(1 to 5) xx xx xx
(6) Mr. Thakore, the learned advocate for the appellant, raised two contentions. The first is that in view of the Gulam Hussain's evidence at any rate, prosecution cannot be said to have established beyond any reasonable doubt that the Appellant had accepted the amount of Rs. 7 for offering her body for promiscuous sexual intercourse for hire, as required under section 7 of the Act. The other contention is that even if that were to be held as established, on such evidence, one such incident cannot be taken as enough to hold that she was carrying on prostitution as alleged by the prosecution under section 7 (1) read with the definition of the term 'prostitution' under section 2, clause (f) of the Act. I would take up the latter point first. For considering the same, it would be essential to refer to section 7(1) as also the definition of the term 'prostitution' given in section 2, clause (f) of the Act.
(7) Section 7(1) of the Act provides as under:
'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 worship, educational institution, hostel, 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 ....... '
In order to consider the effect of the words 'carrying on prostitution' used in this section, we have to turn to clause (f) of the s. 2 which defines 'prostitution' as meaning 'the act of a female offering her body for promiscuous sexual intercourse for hire, whether in money or in kind.' It would follow therefrom that the prosecution has to establish firstly that the accused No. 1 was carrying on prostitution, and secondly that it was being so carried on in premises which was within a distance of 200 yards of any place such as an educational institution as alleged in this case before she can be convicted of the offence under S. 7(1) of the Act. As to her house being within a distance of less than 200 yards from the Viswabharathi Girls School nearby, there is enough evidence and over which there is no dispute whatever. It is also not in dispute that the prostitution can as well be said to be carried on either by any woman or girl on herself, or in respect of any other woman or girl in such premises. The present case is said to relate to the prostitution by accused No. 1 on herself by accepting money from others by offering her person on hire. What is therefore required to be shown is whether she was carrying on prostitution in her premises in the sense that she was offering her body for promiscuous sexual intercourse for hire whether, in money or in kind.
(8) An emphasis was laid on the word 'carrying on prostitution' in Section 7 (1) and the term 'promiscuous' used in definition of prostitution under Section 2, clause 6 of the Act. The effect of the use of these words, is said to require that there must be such offer of her body on hire on acceptance of money or so, more frequent and that a simple act such as the one alleged in this case cannot be enough to say that she was carrying on prostitution as required under Section 7(1) of the Act. 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, b. Rarely of a single thing. 2. That is without discrimination or method; confusedly mingled, indiscriminate. B. Of an agent or agency; Making no distinctions; indiscriminating; 3. Casual, carelessly irregular. The word 'promiscuous' in the context that it is used under Section 2 Clause 6 of the Act would imply, ordinarily speaking, as indiscriminate employment of the woman's body for hire. This term came to be explained in an unreported decision came to be explained in an unreported decision of Beaunmont C. J., of the then High Court of Bombay in Criminal Revn. Appln. No. 157 of 1942 D/-26-1-1942 (Bom) by saying that prostitution involves a more or less indiscriminate employment of the woman's body for hire. 'He has then observed that' . . . . . . . . . I do not say that it is a universal definition and I do not suggest that a prostitution is bound to be entirely indiscriminate and to accept the first customer who offers her price like cabman on the rank. But I actually think that prostitution involves more than intercourse with the man.' These observations had found approval in some decisions of the Madras High Court as we find it observed in a case of In re. Ratnamala, AIR 1962 Mad 31. As observed in that case 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 case, 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 a 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 woman and girls for purpose of prostitution as an organised means of living. Various provisions of the Act tend to strengthen such a view. But there has been some exception and that is found in Sections 7 and 8 of the Act. 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 solitary instance of prostitution, it is clear that there must be indiscriminate sexuality requiring of more than one customer of the prostitute before she can be held guilty under Section 7(1) of the Act.
(9) It was, however, urged by Mr. Choksi, the learned Government Pleader that even if such indiscriminate sexuality was required, as observed in Madras Case, it can be a matter of inference from the facts, and is certainly not necessary that the evidence of more than one customer of the prostitute should be adduced. Besides, I was referred to an unreported decision in a case of State v. Miss Kishori Shethi decided on 20th July 1949 by the Division Bench of the High Court of Bombay in Criminal Revision Application No. 303 of 1949 (Bom) where such a point happened to be raised. In that case, it was assumed for the purpose of argument that the word 'prostitute' means a woman who offers not once but more than once her body for the purpose of lewdness or for sexual intercourse. However, on the facts such as the girl having agreed to let another person to have access to her for payment of money immediately upon that expressing a desire to have a good time with a girl, the inference was raised that the girl must have been doing the same thing before and that it was because she was doing the same thing before that she on that occasion without any hesitation accepted the position in which that person placed her. Now, in order to establish such indiscriminate prostitution on the part of any such woman or girl, it is difficult to get evidence of difference persons, and one has therefore to adopt trap evidence. That becomes inevitable and what is essential to be avoided is about the bogus customer not to have actual sexual intercourse with her. That has been so done under instructions of Mr. Jhala in this case so that such a trap-evidence may not be looked upon with contempt as done in several cases by different High Courts. It is not at all necessary that the customer, must have been found having sexual intercourse with the woman and it is enough if the circumstances suggest that an inference about her having offered her body for immoral purpose on receipt of any money, so as to be liable under Section 7(1) of the Act. In my opinion, therefore, though no doubt in order to hold that a woman carries on prostitution, plural and indiscriminate sexuality on her part has got to be established but that does not necessarily require that the evidence of more than one customer of the prostitute should be adduced and it would be enough if the facts established entitle the Court to raise an inference to hold that she carries on prostitution as, contemplated under Section 7(1) of the Act.
[In paragraphs 10 to 14, the judgment discusses the facts as revealed in the evidence and circumstances that might be presumed from the conduct of the accused No. 1 having regard to the common course of natural events, and human conduct in the circumstances of the case. The conviction and sentence against accused No. 1 was affirmed.]
(10) Appeal dismissed.