1. This is a rule calling, upon the District Magistrate of 24-Paraganas to show cause why the conviction of the petitioners under Section 9, Bengal Suppression of Immoral Traffic Act, should not be set aside. The prosecution arose in connexion with a girl named Rani Bala. She apparently ran away with a young man named Nand Lai Das and lived with him for a day or two as husband and wife. He then left her. She was then taken by the appellants to the house of a woman named Anilabala, a prostitute, who was also an accused person. On these facts charges were framed against the appellants both under Section 366-A, I. P.C., and under Section 9 of Bengal Act 6 of 1933. We are quite clear that the latter Act was never intended to apply to a case of this sort and it is extremely regrettable that this second charge was ever framed. The jury brought in an extraordinary verdict. They unanimously acquitted the appellants of the offences under the Penal Code and unanimously convicted them under Section 9 of Bengal Act 6 of 1933. The appellants then appealed without success to the learned Additional Sessions Judge of Alipore.
2. In dismissing the appeal the learned Judge pointed out that the verdict is not very logical. It is clear from the verdict under both the charges that the jury were-satisfied that the girl was under 18 years and that the appellants induced her to go with them. The only explanation of the verdict of acquittal is that the jury were satisfied that the appellants were the girl's lovers and that they took her to the house in Howrah for their own purposes. On such a finding there must be a repugnancy in the verdict which was brought in.
3. After going through the record I have little doubt that this verdict was due to one particular passage in the charge of the learned Additional Sessions Judge. While dealing with the definition of the word 'brothel' in Section 3 of Act 6 he told the jury that they were only concerned with the second part. That part is so technical that apparently if a man has a mistress below the age of 18, the house in which he keeps her automatically becomes a brothel. The jury must have thought that in view of this definition the appellants must have been guilty under Section 9 as soon as they brought the girl into this house. That such a view was possible was due to the unsatisfactory way in which the learned Judge put this Section before the jury. The elements which the prosecution had to establish were as follows : (1) That the appellants induced the girl to go with them; (2) that their intention was that she should become an inmate of a brothel; and (3) that she should do so for the purpose of prostitution. Now, the learned Judge in dealing with this part of the case properly explained to the jury the law with regard to the definition of a brothel and informed them that while the prosecution had entirely failed to give any evidence to show that the prostitutes living there were carrying on prostitution for the gain of another person, still the house became a brothel as soon as this girl arrived there. Technically this was correct. In dealing with the question of intention the learned Judge said 'The evidence is the same which I discussed in connexion with the offence under Section 366-A, I.P.C.,'
4. In dealing with the evidence regarding he intention under Section 366-A the learned Judge made what we can only regard as a serious misdirection. He told the jury to look at the surrounding circumstances and he then pointed out that the girl was handsome. In our opinion the fact that a girl is handsome is no evidence at all to show that the persons with whom she goes away had any intention that she should become an inmate of a brothel.
5. Finally, the learned Judge made another very serious misdirection in dealing with Section 9 itself. He told the jury that the offence would be committed even if the house was not already a brothel within the definition of Section 3 of the Act. He entirely omitted to point out that the prosecution must prove that she was taken there for the purpose of prostitution. Had he done so, there can be no question that in view of their opinion that the appellants were the girl's lovers the jury would not have convicted them. Mr. Mukherji contended that the intention specified in Section 9 must be an intention that the girl should become an inmate of an existing brothel. In our opinion this is not so, and both the learned Judges in the Courts below correctly laid down the law on this point. The result is that this rule must be made absolute. The conviction and sentences are set aside and the petitioners will be discharged from their bail.
6. I agree.