1. The petitioner in this ease has been convicted of an offence under Section 254, Assam Municipal Act. I have perused the judgment of the learned Magistrate in this case and the entire evidence has been placed before me. It appears that the main grounds upon which the learned Magistrate based his decision were three : (1) it was proved that the petitioner resided in the prostitutes quarter of the town of Dhubri; (2) her name appeared on the register of prostitutes and (3) she was in the keeping of a man named Rajen who was a resident of the town. In my view, evidence of this nature is totally sufficient to warrant a conviction under Section 254, Assam Municipal Act. Obviously, in such a case a heavy onus lies on the prosecution to prove that the accused person is actually a prostitute. It would be quite unreasonable to draw any such inference from the fact that she is residing in a quarter of the town ordinarily inhabited by prostitutes or that her name appeared in the register of prostitutes maintained at the Thana, especially in a case, such as this, in which the person who actually prepared the register does not appear to have been examined. Further, the fact that the petitioner was maintained by a resident of the town would not make her a prostitute.
2. In this connexion, it is pointed out that the Assam Municipal Act contains no definition of the term 'prostitute' but a suitable definition is to be found in section 3, Bengal Suppression of Immoral Traffic Act of 1933. Sub-section (5) of Section 3 lays down that 'prostitute' means any female available for the purpose of 'prostitution, whereas the expression 'prostitution' has been defined to mean promiscuous sexual intercourse for hire, whether in money or kind. To my mind, there is no evidence in this case that the petitioner at any of the material times was a prostitute in the above sense of the term. The Rule must, therefore, be made absolute and the petitioner's conviction is set aside. The fine, if already paid, will be refunded.
Criminal Reference No. 119 of 1940.
3. No order is necessary in connexion with the Reference.