Kamalabai Jethamal Vs. The State of
Maharashtra [1962] INSC 11 (18 January 1962)
18/01/1962 KAPUR, J.L.
KAPUR, J.L.
DAYAL, RAGHUBAR
CITATION: 1962 AIR 1189 1962 SCR Supl. (2)
632
ACT:
Immoral Traffic-Suppression of prostitution-
Employment of youngmen by the police for Detection of offence-If
proper-Validity of conviction-High Court's power of eviction-Suppression of
Immoral Traffic in, Women and Girls Act, 1956 (104 of 1946), of ss. 3(2), 4(1),
18.
HEADNOTE:
On learning that the appellant was using her
premises as a brothel and was supplying girls for the purpose of prostitution,
the police arranged to lay a trap. With two one hundred rupees marked currency
notes given by the police two persons, M and L, went to the premises occupied
by the appellant; M was to ask for a girl for the purpose of prostitution and L
was to be a witness of the fact. M selected a girl and gave the one hundred
rupees note to the appellant who put it under her blouse. When M and the girl
were in the room, on signal being given, the police entered the room and found
them in a rather compromising position.
A woman Panch who had accompanied the Police
party searched the appellant and recovered the one hundred rupees currency note
from under the blouse.
The appellant was tried for offences under
ss.3(2) and 4(1) of the Suppression of Immoral Traffic in Women and Girls Act,
1956, by the Magistrate who, however, acquitted her. On appeal, the High Court
accepted the prosecution case and convicted the appellant and, further ordered
her eviction. The High Court accepted the testi money of L in regard to the
payment of the hundred rupees currency note to the appellant and also the
evidence in the case to show that the amount was used for the purpose of
prostitution. The appellant contended (1) that the conviction was bad because
it was based only on the evidence of the police and its agents, and the search
was not conducted in accordance with the provisions of the Code of Criminal
Procedure, and (2) that, in any case, only the Magistrate was given the power
of eviction under s. 18 of the Act.
^ Held, that on the evidence accepted by the
High Court, the conviction of the appellant was valid.
The practice of the Governmental authority,
like the police, employing young men, particularly students studying at the
educational institutions, as in the present case, in 633 order to suppress
immoral traffic in women and to stop prostitution, condemned.
Held, further, that the High Court having
ordered the conviction of the appellant, had the power to evict her under s. 18
of the Act.
CRIMINAL APPELLATE JURISDICTION: Criminal
Appeal No. 167 of 1961.
Appeal by special leave from the judgment and
order dated September 29, and October 11, 1961, of the Bombay High Court in
Criminal Appeal No. 906 of 1961.
S. G. Patwardhan, J. B. Dadachanji, O. C. Mathur
and Ravinder Narain for the appellant.
H. R. Khanna and P. D. Menon for the
respondent.
1962. January 18.-The Judgment of the Court
was delivered by KAPUR J.-This is an appeal against the judgment and order of
the High Court of Bombay secting aside the order of acquittal of the appellant
and sentencing her to one year's rigorous imprisonment and evicting her from
the premises which she was occupying as a tenant.
The appellant was tried by the Additional
Chief Presidency Magistrate, Esplanade, Bombay for offences under ss. 3(2) and
4(1) of the Suppression of Immoral Traffic in Women and Girls Act (Act 104 of
1956) hereinafter called the 'Act'. The charge against the appellant was that
she supplied a girl to Manmohan Anandji Mehta who is a witness and she kept or
managed a brothel at block No. 6, plot No. 144; Shivaji Park, Bombay;
that she knowingly lived on the earnings of
prostitution and that the procured women for the purpose of prostitution. The story
of the prosecution was that information was received by Police Superintendent
Kanga that the premises were being used as a brothel and that the appellant was
supplying 634 girls for the purpose of prostitution. He thereupon laid a trap
and sent two persons, Manmohan Anandji Mehta and Prabhakar K. Loke, the former
was to ask for a girl for the purpose of prostitution and the latter was to be
a panch i.
e. a witness of that fact. Sub-Inspector
Purohit, it is stated, gave two one hundred rupees marked currency notes to
Manmohan Anandji Mehta with the instruction that he was to pay out of that to
the appellant and thus to obtain a girl from her for the purpose of
prostitution. He along with Loke went to the house of the appellant, rang the
bell and was admitted by her. He then asked the appellant to arrange a girl for
him and both Manmohan Anandji Mehta and Loke are alleged to have said that they
wanted two girls for enjoyment. Two girls were shown, one Kamal Govind and the
other Indu Bapurao Salunke both of whom are witnesses. The amount quoted by the
appellant in the case of the former was Rs. 100/-and for the latter Rs. 50/-.
Manmohan Anandji Mehta selected Kamal and handed over heroine one hundred
rupees currency note to the appellant which she put under her blouse. Manmohan
Anandji Mehta and the girl then went into the kitchen and there they undressed
and were later found naked on the floor and in a rather compromising position.
On a signal being given the police i.e. Superintendent Kanga and Sub-Inspector
Purohit entered the premises and were told by Loke that Manmohan Anandji Mehta
and the girl were in the kitchen. The police officers opened the door of the
kitchen and found both Manmohan Anandji Mehta and Kamal as stated above.
They then were asked to dress and come out.
Manmohan Anandji Mehta then returned the
other one hundred rupees currency note to superintendent Kanga. A woman Panch
who had accompanied the police party searched the appellant and recovered the
one hundred rupees currency note from under the blouse. It is stated that the
male members of the party were at that time in a passage adjoining the 635 hall
where the appellant was searched. The appellant was tried for the offences
above mentioned but was acquitted by the Additional Chief Presidency
Magistrate. On appeal the High Court set aside the order of acquittal and
sentenced her to a year's rigorous imprisonment and also ordered her eviction
from the premises she was occupying as a tenant.
The evidence mainly consists of Manmohan Anandji
Mehta and Loke and the two police officers. The testimony of Manmohan Anandji
Mehta and Loke by itself may not, in the circumstances of the case, be of much
value but their testimony receives corroboration and thus gives credence to the
prosecution case. The evidence of Police Superintendent Kanga shows that when
the door of the kitchen was pushed open both Kamal and Manmohan Anandji Mehta
were naked and were in a compromising position; their clothes were lying by the
side of the mattress, The testimony of Sub- Inspector Purohit is also to the
same effect. The other circumstances which is very much against the appellant
is that there is evidence to show that when the woman panch accompanied the
police party and searched the appellant a hundred rupees currency note was
found from her person under her blouse. The fact is deposed to by Sub-Inspector
Purohit and by Police Superintendent Kanga. Loke has also deposed to the same
effect. But it was submitted on behalf of the appellant that this evidence
should not be accepted as, according to law, no woman can be searched except by
another woman and having regard to the emphasis on decency under ss. 52 and 103
of the Criminal Procedure Code that cannot be done in the presence of men.
There is no evidence to show except that of
Manmohan Anandji Mehta that the men were asked to move away from the hall or
had actually left the hall during the search. But assuming they were not in the
hall even then it will not be an extraordinary circum- 636 stance that one or
all of them should have seen the hundred rupees, note being taken out from
under the blouse of the appellant. The High Court has, accepted the testimony
of Loke and we find no reason to depart from the usual practice of this Court,
of accepting such findings. Besides, the High Court has also accepted the
testimony of Loke in regard to the payment of a hundred rupees currency note to
the appellant which proves that money was paid before the girl, Kamal Govind,
was asked to go with Manmohan Anandji Mehta for the purpose of prostitution.
Counsel for the appellant emphasised two
points: (1) that the woman, who was brought by the police to search the
appellant and is alleged to have recovered the hundred rupees note from her
person, has not been produced and (2) that considering that the person to be
searched was a woman it must be presumed that in accordance with the
requirements of law and of decency no man could have been present when the
search of the appellant took place. In support of the first contention reference
is made to a judgment of this, Court in Purvez Ardeshir Poonawalla v. The State
of Bombay(1), where the necessity of producing the search witness was
emphasised and it was observed:- "This is, one of those cases where the
rule in regard to search witnesses becomes applicable and importance must be
attached to the lack of that class, of search witnesses which are envisaged by
the Criminal Procedure Code in s. 103." The Privy Council also in Malak
Khan v. Emperor(2) emphasised the necessity of the presence of search
witnesses. Lord Porter there said:
"In their Lordship's opinion the
presence of witnesses, at a search is always desirable and their absence will
weaken and may sometimes destroy the acceptance of the evidence as, to the
finding of the articles......." 637 The observations in Poonawalla's case
(1) and Lord Porter in Malikkhan v. Emperor (2) are not directly applicable in
the present case. As we have said above there is evidence in this case which
has been accepted by the High Court that a hundred rupees note was given to the
appellant by Manmohan Anandji Mehta. There is also evidence that as a
consequence of the payment of money Manmohan Anandji Mehta did hire Kamal
Govind for prostitution and it is regrettable to say that with the money given to
him by the police he acted not merely as a 'bogus customer', as he has been
described, but his participation was more active, reprehensible, immodest,
indecent and indecorous.
If in any case the following observations of
Lord Goddard, Chief Justice, in Brannan, v. Peek (3) are apposite it is this
case:
"The court observes with concern and
disapproval the fact that the police authority as Derby thought it right to
send a police officer into a public house to commit an offence. It cannot be
too strongly emphasised that,....it is wholly wrong for a police officer or any
other person to be sent to commit an offence in order that an offence by
another person may be detected." We have only to substitute the words
"aid an act of prostitution" for "to commit an offence" and
the analogy is complete. In this case two youngmen were given money to go to
the house of the appellant and also to use that money in rather an improper
manner. Manmohan Anandji Mehta seems to be a person of rather doubtful
character and the employment of this class of persons for detection of offences
is hardly a credit to any one. What is more reprehensible and a matter of
greater concern is the sending, with him a young student who was reading for
his Matriculation. To use students in 638 this manner should not be allowed by
any governmental authority in a country like ours. It is no justification to
say that, in order to suppress immoral traffic in women and to stop
prostitution somebody has to be-used and the only class of people that can be
employed are persons like Manmohan Anandji Mehta who is confessedly a police
agent and Loke who is a youngman willing to be employed by the police. After
saving this we have still to see what is the consequence of the testimoney of
these witness produced in this case.
The High Court has believed the testimony of
Loke in regard to the payment of one hundred rupees and there is evidence to
show that amount was used for the purpose of procuring Kamla for prostitution.
The payment must therefore be held to be
proved.
It may be that the search was contrary to the
spirit or even the letter of the Criminal Procedure Code but the fact remains
that the High Court has accepted that there was a search and a hundred rupees
currency note was recovered and even if the recovery of a hundred rupees
currency note were held not proved, the payment of that amount will not thereby
become unproved if there evidence which the High Court has accepted.
On the findings of the High Court we are
unable to come to any other conclusion but the one to which the High Court came
that the appellant is guilty of the offences of which she was accused.
The next submission of Counsel for the
appellant was that the High Court in appeal could not order the appellant's
eviction because that power only a Magistrate has under s. 18 of the Act. The
argument raised was that the powers of the appeal court under s. 423, Criminal
Procedure Code are to reverse the order of acquittal or to order a fresh
enquiry or a retrial etc. but not to order eviction. But this argument is
untenable in view of the fact that in the Act there is a specific provision in
s. 18 639 of the Act authorising the making of such an order by a court
convicting a person of offences under s. 3 or s. 7 of the Act. The relevant portion
of s. 18 is as follows:- S. 18 "Closure of brothels and eviction of
offenders from the premises,- (1)....... ,and if after hearing the person
concerned, the magistrate is satisfied that the house........or portion is
being used as a brothel or for carrying on prostitution then the magistrate may
pass orders- (a) directing eviction of the occupier within seven days of the
passing of the order from the house.........
(2) A court convicting a person of any
offence under section 3 or section 7 may pass orders under sub-section (1)
without further notice to such person to show cause as required in that
sub-section." The High Court ordered the conviction of the appellant under
s. 3 of the Act and therefore it had the power to order her eviction. The second
contention is also without substance.
The appeal is therefore dismissed.
Appeal dismissed.
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