N.G. Shelat, J.
1. This appeal arises out of an order passed on 9-1-1965 by Mr. R.N. Desai, Judicial Magistrate, First Class, Narol, in Criminal Case No. 380 of 1964 whereby the respondents-original accused Nos. 1 and 3, and one Natverlal Ramshanker-original accused No. 2 came to be acquitted in respect of the charges levelled against them under Sections 3, 4 and 5 of the Suppression of Immoral Traffic in Women and Girls Act, 1956, hereinafter referred to as 'the Act.'
2. Several residents of Saijpur Dhanushdhar Society situated in the village of Saijpur Bogha sent an application Ex. 7 to the Commissioner of Police, City of Ahmedabad, stating inter alia that one Bai Radha living in that Society brings girls from outside and runs a brothel and she has been maintaining herself on such income. When she was told not to invite people of immoral character to her house, she got excited and abused them. It is that way that they requested the Commissioner of Police to look into the matter and do the needful. It appears that this application was forwarded by him to Mr. Mankad Ex. 8 who was then serving as a Superintendent of Police, Crime Branch at Ahmedabad a few days before 1-12-63. Mr. Mankad verified the information which he had received as to Bai Radha carrying on a brothel at her house and maintaining herself from such immoral income and then arranged for a trap being laid in respect thereof. On the morning of 1-12-1963 he called the panchas and one decoy witness Kishan Ex. 4 and explained to them the purpose for which they were called. Kishan agreed to work as a punter, and after ascertaining that he had no money with him, he was given Rs. 8/- in all. That amount included the currency note of Rs. 5/-and three currency notes of Re. 1/- each the numbers whereof were noted down in the first part of the panchnama Ex. 3 made in that respect. The punter was told that the Police Head Constable Ratansing would point out one person who has been acting as a tout and who has been waiting near Taj Mahal Hotel at Kalupur in Ahmedabad. He was further instructed to hand over the amount for the charges that would have to be paid for having sexual intercourse with any girl or woman, and at the same time he was asked not to have any sexual intercourse with any such woman and that he should keep himself talking with her. The first part of the panchnama was completed and the punter Kishan was asked to go along with One of the panchas Premsing Ex. 2 with that Head Constable Ratansing. Head Constable Ratansing was instructed to go by the same bus by which they were to go. Mr. Mankad and the other panch Bai Shanta and some other police officers had then gone to wait somewhere near Chamunda Char Rasta. The police Head Constable Ratansing was asked to make a sign when the bus taking the punter, the other panch and the tout, said to be accused No. 3 in the case, going towards Saijpur Bogha passed by them. He was also instructed that after Kishan and Premsing entered the house of Bai Radha, he should return and inform him about the same.
3. Thus, the punter Kishan and the panch witness Premsing' accom panied by the Police Head Constable Ratansing went to Kalupur by bus. On being shown a person waiting near Taj Mahal Hotel by the Head Constable Ratansing, Kishan and Premsing went to that person. That, person was accused No. 3 in the case. The evidence of both Premsing and Kishan further shows that they told accused No. 3 that 'they wanted, to. enjoy' and to that accused No. 3 said that he would take them to, Fadeli in Saijpur. The Head Constable was not to accompany them from that place. Then the accused No. 3 accompanied by Premsing and Kishan, went by bus to Saijpur Bogha. They were then taken to Fadeli by the. back road by accused No. 3 to one house. In the Osri of the house-accused No. 1 Bai Radha was found sitting on a bench. Accused No. 3, is then said to have told her that he had brought a customer. Thereupon-Kishan asked Bai Radha if there was any good girl and she may be shown to him and that way Bai Radha showed to them two women. They, were called by accused No. 1 from the adjoining room. Their names were Bai. Kanta and Bai Sumitra. Their evidence further shows that Kishan was asked to select one of them, Kishan aslo inquired for the charges, and. he was told that while in respect of one charges were Rs. 5-, in respect, of the other Rs. 8/-were being charges. Kishan then selected the woman, for whom the charges were Rs. 8/-. Bai Radha the accused No. 1 then asked the panch witness Premsing if he bad any desire and to that, Kishan said that he washis friend and had simply accompanied him.
4. Bai Radha then took Kishan and the woman selected by him, namely, Bai Kanta to the adjoining room and she then returned. Out of the amount of Rs. 8/- received by her from Kishan she paid Re. 1/- to accused No. 3. Accused No. 3 had then left the place. In about 15 minutes time Mr. Mankad accompanied by the other panch and some other police officers came up there. Mr. Mankad then pushed the door and on being opened they found Kishan and one woman named Kanta on one bed. Bai Kanta had not put on any Saree and her blouse was open. On seeing Mr. Mankad both of them got up. The search was then taken of both Kishan and Kanta and nothing was found from them. In the room there was only one bed and in a corner were lying one bucket, aluminum glass and an earthen pot full with water. From a room bearing No. 333; in that house two men and two women were found sitting there. They gave their names as (1) Bai Shanta wife of Vithalbhai Harjivandas of Naroda, (2) Bai Sumitra wife of Phillip of Saijpur Fadeli, (3) Himatlal Naranlal of Khadia, Bala Hanuman, Kavishwar Pole and (4) Chimanlal Bhogilal of the same locality. They were also searched and nothing was found from them. Then Bai Radha was searched and on being asked to produce the amount given by the bogus customer Kishan Teoomal, she went inside her house and produced Rs. 7/-from an iron tin which was put in a cupboard. That amount consisted of one five rupee currency note bearing No. K/57/417129 and two one rupee notes bearing Nos. V/68/205148 and B/35/202868 D. These notes were found to bear the same numbers which were noted down in the earlier panchnama and which had come to be given to the punter Kishan for being paid to Bai Radha, Those notes were consequently attached. By about this time, Natverlal Ramshankar-original accused No. 2 who was living with Bai Radha in the same house had come up there from outside. It further appears thatone policeman was sent to bring accused No. 3 who had already gone away from that place. On his being brought there and on a search made of his person, one rupee note was found from the pocket of his shirt. The number of that note also tallied with the number of one of those notes given to Kishan under the first part of the panchnama. That note was also attached. On a search made of the room, a purse containing Rs. 25/- and some change was found. Since that amount was claimed by Bai Kanta, that was returned to her. That was, however, found from a glass jar in a cupboard. Thereafter they went inside the room and found two empty bottles one of which smelt of liquor and they were also attached. The mattress was also attached. About all this a panchnama was made. The complaint was then filed and after registering the offence further investigation was carried on. The charge-sheet against Bai Radha as also accused No. 2 Natverlal, who was said to be living in the same house, and accused No. 3 was sent up to the Court of the learned Magistrate.
5. While accused Nos. 1 and 2 were charged for running a brothel in Fadeli Saijpur Bogha and living on the income of prostitution of some other women so as to be liable for offences under Sections 3 and 4 of the Act, the accused No. 3 was charged for an offence of procuring a woman for the purpose of prostitution as also for living on the earnings of pros titution of women so as to be liable under Sections 4 and 5 of the Act. Accused No. 2 Natverlal, however, was also charged for an offence under Section 5 of the Act.
6. All of them pleaded not guilty to the charges levelled against them. By her statement Ex. 12 accused No. 1 denied to have committed any offence and according to her, the house situated in Fadeli in Saijpur Bogha stands in the name of herself and her daughter Godavari. While some portion thereof has been let out bringing the income by way of rent of Rs. 80/-, the other part was occupied by them. She also said that she had another house in Patasa Pole, Ahmedabad, from where she used to get monthly income of Rs. 75/- by way of rent. That house has been, however, sold away. She has then stated that no brothel was run in her house and that it is not true that she was maintaining out of the income of the brother. As to Bai Kanta's presence, she stated that she had come to her house for inquiring for keeping the house on rent and she denied to have made use of her for any immoral purpose as was alleged by the prosecution. She also denied to have taken any money from any one as also about her having produced the same before the panchas and the police. She denied to have paid any amount such as Re. 1/- to accused No. 1 about his being her tout. She has then added that the police had sent a bogus customer on 1-12-1963 under the pretext of seizing liquor and since no liquor was found, they have made out a false case against them. Accused No. 2 has been acquitted by the Court and there has been no appeal preferred by the State against his acquittal. He was, however, not present at the time when the incident took place and had come up later on while the panchnama was being written. Accused No. 3 has also denied about any person such as Kishan and Premsing having approached him and about his having taken them to Bai Radha's house. He also denied to have been working as a broker or tout for Radha or his having received any amount from Radha. He denied about the currency note of Re. 1/- having been found from his pocket on a search made of him.
7. After considering the effect of the evidence adduced in the case, the learned Magistrate found that the search made by Mr. Mankad was illegal on various grounds. He further found that since his name did not appear in the notification Ex. 10 whereby he was said to have been appointed as Special Officer under Section 13 of the Act, he had no authority to hold the search of the premises of accused No. 1. Nor was he authorised to search any premises in the area of Saijpur Bogha as no such area for the said purpose was notified. The learned Magistrate further found that Mr. Mankad must have prepared the order Ex. 8/A not at the time when it purports to have been made before the search was carried out, but subsequently to make it appear that the search may not be said to be illegal. He also found that the panchas required to be taken under Section 15 of the Act have been obtained from far-off places and at any rate not from the same locality and in those circumstances the provisions contained in Section 15 of the Act were contravened. Then on merits he found the evidence quite unreliable and the version put forward by the witnessess appeared to him to be a cock and bull story which cannot be believed by any man. In the result, therefore, he came to the conclusion that the offences were not established against any of the accused and they were consequently acquitted. Aggrieved by that decision, the State of Gujarat has come in appeal, and this appeal relates to the order of acquittal in respect of accused Nos. 1 and 3 in the case.
8. The points that arise for consideration in so for as accused No. 1 is concerned, having regard to the charges levelled against her, are as to whether she kept or used her house as a brothel for the purpose of prostitution so as to be liable for an offence under Section 3 of the Act and secondly as to whether she lived wholly or in part on the earnings of prostitution so as to be liable under Section 4(1) of the Act. So far as accused No. 3 is concerned, the paints that arise to be considered are as to whether he was acting as a tour on behalf of a prostitute and thereby he was, wholly or in part, living on the earnings of the prostitution so as to be liable under Section 4(1) of the Act and secondly as to whether he pro cured a woman or a girl for the purpose of prostitution so as to be liable under Section 5(1)(a) of the Act. Before we consider the effect of the evidence in this case, it is desirable to consider certain points raised with regard to the powers of Mr. Mankad as a Special Police Officer contemplated under Section 15 of the Act as also about the legality or otherwise of the search that came to be carried out on the morning of 1-12-1963. In the event of coming to the conclusion that the search was illegal in any manner, we have to consider the question as to the effect-of the evidence which has come to be led in the case obviously based and arising from the search carried out by Mr. Mankad in the presence of panchas and others that evening.
9. Mr. Mankad was appointed the Special Police Officer under Section 13(b) of the Act as per the notification issued by the Government of Gujarat on 3-8-1961. His appointment had not been made by his name as such. He was, however, serving as the Superintendent of Police, Crime Branch in the City of Ahmedabad and it was by virtue of his holding that, post that he came to be appointed under the notification Ex. 10 as a Special Police Officer contemplated under Section 13 of the Act. A point was raised in the Court of the learned Magistrate by the accused that since his name did not appear in the notification as a person appointed at a Special Police Officer under Section 13 of the Act, he cannot be said to be a person validly appointed under law. The learned Magistrate bad found that the notification fix. 10 did non empower him with the powers of a Special Police Officer under Section 13 of the Act inasmuch as his name was not disclosed therein. Apart from Mr. Desai, the learned advocate appering for the respondents in this Court, not pressing the point, we have two decisions of this Court which have laid down that the notification seed not refer to the name of any officer and it is enough if a Police Officer in charge of any division is appointed by the Government as a Special Police Officer for purposes of this Act. The first case in that respect is of Bachu Lakhman v. State 1 G.L.R. 128. The other case is of Rasiklal Manilal v. State of Gujarat in Criminal Appeal No. 700 of 1965 decided on 5th November 1965 wherein it was held that reading Section 13(1) of the Act in conjunction with Section 15 of the General Clauses Act, 1897 it cannot be said that a 'special officer' appointed means an officer appointed by same. The learned Magistrate was, therefore, wrong in saying that Mr. Mankad was not validly appointed as a Special Police Officer under Section 15 of the Act.
10. In the same notification Ex. 10, the area for which he is appointed the Special Police Officer for purposes of the said Act is mentioned. While no specific areas have been set out, it refers to the areas specified in the Branch-schedule to the Government of Bombay, Home Department Notification No. PRS. 5459/C-2098 (B), dated the 31st March 1960. A true copy of the notification is produced at Ex. 11 in the case. Clause (3) of the Schedule refers to villages of Ahmedabad City Taluka and at serial No. (9) is included the village of Sahijpur-Bogha. It was pointed out in this connection by Mr. Nanavati, the learned Asst. Govt. Pleader that the areas incorporated in another notification can well be taken as incorporated in the subsequent notification by making a reference to the notification itself without specifying the particular areas. If, therefore, no specific areas were set out, the notification would not become invalid or that it cannot be said that it did not empower the Special Police Officer to act within any such area. At page 223 of 'Craies on Staute Law' the doctrine of incorporation of earlier enactment by reference has been explained as under:
The effect of bringing into a later Act, by reference, sections of an earlier Act is to introduce the incorporated sections of the earlier Act into the later Act as if they had been enacted in it for the first time. Consequently, when an Act of 1855 incorporated sections of an earlier Act of 1840 those sections were read so as to take effect as if they had been passed in 1855, and Lord Esher M.R. said:
If a subsequent Act bring into itself by reference some of the clauses of a former Act, the legal effect of that, as has often been said, is to write those sections into the new Act just as if they had been actually written in it with the pen, or printed in it, and the moment you have those clauses in the later Act, you have no occasion to refer to the former Act at all. For all practical purposes therefore, those sections of the Act of 1840 are to be dealt with as if they were actually in the Act of 1855.
The same thing can well be said in respect of such notifications and by reason of this doctrine of incorporation by reference it can be easily said that the notification Ex. 11 Clause (3; of the Schedule can be taken as subsequent to the notification under which Mr. Mankad came to be conferred with the powers under Section 15 of the Act. Even the learned advocate Mr. Desai did not press this point as well and it is, therefore, clear that the learned Magistrate was wrong when he held that Mr. Mankad was not duly authorised to act under the provisions of this Act to search the premises in the area of Saijpur Bogha.
11. Then two points were made out with regard to the search carried out by Mr. Mankad at the house of Bai Radha on the morning of 1-12-63. The first was that when a Special Police Officer is appointed under the provisions of any special enactment and when his powers and duties are defined vis-avis the action that he has to take under the provisions of the Act, he has to act in consonance with the provisions contained therein, and any breach or any contravention of any of such provisions should render not only the search, carried out by him as illegal, but even the evidence led to relation thereto should be struck down, as having been obtained by illegal procedure. Now Section 15(1) of the Act provides that 'notwithstanding anything contained in any other law for the time being in force, whenever the Special Police Officer has reasonable grounds for believing that an offence punishable under this Act has been 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, such officer may, after recording the grounds of his belief, enter and search such premises without a warrant.' Then sub Section (2) says that 'before making a search under Sub-section (1), the Special Police Officer shall call upon two or more respectable inhabitants (at least one of whom shall be a woman) of the locality in which the place to be searched is situate, to attend and witness the search, and may issue, an order in writing to them or any of them so to do. 'Then there are some other sub-sections which give special powers to the Special Police Officer which ordinarily any other Police Officers not appointed under the provisions of this Act do not have. In this connection, it was pointed out by Mr. Desai that no attempt was made to obtain any warrant for searching the premises of Bai Radha and that Mr. Mankad has of his own chosen to search the same. For searching the premises, no doubt he was required to fulfil two conditions viz. that search of premises with warrant cannot be made without undue delay, and that if that is so, he may after recording the grounds of his belief, enter and search such premises without a warrant. The other objection with regard to the search is about Mr. Mankad having selected two panchas none of whom was the inhabitant of the locality in which the place to be searched was situate. That way Mr. Mankad is said to have contravened Sub-section (2) of Section 15 of the Act. Now, in this connection, an attempt is made to show from the evidence of Mr. Mankad that as no woman panch was easily and without any delay available, warrant was not obtained from the Magistrate and as soon as he was able to have a woman as panch, since there was no time left he made an order Ex. 8 A on the same day before making a search of premises of Bai Radha. On a plain perusal of Ex. 8 A what we find is his having practically set out Sub-section (1) of Section 15 and nothing more. All that he has stated is 'that he has reliably learnt that offences punishable under the Suppression of Immoral Traffic in Women and Girls Act have been or are being committed in respect of women or girls living in the premises owned by Bai Radha W/o Natverlal Ramshanker situated in Saijpur Fadeli and secondly as the search of the said premises with warrant cannot be made without undue delay that he resolves that the search of the said premises shall be conducted by him without a warrant. 'He has, thus, made use of the very words which have been used in Sub-section (1) of Section 15 of the Act. Apart from the contention raised by Mr. Desai about any such order having not been passed at all, even if we were to take this order having been passed by him before he actually entered the house for carrying on a search, it is difficult to say that it records the grounds of his belief both in respect of the first part and more particularly in respect of the other viz. about his not being able to obtain the warrant without undue delay. There is no ground whatever, such as the one sought to be set out in his evidence, set out in the order made by him as per Ex. 8A in the case. It was urged by Mr. Nanavati that it was a matter of subjective satisfaction of the Special Police Officer who makes an order to that effect. It should be taken that though no such specific grounds were set out which led him to that belief, they were present in his mind and the final order in that respect would be quite conclusive to clothe him with the authority of the action that he intended to carry out. In the first place, there is hardly any question of subjective satisfaction in the matter of this kind, for, after all, the words used in Sub-section (1) of Section 15 viz. that 'such officer may, after recording the grounds of his belief clearly show that it is he who has to set out the reasons or the grounds which made him think or believe that the search of the premises with warrant cannot be made without undue delay, and that in itself would show that the grounds are intended to be judged to the satisfaction of the Court in case such question arises to be considered. It may be that what satisfied him may not appear to be so satisfactory in the eyes of another person, but at any rate that does not exonerate him from setting out the grounds which led him to a particular belief and not having done so only justifies one to say that he had failed to carry out the pre-emptory provisions which led him to carry out the search of the premises without obtaining a warrant In that connection. In this connection, we may usefully refer to the observations in a case of State of Rajasthan v. Rehman : 1960CriLJ286 . In that case, such a point arose to be considered and Their Lordships of the Supreme Court observed as under:
The recording of reasons does not confer on the officer jurisdiction to make a search, though it Is a necessary condition for making a search. The jurisdiction or the power to make a search is conferred by the statute and not derived from the record of reasons. That a part, Section 18 of the Act in express terms states that searches shall be carried out in accordance with the provisions of the Code of Criminal Procedure. Section 165 of the Code lays down various steps to be followed in making a search. The recording of reasons is an important step in the matter of search and to ignore it is to ignore the material part of the provisions governing searches. If that can be Ignored, It cannot be said that the search is carried out In accordance with the provisions of the Code of Criminal Procedure: it would be a search made in contravention of the provisions of the Code.
From these observations, two facts emerge. One is that to ignore recording of reasons would be to ignore the material part of the provisions governing the search and that would amount to a search made in contravention of the provisions of the Code, and the second is that the jurisdiction or the power to make the search is not thereby affected because that power is derived from the statute and not from the recording of reasons. Therefore, Mr. Mankad cannot be said to have acted beyond his powers though no doubt he having not recorded his reasons for not being able to obtain the warrant from the Magistrate would render his search as contravening the provisions contained in Section 15(1) of the Act. As to what the effect thereof would be, we shall consider it hereafter.
12. Now, in this connection, it has been observed by the learned Magistrate that Ex. 8A has been subsequently got up and for which some reasons have been given by him. That was also urged by Mr. Desai and we may consider the same from the evidence on record. This Ex. 8A was for the first time produced in the evidence of Mr. Mankad when he came to be examined as a prosecution witness on 24-10-64. It cannot be denied that this was an important document for, after all, Mr. Mankad had to justify his having made a search of the premises without his having obtained a warrant from the Magistrate and that he could do so only on his recording reasons for making a search as required under Section 15 of the Act. Such a document can, therefore, be said to be one which would fall within the documents and papers which are required to be supplied to the accused either under Section 173 or under Section 251A of the Criminal Procedure Code. Sub-section (4) of Section 173 requires the Police Officer to furnish to the accused, free of cost, a copy of the report forwarded under Sub-section (1) of and of the first information report recorded under Section 154 and of all other documents or relevant extracts thereof, on which the prosecution proposes to rely, including the statements and confessions, if any, recorded under Section 164 and the statements recorded under Sub-section (3) of Section 161 of all the persons whom the prosecution proposes to examine as its witnesses. Section 251A provides further that when the accused appears or is brought before a Magistrate at the commencement of the trial, such Magistrate shall satisfy himself that the documents referred to in Section 173 have been furnished to that accused, and if be finds that the accused has net been furnished with such documents or any of them, he shall cause them to be so furnished; In other words, apart from the statements etc., any documents which the prosecution is expected to rely upon in the case, have got to be supplied to the accused before the trial commences. No such document as per Ex. 8A was supplied to the accused before the trial began and it came to be produced for the first time on 24-10-64 in the evidence of Mr. Mankad and that too after the evidence of the panch witness and the evidence of punter had come to be recorded. There is, therefore, some force in the contention when it is said that realising the defect in the search carried out without obtaining a warrant, it is at some later stage that such a document which could be easily prepared by the Special Police Officer, may have been brought in, while he came to give evidence in the case. At any rate, the fact remains that there are no grounds recorded which justify him to search the premises without obtaining the warrant in question. On that account, the provisions contained in Section 15(1) of the Act have been contravened by Mr. Mankad.
13. As to the other ground relating to contravention of the provisions of Section 15(2), we find from the evidence of the panch witness Premsing that by about that time he was returning from the house of one Balwantsing and that he came to be called at Chamunda Char Rasta-by Mr. Mankad and other Police Officers. He was, therefore, taken as a panch. It was said that since that was a locality nearby the locality where the premises were to be searched, no contravention of Sub-section (2) of Section 15 can be said to have been committed in respect of him. Much though we do not feel satisfied as to this part of his testimony, we may for thepurpose of determining this part of the case accept his word that he was found somewhere in that area by about the time the search was taken of the premises of Bai Radha the accused No. 1. But if we turn to Sub-section (2) of Section 15 of the Act. what is required is that the Special Police Officer shall call upon two or more respectable inhabitants one of whom shall be a woman of the locality in which the place to be searched is situate. In other words, the persons who are called upon to act as panchas in respect of any such search have to be the inhabitants of that locality apart from their being respectable. 'The inhabitants of the locality' amply suggest to mean the residents of that locality. At any rate, the term 'inhabitant' does not convey the sense of a person found all of a sudden at some place where the Police Officers were standing. The panch witness Premsing is a resident of Nani Hamam in the City of Ahmedabad. His place of residence Is at a distance of 7 miles from Saijpur Bogha where the premises which came to be searched are situate;. Saijpur Bogha is an independent village having its own Panchayat and at any rate it is not a part of the City of Ahmedabad. Thus, he was obviously a resident of altogether a different locality, for, he cannot be said to be an inhabitant or resident of Saijpur Bogha so as to say that he was from the same locality. We find no attempt made out to find out respectable persons from 'that village of Saijpur Bogha. There is considerable force in saying that such a panch could not be bad from such a purpose an of a sudden, but that some attempt must have been made before actually they started for doing out for search. He must have been taken from the City of Ahmedabad and he cannot, therefore, be said to be an inhabitant of the same locality where the premises are situate. With regard to the other panch, admittedly she has been living near Victoria Garden in the City of Ahmedabad and that way far off at a distance of about 7 miles from where the premises to be searched were situate. Thus, both the panchas were, in my opinion, not the inhabitants of the locality in which the place to be searched was situate and that they were taken from the City of Ahmedabad. So far as the woman panch is concerned, it may become difficult for the Police Officer to obtain any woman to come forward as a panch in a case of this character. But at any rate we find no material on record to show that any such attempt was at all made and having failed, he was required to obtain the services of the woman panch from the City of Ahmedabad. The fact remains that this Sub-section (2) of Section 15 has also been contravened by Mr. Mankad while carrying out the search with the aid of panchas on the morning of 1-12-1963.
14. That leads usx to the consideration of the question as to the effect of any such search carried out by the Special Police Officer under Section 15(1) of the Act. Mr. Desai referred to a decision in the case of Delhi Administration v. Ram Singh : 2SCR694 . The point that arose for consideration before Their Lordships was as to whether a Police Officer, who is neither a Special Police Officer under the Suppression of Immoral Traffic in Women and Girls Act, 1956, nor a Police Officer subordinate to a Special Police Officer, can validly investigate the offences under the Act. In the case, one Ram Singh was suspected of having committed an offence under Section 8 of the Act. Jet Ram, Sub-Inspector, who had not been appointed a Special Police Officer by the State Government, investigated the case and submitted the charge-sheet to the Magistrate. The Magistrate quashed the charge-sheet, holding that the Special Police Officer alone was competent to investigate the case and that Jet Ram could not have investigated ft. On revision by the State, the High Court agreed with the view of the Magistrate and dismissed the revision. The High Court, however, granted a certificated under Article 133(1)(c) of the Constitution and that way the appeal came up before the Supreme Court. After having referred to various provisions of the Act, it has been observed that it is clear from the various provisions of the Act that it is a complete Code with respect to what is to be done under it. The entire police duties in connection with the purposes of the Act within a certain area have been put in the charge of a Special Police Officer. The expression 'police duties' in Section 2(i) includes all the functions of the police in connection with the purpose of the Act and, in the special context of the Act, they will include the detection, prevention and investigation of offences and the other duties which have been specially imposed on them under the Act. Then after considering the expression 'dealing with offences' in Section 13(1) of the Act. It has been further said that be Special Police Officer is competent to in vestigate and that he and his assistant Police Officers are the only persons competent to investigate offences under the Act and that Police Officers not specially appointed as Special Police Officers cannot investigate the offences under the Act even though they are cognizable offences. It was that way that the appeal by the Dehli Administration came to be dismissed., In other words, any investigation made by any other Police Officer was illegal and consequently the Magistrate was justified in rejecting the chargesheet that came to be sent by any other Police Officer who had no authority to investigate under the provisions of the Act. So this much is clear that the Special Police Officer appointed under the Act is the only officer who had jurisdiction and competence to inquire into such offences falling within the ambit of the said Act and that no other Police Officer can have any jurisdiction or competence to inquire into the said offences. In those circumstances, the question of competence of Mr. Mankad, however, for the investigation of this case does not arise as already observed hereabove, but not having recorded reasons for not obtaining the warrant from the Magistrate as required under Section 15(1) of the Act would not render his competence to search the premises invalid. All that he can be said to have done is in contravention of certain requirements under Sub-Section (1) and (2) of Section 15 of the Act. Now, in this connection, we have the decision of the Supreme Court in the case of Radha Kishcm v. State ofUttar Pradesh : (1963)IILLJ667SC . In this case the house in which the appellant lived along with his father Diwan Singh, a retired police Head Constable, was searched by the C.I.D. Inspect or, S.N. Singh, along with Masood Murtaza, Sub-Inspector of Police, Bulandshahr on, May 12, 1956 in connection with a case against Messrs. Greenwood Publicity, and they accidentally discovered a large number of letters and, postcards and also the five registered letters in question. At the time of the search the appellant who happened to be a trade union official, was not in Bulandshahr but was away on leave at Delhi in connection with a postal conference. These articles were found in an almirah the key of which was produced by the appellant's father. The articles were not listed at the spot but were taken to the Kotwali in a sealed packet and later on listed there. A number of other articles were also seized at that time but Their Lordships were not concerned with them as they had no connection with the charges against the appellant. The question arose as to whether the search was illegal inasmuch as it was in contravention of the provisions of Sections 103 and 165 of the Criminal Procedure Code, and if so, what would be the effect thereof. While dealing with that conten tion, Their Lordships have said as under:
So far as the alleged illegality of the search is concerned it is sufficient to say that even assuming that the search was illegal the seizure of the articles is not vitiated. It may be that where the provisions of Sections 103 and 165, Code of Criminal Procedure are contravened the search could be resisted by the person whose premises are sought to be searched. It may also be that because of the illegality of the search the Court may be Inclined to examine carefully the evidence regarding the seizure. But beyond these two consequences no further consequence ensues.
In that case even the High Court had chosen to accept the evidence of the prosecution regarding the fact of seizure. It was, however, pointed out in this connection that the search under the special Act as we have in the present case, would be quite different from the one carried out under Sections 103 and 165 of the Criminal Procedure Code. As to the requirements contemplated both under Section 165 of the Criminal Procedure Code and under Section 15 of the Act there is hardly any difference and while in one case an ordinary Police Officer is required to make a search, in the other a Special Police Officer appointed under the Act is required to make a search. They can, therefore, well stand at par. Apart from that, in the first place, whenever there are such procedural defects and when they do not affect the authority, power or competence of any officer to search any premises, non-observance thereof cannot vitiate the search carried out and all that the Court is required to look into is to scrutinise the same with care and caution. At the same time, we find no provision of law which renders any such evidence if led in respect of any such search carried out by a competent officer as inadmissible in evidence. In those circumstances, one can easily understand if any perron were to resist or not allow the search being carried out if the person was not authorised to do so and escape the consequences arising therefrom. But once the officer is found to be a competent officer entitled to effect a search at the premises such as the one in the present case, the defects arising from any procedural aspect of the matter would not vitiate the effect of any such search and there is hardly any justification to say that the evidence led in that respect can be ignored or shut out.
15. Mr. Desai then referred to a case of Public Prosecutor, Andhra Pradesh v, Uttaravalli Nageswararao A.I.R. 1965 Andhra Pradesh 176. In that case, the allegations against the respondent were that he was running a brothel in a particular house. Then on 19-11-1962 at about 11-45 in the night the Special Police Officer along with the mediators made a surprise raid on the said house and found two customers in the house in the company of prostitutes. The respondent was also said to be present in the house. When the doors were got opened, two persons P.Ws. 1 and 2 were found inside while in the other room were found P.Ws. 6 and 7 in a dishevelled state. On enquiry it was revealed by P.Ws. 1 and 6 that they had come to the said house for the purpose of intercourse with the two girls and that they had paid one rupee for that purpose. Thereupon, a mahazar was drafted. The money was seized from the custody of the respondent and a charge-sheet was sent up against the accused under Section 3(i) of the Act. The learned Magistrate found that the offence was not proved beyond reasonable doubt and that he acquitted the respondent in respect of that charge. In appeal filed by the State, the contention raised by the learned Public Prosecutor was that the order of the Magistrate was unsustainable as it was merely based on the ground that the officer conducting search had not strictly complied with the provisions of Section 15 of the Act. He referred to the decision in the case of Radha Kishan v. State of U.P. : (1963)IILLJ667SC and urged that though the provisions of search as contemplated under Section 15 of the Act have not been complied with only two consequences could follow therefrom (i) that the accused could resist the search being illegal and (ii) the Court would examine carefully the evidence regarding the seizure. It was that way contended that the evidence on record could not be brushed aside, and it was sufficient to warrant conviction of the respondent under Section 3(i) of the Act. On the other hand, reliance was placed on the decision in State of Rajasthan v. Rehman : 1960CriLJ286 , and it was contended that as the provisions relating to search under Section 15 of the Act have not been complied with, investigation is defective and as such the order of acquittal should not be interfered with. Now in that case it was beyond controversy that the provisions of Section 15 of the Act were not complied with. The non-compliance with the provisions of Section 15 was on two grounds. One was that the Special Police officer who conducted the search had conceded in the cross-examination that he did not record the reasons as laid down in the section and he did not assign any reasons for not doing so. He also admitted that he tried to secure a woman mediator but could not do so and he admitted that he had made no note in the diary about it and that he had not served notices on any person in his attempt to secure the services of a woman mediator as provided in that Act. As provided in Sub-section (2) thereof one of the panchas is required to be a woman and in that case there was no woman panch at the time when the search was made. So far as the necessity of there being a woman panch in such a case, the direction was found to be mandatory. The question then arose as to whether the search of the premises conducted by the Special Police Officer was vitiated on account of any such contravention of the provisions of Section 15 of the Act. The High Court held that the offence, if any, was brought to light by improperly conducted search and the evidence of the offence should therefore be struck down as unacceptable, more so, when the Magistrate has found that the evidence in the case is also shaky and unreliable. It was, in those circumstances, that the High Court found it difficult to interfere with the order of acquittal made by the lower Court on the ground that apart from the illegality of search the data on record was not sufficient to find the respondent guilty. To hold that the evidence relating to the offence found as a result of the search carried out should be struck down as unacceptable, would be going far beyond what we find it said in the case of Radha Kishan v. State of U.P. : (1963)IILLJ667SC . I have already referred to that decision of the Supreme Court and the effect that emerges out of any such improperly carried out search is not said to brush aside any such evidence led in respect thereof. As I said above, I have not been shown any provision of law which renders any such evidence in relation to any search, much though it may be illegally or improperly carried out, as inadmissible in law. It cannot vitiate the effect of the evidence arising out of any seizure of articles from the place searched or other type of evidence as to what took place at that particular time. Besides, we do not find any provision in the Act which raised any particular presumption on the finding of sucharticles or materials form any such premises searched. If that were the case, it is possible to urge that no such presumption may be allowed to be raised against the accused. But to say that the evidence of the offence arising out of any search conducted could be brushed aside or be struck down would hardly be proper. With respect, I am unable to agree with the decision of the Andhra Pradesh High Court relied upon by Mr. Desai in support of his contention that the entire evidence arising out of the search made on the morning of 1-12-1963 should be eliminated. All that we have to keep in mind is to scrutinise the evidence in relation thereto with care and caution.
16. That takes me to the consideration of the evidence led in the case. The evidence led by the prosecution consists mainly of three witnesses, Kishan Ex. 5, the punter who is called the decoy witness, Premsing Ex. 2, the panch witness, and Mr. Mankad Ex. 7 in the case. We have also the evidence of Bai Kanta Ex. 4, who, however, does not support the prosecution and was required to be treated as a hostile witness. While setting out the facts hereabove, I have substantially set out the same as found from the evidence of the panch witness Premsing and the decoy witness Kishan in the case. It is, therefore, unnecessary to repeat what they have said in their evidence. It is no doubt true that the rule of prudence requires that evidence of such a decoy witness must find some corroboration in material particulars so as to consider his reliability in the case. The evidence of Kishan Ex. 5 is completely borne out by that of Premsing the panch witness Ex. 2 in the case. That part of the evidence would be up to the stage that Kishan entered the inner room of the house with Kanta and as to what both of them did inside can only be bad from the evidence of either Kishan or Bai Kanta. Their evidence can well be considered in three broad aspects. The first relates to the instructions given to him and his going in company of Premsing along with Head Constable Ratansing to the place where accused No. 3 was expected to be found at Kalupur. The main instructions were that he had to approach accused No. 3 for getting an opportunity to enjoy as he put it in his evidence, and then going with him at the place of accused No. 1 for the purpose of prostitution with some woman in her house. He was given Rs. 8/- which consisted of one currency note of Rs. 5/- and three currency notes of Re. 1/- each. Their numbers were duly noted down in the first part of the panchnama Ex. 3 in the case. He was asked to give that amount by way of charges for getting a woman for the purpose of prostitution to Bai Radha, that may be demanded, and then after going inside with the woman supplied to him, one thing that he was required to bear in mind was not to have any sexual intercourse with that woman. This last part of the instruction has its significance, for, it has been commented upon in various decisions of several High Courts that recourse to sexual intercourse by the punter or decoy witness was most undesirable and it was that Mr. Mankad had chosen to instruct him not to indulge in sexual intercourse much though he was expected to have gone for such a purpose inside that room. He was, thus, expected to keep on talking with her before the raid actually takes place. I am referring to this in particular as the learned Magistrate has made capital out of it by saying that Mr. Mankad has 'thought out an intellectual device to avoid any further complication and to get success in such type of cases. 'He has then observed that 'if he was asked to have sexual intercourse with her, the prosecution would have been required to send him and the said woman Kanta for medical examination, then clothes and the bedsheet or the mattress would have been required to be sent to the Chemical Analyser for opinion as to whether there were semen stains or not'. Thus, since they have weighed very much with the learned Magistrate in discarding the evidence of Kishan in the circumstances of the case, it may be incidentally said that in finding out as to whether the particular girl was a prostitute or was guilty of prostitution, all that is necessary is that 'she should be a person offering her body for promiscuous sexual intercourse for hire, whether in cash or kind' as denned under Section 2(f) of the Act and, at any rate, it is nowhere contemplated that actual sexual intercourse was essential. The reasonable inference can well be drawn from various circumstances established in the case and that at any rate it is hardly necessary that sexual intercourse between the punter and Bai Kanta should have taken place.
17. As regards the first part of the evidence both the witnesses Kishan and Premsing have clearly stated that they approached accused No. 3 at Kalupur and on his being told that they wanted to enjoy, they were taken to the house of accused No. 1. It is true that the Head Constable Ratansing who accompanied accused No. 3 has not been examined in the case. Even if he was examined, his evidence would have been commented upon by saying that he was highly interested in the prosecution, he being a Police Officer and perhaps an informant in respect of the matter. The fact remains, however, that these two persons contacted accused No. 3 at Kalupur and that they were taken by him to the house of accused No. 1 at Saijpur.
18. Then the second part of their evidence relates to their having actually gone to the house of accused No. 1 and then the talk that they had with accused No. 1, the manner in which Kishan selected one of the two women presented before him on payment of Rs. 8/-, and then he and Bai Kanta having gone inside the room. Now, in this respect their evidence is also consistent. Their version is that accused No. 3 told accused No. 1 Kanta about his having brought a customer. Kishan then inquired from her if there was any good girl she may be shown to him. Thereupon two women were called from the adjoining room and Kishan was asked to select one of them. Kishan then inquired of the charges that he may have to pay and to that also Bai Radha, accused No. 1, told that while Rs. 8/- would be the charges for Bai Kanta, Rs. 5/- would be the charges for the other woman whose name was later on found to be Sumitra. He then selected Bai Kanta and it is that way that both of them went inside the other room. Rs. 8/- were paid to Bai Radha. Out of this amount of Rs. 8/-, one currency note of Re. 1/- was given by Bai Radha to Motiji accused No. 3 and the remaining amount of Rs. IIwas placed by her in a tin in the cupboard in the wall. Now this part of the story has hardly been challenged in the cross-examination of either of two witnesses. Apart from that, the amount of Rs. 7/- later on produced by accused No. 1 herself after taking it out from the cupboard and those very notes i.e. one five rupee-note & two of one rupee note each, the numbers whereof were already noted in the panchnama were found with accused No. 1. It is also clear that when accused No. 3 was brought as some Police Officer was required to be sent for finding him as he had left the place, one currency note of Re. 1 the number whereof was already noted down in the panchnama, was also found from him. This finding of notes both from accused No. 1 and from accused No. 3 serves as almost an unimpeachable corroboration of the evidence of both Kishan and panch Premising as that amount could not have been found from them unless Kishan had paid the same to accused No. 1. There is no explanation whatever forthcoming either from accused No. 1 or accused No. 3 in this respect and all that they say is that nothing of the kind had taken place. Panch Premsing had no axe to grind. He is an independent person. He is not shown to have acted as panch before. There is no material to show that he was a police agent except that he worked on this occasion as a panch. Even accused No. 1 has had to admit that this bogus customer, namely accused No. 5 had come to her house, but according to her, he bad come under the pretext of taking liquor. That part of the version suggested by accused No. 1 hardly sounds to be in any way reasonable or true. The other thing that we find from the statement of accused No. 1 is about the presence of Bai Kanta at her place. The explanation given by her is that she had come to inquire for getting a house on rent. In this connection, we may as well turn to the evidence of Bai Kanta Ex. 4 in the case. She has been treated as a hostile witness by the prosecution and her statement made before the police in respect of certain particulars has been brought on record. No doubt that may not serve as a substantive piece of evidence, but from her evidence at any rate, two facts emerge. The first is that when she was there, there was one other lady as well. Thus, she and one other lady Bai Sumitra were in the house of Bai Radha on that morning at the time when the police raided the house. Another thing that is brought out from her evidence is that she had with her Rs. 25/-. According to her, on seeing the police she got frightened and put that vallet containing Rs. 25/- in an earthen pot. From the panchnama Ex. 3 and as the evidence of the panch witness Premsingh Ex. 2 as also of Mr. Mankad discloses, it appears clear that Rs. 25-75 P. were found from that room and since that amount was claimed by Bai Kanta, it was returned to her. Her explanation is that she had gone for inquiring whether there was any vacant place. In the first place, she is a married woman and, ordinarily speaking, her husband would go out In search of a house. Besides, we do not know in what circumstances she was required to have another house and why she had gone there. In fact she had been living at a far-off place at Dudheshwar and it is rather surprising that she would go for finding out a room at such a distance. In those circumstances, it is difficult to believe her explanation regarding her presence at the house of Bai Radha. Similarly with regard to the amount she has stated that she had brought money as she wanted to keep a house. That explanation hardly appears to be in any way true or reasonable in the circumstances of the case.. In fact as a result of the mill where her husband was serving, being closed he was without any employment. She appeared to be in heed of money There is, therefore, no wonder if she had fallen prey to such activities for earning her livelihood out of such earnings. As I said above, from her evidence it appears that Bai Sumitra was there. The presence of both Kanta and Sumitra, therefore, in a house of Bai Radha at such an hour when the raid came to be carried out by Mr. Mankad with the help of the panchas tends to bear out the version of Kishan and Prem-sing when they say that it was Radha who called out these two ladies from an adjacent room and they were offered to Kishan on payment of certain amount referred to hereabove. Thus, the evidence of Kishan finds also support from the evidence of Kanta in some measure. Naturally Bai Kanta would not say all that bad taken place at the time, for that would affect her character, and again since she was a married woman, it may affect her relations with her husband.
19. Then I come to the third part of the evidence and that is in respect of the search carried out by Mr. Mankad with the help of panchas including the woman panch Bai Shanta. I have already referred to the currency notes of Rs. 7/- found from Bai Radha having the same numbers which were noted down in the panchnama Ex. 3. One one-rupee note bearing the same number as set out in the panchnama was also found from accused No. 3. But more important than the finding of this money is the condition in which Kishan and Bai Kanta were found in the adjacent room. Bai Radha and the panch Premsing were sitting in the front room. On opening the room there were only two persons, namely, Kishan and Kanta. Both of them were found sitting together on a bed which was spread in that room. Not only that, but she had put on a saree at that time. In fact as Kishan says, after they entered the room she had removed the saree and after Mr. Mankad entered the room, she had tried to put on the saree. Then her blouse was almost unbuttoned and was said to be loose. In that room there was an earthen pot containing water and a glass. There was nothing beyond these things in that particular room. All these circumstances viz. of finding of two persons such as Kishan and Kanta and that too in a room where was no one else and when the condition of the clothes put on by Bai Kanta was such as to indicate her preparation for offering herself for prostitution, are enough to hold that she had offered herself for sexual intercourse for hire on payment of the amount of Rs. 8/- which Kishan had given to Bai Radha. with all this, it has to be also noted that some two more couples who were not husband and wife as their names set out in the panchnama indicate, were also found in the other rooms of Bai Radha. The amount of Rs. 71/- was also found over and above Rs. 8/- which had come to be attached already since their numbers tallied with those which were mentioned in the first part of the panchnama. The amount of Rs. 25-75p. was also found with Bai Kanta. Taking the cumulative effect of all those circumstances, there hardly remains any doubt in our mind that Kishan had gone to the house of Bai Radha for the purpose of prostitution and that he was offered two women of whom one Bai Kanta was selected on payment of Rs. 8/- for the purpose of sexual intercourse with her. This part of the evidence can hardly be said to be unreliable as thought by the learned Magistrate, and it must be said that the appreciation of the evidence by the learned Magistrate was hardly reasonable or proper. The learned Magistrate has chosen to discard the evidence of Kishan by saying (1) that he is a police agent, (2) that he has given different versions at different times, (3) that there were no special marks on the notes and (4) that the intellectual device adopted by Mr. Mankad for avoiding any such evidence required to show that he had sexual intercourse with Kanta. I have already dealt with the last point viz. his calling an intellectual device in not asking Kishan to have sexual intercourse with the woman. So far as the absence of special marks on notes is concerned, it cannot be said to be an infirmity for the simple reason that when the numbers of the notes were already noted down in the first part of the panchnama, there was hardly any necessity for him to have affixed any special marks of identification. Besides, the panch witness is not shown to have been employed as a panch by the police at any time before. Nor is there any material to show that he acted as a police agent except on this occassion. As to his giving different versions at different stages, even Mr. Desai, the learned advocate for the respondents, has had to admit that there appeared no different versions given out by him at different stages and on the contrary we find his evidence perfectly consistent and hardly varying in respect of any material particulars. The learned Magistrate has not chosen even to consider the effect of the evidence of the panch witness against whom nothing has been said or suggested. There is no reason for him to collude with the police and particularly against the accused persons. His evidence also is consistent and is borne out by the recitals in the panchnama Ex. 3 made at the time of the raid. Therefore, we are satisfied with the evidence of these two witnesses also that of Mr. Mankad in the circumstances of the case.
20. The material question, therefore, is as to what effect would this evidence create in relation to the charges levelled against these accused. Accused No. 1 as already stated above, is charged for having kept a brothel under Section 3(1) of the Act. The term 'brothel' is defined under Section 2(a) of the Act as including any house, room, or place or 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. Incidentally we may also refer to the definitions of the terms 'prostitute' and 'prostitution'. 'Prostitute' is defined under Section 2(e) as meaning a female who offers her body for promiscuous sexual intercourse for hire, whether in money or in kind; and 'prostitution' is defined under Section 2(a) as the act of a female offering her body for promiscuous sexual intercourse for hire, whether in money or in kind. Now the contention of Mr. Desai was that the word 'keeps' used in Section 3(1) of the Act and the words 'which is used' in the definition of 'brothel' in Section 2(a) of the Act indicate continuity of the use of that particular house for the purpose of prostitution. His further contention was that one incident such as the one as is sought to be established by the prosecution cannot be enough to hold that she has been keeping the house or the brothel or that she has been using the house or the brothel for the purpose of prostitution so that she can be held liable under Section 3(1) of the Act. In this connection he invited my attention to certain observations in the case of In re Ratnamala and Anr. A.I.R. 1962 Madras 31, which suggest that some other type of evidence should have been brought by the prosecution for establishing the fact that she was using her house or any part of the house for such purpose. Such evidence can be, as pointed out in paras 12 and 13 of the judgment 'in the form of evidence of visits by different persons on different dates. 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. 'Further, it has been observed in the case that, 'so long as the trap evidence 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.' That no doubt is true. But in such cases, such a type of evidence is almost inevitable, and it is therefore that the punter was Instructed not to indulge in sexual intercourse with the woman supplied to him. What we are concerned with is as to whether on the evidence that we find in this case, it could be inferred and found that accused No. 1 was keeping or using her premises for the purpose of prostitution even prior to the date on which her premises came to be searched. We may, however, refer to this very case which will help us in a considerable measure for arriving at the conclusion that the learned Assistant Govt. Pleader wants us to. In this case, on receipt of some Information, the Special Police Officer arranged for a trap with one G. Radhakrishnan as a decoy on the evening of 9-10-1959. Two panchas were taken one of whom was a lady panch. In the presence of those witnesses, four currency notes of Rs. 10/- denomination each were entrusted to decoy witness after noting down the numbers thereof. In pursuance of the plan, the decoy witness went with an informant to the upstair portion of the house where the brothel was being carried on. There they met B.S. Babu (accused No. 1) and the mother who was acquitted in the case. The informant had some talk with both of those persons, and it was arranged that sexual intercourse with Ratnamala accused No. 3 in the case. The amount of Rs. 40/- was paid to the mother (accused No. 2) and she gave that amount to accused No. 1 who put it in a trunk. There was a bed room behind a thatti partition, and this was arranged for the purpose of prostitution. Ratnamala was found in the bed room and, as stated by the decoy witness, he and Ratnamala had sexual intercourse. Within 15 or 20 minutes, the Assistant Commissioner of Police came there along with panchas and the search had taken place. Upon the demand by the Assistant Commissioner, the currency notes were taken out of the trunk by accused No. 1 and handed over to him. The numbers of those notes were verified with the number previously noted in the panchnama and found to tally. On those facts, both the appellants, namely, Ratnamala and B.S. Babu came to be convicted. The charge against B.S. Babu (accused No. 1) was one under Section 3(1) of the Act viz. about his having kept a brothel for the purpose of prostitution. The High Court, however, acquitted Ratnamala on certain considerations with which we may not be concerned in the present case. But so far as accused No. 1 was concerned, he was found to be guilty for the offence of keeping a brothel. In that case, it was contended as is done before us, that the definition of 'brothel' certainly implies some continuity of maintenance of the premises, as Ramaswami J. emphasized; even if the word 'habitually', which occurs in Section 4(a) of Madras Act V of 1930, is not to be found in Section 2(a) of the Central Act, it is clear enough that the word 'used' implies some continuity of maintenance, and not merely that the premises in question forming a setting for an individual or isolated act of prostitution. In respect of that argument it has been said that, though the facts relate to this particular incident in the main, viz. in relation to accused No. 1, they are such as to warrant the inference that this adult brother was rightly held to be liable under Section 3(1), and after considering the circumstances, it has been observed that 'the circumstances are such as to justify the inference (1) that the place was being used as a brothel, though the prosecution evidence is restricted to one incident of prostitution and (2) that accused No. 1 was assisting in the conduct of the brothel.
21. Now in this very case, the word 'promiscuous' used in the definition of the term 'prostitution' has been explained by saying that it involves indiscriminate employment of the woman's body for hire. Then the High Court has said that 'the point here is that, as the definition is framed, this plural and indiscriminate sexuality will be a matter of inference from the facts; it is certainly not necessary that the evidence of more than one customer of the prostitute should be adduced. 'It follows therefrom that both with regard to the keeping of a brothel or using the premises as a brothel need not necessarily require different type of evidence for establishing the continuity or plurality of acts in relation thereto, but that they can well be inferred from such trap evidence which would lead to an inference that the premises must have been similarly used for such purpose before that. That inference would easily arise by reason of Bai Radha immediately offering two women for the purpose of prostitution on receipt of certain amount for the same. In the Madras Case which is referred to hereabove, it was on such trap evidence that much though continuity in using of the premises as a brothel was required to be established, it could be established by drawing a reasonable inference from the evidence established and that person i. e. accused No. 1 was convicted for the offence of keeping a brothel. The same type of evidence, we have got in the present case. So far as accused No. 1 is concerned, she can well be convicted for using her premises as a brothel for the purpose of prostitution under Section 3(1) of the Act. In Criminal Appeal No. 883 of 1964 decided by this Court on 14th February 1966, the consideration of the words 'carrying on prostitution' used in Section 7(1) of the Act and the word 'promiscuous' used in the definition of the term 'prostitution' under Section 2(f) of the Act came to be considered. On that basis, it was held 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. But the further question that arose to be considered was as to whether it can be a matter of inference from the facts of a particular incident established in the case that she was offering herself similarly in similar circumstances for the prostitution. In that respect, a reference was made to the 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 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. But then 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 person 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. It was observed that in order to establish such indiscriminate prostitution on the part of any such woman or girl, it is difficult to get evidence of different persons and, therefore, one has 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. It was then held that 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 carried on prostitution as contemplated under Section 7(1) of the Act. On the same analogy, it can well be said that since Bai Radha on inquiry made by Kishan offered two women for the purpose of prostitution on payment of certain amount and no sooner the two women came out from her own house for being selected by Kishan and then on Kishan selecting one of those two women, goes in company with that woman in the inner room for the purpose of prostitution, it would be enough to infer that just as she accepted the payment for supplying the women for prostitution, she must have been similarly supplying before such women for the purpose of prositution on payment of money and that way one can reasonably hold that she was keeping a brothel or, in other words, she was using a part of her premises as a brothel for the purpose of prostitution on some other woman and that way liable under Section 3(1) of the Act. In the present case, we find some additional circumstances such as of two other male members each one in company of another woman-in her house by aboutthat time further and that Kanta was found with a sum of Rs. 25-75 p. In themselves, those circumstances may not be of any consequence, but in the circumstances of the case, it can reasonably be held that the prosecution has established that Bai Radha was running a brothel as contemplated under Section 2(a) of the Act and she was, therefore, guilty for an offence under Section 3(1) of the Act.
22. The punishment for this offence on first conviction shall be not less than one year and not more than three years and also fine which may extend to two thousand rupees. This is her first conviction and consequently the minimum punishment contemplated under Section 3(1) is required to be passed. She is, therefore, found guilty for an offence under Section 3(1) of the Act and is sentenced to suffer rigorous imprisonment for one year and to pay a fine of Rs. 200/-, or, in default, to suffer further rigorous imprisonment for two months.
23. That takes me to the other charge levelled against her under Section 4(1) of the Act. Section 4(1) says that any person over the age of eighteen years who knowingly lives, wholly or in part, on the earnings of the prostitution of a woman or girl shall be punishable with....' Then Sub-section (2) provides as under:
(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):xx xxx xx xxx xx xx xx
Mr. Nanavati, the learned Assistant Govt. Pleader, relies upon Clause (b) of Sub-section (2) of Section 4 by saying that Bai Radha exercised control, direction or influence over the movements of the prostitute, namely, Bai Kanta in such a manner as to show that she was aiding her prostitution, and if that is established, a presumption can be raised against her that she was knowingly on the earnings of prostitution of another person within the meaning of Sub-section (1) of Section 4 of the Act.
24. Now, it is abundantly clear from the evidence already discussed here above that Bai Kanta can be said to be a prostitute as defined in Section 2(e) of the Act. She was, besides, found in the house of some other person such as Bai Radha. As soon as Kishan asked for a good girl for the purpose of prostitution, Bai Radha called out two women-Kanta and Sumitra and they came up in the room where Bai Radha was, from some other room of Bai Radha's house. Kishan ascertained the charges for each of those two women, and Bai Radha told him Rs. 8/- for Kanta and Rs. 5/- for Sumitra. Kishan selected Kanta, and for that purpose Radha obtained an amount of Rs. 8/- from Kishan. All these circumstances amply establish that Radha exercised control over Bai Kanta and was under her direction. Bai Radha can, therefore, be easily said to have been aiding Bai Kanta who was a prostitute, so as to fall within Clause (b) of Sub-section (2) of Section 4 of the Act. Once that is established, the presumption contemplated in that clause arises, viz. that such person was knowingly living on the earnings of prostitution of another person within the meaning of Sub-section (1). It does appear, however, that Bai Radha has been receiving income of Rs. 75/-per month by way of rent of some other house. At the same time, as already stated hereinabove, she had received an amount of Rs. 8/- from Kishan for the purpose of prostitution. Thus, she cannot be said to have been wholly maintaining herself on the earnings of prostitution, but at any rate, she can be said to be living 'in part' on the earnings of prostitution of some other persons such as Kanta or Sumitra in this case. She is, therefore, liable for the offence punishable under Sub-section (1) of Section 4 of the Act as well.
25. That takes me to the case of accused No. 3-respondent No. 2. The contention of Mr. Nanavati, the learned Assistant Government Pleader is that the case against him would fall within Clause (c) of Sub-section (2) of Section 4 as also under Clause (a) of Sub-section (1) of Section 5 of the Act. Turning, therefore, to the first part of the charge, viz. about his acting as a tout or pimp on behalf of a prostitute as contained in Clause (c) of Sub-section (2) of Section 4 of the Act, it is necessary for the prosecution to establish that be acted as a tout or pimp on behalf of a prostitute. It is only when that is established that the presumption contemplated under that clause would arise so as to make him liable under Section 4(1). The evidence, so far as accused No. 3 is concerned, is to the effect that Kishan and Premsing in company of one H.C. Ratansing had approached him somewhere near Kalupur and Kishan had spoken to him that he would like to have a woman for enjoyment. It was that way that accused No. 3 accompanied them and took them to the house of accused No. 1. Then the evidence against him is that he told Bai Radha that he had brought a customer and that later on, he received a currency note of Re. 1 from Bai Radha, presumbly for his having brought a customer at her place. Now, it is amply clear and it is, at any rate, not the case of the prosecution that Bai Radha was a prostitute within the meaning of the term defined under Section 2(e) of the Act. The evidence thus takes us to is that he acted as a tout or a broker inasmuch as he took a customer to Bai Radha's place. There is no evidence whatever on record to show that he knew Bai Radha keeping some other prostitutes at her place. On the contrary, the only inference from the circumstance established against him would be that he acted for Bai Radha and at any rate, it would be too much to say that he also acted for a prostitute living in the house of Bai Radha. In order to raise a presumption against him that he knowingly lives on the earnings of the prostitution of another person, it has to be shown that he was acting as a tout on behalf of a prostitute. It is true that the prosecution may not have to show as to on whose behalf in particular he was acting as such, but it has to show that he was acting on behalf of a prostitute. In other words, it must be shown that he acted as an agent, father even a direct agent of a prostitute so as to bring him within Clause (c) of Sub-section (2) of Section 4 of the Act. Mr. Nanavati's attempt was that accused No, 3 was a sub-agent, i. e. if Bai Radha was an agent for Bai Kanta who was a prostitute at her house, then accused No. 3 can be taken as her sub-agent and that way, can be called a tout or an agent on behalf of Bai Kanta. I do not think, we can extend the meaning sought to be attributed by Mr. Nanavati to the extent that he wants. The evidence merely establishes that he was acting as a tout for Bai Radha and since Bai Radha could not be said to be a prostitute, he cannot be held liable for the offence under Section 4(1) of the Act.
26. Section 5(1)(a) provides that any person who procures or attempts to procure a woman or girl, whether with or without her consent, for the purpose of prostitution, that person shall be punished as provided therein. In this respect also Mr. Nanavati's contention was that accused No. 3 can be said to have procured a woman such as Bai Kanta for the purposes of prostitution to Kishan and that, therefore, he can be held liable for the offence under Section 5(1)(a) of the Act. The word 'procure' is not defined under the Act, but we were referred to its dictionary meaning which says, 'To bring about by care or pains; also (more vaguely) to bring about, cause, effect, produce; to obtain by care or effort; to acquire; to obtain (women) for the gratification of lust; to prevail upon, induce, persuade (a person) to do something.' Giving the normal meaning to the use of the word 'procure' in Clause (a) of Sub-section (1) of Section 5, what is required is only that he must have obtained a woman or a girl for the purpose of prostitution for a particular individual. Now, the evidence already referred to hereabove against accused No. 3 is that he procured a man such as Kishan for Bai Radha, but it would be difficult to say that he procured Bai Kanta for the purpose of prostitution for that Kishan. At best, even if the other aspect is taken by reason of his having taken Kishan to the bouse of Bai Radha, he can be said to have procured Bai Radha for Kishan. Beyond that, there is no evidence whatever to indicate that he was instrumental in having direct connection between Kishan and Bai Kanta. It has further to be established that the woman or girl sought to have been procured must be for the purpose of prostitution and as there is no material on record to show that Bai Radha was also a prostitute, it is too much to say that accused No. 3 procured a woman such as Radha for the purpose of prostitution for Kishan. The woman, under the circumstances, such as Bai Kanta is, In fact, procured by Radha for Kishan and that was for the purpose of prostitution. If any person who can be held responsible for any such act contemplated in Clause (a) of Sub-section (1) of Section 5 of the Act, it would be Bai Radha who can be said to have procured a woman for the purpose of prostitution for Kishan. But with that we are not concerned. On the facts established, so far as accused No. 3 is concerned, he cannot be held liable for the offence under Section 5(1)(a) of the Act.
27. In the result, therefore, the order of acquittal passed in respect of accused No. 3 i.e. respondent No. 2 is confirmed and the appeal in that respect is dismissed.
27.1 The order of acquittal passed by the learned Magistrate in respect of 'accused No. 1, respondent No. 1 is set aside and she is convicted for the offences punishable under Sections 3(1) and 4(1) of the Suppression of Immoral Traffic in Women and Girls Act, 1956. In respect of the offence punishable under Section 3(1), she is. sentenced to suffer rigorous imprisonment for one year and to pay a fine of Rs. 200/- and in default to suffer rigorous imprisonment for six months. In respect of the offence punishable under Section 4(1), she is sentenced to suffer rigorous imprisonment for six months. The sentences of imprisonment shall run concurrently.