Somnath Iyer, J.
(1) At about 3-30 P.M. on August 27, 1962 Keshav, a head constable in Bidar town, transmitted of Police P.W.6, that Abdul Nabi on the invitation of a young woman Suseela, entered her house. Keshav stated that within ten or fifteen minutes the Superintendent of Police along with a Sub-Inspector, a lady constable and two panch witnesses arrived near the house in a van. It was said that when they entered the house they found one of the rooms bolted from inside and Suseela and Nabi came out of that room on their being asked to open the door. Suseela is accused 1 and Nabi is accused 2, and the charge brought against them before the District Magistrate was that they were guilty of an offence of prosecution carried on within 200 yards of an educational institution punishable under S.7(1) of the Suppression of Immoral Traffic in Women and Girls Act, 1956 which will be referred to as the Act.
(2) Five others, all of whom were women and who were in State of Mysore part of the house or the other were charged with other offences. During the pendency of the proceedings before the District Magistrate, accused 6, the owner of the house, and accused 3 died, and on the conclusion of the trial, the District Magistrate acquitted all the surviving five accused.
(3)This appeal from that order of acquittal in by the State Government. When the appeal came up for admission, this Court dismissed the appeal in so far as it related to accused 4, 5 and 7 and admitted it only in so far as it concerned accused 1 and 2. The question therefore which survives is whether accused 1 and 2 were wrongly acquitted.
(4) The prosecution case was that a house in Pathakgalli in the town of Bidar was used as a brothel and that Suseela who is accused 1 was carrying on prostitution in one portion of that house. Keshav P.W. 1 gave evidence that he was asked by the Sub-Inspector P.W. 4 to keep a watch over the house since that Sub-Inspector had received complaints from the public in respect of the activities in that house. It was said that on August 27, 1962 Keshav gave information to the Superintendent of Police that an act of prostitution was going on in that house and that when the police party arrived there they found Suseela (accused 1) and Nabi (accused 2) inside a room in that house having bolted the door from inside.
(5) Evidence was produced that when they came out when they were asked to do so, there were many circumstances which indicated that an act of sexual intercourse had been performed by Nabi with Suseela and that Suseela had allowed him to do so for monetary gain. Part of the evidence produced by the prosecution was to the effect that some portions of the lungi worn by Nabi were wet and that some portions of Suseela's petticoat were similarly wet. The witnesses gave evidence that inside the room there was a mat on which there was a carpet and a pillow and that there was also a broken bangle and an eight anna coin. The suggestion for the prosecution was that Nabi paid a sum of right annas to Suseela for the sexual intercourse which Suseela permitted.
(6) Section 7(1) under the provisions of which Suseela and Nabi were prosecuted prohibits an act of prostitution within a distance of 200 yards from any plea of public religious workship, educational institution, hotel, hospital, nursing home or such other place as may be notified in manner provided by that section. Under its provisions any woman or girl who carries on such prostitution is carried on, commits an offence and shall be punishable with imprisonment for a term which may extend to three months.
(7) There is good and trustworthy evidence that the room in which Suseela and Nabi were surprised was within a distance of 200 yards from an educational institution, and Mr. Jahangirdar appearing for accused 1 and 2 does not dispute the truth of that evidence. But the District Magistrate did not feel persuaded to say that any act of prostitution was carried on inside the room in which Suseela and Nabi were found together. The question is whether we should dissent from that view taken by the District Magistrate.
(8) In support of his conclusion that accused 1 and 2 committed no offence, the District Magistrate assigned four reasons. Before adverting to the reasons so assigned by him it should be mentioned that the District Magistrate did not doubt the evidence given by the prosecution witnesses hat the Superintendent of Police P.W. 6 along with others did enter the house of accused 6 or that Suseela and Nabi were found together inside one of the rooms in that house which they had bolted from inside. But what he doubted was the truth of the evidence that some parts of the lungi worn by Nabi and parts of petticoat worn by Suseela were wet when both of them were surprised. He also doubted the evidence given by them that an eight anna coin was found inside the room. Now we shall advert to the reasons on which the District Magistrate founded his order.
(9) The prosecution forwarded both the petticoat of Suseela and the lungi of Nabi to the Chemical Examiner. The report of the Chemical Examiner was that there was no spermatozoa in any portion of those two articles which accord to the prosecution had become wet. Discussing the argument presented on behalf of the prosecution that the emissions which might have made portions of those articles wet were emissions of semen which need not necessarily contain spermatozoa, the District Magistrate observed that no evidence was produced by the prosecution that there was any such semen in any part of the petticoat or the lungi. The District Magistrate next said something very obscure about the truth of the prosecution story that an eight anna coin was found in the room. What we are able to understood as to what the District Magistrate observed in that context is that he did not believe that allegation.
(10) Six witnesses were examined for the prosecution, P.W. 1 is the head constable who watched the house P.W.2 is a lady constable who accompanied the Superintendent of Police when the house was raided. P.W. 3 is a panch witness. P.W. 4 is the Sub-Inspector who accompanied the Superintendent. P.W. 5 who is a neighbour of the house gave evidence about the behaviour of Suseela and her companions P.W. 6 is the Superintendent of Police.
[After discussing (paras 11 to 17) evidence His Lordships proceeded.]
(18) Mr. Muralidhar Rao, the learned Government Pleader, asked us to say that the evidence given by P.Ws. 1, 2, 3, 4 and 6 completely established the prosecution case that an offence of prostitution was carried on by Suseela with Nabi in Contravention of the provisions of section 7(1) of the Act. That Sub-section reads:
Prostitution in or in the vicinity of public places. '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, workship, educational institution, hotel, 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.
(19) Suseela was 25 years of age and so she was a woman as defined by section 2(j) of the Act which defined a 'woman' as female who has completed the age of twenty-one years. The word 'prostitution' occurring in this sub-section is defined by section 2(f) as meaning the act of a female offering her body for promiscuous sexual intercourse for him whether in money or in kind.
(20) Since it is no longer disputed that the house in which Suseela and Nabi were found was within a distance of 200 yards from an educational institution, the question which survives to be determined is whether Suseela carried on prostitution with Nabi within the meaning of section 7(1) on August 27, 1962, as alleged by the prosecution. If we can say that in the room in which Suseela and Nabi were found, Suseela offered her body for promiscuous sexual intercourse for a hire, and that such prostitution was carried on with Nabi it should follow that an offence under section 7(1) was committed by both of them. We do not find it possible to share the doubt expressed by the District Magistrate in regard to the question whether Suseela and Nabi had sexual intercourse with one another inside the room where they were found.
(21)What is clearly established by the evidence of P.Ws. 1, 2, 3, 4 and 6 is that, when they entered the house of accused 6, Suseela and Nabi were inside a room in which they had locked themselves and that that room was opened by them only when they were asked to do so and that at that time the lungi worn by Nabi was wet in some parts of it. Although some of the witnesses stated that the petticoat worn by Suseela was similarly wet, there is no mention of it in Exhibit P-1 which only mentions the wet portions observed on the lungi of Nabi. Since it may be that the non-mention of the wet portions of the petticoat is due to some kind of inadvertence on the part of the person who prepared it, we do not doubt the evidence of the witnesses that the petticoat of Suseela had similarly become wet.
(22) According to the evidence, the room was a small room measuring 6 feet by 10 feet and inside the room a carpet had been spread a mat and there was a pillow on it. There was a broken bangle which obviously belonged to Suseela and in addition there was an eight anna coin there.
(23) Now, the only inference to be drawn, from all these circumstances is that Nabi had completed the contempt of sexual intercourse with Suseela before the door of the room was opened. To expect the prosecution to produce direct evidence that there was sexual intercourse is to expect the impossible, since what the prosecution can evidently do to sustain the theory that there was sexual intercourse is to produce circumstantial evidence such as what has been produced in the case before us. The conclusions to be reached from the circumstantial evidence before us is in our opinion, obvious.
(24) Suseela is a young Hindu woman and Nabi is an elderly Muslim who is 50 years of age. Neither of them offered any explanation as to why those two persons were alone together in a room and why they had bolted the door from inside. It was not also explained why a carpet should have been spread and a pillow should have been there in the room. Nor was any explanation offered as to how and the by what process the lungi of Nabi and the petticoat of Suseela had become wet or why there was a broken bangle or an eight Anna coin there.
(25) In the absence of any such explanation and I is clear that any attempt to offer any explanation would have been futile--we should say that Nabi had slept with Suseela and that there was sexual intercourse between them by the time the Superintendent of Police and others survived and knocked against the doors of the room.
(26) But it is clear from the provisions of the Act that what constitutes an offence under Section 7(1) is not the mere fact that the man had sexual intercourse with the female. What should be established is that the female carried on an act of prostitution and that there was man with whom she carried on that act of prostitution. So the question to be considered is whether Suseela carried on an act of prostitution on the day of the incident and whether such act of prostitution was carried on with Nabi.
(27) It could be said that Suseela carried on an act of prostitution only if there is evidence from which we can gather the inference that the offered her body for promiscuous sexual intercourse for hire, whether in money or in kind. It is only then that it could be said that there was an act of prostitution as defined by section 2(f).
(28) That Suseela offered her body to Nabi for sexual intercourse is clear from the fact that there was such sexual intercourse. But what should be established in addition is that she as offered her body for promiscuous sexual intercourse and that she did so for hire. The word 'promiscuous'. 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 her therefore reference to some kind of a commercialised vice such as the activity in a brothel.
(29) Neither accused 1 nor accused 2 stated in the course of their explanation under section 342 of the Code of Criminal Procedure that they were acquainted with one another, or that they were old acquaintances, or that even if they had not become acquainted with one another or their acquaintance was not of a long duration, the sexual intercourse between them was attributable to any fondness or infatuation which the one had for the other. It seems to us extremely improbable that Suseela, young as she was, should have developed any infatuation or attraction for Nabi who was twice as old as she was, and, there is no evidence that Nabi, in spite of his advanced years, was such a handsome person as to be able to seduce Suseela and to persuade her to have sexual intercourse with him. This fact taken along with the evidence given by the witnesses that there was an eight anna coin somewhere on the carpet on which Suseela slept with Nabi, makes it abundantly clear that Suseela gave her body to Nabi for gain.
(30) That the sexual intercourse was a promiscuous intercourse and not the sexual intercourse between tow lovers or between persons between whom there was a relationship of concubinage, is what we can gather from the evidence of Keshav P.W. 1. The evidence of Keshav P.W. 1 and the evidence of Sivaraj P.W. 5, a neighbour of Suseela, that Suseela along with the other woman accused was in the habit of displaying her person fancifully attired and was indulging in acts of solicitation when persons were walking on the road, clearly excludes the possibility of the sexual intercourse between Suseela and Nabi being anything other than promiscuous. What we can infer from that is that Suseela was exercising the profession of a prostitute and that she was inviting person travelling along the road to walk into her room so that she may offer for hire her body for such intercourse. What her conduct further demonstrates is that she was willing to so offer her body to 'any one who was willing to pay her the hire.
(31) The discussion so far made therefore transports us to the conclusion that Suseela did offer her body to Nabi for promiscuous sexual intercourse for a hire, and that, precisely is prostitution as defined by section 2(f) of the Act. That she carried on that accordingly of prostitution with Nabi is what is proved by the fact that Nabi when invited by Suseela walked into her room, paid her a sum of eight annas and slept with her.
(32) The District Magistrate as, in our opinion, in error in thinking that the absence of spermatozoa on the lungi and the petticoat has falsified the prosecution case that Nabi slept with Suseela. It is indisputable that in the case of some persons the emission may not contain spermatozoa and we have no doubt in our minds that, from the evidence produced by the prosecution, it is impossible to resist the conclusion that the witness in the lungi and the petticoat was caused only by the emissions during copulation.
(33) The District Magistrate committed the mistake of thinking that in the mahazar Ex. P. 1 there was no reference to the wet parts of the lungi of Nabi. The fact that the mahazar does refer to it is not disputed by Mr. Jahgirdar. we are also of the view that there was no reason for the District Magistrate to discard the prosecution evidence that there was an eight anna coin on some part of the carpet. We do not find it easy to understand what other inference the District Magistrate could have drawn from the presence of that eight anna coin than that that was the hire which Nabi paid for the use of the body of Suseela.
(34) Some argument was expended by Mr. Jahgirdar over the question whether an offence under section 7(1) could be committed even if there was no sexual intercourse between the prostitute and the visitor and whether an offence is committed even in cases where there is an offer of the body of the prostitute for hire and beyond the acceptance of that offer no other act is committed pursuant thereto. We do find the language of section 2(f) a little difficult since it speaks of an offer of the body of a female for promiscuous sexual intercourse for hire as an act of prostitution. Under section 7(1) a female who carries on such prostitution and the man with whom such prostitution is carried on are equally guilty of the offence punishable under it. Now, if prostitution is an offer of the body for sexual intercourse for gain, prostitution is carried on when such offer is made by the female. Now what causes difficulty is the phrase 'and the person with whom such prostitution is carried' occurring in sub-section (1). Literally understood that phrase has reference to a person with whom the offer of the body for sexual intercourse for gain is carried on. So understood it creates difficulties.
(35) Now section 7(1) has for its aim the maintenance of an atmosphere of purity in the area surrounding public institutions to which it refers and the prevention of the pollution of that atmosphere by degrading activities such as prostitution in the neighborhood. That being the aim of that section it is plain that if there be actual sexual intercourse, the female who offers her body for such sexual intercourse for gain and the man to whom it is offered commit an offence under section 7(1) if the sexual intercourse is promiscuous. The prohibition against such activity in the neighbourhood of a public institution which is do detrimental to public interest is therefore intelligible.
(36) From the language of the relevant provisions of the Act it may be possible to think that in the neighbourhood of a public institution such as the one to which section 7(1) refers, a man who merely accepts the offer of the body of a female for such promiscuous intercourse for gain, similarly commits an offence under section 7(1), whether or not the sexual act is actually performed.
(37) But the question is not free from difficulty and we are relieved of the necessity of making any pronouncement about it since what is established beyond doubt in the case before us is that Nabi did have sexual intercourse with Suseela. That they did so is what makes them plainly guilty of an offence punishable under section 7(1)of the Act.
(38) We therefore allow this appeal and set aside the order of acquittal wrongly made by the District Magistrate and we convict both Suseela and Nabi who are accused 1 and 2 of an offence punishable under section 7(1) of the Suppression of Immoral Traffic in Women and Girls Act 1956. But the offence was committed as long ago as in August 1962 and the wrong order of acquittal was made by the District Magistrate in January 1964. If a sentence has to be imposed for the offence committed by these two authority that sentence should be a sentence of imprisonment, since the imposition of a sentence of imprisonment is made obligatory by section 7(1) of the Act.
(39) But section 10(1) of the Act provides that a person convicted for the first time of even an offence punishable under section 7 may, having regard to his age, character, antecedents and the circumstances in which the offence was committed be released on conviction on probation of good conduct in manner provided by sub-section (1) of section 562 of the Code of Criminal Procedure.
(40) Suseela is a younger woman not older than 25 years of age. Nabi is part middle age. There is no evidence that the offence committed by them was not the first; nor is there any evidence beyond what is available in this case that Suseela is an unrepentant and confirmed prostitute, or that Nabi is a person with an unmitigated bad character. It is not improbable hat what was responsible for Suseela's lapse from virtue was the difficult economic position in which she had been placed. Nabi according to him is a person who is exercising the profession of a repairer of household utensils and it is just possible that in a weak moment he became a victim to the blandishments of Suseela and her companions.
(41) Having regard to all these facts and every other relevant circumstance, it seems to us that this is a case in which we should, instead of sentencing these two accused under section 7(1), release them on probation of good conduct in manner provided by sub-section (1) of section 562 of the Code of Criminal Procedure. What we therefore do is to direct that these two accused shall be released on probation of good conduct and that they should be so released on each of them entering intervened a bond with two sureties each in the sum of Rs. 300 to appear and receive sentence when called upon during a period of one year, and that in the meantime they shall observe the District Magistrate to whose court the accused were acquitted and to his satisfaction.
(42) Mr. Muralidhara Rao submitted that we should also indicate in this order the sentence which should be imposed upon the accused in the event of their committing breach of the bonds executed by them, and that what we may do is to merely postpone the imposition of the sentence.
(43) It does not appear to us that we should do anything. The order that we can make under section 10(1)(a) if the Act is an order by which we release the accused on probation of good conduct instead of sentencing them at once. Although those words 'instead of sentencing them at once' are to be found only in the Code of Criminal Procedure and not in section 10(1)(a) of the Act, it is obvious that the release on probation of good conduct should be made in the manner provided in sub-section (1) of section 562 of the Code of Criminal Procedure.
(44) Now, section 562(1) of the Code of Criminal Procedure makes it clear that when the court decides to make an order of release on probation of good conduct there should be no imposition of the sentence. That is the clear meaning of the words 'instead of sentencing him at once' occurring in that sub-section. We do not therefore consider it necessary to indicate in this order what sentence should be imposed on the accused if and when there is a contravention of the undertaking given by them in the bonds to be executed as directed by this order. That question will properly arise only when there is breach of the conditions of the bond on the happening of which the accused have to be directed to appear before this court to receive the sentence and it is only then that this court should decide what sentence should be imposed upon them and not now.
(45) Now, what we should however do is to prescribe a period within which the bonds should be executed by the accused and the sureties before the District Magistrate. The direction that we make is that these acts shall be performed within one month from the date of the receipt of this order by the District Magistrate. In the event of neglect or noncompliance on the part of the accused to obey the direction given by us this matter will be posted again before us on receipt of a report from the District Magistrate so that we may pass an appropriate sentence on the accused. We also reserve the liberty for the State Government to make a mention in that regard at the proper stage. We make also the direction that the District Magistrate should, soon after the expiry of the period of one month prescribed by this order for the execution of the bonds, make a report to the court whether or not they have been executed.
(46) Appeal allowed.