1. The offence is alleged to have been committed in respect of the girl Hansabai, wife of Laxrnan. According to the prosecution, accused No. 1 took Hansabai away from the service of a Parsi, where accused No. 1 and Hansabai were serving, to the house of accused No. 1's sister-in-law, accused No. 2, and after a couple of days accused No. 2 took her to the brothel of accused No. 3, left her there for two or three hours for six or seven nights, and brought her back to her own house regularly, the earnings of Hansabai by prostitution being equally divided by accused Nos. 2 and 3. Hansabai then ran away from accused No. 2 and was found by the police.
2. The first point of law raised on behalf of accused No. 3 is that possession under Section 373, Indian Penal code, must be complete and exclusive possession and that possession for two hours or so for four or five nights, as is alleged in this case, in the house of the brothel-keeper accused No. 3, was not possession within the meaning of Section 373, Indian Penal Code. Reliance was placed for this contention on two cases: The Queen v. Shaik Ali (1870) 5 M.H.C.R. 473 and Queen v. Nourjan and Jaggat Tara (1870) 6 Beng. L.R.34. It is argued by the learned Counsel for the Crown that there was no such limitation in law.
3. In my opinion, Section 373, Indian Penal Code, must be read in conjunction with the previous Section 372, which is its counterpart. And the questions, whether a person under eighteen has been bought and sold, hired and let to hire, disposed of and possession obtained, are all, in each case, questions of fact for the jury and not of law for the Judge. The law does not specify the nature of the possession, nor its duration, nor intensity. It merely are specifies the object, namely, prostitution or illicit intercourse. Whether, in each case, the possession is such as to be consistent with the purpose or intention or knowledge of prostitution or illicit intercourse-this is the only teat which in law is necessary and sufficient. This is the view which has been laid down by this Court in Queen-Empress v. Tippa I.L.R. (1892) Bom. 737 where the fact that the father had performed a certain ceremony of dedication of his daughter, a child of four, as a dancing girl in a temple, was held to be sufficient to constitute disposal under Section 373, Indian Penal Code. In regard to the two cases relied upon, it is to be observed that the facts in each of these cases were entirely different. In the Madras case the facts found were that the prisoner met a girl under the then statutory age and on a promise of a price was allowed to have sexual intercourse arid both were detected in the act. On this state of facts, in the opinion of the learned Judges, there was no selling or buying or letting or hiring or disposal or possession. But it is to be noted that in the section as it then stood, the words 'illicit intercourse with any person' did not find place but were subsequently added. The addition of these words, as pointed out by Messrs. Ratanla and Dhirajlal in their 'Law of Crimes', renders this ruling, to all intents and purposes, obsolete. Similarly, in the Bengal case, it appears that the brothel-keeper merely allowed her house to be used as a more convenient place for the assignation of illicit lover and his mistress. Moreover, it is a case on which the two Judges differed. Speaking for myself, I agree with Glover J. who thought that the facts constituted the offence rather than with Jackson
4. On the evidence in the present case, it is the case for the prosecution, and it is not denied by accused No. 3, that the girl Hansabai came to her brothel and was- allowed to prostitute herself to customers. Presumably money passed. It is not alleged that Hansabai kept the money. Therefore, the jury will have to decide whether they accept the evidence of Hansabai that the money was divided equally between accused No. 2 and accused No. 3, or the argument for accused No. 3 that this statement on account of certain discrepancies should he discredited that the jury should believe that accused No. 3 did not and retain any money herself but passed it in its entirety on to accused No. 2, and that accused No. 3 in fact merely allowed her brothel to be used by Hansabai for no profit of accused No. 3 own, but so to speak, merely out of kindness. Again, in my opinion, the questions whether the person who brought Hansabai to accused No. 3's brothel was accused No. 2 or, according to accused No. 2's allegation, it was somebody else who brought Hansabai to accused No 3's brothel, or whether as between that person and accused No. 3 there was letting or hiring of Hansabai or disposal or possession of Hansabai-these, in my opinion, are matters for the jury and not matters for me. I hold that in law and on the evidence, the possession set up by Hansabai, even though for two or three hours from 8 or 9 at night, if the jury accepts Hansabai's evidence, is sufficient possession within the meaning of Section 373, Indian Penal Code. I might observe, however, that on the case as now set up, the more appropriate charges would have been as against accused No. 2 under Section 872, as against accused No. 1 of abetment of the offence under Section 372 and as against accused No. 3 under Section 373. But for all practical purposes the difference is not very great.
5. The second contention for accused No. 3 is that on the alternative charge under Section 6 of Bom. Act XI of 1923 there is no evidence against accused No. 3 that she procured Hansabai. It is argued that ' procures' merely applies to a person who obtains a woman for illicit intercourse or causes a woman to become a prostitute and not to a brothel keeper who avails herself of the recruit brought by the procuress and that the brothel keeper is not even guilty of abetment. With this contention I am unable to agree. The Act is passed for the prevention of prostitution, and it is clear that Section 6 of the Act is directed against attempts to seduce the virtue of a woman or a girl for the purpose of prostitution, whether with or without her consent or whatever her age. It may be that in some cases brothel house keepers may themselves be procuresses. In other cases they may be different and may be connected either intimately or casually. But of their intimate connection as demand and supply there can be no doubt. The section is directed against both a brothel keeper and her procuress. In my opinion the brothel keeper who avails herself of the supply of the procuress is guilty of abetment of the offence under Section 6 of Bom. Act XI of 1923. The brothel keeper facilitates the prostitution and completes it.