Ramesh Vs. The State of Maharashtra
[1962] INSC 211 (24 July 1962)
SHAH, J.C.
SHAH, J.C.
SINHA, BHUVNESHWAR P.(CJ) WANCHOO, K.N.
CITATION: 1962 AIR 1908 1963 SCR (3) 396
ACT:
Criminal Law--Seduction--Assisting prostitute
in her profession--If amounts to inducement to forced or seduced illicit
intercourse--Indian Penal Code (Act 45 of 1860), ss. 84, 809, 366, 366 A.
HEADNOTE:
The appellant was convicted of the offence
under s. 366A read with s. 109 of the Indian Penal Code. The case against him
was that A who was a minor below the age of 18 years was brought up by P and
had before the date of the offence been habituated to the life of a prostitute.
On the day in question the appellant went to the residence of P and asked him
to bring A to a theatre, P accompanied A to the 397 theatre where the latter
sought some customers. They were taken by another person to a place called
Bohori Kathada at which place A was invited for the purpose of prostitution.
When P accompanied A to the theatre and from
there to Bohori Kathada he knew that she was going for plying her profession as
a prostitute.
Held, that the appellant could not in law be
held guilty of abetting the commission of an offence under s. 366A of the
Indian Penal Code by P. A person who merely accompanies a woman going out to
ply her profession of a prostitute, even if she has not attained the age of 18
years, could not be said thereby to induce her to go from any place or to do
any act with the intent or knowledge that she will be forced or seduced to
illicit intercourse within the meaning of s. 366 A. Seduction implies surrender
of her body by a woman who is otherwise reluctant or unwilling to submit
herself to illicit intercourse whether such surrender is for the first time or
is preceded by similar surrender on earlier occasions ; but where a person in
the course of her profession as a prostitute offers herself for profession as a
prostitute offers herself for intercourse, there are no sucruples nor
reluctance to be overcome, and surrender by her is not seduction within the
Code.
CRIMINAL APPELLATE JURISDICTION: Criminal
Appeal No. 72 of 1961.
Appeal by special leave from the judgment and
order dated December 20, 1960, of the Bombay High Court in Criminal Apeal No.
1207 of 1960.
Jai Gopal Sethi, C.L. Sareen and R.L. Kohli,
for the appellant, G. C. Mathur and P. D. Menon, for the respondent.
1962. July 24. The Judgment of the Court was
delivered by SHAH, J.--On May 1, 1962, we ordered after arguments were
concluded that the appeal be allowed and the conviction of the appellant be set
aside. We now proceed to record our reasons in support of the order.
398 The appellant, Ramesh Amin, and seven
others were tried in the Court of Session, Aurangabad, for offences punishable
under ss. 366, 366A. Indian Penal Code, and abetment thereof. The appellant was
the third accused at the trial.
The Sessions Judge convicted accused Nos. 1
to 4 and 7 of the offences charged against them and sentenced them to suffer
rigorous imprisonment for two years for each offence, and acquitted the rest.
The High Court of Bombay entertained appeal of accused Nos. 1 to 4 (but not of
accused No. 7) and set aside the order of conviction and sentence against them
for the offences punishable under s.
366 read with s. 34 and s. 366A of the Indian
Penal Code.
The High Court, however, convicted the
appellant of abetting the seventh accused in inducing a minor girl, Anusaya, to
go with other persons from her residence at Kabadipura to Gulzar Theatre, and
then to a house known as Bohori Kathada with intent that she may or knowing
that she was likely to be seduced to illicit intercourse. With special leave
the appellant has appealed to this Court.
The seventh accused, Patilba, is a resident
of Aurangabad, and the eighth accused is his wife. Anusaya is the daughter of
Shakuntala by her husband Kashinath. After the death of Kashinath, Shakuntala
brought her infant daughter Anusaya to the house of Patilba and started living
with him as his mistress. Sometime later Shakuntala left the house of Patilba
and took up residence at Nasik but Anusaya 'continued to live with Patilba and
was brought up by him.
Marriage was arranged by Patilba between
Anusaya and one Ramlal, but Anusaya declined to live with her husband. Patilba
introduced Anumaya to some "customers" and she started indulging in
promiscuous intercourse, for money. It was the prosecution case that on January
13, 1960, the appellant went to the residence of Patilba and asked him to bring
Anusaya and 399 one Chandrakala (a woman following the profession of a
prostitute) to the Gulzar Theatre, and accordingly, Patilba, the eighth
accused, Chandrakala and Anusaya went to the Theatre. At the instance of the
appellant, Anusaya and Chandrakala were taken by one Devidas (who has given
evidence as an approver) to Bohori Kathada. Sub-Inspector Pagare of the Police
Station City Police Chowk, Aurangabad, had received information that some
persons were consuming illicit liquor in a room at Bohori Kathada and he
arranged to raid that house. Pagare found accused Nos. 1 to 5 and Devidas in a
room consuming liquor. He also found Chandrakala and Anusaya in an inner
apartment, Persons found in the room were arrested and sent for medical
examination to the local Civil Hospital, and it was found that Anusaya had not
attained the age of 18 years. Pagare then laid an information before the
Judicial Magistrate, Aurangabad, for offence punishable under the Bombay
Prohibition Act, 1949(we are informed at the Bar that in respect of those
offences the accused were acquitted and we are not concerned in this case with
those offence) and also for offences punishable under ss. 366 and 366A of the
Indian Penal Code against nine persons including the appellant, Patilba and
Devidas. In the course of proceedings for commitment to the Court of Session,
Devidas was tendered pardon on condition of his making a full disclosure of the
circumstances within his knowledge. The case was then committed to the Court of
Session, Aurangabad for trial. The Court of Session held that accused Nos. 1 to
4 had in furtherance of their common intention kidnapped Anusaya-a girl below
the age of 18 years-in order that she may be forced or seduced to illicit
intercourse or knowing it to be likely that she would he forced or seduced to
illicit intercourse, and the seventh accused Patilba had abetted the commission
of that offence, and that accused Nos. 1 to 4 and 7 had induced Anusaya to 400
go from her residence to the Gulzar Theatre and from the theatre to Bohori
Kathada with intent that she may be or knowing that it was likely that she
would be forced or seduced to illicit intercourse. He accordingly convicted
accused Nos. 1 to 4 of the offence under s. 366 read with s. 34 of the Indian
Penal Code and also of the offence under a. 366A of the Indian Penal Code.
The High Court of Bombay in appeal acquitted
accused Nos. 1 to 4 of the offence of kidnapping because, in their view,
accused Nos. 1 to 4 had "nothing whatever to do with the original
kidnapping by Patilba (the 7th accused) and since he was not the lawful
guardian of this girl, her being brought to this room cannot be regarded as
kidnapping". The learned Judges also acquitted accused Nos, 1 to 4 of the
offence under s. 366A observing that ,,there is no evidence of any direct talk
between any of the accused and the girl, nor even of any inducement offered
through Patilba (accused No. 7). Even so far as accused No, 3 is concerned,
there is no direct talk between Anusaya and accused No, 3 which can be regarded
as an inducement to her to move either from the house of Patilba or from the
theatre to the room in question." But in their view the case against tile
appellant "did not end with this" : They observed.
"The evidence........................
clearly indicates that accused No. 3 instigated Patilba and Devidas to bring
the girl to the theatre and thereafter to the room in question. Patilba, as we
have stated, being in custody of this girl and the girl being minor and
helpless, induced or forced her to go to the cinema and thereafter to this room
and actually left her there. So far Patilba was concerned, he intended that she
should be forced or seduced to illicit intercourse by one or the other of 401
the accused. Accused No. 3 by asking Patilba to bring the girl to the theatre
and asking Devidas and Patilba to bring the girl to the room clearly instigated
Patilba in the commission of this offence. He must, therefore, be held clearly
guilty of the offence of abetment of this offence by Patilba." The High
Court accordingly convicted the appellant of the offence under s. 366A read
with s. 109 of the Indian Penal Code, because, in their view, he had abetted
the commission of an offence punishable under s. 366A by Patilba by instigating
the latter to bring Anusaya to the theatre and by further instigating Patilba
and Devidas to bring Anusaya from the theatre to Bohori Kathada.
In our view, the appellant cannot in law be
held guilty of abetting the commission of an offence punishable under s. 366A,
Indian Penal Code, by Patilba.
The facts proved by the evidence are these:
Anusaya at the material time had not attained the age of 18 years. She was
brought up by Patilba and even though she had married Ram Lal she was at the
material time and for many months before living under the guardianship of
Patilba. For a long time before the date of the offence Anusaya was accustomed
to indulge in promiscuous intercourse with customers" for money. She used
to entertain, as she herself admitted, "one or two customers every day"
and bad before the date of the offence been habituated to the life of a
prostitute. On the day in question she and her companion Chandrakala went to
the Gulzar Theatre accompanied by Patilba. In the theatre Anusaya and
Chandrakala were seeking customers: they repaired during the break in the show
to the entrance of the theatre for that purpose, but she had to return
disappointed because they found a police van parked near the 402 entrance.
Anusaya and the 6th accused went to Bohori Kathada for carrying on their profession
as prostitutes.
There is no evidence that she was not willing
to go to Gulzar Theatre on the night in question nor is there any evidence that
she was unwilling to go to Bohori Kathada to which she and her companion were
invited for the purpose of prostitution.
Do these facts make out a case against the
appellant of abetment of the offence of procuration of a minor girl punishable
under s. 366A of the Indian Penal Code? Section 366A was enacted by Act XX of
1923 to give effect to certain Articles of the International Convention for the
Suppression of Traffic in Women and Children signed by various nations at Paris
on May 4, 1910. There are three principal ingredients of the offence:
(a) that a minor girl below the age of 18
years is induceed by the accused, (b) that she is induced to go from any place
or to do any act, and (c) that she is so induced with intent that she may be or
knowing that it is likely that she will be forced or seduced to illicit
intercourse with another person, The evidence clearly establishes that Anusaya
had not at the material time attained the age of 18 years. But there is no
evidence on the record that Patilba induced Anusaya to go to the theater or
from the theatre to Bohori Kathada. It must be assumed that when Patilba accompanied
Anusaya to the theatre and from the theatre to the Bohori Kathada at the
suggestion of the appellant he knew that she was going for plying her
profession as a prostitute. But in our judgment a person who merely accompanies
a woman going out to ply her profession of a prostitute, even if she has not
attained the age of eighteen years, does not thereby commit an offence under s.
366A of the Indian Penal Code. It cannot be said that thereby he induces her to
go from any place or to do any act with the intent or knowledge contemplated by
the section.
We agree that seduction to illicit
intercourse contemplated by the section does not mean merely straying from the
path of virtue by a female for the first time. The verb "seduce' is used
in two senses. It is used in its ordinary and narrow, sense as inducing, a
woman to stray from the path of virtue for the first time: it is also used in
the wider sense of educing a woman to submit to illicit intercourse at any time
or on any occasion. It is in the latter sense that the expression has been used
in as. 366 and 366A of the Indian Penal Code which sections partially overlap.
This view has been taken in a large number of cases by the Superior Courts in
India, e. g. Prafula kumar Basu v. The Emperor (1), Emperor v. Laxman Bala (1),
Krishna Maharana v. The King Emperor (3), In re Khalandar Saheb (4) Suppiah v. Emperor
(5), Pessumal v. Emperor (6), King Emperor v. Nga Ni Ta (7) and Kartara v. The
State (8). The view expressed to the contrary in Emperor v. Baijnath (9), Saheb
Ali v. Emperor (11) Aswini Kumar Roy v. The State (10) and Nara v. Emperor (12)
that the phrase used in s. 366 of the Indian Penal Code is "Properly
applicable to the first act of illicit intercourse, unless there be proof of a
return to chastity on the part of the girl since the first act" is having
regard to the object of the Legislature unduly restrictive of the content of
the expression "seduce" used in the Code. But this is not a case in
which a girl who had strayed from the path of virtue when she (1) (1929) I. L.
R. 57 Cal. 1074 (2) (1934) I. L. R. 59 Bom. 652.
(3) (1929) I. L. R. 9 Pat. 647.
(4) A. I. R. 1955 A. P. 59.
(5) A. I. R. 1930 Mad. 930.
(6) (1924) 27 Cr. L. J. 1292.
(7) (1903) 10 Burma L. R. 196.
(8) I. L. R. [1957] Punjab 2003.
(9) (1932) I. L. R. 54 All. 756.
(10) (1933) I. L. R. 60 Col. 1457 (11) A. I.
R. 1955 Cal. 100.(12) A. I. R. 1934 Lah. 227.
404 was in the custody of her guardian and
had with a view to carry on her affair accompanied her seducer or another person.
Such a case may certainly fall within the terms of s.366 or s.366A whichever
applies. But where a woman follows the profession of a prostitute, that is, she
is accustomed to offer herself promiscuously for money to
"customers", and in following that profession she is encouraged or
assisted by someone, no offence under s. 366A is committed by such person, for
it cannot be said that the person who assists a girl accustomed to indulge in
promiscuous intercourse for money in carrying on her profession acts with
intent or knowledge that she will be forced or seduced to illicit intercourse.
Intention on the part of Patilba or knowledge that Anusaya will be forced to
subject herself to illicit intercourse is ruled out by the evidence: such a
case was not even suggested. Seduction implies surrender of her body by a woman
who is otherwise reluctant or unwilling to submit herself to illicit
intercourse in consequence of persuasion, flattery, blandishment or
importunity, whether such surrender is for the first time or is preceded by
similar surrender on earlier occasions. But where a woman offers herself for
intercourse for money-not casually but in the course of her profession as a
prostitute there are no scruples nor reluctance to be overcome, and surrender
by her is not seduction within the Code. It would then be impossible to hold
that a person who instigates another to assist a woman following the profession
of a prostitute abets him to do an act with intent that she may or with
knowledge that she will be seduced to illicit intercourse.
Appeal allowed.
Back
