1. This case comes for consideration by a full bench on a certificate from the Advocate General under Clause 26 of the Letters Patent.
2. Two accused persons Banubai Ardeshir Irani alias Laxmibai and Motiram Chaitram Kohli, were tried by Mr. Justice N.J. Wadia and a common jury at the Third Sessions of 1941. The charges against them were :-
First :-That you on or about October 22, 1939, at Bombay imported into. British India from Persia, a country outside India, a girl named Sarwarbai under twenty-one years of age, with intent that she may be forced or seduced to illicit intercourse with another person and aided and abetted each other in the commission of the said offence and thereby committed an offence punishable under Sections 366B and 114 of the Indian Penal Code and within the cognizance of the High Court.
Secondly :-That you art or about October 22, 1939, at Bombay obtained possession of a girl named Sarwarbai under eighteen years of age with intent that the said Sarwarbai shall at any age be employed or used for the purpose of prostitution or illicit intercourse with any person or for immoral or unlawful purpose and aided and abetted each other in the commission of the said offence and thereby committed an offence punishable under Sections 373 and 114 of the Indian Penal Code and within the cognizance of the High Court.
Thirdly :-That you between December, 1939, and October, 1940, at Bombay lived on the earnings of the prostitution of the girl Sarwarbai and thereby committed an offence punishable under Section 5 of the Prevention of Prostitution Act XI of 1923 and within the cognizance of the High Court.
3. The case for the prosecution and also the case for the defence have been set out briefly but with sufficient accuracy for our purpose in the Advocate General's certificate.
(a) The two accused went to Yezd in Iran some time in July, 1939.
(b) In Yezd they met one Rustam Shehriar who had a daughter named Sarwar.
(c) Accused No. 1 promised Rustam the father of Sarwar that she would treat Sarwar as her own daughter and get her educated and married to accused No. 2's brother if she wanted to marry. The father agreed and at the request of accused No. 1 gave her a writing to the effect that Sarwar had become the daughter of the accused and that the father would have no further claim on her.
(d) The accused thus obtained possession of Sarwar from her father.
(e) The accused then sailed from Iran on October 14, 1939, bringing Sarwar with them and arrived in Bombay on October 22, 1939.
(f) The accused thus imported Sarwar into British India from outside British India.
(g) At the date the accused obtained possession of Sarwar and at the date they imported her into British India she was under the age of eighteen years.
(h) The accused had obtained possession of Sarwar and imported her into British India with the intention and knowledge mentioned in Sections 366B and 373 of the Indian Penal Code.
(i) Sarwar was treated well for about a month after her arrival in Bombay.
(j) The accused kept a brothel in certain flats in which they lived' near Shivaji Park.
(k) The evidence as to their keeping of the brothel related to the period from December, 1939, to October, 1940. (It would be more correct to say that the evidence mainly related to this, period).
(l) Sarwar was, when living with' the accused at these places, forced to submit to prostitution from about December, 1939, up to October 17, 1940, when as a result of a complaint she was produced before the Magistrate.
(m) The accused had knowingly lived on the earnings of the prostitution carried on by Sarwar.
(n) The evidence in regard to prostitution having been carried on in the premises where the accused lived during the period mentioned above was mainly that of Sarwar.
4. The substance of the defence was :
(a) The accused were in Yezd at the time alleged but Sarwar was not there at the time.
(b) The accused did not take possession of her in Iran nor did they bring her to Bombay from Iran.
(c) Sarwar was in fact in Bombay in July, 1939, and thereafter she was living with one Rustam Dadina. She was not happy with Rustam. She saw accused No. 1 sometime in March, 1940, and insisted on living with her and ultimately she began to live with the accused. She was employed by them as a servant.
(d) The accused had not kept a brothel at any time.
(e) Prostitution was not carried on at the flats where the accused lived.
(f) The accused had not forced Sarwar to submit to prostitution.
(g) The accused had not lived on the earnings of prostitution.
5. Accused No. 1 was born at Yezd in Iran where her father and other relations still live. Her father is a Zoroastrian. She was first married to a Parsi, but it appears got a divorce from him, and afterwards, according to the defence, she became a Hindu and married accused No. 2. The prosecution do not admit the marriage, but it is common ground that the two accused halve been living together, first in Captain House and afterwards in a building called Beachcroft, where they occupied a flat or flats. Both these houses are in Shivaji Park near Mahim.
6. The sections under which the accused were charged are as follows :-
366B. Whoever imports into British India from any country outside India any girl under the age of twenty-one years with intent that she may be, or knowing it to be likely that she will be, forced or seduced to illicit intercourse with another person.
and whoever with such intent or knowledge imports into British India from any State in India any such girl who has with the like intent or knowledge been imported into India, whether by himself or by another person,
shall be punishable with imprisonment which may extend to ten years and shall also be liable to fine.
373. Whoever buys, hires) or otherwise obtains possession of any person under the age of eighteen years with intent that such person shall at any age be employed or used for the purpose of prostitution or illicit intercourse with any person or for any unlawful and immoral purpose or knowing it to be likely that such person will at any age be employed or used for any such purpose, shall be punished with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine.
Explanation I.-Any prostitute or any person keeping or managing a brothel, who buys, hires or otherwise obtains possession of a female under the age of eighteen years shall, until the contrary is proved, be presumed to have obtained possession off such female with the intent that she shall be used for the purpose of prostitution.
Explanation II.-' Illicit intercourse 'has the same meaning as in Section 372.
7. Section 5 of the Prevention of Prostitution Act:
(1) Any person not below the age of 16 years who knowingly lives, wholly or in part, on the] earnings of prostitution of another person shall be punished with imprisonment which may extend to three years, or with fine which may extend to one thousand rupees, or with whipping, or with any two of those punishments.
(2) Where any person is proved to be living with or to be habitually in the company of a prostitute or is proved to have exercised control, direction or influence over the movements of a prostitute in such a manner as to show that he is aiding, abetting or compelling her prostitution with any other person or generally, or to be keeping or managing or assisting in the management of a, brothel it shall be presumed, until the contrary is proved, that he is knowingly living on the earnings of prostitution.
8. The jury found a unanimous verdict of guilty on all the charges. Separate sentences were imposed, but in substance the effect was that each of the accused was sentenced to three' years' rigorous imprisonment and a fine of Rs. 1,000.
9. According to the Advocate General's certificate, which incidentally was issued over a: year from the date of the conviction, the grounds on which it is suggested that the case should be further considered are as follows :-
(a) The learned Judge in his charge to the jury when referring to Explanation I to Section 373 dealt with importation under Section 366B and obtaining possession under Section 373 together.
(b) By dealing in the said manner with the said two questions, the learned Judge in effect suggested to the jury that the explanation applied 'not only to the charge under Section 373 but also to the charge under Section 366B.
(c) The learned Judge altogether omitted to tell the jury that the explanation was applicable only in respect of the offence under Section 373.
(d) The learned Judge omitted to tell the jury that before the presumption mentioned in the explanation could be drawn it was necessary for the jury to find that the accused were keeping a brothel at the time when they obtained possession of the girl in Iran in or about July, 1939, or in or about October, 1939, when the girl was brought down to Bombay. The learned Judge altogether overlooked the fact that there was no evidence whatever of a brothel having been kept by the accused at any time prior to December, 1939. In view of this it was incumbent on the learned Judge to tell the jury that the evidence in regard to keeping a brothel adduced by the prosecution was irrelevant and immaterial for the purposes of the offence under Section 373 and that such evidence could in no way bring into play the explanation or shift the burden of proof as to intention on the accused.
(e) That the learned Judge erroneously charged the jury that if they believed the evidence as to the keeping of a brothel by the accused between December, 1939, and October, 1940, the burden of proving the absence of necessary intention both under Section 366B and Section 373 would be on the accused,
(f) The learned Judge omitted to direct the jury that it was necessary that the evidence of Sarwar, in particular in regard to the third charge, required corroboration and that it would be unsafe to convict the accused on the uncorroborated testimony of Sarwar. The learned Judge omitted to direct the jury that the rule requiring such corroboration was virtually a rule of law.
(g) The learned Judge omitted to direct the jury that there being no independent corroboration of the story of Sarwar, the jury should return a verdict of not guilty in any event in regard to the third charge.
10. Mr. Samarth who appears for the accused before us preferred to state' his case rather differently. He put his contentions in this form. (1) In dealing with the Explanation to Section 373 and the matter of the burden of proof the Judge did not tell the jury that the keeping of a brothel had to be proved at the time' of the obtaining of possession of the girl. (2) The Judge omitted to point out that the evidence as to the brothel was not sufficiently proximate and all related to the period from December, 1939, to October 17, 1940. (3) The manner in which the Judge dealt with charges 1 and 2 suggested to the jury in effect that the Explanation to s, 373 applied equally to Section 366B. The distinction between these two sections should have been clearly drawn. (4) The effect of certain passages in the Judge's charge was that he told the jury that if they believed the evidence as to keeping a brothel the burden of proving intention under both sections would be on the accused. Points 1 and 2 are points of alleged non-direction. They are really the same point differently worded. Points 3 and 4 are points of alleged misdirection, and here again it is really a single point somewhat differently expressed.
11. One other point of non-direction was argued and that was this. Mr. Samarth submitted that on the evidence in the case the girl Sarwar should have been regarded as a suspect witness whose evidence required corroboration and the Judge should have told the jury so. Mr. Samarth made it clear that it was not necessary for the purposes of his argument that Sarwar should be regarded as an accomplice. Nor was it entirely based on the circumstance that offences of a sexual nature are involved, although that was one of the facts on which he relied.
12. So that really there were three main contentions put forward : (a) that the explanation to Section 373 does not apply unless the keeping of a brothel is proved at the time possession of a girl is obtained and that the Judge omitted to point this out to the jury, (b) the Explanation applies only to the charge of obtaining possession under Section 373, not to the' charge under Section 366B, but the Judge misdirected the jury that it might be applied to both : (c) there was non-direction as to the necessity for corroboration of Sarwar's evidence 'in the circumstances of the case.
13. Explanation (1) to Section 373 has already been set out. There is no doubt that according to the construction of the language' it is necessary that the accused person should be a prostitute or should be keeping or managing a brothel at the time he or she obtains possession of a girl in order that the presumption should take effect. It is also true that the learned Judge has not in so many words pointed out this fact. It will be necessary to quote what he has said in this connection. The first reference to the Explanation is :
There is an important explanation to Section 373. The section deals with obtaining possession of any person under the age of eighteen years with intent that such person shall at any stage be employed or used for the purpose of prostitution, or illicit intercourse with any person or for any unlawful or immoral purpose. The first explanation says (the explanation) is set out.) In other words, what it means is this. Normally the burden would be on the prosecution to prove that the accused: obtained possession of the girl with the intention that she should be employed for the purpose of prostitution or illicit intercourse or for any unlawful or immoral purpose. But if there is evidence to show that the person who has obtained possession of the girl is a prostitute or keeps a brothel then the law will presume that the possession of the girl was obtained for this immoral purpose, and the burden would then bo on the accused to show that though he had obtained possession he had done so for an honest purpose.
Then in a further passage the learned Judge said this :
You remember that when I explained the charge I read out to you the first explanation to Section 373 which says (then he gave the words of the explanation). Therefore if you find that the accused were keeping a brothel, and if you also find: that they obtained possession of the girl, the presumption would be that they obtained possession of the girl for prostitution, and the burden would be on the accused in that case to show that they had not that intention. But if you are satisfied that the accused were not keeping a brothel there would not be that presumption against the accused, and the burden would be on the prosecution to show that the accused had obtained possession of the girl with the intention that she shall be used for prostitution or for an immoral purpose.
14. The final passage of the summing-up in this connection was this :
I have now dealt with the three important questions whether the accused obtained possession of the girl, whether they imported her or obtained possession of her with the intention that she should be forced or seduced to lead a life of prostitution, and whether the accused were running a brothel. As I told you the only importance of the last point is that if you find that the accused were running a brothel the presumption would be that they obtained possession of the girl with the intention that she should be used for the purpose of prostitution, and the burden would shift on them to show the absence of such intention. If you however find the prosecution case that the accused kept a brothel not proved, that would mean that there is no presumption that the accused obtained the girl for an immoral purpose, and the burden would then be on the prosecution to show by evidence that the accused did bring Sarwar with this intention.
15. So that the point argued by Mr. Samarth was not actually mentioned by the learned Judge. But it is to be noticed in this connection, firstly, that the evidence does not solely relate to the period after Sarwar was brought to Bombay. The learned Judge in his summing-up quoted a passage from Sarwar's evidence :
When we went (meaning when she went to live with the accused) there was nobody else living with us. A girl who had been with them before, came to see them and then left. Accused 1 and 2 were very good to me for about a month. ' I was not allowed to go out alone. They treated me kindly for the first month. Two Christian girls who had been formerly living with the accused came to live again with them during the first month. They were both Christians.
She went on to say in this part of her evidence that these Christian girls were prostitutes and kept there by the accused for that purpose. This part of the girl's evidence derives some corroboration from the deposition of accused No. l's uncle Dastur Dinyar, who could not be obtained as a witness at the trial but whose deposition was admitted under s, 33 of the Indian Evidence Act. Not only does he say that on one of his visits to Captain House he saw these two Christian girls there but he also deposed in answer to the accused's counsel as follows :-
After the divorce I heard bad reports about accused No. 1 and therefore I am angry with her. I am annoyed with her not because she has married a non-Parsi but because she leads an immoral life. I know personally and I have seen that myself. When I went to the accused No. 1's place I saw another man sleeping in her cot. She made that man go away.
16. But a more important consideration in connection with this part of the case is this. Assuming for the sake of argument that the accused had not used their premises for the purposes of a brothel before the beginning of 1940, that is to say, until after Sarwar had come there, nevertheless, if the jury accepted the evidence tending to show that soon after the accused obtained possession of Sarwar from her father and brought her to Bombay, other girls were employed in their flat as prostitutes and Sarwar was encouraged and finally as she says compelled to follow their example, there would undoubtedly be a presumption that it was with that intention that she was imported and installed in the flat. It would not have been a presumption under the first Explanation to Section 373, but it would have been a presumption arising front the nature of the case, having regard to Sections 14, 15 and 114 of the Indian Evidence Act, and it would halve been just as strong and valid a presumption as the one which is provided for by the Explanation. Another matter which has to be borne in mind is that the learned Judge laid very little stress on this question of the presumption under the explanation to Section 373. His charge to the jury covers more than one hundred pages of type, and if all the references to the presumption, including the citation from the section, are put together they only cover about one single page. The charge is mainly taken up with an exhaustive summary of the evidence in the case. So much for what I call point (a).
17. As regards point (b), there seems to me to be no real foundation in fact for the contention that the learned Judge confused or jumbled together the two Sections 366B and 373 or that he said anything which could lead an intelligent jury to suppose that the presumption under Explanation I to Section 373 applied also to the charge under Section 366B. I have read out in full the passages in the summing-up dealing with this part of the case and they show that on the whole the learned Judge was meticulously careful to confine what he had to say about the presumption to the elements of the charge under Section 373, that is to say, he invariably speaks of obtaining possession of the girl and not of importing her. There is possibly one exception, that is to say, in the last sentence of the last of the three passages which I read out he said that the burden would then be on the prosecution to show by evidence that the accused did 'bring' Sarwar with this intention. But taking his observations in this connection as a whole, it is impossible to suppose that the jury were in any way misled by this isolated word which was probably a slip. As I have already pointed out, the learned Judge' laid no particular stress on this presumption.
18. Then there remains the point (c). In connection with that one or two cases were cited. In Sikandar Miyan v. Emperor  2 Cal. 345 Mr. Justice Cunliffe said (p. 347) :-
It has been often laid down by Criminal Judges that charges brought against a man by one of the opposite sex accusing the male of having committed a sexual offence should be very carefully presented to the jury and it has been pointed out, both in England and in India, a rule has grown up that Judges when they charge juries in cases of this kind ought never to omit delivering a serious caution to the jury with regard to accepting the uncorroborated evidence of a woman to support a sexual charge against an accused person.
19. Another case not in the authorised reports was also cited, Sarat Chandra Chakravarty v. Emperor. : AIR1937Cal463 Here we have another judgment of Mr. Justice Cunliffe and he said (p. 465) :-
It (i.e. the judgment of the trial Judge) may also be criticised and I think was rightly criticised at the bar by counsel for the appellants that the learned Judge omitted to take the precaution which it is always necessary for Judges addressing juries to take in cases of this character, that is, to warn the jury very gravely that when charges of a sexual criminal character are brought against an accused person in a criminal Court without corroborating evidence, then the jury must be told that whereas after due and careful consideration they are entitled to accept that uncorroborated evidence, it is rarely safe to do so and for the good reason which exists in all charges of this character made by women against men and more especially when the person accused is the subject of dislike or enmity on the part of those connected with the woman or on the part of the woman herself.
20. This like the last was a case of rape. The accused were charged with rape and convicted of it, though it is true there was also a charge under Section 266 for abduction under which they were convicted, though no separate sentence was imposed. There were a number of points in that case. The alleged lack of corroboration of the persons said to have been raped was only one and apparently not the most important of the matters in respect of which it was found there had been misdirection or non-direction. I notice that Mr, Justice Henderson who also delivered a judgment in the case did not refer to this matter at all.
21. Both these cases were cases of rape, and as far as I am aware, the English rule, which is the foundation of the observations in these judgments on which reliance has been placed, is a rule which has been laid down in cases of rape, the rule being that when a woman goes into the witness-box and alleges that a certain individual in the dock has committed a sexual offence against her, the Courts require that her evidence shall be corroborated. I feel considerable doubt as to whether it is safe to say that there is such a rule not only in rape cases but also in 'cases of this kind'. In fact I do not quite know what is meant by 'cases of this kind' or where the extension of the rule, if permitted at all, would stop. In that connection I may quote the observations of the learned Chief Justice in a recent case of this High Court, also a review under Clause 26 of the Letters Patent, Emperor v. Kasamalli Mirzalli. (1941) 44 Bom. L.R. 27 The same argument as to the necessity for corroboration of the complainant was put forward in that case, and the learned Chief Justice said (p. 39) :-
Then the next objection taken is that the learned Judge did not warn the jury that in cases involving sexual intercourse it is a rule of practice, amounting almost to a rule of law, that corroboration of the woman's story must be obtained. But that point seems to be founded in error. This was not a case of rape. The evidence suggested rape, but rape outside the jurisdiction of the Court of Session. The only charge was of abduction, and the offence was complete, if the accused took the complainant away on July 7 by deceitful means intending to seduce her to sexual intercourse. It was not necessary that the details of the alleged sexual intercourse should be corroborated, and intercourse was admitted by the cross-examination. Of course, any Court would normally require corroboration of a woman's statement that intercourse was without her consent. But that does not rest on any technical rule.
22. So that it seems the learned Chief Justice considered that the rule of practice suggested had no application to a case of abduction even though the abduction was alleged to be with intent to seduce to sexual intercourse.
23. We were referred also to two English cases Archibald King (1914) 10 Cr. A.R. 117 and Ellis Arthur Southern (1930) 22 Cr. A.R. 6. The headnote in the first of these cases is :-
A woman is not necessarily the accomplice of a man convicted of living on her immoral earnings; but it is proper to warn the jury trying him, to be cautious in accepting her evidence.
24. The Lord Chief Justice in his judgment said (p. 119):-
Then it is said that the Court should lay down the rule that there must be corroboration, and that the jury must be so cautioned. The Court thinks it is impossible to lay down such a rule, there is nothing in the statutes or in the common law to justify it. The only way in which it was possible to argue the point was on the analogy of other offences which are statutory, where by the statute creating the offence corroboration is required. It would be most dangerous for the Court to lay down such a rule; we are here to administer the law, not to make it. On the other hand, the Judge is justified in warning the jury against accepting the evidence of a girl who is leading such a life against a man, without corroboration. That is a matter for the discretion of the Judge, and in the present case such a warning was given.
25. As far as I can see there is nothing in this case from which Mr. Samarth can derive any assistance.
26. Elis Arthur Southern was a case in which a man was indicted in two counts for indecent offences. The' first count charged an offence against a boy aged thirteen and the second count an offence against a girl aged five. In the case of the girl the evidence was unsworn and corroboration of her testimony was required by statute and the Judge had not pointed this out to the jury. In dealing with the case against the boy, whose age' as I say was thirteen, the Court of Appeal cited with approval certain observations from an earlier judgment (p. 12) :-
In our view, there ought in such cases to be a warning by the Judge, and it ought to be brought home to the minds of the jury that they must act on evidence of this character [meaning presumably the evidence of a boy of the age of thirteen or less] with extreme care. In such cases it is generally desirable, apart from any rule of law, and whether the witnesses are accomplices or not ... that a warning should be given to the jury about acting on the evidence of boys of this age,-twelve and under ten-who are concerned in such an offence.
So that in that case the circumstances were that a statutory requirement as to corroboration had been overlooked in one case and in the other the Judge had not cautioned the jury about the necessity for scrutinising the evidence of a boy of thirteen. It does not appear to me that any support which this case may be said to lend to Mr. Samarth's argument carries us very far. His argument in this connection was really based, as in the end he seemed to concede, not really on any rule of law but on common sense. It is no doubt common sense that a jury ought to be cautious about convicting people of grave charges on the uncorroborated testimony of a single witness and that witness a young girl or a boy as the case may be. That seems to me to be so in any case whatever the nature of the offence. But it can hardly be said to amount to a serious non-direction that the Judge did not say in express words that the jury must exercise their common sense.
27. The summing-up in this case was extremely full and dealt exhaustively with the evidence. Upon the charges of obtaining possession of the girl and importing her with the intent that she might be seduced to illicit intercourse there was undoubtedly a considerable amount of corroboration. The learned Judge pointed this out and at the same time he pointed out very fully and fairly all the infirmities in the evidence of the girl herself. There are certain points on which the evidence of Sarwar stands practically alone. There is not much corroboration, though there is some, of her story that the accused used their premises as a brothel. There is practically no corroboration of her statement that she was herself compelled to practise prostitution, except the one circumstance that it is proved by medical evidence that she contracted gonorrhoea;. But whenever there is no corroboration of Sarwar's statement on a particular point the learned Judge has pointed that out. It may be mentioned perhaps that even if the accused had been convicted of the first charge of importing the girl under Section 366B. and acquitted of the other two charges, the result would have been the same, because the fine was imposed only in the case of the first conviction and the sentences of imprisonment were made to run concurrently.
28. After going carefully through the learned Judge's summing-up it seems to us to be' impossible to say otherwise than that the learned Judge placed the whole of the evidence fully and fairly before the jury, and we are not satisfied that there is any single particular in which he can be said to have been guilty of a substantial error of law, whether misdirection or non-direction.
29. Clause 26 of the Letters Patent says :
And we do further ordain that an such point or points of law being so reserved as aforesaid, or on its being certificated by the said Advocate-General, that, in his judgment, there is an error in the decision of a point) or points of law decided by the Court of original criminal jurisdiction, or that a point or points of law which has or have been decided by the said Court should be further considered, the said High Court shall have full power and authority to review the case, or such part of it as may be necessary, and finally determine such point or points of law, and thereupon to alter the sentence passed by the Court of original jurisdiction, and to pass such judgment and sentence as to the said High Court shall seem right.
The language shows that the High Court must first be satisfied that there has been an error in the decision of a point or points of law or that there is a point or points of law requiring further consideration before any question can arise of interference with the verdict of the jury. In Emperor v. Kasamalli to which reference has already been made the learned Chief Justice said (p. 35):
In this case the Court has to consider a certificate given by the learned. Advocate General under d. 26 of the Letters Patent. Under that clause, if the Advocate) General certifies that there is a point of law involved in the case which requires further consideration, this Court has to determine the point of law, and, if it thinks that there has been an error in law, can review the whole case and pass the requisite judgment and sentence.
30. In order to justify interference by this Court, the point of law in question must obviously be a substantial and important one, and it must appear that there has been some error by which the accused has been prejudiced and the fair trial of the' case affected. As after hearing the arguments of learned Counsel for the accused and examining the learned trial Judge's summing-up, which contains a very full statement of the evidence, we are not satisfied that there has been any substantial error of law or that there is any substantial point of law which requires further consideration, we have not thought it necessary to go in detail into the evidence in the case. We agree that no order should be made in this matter.