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Soni Bachu Lakhuman Vs. the State of Gujarat - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtGujarat High Court
Decided On
Case NumberCriminal Revision Application No. 90 of 1960
Judge
Reported inAIR1960Guj37; 1960CriLJ1585
ActsSuppression of immoral Traffic in Women and Girls Act, 1956 - Sections 2, 3, 3(1), 3(2), 4(2), 13 and 15; Evidence Act - Sections 114; Code of Criminal Procedure (CrPC) , 1898 - Sections 439
AppellantSoni Bachu Lakhuman
RespondentThe State of Gujarat
Appellant Advocate H.M. Chinoy, Adv.
Respondent Advocate H.M. Chokshi, Government Pleader
Cases ReferredEmperor v. Udho Chandulal
Excerpt:
.....section 4. - - 6(ii) of the bombay prevention of gambling act, which provided that entry by police officers in gaming houses can be made amongst other persons by taluka magistrate specially empowered by name and not merely by virtue of his office, because the words `or by an assistant or deputy superintendent of police specially empowered by the government in this behalf clearly implied the exercise by government of a certain selection or discrimination as regards an individual on whom this special power is to be conferred. in my opinion, therefore, the notification issued by the government appointing special police officers for the purpose of the act for every sub-division of a district is a perfectly valid notification and a deputy or assistant superintendent of police in charge..........superintendent of police was not specially empowered by the government; (2) under the act, a police officer must be specially empowered. he relies on emperor v. udho chandulal, air 1943 sind 107. it is next contended that the asst. superintendent of police did not record the grounds for his belief as required under s. 15 of the act and therefore the raid is vitiated; and the third point argued is that the panchas selected did not belong to the locality, namely bukerfali where the house was situated, but they belonged to other localities in the same town. it is next contended that there is no proof that the house was used as a brothel. another contention urged is that there is no corroboration of the evidence of lalji, the bogus punter. it is lastly contended that at any rate the.....
Judgment:
ORDER

(1) The applicant was convicted under S. 3(1) and S. 4(1) of the Suppression of Immoral Traffic in Women and Girls Act, 1956, which will be hereinafter referred to as the Act. The judgment of the Judicial Magistrate, First Class, Junagath, was confirmed by the Sessions Judge, Junagadh, in appeal. Hence this revision application.

(2) The prosecution case was that the Assistant Superintendent of Police sent a bogus punter Lalji by name to the house of the applicant with a five rupee currency note; that Lalji gave this currency note to the applicant who thereupon asked Lalji to select a girl for the purpose of prostitution. Lalji selected the wife of the applicant, Jaya alias Indumati by name, and both were allowed to go into a room. The police and Panchas then made a raid and found the punter in the company of Jaya in a compromising attitude on a cot. The five rupee currency note was found in the pocket of the applicant. The applicant was prosecuted. He denied that he was guilty, but admitted that he had received Rs. 5/- from Laji, but, according to him, he was given that amount in connection with the sale of a horse. The trying Magistrate rejected the defence, accepted the prosecution evidence and convicted the applicant as stated above, and the conviction was confirmed by the learned Sessions Judge in appeal.

(3) In revision, the following points were raised by the learned counsel for the applicant, (1) The Assistant Superintendent of Police was not specially empowered by the Government; (2) under the Act, a Police Officer must be specially empowered. He relies on Emperor v. Udho Chandulal, AIR 1943 Sind 107. It is next contended that the Asst. Superintendent of Police did not record the grounds for his belief as required under S. 15 of the Act and therefore the raid is vitiated; and the third point argued is that the Panchas selected did not belong to the locality, namely Bukerfali where the house was situated, but they belonged to other localities in the same town. It is next contended that there is no proof that the house was used as a brothel. Another contention urged is that there is no corroboration of the evidence of Lalji, the bogus punter. It is lastly contended that at any rate the offence would fall under S. 3(2) and not under S. 3(1) of the Act.

(4) Under S. 15 of the Act, a Special Officer is authorised to enter and search a premises without a warrant, if he has reasonable grounds got believing that an offence punishable under the Act is or is being committed in respect of a woman or girl living in any premises and that search of the premises with warrant cannot be made without undue delay. 'Special Police Officer' is defined in S. 260 of the Act as follows:-

''Special police officer' means a police officer appointed by or on behalf of the State Government to be in charge of police duties within a specified area for the purpose of the Act.'

The Government of Bombay issued a notification in exercise of the posers conferred by S. 13 of the Act appointing the Deputy or Assistant Superintendent of Police in charge of sub-division of District or any police officer not below the rank of the Dy. S. P. temporarily holding the additional charge of the Deputy or A. S. P. of a sub-division of a District, for the Sub-Division of a District constituted for the purpose of the Code of Criminal Procedure, 1898. It is therefore clear from this Notification that for every Division of District constituted for the purpose of the Code of Criminal Procedure, the Deputy or Assistant Superintendent of Police in charge of that Division is appointed as a Special Officer. The learned counsel for the applicant contends that the special appointment must be by name and he relies ion AIR 1943 Sind 107. That was a vase under S. 6(ii) of the Bombay Prevention of Gambling Act, which provided that entry by police officers in gaming houses can be made amongst other persons by Taluka Magistrate specially empowered by name and not merely by virtue of his office, because the words `or by an assistant or Deputy Superintendent of Police specially empowered by the Government in this behalf clearly implied the exercise by Government of a certain selection or discrimination as regards an individual on whom this special power is to be conferred. The scheme of S. 6(ii) of the Gambling Act is that although there may be several Assistant and Deputy Superintendents, for the purpose of search under S. 6(ii), it is only that Assistant Superintendent or Deputy Superintendent of Police specially empowered by Government, who can issue a warrant for the search. The words `specially empowered' are not found in the definition of `special police officer' in S. 2(i) or in S. 15 of the Act. In view of the definition of expression `special police officer' in S. 2(i) of the Act, what is required is that the State Government should appoint a particular police officer to be in charge of police duties within a specified area for the purpose of issuing a warrant, when as Assistant or Deputy Superintendent of Police is specially empowered by Government under S. 6(ii) of that Act, he should be specially empowered by name as there may be many such police officers. In the instant case, the Government has appointed only one police officer for the sub-division of a district as constituted for the purpose of the Code of Criminal Procedure. In the area of that sub-division it is the Deputy or Assistant Superintendent of Police in charge of the sub-division who is appointed as a police officer. Ordinarily, there would be only one Police officer in charge of the sub-division of that District. There is therefore no question of selection between police officers in charge of the sub-division of a District. In my opinion, therefore, the Notification issued by the Government appointing special police officers for the purpose of the Act for every sub-division of a District is a perfectly valid notification and a Deputy or Assistant Superintendent of Police in charge of the sub-division of a District would be a police officer for the purpose of S. 15 of the Act in regard to the area of the sub-division of the District of which he is in charge. There is, therefore, no merit in the contention of the learned counsel for the applicant that the appointment of the special police officer is not by name and that therefore, the Assistant Superintendent of Police had not been specially empowered.

(5) As regards the contention that the Assistant Superintendent of Police had not recorded grounds, for his belief while acting under S. 15 of the Act, no question has been put to the Assistant Superintendent of Police in his examination. In such cases, it is not necessary for the Assistant Superintendent of Police, to depose that he had recorded the grounds for his belief when acting under S. 15 of the Act. When an official act is done, under S. 114 of the Evidence Act, it is presumed to have been properly done. In the absence of any admission by the Assistant Superintendent of Police and in the absence of any other evidence, it cannot be held that it has been proved that the Assistant Superintendent of Police did not record the Assistant Superintendent of Police did not record the grounds for his belief when acting under S. 15 of the Act. This contention of the learned counsel must also be rejected.

(6) Similarly, the contention that the Panchayats do not belong to the same locality as the house searched which is in Bukar Falia in Junagadh while the Panchas come from other parts of the same town, has no substance, `Locality' does not necessarily mean the street in which the house is situated. Whether the Panchas belong to the same locality or not has to be decided on the facts of each case. Of course, if the Panchas belong to the same locality or not has to be decided on the facts of each case. Of course, if the Panchas belong to a different town they cannot be said to belong to the same locality; but it is not necessary that they should be residents of the same street or the same Falia. As the Panchas belong to different parts of the same town, it cannot be said that they do not belong to the same locality.

(7) Regarding the contention that the evidence of the bogus punter Lalji is not corroborated, there is evidence that the five rupee currency note which had been given to Lalji, the bogus punter, was found in the pocket of the applicant. This fact corroborates the evidence of the punter. Of course, it is open to the accused person to rebut the inference to be drawn from the evidence of the punter and from the fact that the evidence of the punter has been corroborated. The explanation of the defense that Rs. 5/- had been accepted by the accused as earnest money in regard to the sale of a horse has not been accepted by the Court's below, and in revision it would not be proper for me to accept the explanation of the defence when it had not been accepted by the two Courts below. The evidence of the punter is also corroborated by the fact that the bogus punter was found in the company of Jaya, the wife of the applicant, in a compromising attitude.

(8) As regards the argument that there is no evidence to prove that the house of the accused was a brothel, it is true that there is no direct evidence. A brothel is defined in S. 2(a) of the Act as follows:-

' `Brothel' includes any house, room, or place or any portion of any house, room or place, which is used for purposes of prostitution for the gain of another person or for the mutual gain of two or more prostitutes'.

Sub-section (2) of S. 4 of the Act provides:

'(2) Where any person is proved -

(a) to be living with, or to be habitually in the company of, a prostitute; or

(b) to have exercised control, direction or influence over the movements of a prostitute in such a manner as to show that such person is aiding, abetting or compelling her prostitution; or

(c) to be acting as a tout or pimp on behalf of a prostitute,

it shall be presumed, until the contrary is proved, that such person is knowingly living on the earnings of prostitution of another person within the meaning of sub-section (1): Provided that no such presumption shall be drawn in the case of a son or daughter of a prostitute, if the son or daughter is below the age of eighteen years'.

In the instant case, on the evidence it is clear that Indumati, the wife of the applicant was a prostitute, and that the applicant, her husband, was living with her. The presumption mentioned in S. 4(2) of the Act may therefore be drawn. But, it is contended that the presumption should be drawn only in the case of strangers living with or habitually in the company of a prostitute, and that such a presumption should not be drawn in the case of the husband of the prostitute, and that such a presumption should not be drawn in the case of the husband of the prostitute, who is living with her. There is no reason to restrict the scope of the presumption may be drawn, that such person is knowingly living on the earnings of a prostitute. If the husband lives with his wife, and allows his wife to be a prostitute, there is no reason for not believing that the husband was doing so for the purpose of living on the earnings of prostitution of his wife. If the husband allows his own wife to be a prostitute, the presumption would be stronger that he was doing so for the purpose of living on her earnings of prostitution. There is, therefore, no reason not to apply the presumption mentioned in S. 4(2) of the Act to the `case of a husband living with his prostitute wife. In this case therefore, such a presumption can be drawn, and when such a presumption can be drawn, until the contrary is proved, it can be presumed that the applicant was knowingly living on the earnings of the prostitution of Indumathi his wife. When such a presumption is drawn, that would be sufficient to presumption is drawn, that would be sufficient in constitute the house of the applicant a brothel, because `brothel' includes any house, room, or place which is used for purposes of Prostitution for the gain of another person. That the house in question was a brothel is therefore proved by the evidence on record and the presumption to be drawn from S. 4(2) of the Act.

(9) It is lastly contended that the conviction of the applicant under S. 3(1) of the Act is erroneous and that the conviction should have been under S. 3(2) of the Act. Two sub-section of S. 3 are as follows :-

'(1) Any person who keeps or manages, or acts or assists in the keeping of management of, a brothel shall be punishable on first conviction with rigorous imprisonment for a term of one less than one year and not more than three years and also with fine which may extend to two thousand rupees and in the event of a second or subsequent conviction, with rigorous imprisonment for a term of not less than two years and not more than five years and also with fine which may extend to two thousand rupees:

(20) Any person who -

(a) being the tenant, lessee, occupier or person in charge of any premises, uses, or knowingly allows, any other person to use, such premises or nay part thereof as a brothel, or

(b) being the owner, lessor or landlord of any premises or the agent of such owner, lessor or landlord, lets the same or nay part thereof is intended to be used as a brothel, or is willfully a party to the use of such premises or any part thereof as a brothel, , or is willfully a party to the use of such premises or any part thereof as a brothel, shall be punishable on first conviction with imprisonment for a term which may extend to two years and with fine which may extend to two years and with fine which may extend to two thousand rupees and in the event of a second or subsequent conviction, with rigorous imprisonment for a term which may extend to five years and also with fine'.

It is proved by the evidence that the bogus punter Lalji approached the applicant himself for the services of a woman for the purpose of prostitution, and that it was the applicant himself who had offered two girls to Lalji one of whom was Indumati, the wife of the applicant. In view of this evidence, it must be held that the applicant himself was keeping of managing the brothel. His conviction under S. 3(1) would be quite proper provided there has been a charge under S. 3(1) of the Act. But it is contended that the charge does not relate to keeping or managing his house as a brothel; and that the charge merely relates to using a house as brothel, and that the charge does not fall under S. 3(1) of the Act. The charge is clearly under S. 3(2) of the Act. I therefore alter the conviction from S. 3(1) to one under S. 3(2) of the Act.

(10) It is next urged that as the conviction of the applicant are under S. 3(2) and S. 4(1) of the Act, under S. 10 of the Act the applicant should be released or probation of good conduct and detention in protective home. But, I do not think that this is a case to which provisions of S. 10 of the Act should be applied.

(11) I, therefore, reject the revision application except to the extent that the conviction of the applicant under S. 3(1) of the Act is altered to one under S. 3(2) of the Act. The sentence passed is not interfered with in revision.

(12) Revision dismissed.


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