Report No. 64

5.10. Possible arguments considered.-

It may be argued that though, on a fair and reasonable construction, sub-section (2) of section 4 applies only to persons above the age of 18 years, the proviso might have been deliberately inserted to make an express provision limited to the cases of sons and daughters of prostitutes, in order to emphasise the fact that such sons or daughters should not be exposed to the risk of moral stigma by being prosecuted under section 4(1) even though they are below 18 years. As we have indicated1 unless the prosecution acts inadvertently or deliberately, a person who is below the age of 18 years, including a son or daughter below that age, cannot be prosecuted under section 4(1).

In fact, when a person is charged under section 4(1), the relevant facts pertaining to the two ingredients prescribed by that sub-section,2 will have to be specifically alleged and that means that the prosecution will have to state that the accused is above the age of 18, and lives knowingly on the earnings of prostitution. Therefore, the suggestion that, though the proviso may apparently be unnecessary and superfluous, the legislature might have intended to emphasise the special case of sons or daughters of the prostitute, does not appear to us to justify its retention. The possibility that a son or daughter of a prostitute below 18 years may be inadvertently or deliberately exposed to the stigma of being prosecuted under section 4(1) cannot be avoided by attempting to strength, the plain provision of sub-section 4(1) by adding the proviso in .question.

1. See Para. 5.9, supra.

2. Para. 5.7, supra