1. In this case the prisoners are charged thus: That Sukee-Raur, Dinoo Das and Gungarain Das on or about the 22nd day of July 1893, in Calcutta, let to hire, or otherwise disposed of, one Prosunno otherwise called Lukhi, a minor under the age of 16, to wit, of the age of 11 years or thereabouts, with intent that she might be employed or used for the purpose of prostitution, or for an unlawful and immoral purpose, and thereby the said Sukee Kaur, Dinoo Das and Gungaram Das committed offences punishable under Section 372 of the Indian Penal Code. 2ndly --That the said Sukee Raur, at or about the time and in the place aforesaid, abetted the said Dinoo Das and Gungaram Das in committing the offence in the first charge mentioned, which offence was committed in consequence of such abetment, and thereby she, the said Sukee Raur, committed an offence punishable under Sections 109 and 372 of the Indian Penal Code. 3rdly--That the said Dinoo Das abetted the said Sukee Raur and Gungaram Das; and 4thly--That the said Gungaram Das abetted Sukee Raur and Dinoo Das.
2. Under Section 273 of the Criminal Procedure Code, in trials before this. Court, when it appears to the High Court, at any time before the commencement of the trial of a person charged, that any charge or any portion thereof is clearly unsustainable, the Judge may make on the charge an entry to that effect. Such entry shall have the effect of staying the proceedings upon the charge portion of the charge, 'as the case may be. '
3. Now upon the informations, I am clearly of opinion that an offence under Section 372 of the Indian Penal Code is not made out, and it becomes my duty, I think, to act upon that opinion, and to stay the proceedings by making an entry as contemplated by the section. Section 372, Indian Penal Code, under which this charge is made, and Section 373, relate to the same subject-matter; that is to say, to the letting to hire, selling, or otherwise disposing of, any minor under the age of 16 years with a certain intent. The first of these two sections contemplates an offence committed by the person who sells, lets to hire, or otherwise disposes of, any minor under the age of 16 years as aforesaid. Section 373 relates to the case of the person who buys, hires, or otherwise obtains possession of, any minor under the age of 16.
4. Section 372 is in these words: 'Whoever sells, lets to hire, or otherwise-disposes of, any minor under the age of 16 years with intent that such minor shall be employed or used for the purpose of prostitution or for any unlawful or immoral purpose, or knowing it to be likely that such minor will be employed or used for any such purpose, shall be punished with imprisonment of either description for a term which may extend to ten years.' Section 373 says, 'Whoever buys, hires, or otherwise obtains possession of, any minor under the age of 16 years with intent that such minor shall be employed or used for the purpose of prostitution or for any unlawful or immoral purpose, or knowing it to be likely that such minor will be employed or used for any such purpose...shall be punished, etc.' as in preceding section.
5. Now, the mischief contemplated and against which these sections were framed to provide, is the selling or letting out or dedication of minors for the purpose of prostitution or for any unlawful and immoral purposes as a course of life. This is the mischief which the section contemplates. Section 373* has been the subject of very careful consideration by the Madras High Court with reference to the nature of the offence which is contemplated by it, and which is common to it with Section 372. In that case, viz., that of Dowlath Bee v. Shaik Ali 5 Mad. H.C. 473, a person was tried charging him that he obtained possession of one Dowlath Bee, a minor under the age of 16, namely, of the ago of ten years, with intent that she should be used for an unlawful and immoral purpose, that is to say, for the purpose of illicit intercourse, and he was charged with having thereby committed an offence under Section 373 of the Indian Penal Code. Chief Justice Scotland tried the case and referred it to the Court for opinion, and stated that he was inclined to the opinion that the section applied only to a case of buying and hiring or other similar transaction by which the possession of a girl is obtained with the intention of employing or using her habitually for the purpose of indiscriminate sexual intercourse with man, or in some unlawful and immoral course. Upon the case being heard by the Court, Chief Justice Scotland said that a very careful consideration of the section under which the prisoner had been found guilty had removed his doubts and confirmed the opinion he had formed before the trial as to 'its proper construction,' etc. He said, 'To bring a case within the section, it is in my opinion essential to show that possession of the minor has been obtained under a distinct arrangement come to between the parties that the minor's person should be for some time completely in the keeping and under the control and direction of the party having the possession, whether ostensibly for a proper purpose or not.' He goes on to say that the provisions as to the intent or knowledge of its being likely that such minor shall be employed or used for the purpose of prostitution or for any unlawful and immoral purpose, indicating plainly as it does 'an employment or use of the minor at some time future to the obtaining of possession,' is in his mind strong to show that complete possession and control of the minor's person obtained by buying, hiring, or otherwise, with the intent or knowledge that, by the effect of such possession and control the minor should or would afterwards be employed or used for either of the purposes stated, is what the section was intended to make punishable as a crime. The provision, he says, appears to him to exclude the supposition that an obtaining of possession in the sense in which that expression is no doubt sometimes used, of merely having sexual connection with a woman, could have been in the contemplation of the framers of the section. He then goes on to say, referring still to the purposes of the section: 'With respect to the further point of the meaning of the words 'for the purpose of prostitution,' which it has been necessary to consider in deciding this case, I have a clear opinion. Acts of improper sexual intercourse are acts of prostitution in one strict sense of the term. But proof of more than that, I think, is required. The ordinary and commonly understood meaning of the word 'prostitution' is the offering of the person for promiscuous sexual intercourse with men, and that, I think, must he taken to he its meaning in the section, there being nothing in the context opposed to it, but rather the contrary. The words 'employed or used' strike me as confirmatory of that being the only meaning intended. If these words had been followed by the words 'as a prostitute,' no doubt could have arisen, and I see no indication that anything different was meant by the words 'for the purpose of prostitution.' Further, it is a weighty consideration in support of this construction, as well as of that given to the first part of the section, that, if not right, there would be no stopping short of holding every man to be punishable under Section 373 who bad casual sexual intercourse with a willing girl under the age of 16, capable of giving consent, or kept her as his mistress or concubine, even although the girl had been a common prostitute before he associated with her. Such an effect could not possibly have been intended.' The severity of the punishment provided by the section seems alone almost conclusive as to the justice of this opinion.
6. In the case of the Queen v. Nourjan 6 B.L.R. Ap. 34 : 14 W.R. Cr. 39 cited by the learned Standing Counsel, Mr. Justice Jackson says that 'that which Section 372 contemplates is the selling, letting to hire, or otherwise disposing of, any minor with intent that such minor should be employed as stated, that is to say, making her over to a person either in perpetuity or for a term for a consideration, or otherwise transferring the possession of a minor.' In that case the learned Judges differed. Mr. Justice JACKSON found that there had been no 'disposal' by one prisoner and no obtaining possession' by the other. Mr. Justice GLOVER treated what he held to have been done as amounting to a 'disposal' of the girl by the mother, and to 'obtaining possession' of her by the brothel-keeper, differing from his colleague in this respect, but not in holding that the purpose for which the disposal and the obtaining possession were committed, must, under the section, be the devoting of the girl to the practice of prostitution.
7. Now, in this case what occurred was this, that the Reverend complainant, desiring to secure the punishment of the defendants under this section for the acts which, according to the informations, they avowed, communicated with the defendants, and as a result the girl, in this case a young prostitute, as she appears to be from the evidence, who lives with the accused No. 1, was brought by the accused No. 1 to the house of the accused No, 3 (as had been done for the use of another person on a previous occasion) for the use, as was supposed, of Mr. M. on that occasion, as a person who was desirous of having sexual intercourse with her. There was a talk apparently about a sale, and about a longer employment of the girl than merely for the one occasion, but it was only spoken of; the girl was neither sold nor hired out for a period of employment, and it certainly was not in the contemplation of any one that she should be sold or hired out for the purpose of being employed by the purchaser or hirer as a prostitute, or being disposed of by that person for that course of life. The only offence, if any, committed, was in bringing the girl to the house, in order that she might have an immoral interview with the supposed customer on that one occasion. For a short interview Rs. 5 was stated to be the charge, and that was the sum paid.
8. It appears to me quite clear that, upon the authorities quoted above, the commission of an immoral act of sexual intercourse at an interview so brought about is not in the contemplation of the section, and that had the accused been put upon their trial, and had all the evidence that appears upon the depositions been laid before the jury, I should have been bound to tell them that they could not convict upon that evidence under Section 372; and I say that, accepting the supposition that the evidence recently taken as to the age of the girl, of which there was none whatever upon the original depositions, can properly he incorporated under Section 219 with the other depositions.
9. I am asked also to allow a charge of abetment of rape to be entered, founded, when coupled with the Age of Consent Act, upon that additional evidence--evidence which was taken only the day after the Sessions had commenced, and after I had drawn attention to the fact that the original depositions contained no evidence of age whatever. I do not think it would be right for me to include a charge of abetment of rape, or under the circumstances to apply the evidence taken upon a charge under one section to a wholly different one. I therefore direct that an entry be made to the effect that the charge is unsustainable, and such an entry will have the effect that the proceedings will be stayed. The prisoners must be discharged from custody.
* Buying of any minor for purpose of prostitution.
[Section 373: Whoever buys, hires, or otherwise obtains possession of any minor under the age of sixteen years, with intent that such minor shall be employed or used for the or for any purposes of prostitution. unlawful and immoral purpose, or knowing it to be likely that such minor will be employed or used for any such purpose, shall be punished with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine.]