1. This is an appeal against convictions under Sections 3 (1), 3 (2) (a) 3 (2) (b), 7 (2) (a) and 7 (2) (b) of the Suppression of Immoral Traffic in Women and Girls Act, 1956. Appellant was sentenced to rigorous imprisonment for one year under Section 3 (1) of the Act. No separate sentence was passed on other heads of charges.
2. The prosecution case is as follows: On June 14, 1960, A.K. Gupta, Assistant Commissioner of Police acting on a prior information raided premises No. 149, Masjidbari Street, Calcutta, and arrested the appellant and three others, Radhika, Sakina and Mira. A case under Section 366A of the Indian Penal Code was then started against Radhika. On October 12, 1960, the said Assistant Commissioner of Police submitted a written complaint in terms of which a formal first information report was drawn up against this appellant, Sakina Bibi and Mira Shaw alias Mahboob, the last two were discharged by the Magistrate on police report during investigations. It is alleged that appellant acted as manager of a brothel at 149, Masjidbari Street, in relation to the four girls rescued in the police raid. The learned Magistrate accepted the prosecution version of the story and convicted the appellant.
3. The defence is a plea of innocence and a denial that the premises was brothel or that he was manager.
4. Section 3 provides for punishment for keeping a brothel or allowing premises to be used as a brothel. Brothel is defined in Section 2, Sub-section (a). Relevant Portion at Sub-section (2) of Section 3 reads as follows:
'(2) 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 any 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 any part thereof with the knowledge that the same or any part thereof is intended to be used as a brothel, or is wilfully 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 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'.
5. The premises is stated to be owned by one Chedi Shaw with appellant as his manager. Chedi is not an accused, notwithstanding Sub-section (2) of Section 3 of this Act. The name transpired during investigation and the Assistant Commissioner, P. W. 12, stated that he looked for Chedi Shaw but could not find him.
6. Prosecution has examined a number of witnesses to prove that Chedi was owner, appellant was his manager and that this premises was used as a brothel. Who are these witnesses? The only witness, who proves Chedi as the owner and the accused as his manager is P, W. 3, who lived in the premises as a prostitute. She is a mistress of P. W. 2 but P. W. 2 does not speak of Chedi as owner or petitioner as his manager. Calcutta Corporation papers would have easily proved the name of the owner, who is equally liable under the law, but the prosecution was unusually soft towards him but prosecutes the petitioner as his manager,
7. Prosecution has advanced some evidence that the petitioner collected rent from the inmates, though no rent receipts can be produced, as none is granted. The witnesses, P. Ws. 2, 3, 4, 7, 8 and 9 speak of realisation of rent; of them P. Ws. 2 and 4 are pimps and the test are prostitutes. They are accomplices and some of them were even arrested in course of this raid. They have been discharged but brought from the brothel to depose against appellant. The evidence lacks corroboration and accomplices cannot corroborate each other.
8. Petitioner examined some defence witnesses. Of them D. W. 1, Sibsankar, lived with family one house apart from 149, Masjidbari Street. He stated that the petitioner lived in mosque 300/400 yds. from this house. He knew petitioner as a local man since his childhood. D. W. 2 deposed that petitioner lived in the mosque and had his biri shop on the ground floor of the mosque.
9. The learned Magistrate relied on the evidence of pimps and prostitutes, including those arrested in the same raid and failed to consider the value of un-corroborated evidence of accomplices and also the defence evidence that the petitioner was biri shop owner in the mosque. The finding that he is a manager is not based upon legal evidence.
10. Then again, Section 3 (1) of the Act provides that any person who keeps or manages or acts or assists in the keeping or management of a brothel shall be punishable. The evidence adduced is that the petitioner realised rents from the inmates. Is collecting rent tantamount to keeping or managing or acting or assisting in the keeping or management of a brothel? Acting or assisting in keeping or management of the brothel involves something more than mere collection of rent, but there is no evidence as to that. There is no evidence that the petitioner ever was present in the house while visitors were received or in any way acted or assisted in running the brothel. By a parity of reasoning, could it be said that people who supplied water or electricity to the premises acted or assisted in the running of a brothel? in our view, the mere fact that he collected rent from inmates is not sufficient; prosecution has to prove that he acted or assisted in the keeping or management of brothel, some kind of participation beyond mere collection of rent. That, prosecution has failed to prove and a conviction under Section 3 (1), therefore, cannot be supported.
11. Petitioner is convicted under Section 3 (2) (a) and (b). There is no evidence that he was the person in charge and allowed the premises to be used as a brothel, or let out the premises or that he is actually a party to the lease of the premises as a brothel. The only evidence is that he collected rent and therefore by identical line of reasoning this conviction under Section 3 (2) (a) or (b) cannot be supported. Owner of the house who is liable is not pursued.
12. Section 7 refers to prostitution in or in the vicinity of public places and the petitioner is neither the keeper of the brothel nor is he the person in charge of the premises referred to in Sub-section (1) of Section 7. He is at best in charge of realisation of rent but by no stretch of imagination he can be said to be in charge of the premises at 149, Masjidbari Street. The conviction under Section 7 (1) (a) and (b) also, therefore, fails.
13. One important question incidentally arises for consideration. The conviction under Section 3 or under Section 7 rests on a finding that a premises is a brothel.
(13-A) Brothel is defined in Clause (a) of Section 2 as follows:--
'(a) '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 mutual gain of two or more prostitutes.'
14. The Act also defines prostitute and prostitution in Clauses (e) and (f) of Section 2 and it reads as follows:--
'(e) ' prostitute' means a female who offers her body for promiscuous sexual intercourse for hire, whether in money or in kind.'
'(f) 'prostitution' means the act of a female offering her body for promiscuous sexual intercourse for hire, whether in money or in kind.'
14-A. In order to prove that a particular premises is a brothel, prosecution has to prove that it is used for purposes of prostitution for gain of another person or for mutual gain of two or more prostitutes, in other words, prosecution has to prove that in the premises a female indulges in the act of offering her body for promiscuous sexual intercourse for hire, whether in money or in kind.
15. The onus entirely remains on. the prosecution and the legislature has not deemed it fit or necessary to shift any part of the onus on the accused in any circumstances. The only evidence brought in this case is from pimps and prostitutes--pimps procure the visitors for gain and prostitutes offer their body for money. Either of them is, therefore, an accomplice and judicial decisions have settled the value of accomplice evidence. Although it is not entirely illegal to convict an accused on accomplice evidence only, the rule of prudence is to look for corroboration. This rule of prudence is now virtually the law enunciated by judicial decisions. It is also well settled that evidence of accomplice is tainted evidence and one tainted evidence cannot corroborate another.
16. There was an attempt to draw the analogy of the victim girl in a rape case but this is not applicable in such cases, for the female is not a 'victim' but a willing partner in the sexual act.
17. We are not unmindful of the difficulty for the prosecution to adduce corroborating evidence; even the 'test purchaser' of a female body would be an accomplice and therefore, his evidence Es tainted evidence. The law as it stands provides neither for presumptions nor shifting the onus on the accused and puts an uphill task on the prosecution but that is entirely a matter of policy for the legislature. We do not think that such provision is beyond the genius of the law makers and the draftsmen. This is undoubtedly a measure for eradicating a social evil by way of suppression of immoral traffic in women and girls in pursuance of International Convention signed at Newyork in May 1950 as the preamble discloses, but such legislation should be thorough-going or else it loses its efficacy.
18. This appeal is, therefore, allowed and the conviction and sentence passed on appellant are set aside and he is acquitted. Fines, If paid, be refunded and the appellant discharged from bail bond.
K.K. Mitra, J.
19. I agree.