whether that fact had been entered in the register kept in the rest-house. He denied his complicity in the crime. The learned District Magistrate, Kozhikode, at the end of the trial, acquitted the third accused and convicted accused 1 and 2 under Section 7 (1) of the Act and sentenced them to simple imprisonment for a period of two months each. The accused filed separate appeals (Criminal Appeals Nos. 1 and 2 of 1967) before the Sessions Judge of Kozhikode. The learned Additional Sessions Judge acquitted the accused on the ground that, from a solitary instance of the Icind with whiph the accused were charged, it is not possible to infer that they nad teen carrying on prostitution.
(3.) THE one and the only question, there-lore, that arises for consideration is whether the view taken by the learned appellate Judge is correct in the circumstances of the case. Putting it differently, the question is whether the expression "carrying on prostitution" is suggestive of more than one instance of prostitution; or for the section to come into play there should be plurality of acts with different persons. This question seems to have come up for judicial scrutiny in a series of cases. A woman offering her body for sexual intercourse for hire, is said to commit prostitution. But, for Section 7 of the Act to apply, it is not enough that the man had sexual intercourse with the woman but it must also be established that the woman offered her body for promiscuous sexual intercourse, and that she did so for hire. As observed by a Division Bench of the Mysore High Court in State of Mysore v. Susheela AIR 1966 Mys 194: The word 'promiscuous' occurring in the section means 'indiscriminate'. It excludes intercourse which a person may have with a permanently kept concubine. The import of that word is that the woman or girl offering her body, offers it for hire to any one who desired it for sexual intercourse. The prostitution to which Section 7 (1) refers has, therefore, reference to some kind of a commercialised vice such as the activity in a brothel. ;

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