Report No. 64

5.8. Proviso to section 4(2) superfluous.-

If that be the true position the question which needs to be considered is does the proviso to section 4(2) serve any useful purpose? The proviso lays down that no "such presumption"-meaning the presumption which can be drawn under sub-section (2)-shall be drawn in the case of a son or daughter of a prostitute if the son or daughter is below the age of eighteen years. The difficulty in accepting the view that this proviso serves any purpose is that cases covered by the proviso cannot fall under section 4(1), and there can, therefore, be no question of considering whether such a person knowingly lives wholly or in part on the earnings of prostitution. We are inclined to think that, in enacting the proviso, this aspect of the matter has apparently not been properly appreciated by the legislature.

5.9. It is possible that a person prosecuted under section 4(1) may plead that he is below the age of 18 years and, in such a case, the Court will have to try, as a preliminary issue, the question about the age of the alleged offender, whether the alleged offender is a son or daughter of a prostitute or any other person living with her; and it is only if it is found that the said person is above the age of 18 years that the stage to require the prosecution to prove that he lives on the earnings of prostitution will be reached. At this stage, sub-section (2) will step in; and, if the case is shown to fall under any of the three clauses (a), (b) or (c) of sub-section (2), a rebuttable presumption will be drawn against that person and he will be required to lead evidence in rebuttal.

It must be borne in mind that the order in which the two ingredients of the offence are mentioned indicates the logical sequence of the issues which call for decision while applying section 4(1). If that be the true position, it would follow that the proviso to section 4(2) really serves no purpose. It may be that the proviso has been added as a matter of abundant caution; but, in view of our conclusion that it is superfluous, we recommend that this proviso should be deleted.