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State of Kerala Vs. Pathumma and anr. - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtKerala High Court
Decided On
Judge
Reported in1969CriLJ697
AppellantState of Kerala
RespondentPathumma and anr.
Cases ReferredLord Goddardin Bramman v. Peek
Excerpt:
- - ..as observed in air 1962 mad 31, the word 'promiscuous',in this context, clearly implies indiscriminate, and as the definition of prostitution' goes, it may mean plural and indiscriminate sexuality. 7. reverting to the question whether promiscuity could be inferred from the surrounding circumstances, i must observe that if in a given case there are circumstances which would legitimately lead to the inference that the person concerned has been indulging in sexual intercourse for money indiscriminately, a conviction can well be sustained on such evidence......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......
Judgment:

K. Sadasivan, J.

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.

4. Prostitutes often display their person fancifully attired, and indulge in acts of solicitation. The definition of brother implies that the premises must have been used for the purpose of prostitution for the gain of another or for the mutual gain of two or more persons. The question of keeping a brothel or of the woman offering her body for promiscuous sexual intercourse for tee, cannot arise in this case on the admitted facts. The word 'prostitute' is understood to mean 'a woman who offers not once but more than once her body for the purpose of lewdness or for sexual intercourse'. There cannot, therefore, be any doubt that prostitution involves indiscriminate employment of the woman's body for hire. In the case before me, accused 1 and 2, who are admittedly not husband and wife were found committing sexual intercourse in the rest-house which is a public place and it is less than 200 yards from the Medical College Hospital. But this is not enough for a conviction to be entered on the accused under the section. Indiscriminate employment of the woman's body for hire should further be proved so as to bring the case within the mischief of the section. 'Prostitute' is defined in Section 2(c) of the Act as 'a female who offers her body for promiscuous intercourse for hire, whether in money or in kind'. Indiscriminate sexuality, therefore, must be proved. The Madras High Court in In re Ratnamala : AIR1962Mad31 , has held that-

as the definition is framed, this plural and indiscriminate sexuality will be a matter of interference from the facts; it is certainly not necessary that the evidence of more than one customer of the prostitute should be adduced.

In other words, the view taken by the learned Judge is that promiscuity of sexual relationship must be inferred from the circumstances of the case.

5. The Gujarat High Court in Bai Shanta v. State of Gujarat : AIR1967Guj211 , seems to have approached the question from a slightly different angle. The learned Judge would observe:

The term 'promiscuous' is not defined or explained in this Act. In Shorter Oxford English Dictionary the term promiscuous* has been explained as: (1) consisting of members or elements of different Kinds massed together without order of mixed and disorderly composition or character; also of various kinds mixed together; (2) that is without discrimination or method; confusedly mingled, indiscriminate.... As observed in AIR 1962 Mad 31, the word 'promiscuous', in this context, clearly implies indiscriminate, and as the definition of prostitution' goes, it may mean plural and indiscriminate sexuality. It does appear no doubt true, as observed in that Madras case, that what is aimed at under this Act is not abolition of prostitutes and prostitution, as such, and make it per se criminal offence or punish a woman because she prostitutes herself, and that the purpose of the enactment was to inhibit or abolish commercialised vice, namely, the traffic in women and girls for purpose of prostitution.... Section 7 of the Act makes punishable the practice of prostitution in or in the vicinity of certain public places such as places of public religious worship, educational institutions, hospitals, etc. This is an illuminating provision throwing light upon the intention of the Legislature. This provision, therefore, inhibits a woman herself from the practice of her profession in contravention of its terms and to that extent renders prostitution a penal offence. In effect, therefore, and having regard to the use of words 'carrying on prostitution', suggestive of more than a solitary instance of prostitution, it is clear that there must fee indiscriminate sexuality requiring of more than one customer of the prostitute before she can be held guilty under Section 7(1) of the Act.

6. Thus, the uniform view as is gather-able from the decisions placed before me is that to convict a person for carrying on prostitution, there must be indiscriminate sexuality requiring of more than one customer of the prostitute. It is not always possible to produce evidence in support of the fact that the woman concerned had been indulging in promiscuous sexuality. To cite other customers to prove the fact is not easy unless decoy or trap witnesses are resorted to. But such practice has evoked severe condemnation at the hands of the Courts. The following observation appearing in AIR 1962 Mad 31 (supra) is pertinent in this connection:

I cannot part with this appeal without making certain observations upon another grave aspect, namely, the manner in which the entire raid was carried out by the Special Police officer, and, in general terms, the technique that seems to be employed in these cases. So long as the civic consciousness of citizens is so far low that the evidence of private persons who have visited such premises is not forthcoming, the use of a trap and of a decoy witness, however repeatedly deprecated by Courts, may be an inevitable evil. Nevertheless, it is vital to realise that the entire scheme behind the Act is not the proof of a single incident of prostitution, or of the activities of a prostitute. The Act closely follows the English laws upon the subject, and it is noteworthy that in Archbold's Criminal Pleading and Practice, 1954 Edn., the form of indictment for keeping a bawdy-house under the Common Law (Chap. 18, p. 1406) runs:'and on other dates between that date and the date of emphasising the continuity of maintenance of a house of ill-fame as the essential ingredient. It is unfortunate that certain constructive suggestions advanced by Ramaswamy, J., in C.A. No. 536 of 1959 (Mad.) appear to have been ignored. The learned Judge was aware that traps may be unavoidable, but he pointed out, after citing the observations of Lord Goddardin Bramman v. Peek 1948-1 KB 68, deprecating the resort to traps on the part of authorities, that evidence of a different character altogether could also be made available in such cases. Arrangements could be made for maintaining direct observations on the premises, and evidence of such observations could be offered. The history of the tenancy, the particulars of the individual letters, the numbers of men visiting the premises, the hours of visits and the length of stay, could all be made relevant in a case of this character. I must further observe that, so long as the trap is mainly relied upon, it is open to the criticism that the authorities are thereby abetting the very evil, the discontinuance of which is the policy behind the Act.

7. Reverting to the question whether promiscuity could be inferred from the surrounding circumstances, I must observe that if in a given case there are circumstances which would legitimately lead to the inference that the person concerned has been indulging in sexual intercourse for money indiscriminately, a conviction can well be sustained on such evidence. But in the present case, no such evidence is available. The moral laxity was detected in a room in the rest-house and not in any brothel. But, of course, the circumstance is there that from the manner in which they behaved, no inference could be drawn that they were two lovers making an amorous approach. There is absolute paucity of evidence as to the past indulgence, much less promiscuous or indiscriminate indulgence in sexuality by the woman.

8. In the circumstances the order of acquittal of the respondents has only to be confirmed and in confirmation of the same both the appeals are dismissed.


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