Kamalabai Jethamal v. The State of Maharashtra

S. G. Patwardhan, J. B. Dadachanji, O. C.

Mathur and Ravinder Nara·in for the appellant.

H. R. Khanna and P. D. Me'fl(ll'I for the res-pondent.

1962. January 18.-The Judgment of the Court was delivered by

KAPUR J.-This is an appeal against the judg-Knpur J. ment and order of the High Court of Bombay set· ting a.side the order of acquittal of the appellant and sentencing her to one year's rigorous imprison· ment and evicting her from the premises which she wa.s 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 Suppres-sion of Immoral Traffic in Women and Girls Aot (Act 104 of 1956) hereinafter called the' Act'. The charge against the appellant was that she supplied a girl to Mall!Ilohan 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 she procured women for the purpose of pros-titution. The story of the prosecution was that information was received by Police Superin· tendent Kanga that the premises were being used as a brothel and that the appellant was supplying

634 SUPREME COURT REFORTS [1962) SUPP.

19tS girls for the purpose of prostitution. He thereupon Earr.alabrii Jethamal laid a trap and sent two persons, Manmohan Anandji

v. Mehta and Prabhak11r K. Loke, the former was to Th, Stale of a8k for a. girl for thti purpose of prostitution and the M aharalhtra

lattnr was to be a panch i. e. a. witness of that fact. Kapt1r.J. S11ldnspector Purohit, it is stated, gave two one

hundred rupees marked currency notes to Man-mohan Ammdji Mehta with the instruction that he was to pay out of th11t to the appellant and thus to obtain a. gil I from her for the purpose of prostitution. He a.long with Loke went to the house of the appel-lant, rang the bell and was admitted by her. Ho then asked the appellant to arrange a girl for him and both Manmohan Ana.ndji 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 lndu Bapurao Salunke both of whom are witnesses. The amount quoted by the appellant in the case of the former was Rs. 100/· aurl fc,?· the lattc-r Rs. 50/-. Manmohan Anandji Mehtb. selected Kamal and handed over heroine one hu.idred rupees currency note to tho appellant which she put under her blouse. Manmi;han Anandji Mehta and the girl then went into the kitchen a.nd there they undressed and were later found naked on the floor and in a rather compromisinp: position. On a signal being given the police i.o. Superinten-dent Kanga and Sub-Inspector Purobit entered the premises and were told by Loke that Ma.nmoha.n Ana.ndji Mehta and the girl were in the kitrhen. The police officers opened the door of the kitchen and found both Manmohan Anandji Mehta. and Kamal as stated above. Th<'v then were asked to dre88 and come out. Manmohan Anandji Mehta then returned the other one hundred rupees cur-rency note to .:::iuperintendent Kanga. A woman Panch who had accompanied the police party searched the appellant and recovered the one hundred rupees currency note from under the blouee. It is stated that the male members of the party were at tha\ time in a pwage adjoining the hall where the appellant was searched. The appel-1JI02 lant was tried for the offences above mentioned but Kamalabai Jeth1Jtnal was acquitted by the Additional Chief Presidency v. Magistrate. On appeal the High Court set aside The State of the order of acquittal and sentenced her to a year's Maha,.i.~hlra rigorous imprisonment and also ordered her eviction Kapur J. from the premises she was occupying as a tenant.

The evidence mainly consists of Manrnohan Anandji Mehta and Loke and the two police oilieern.

'fbe testimony of Manmohan .Anandj1 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 prose-cution 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 circumstance 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 evi-rlence to show except that of Manmohan Anandji Mehta that the men were asked to move a.way from the hall or had actually left the hall during the search. But al!Buming they were not in the hall even the}\.it will not be an extraordinary oircum.;

636 SUPREME COCRT REPORTS [19E2] SUPP.

stnnce that one or all of them should have seen the 1962 handred rupees note being taken out from under ;a,11alobai J,thJmal tho ulouse of the appellant. The High Court has

v. acceptl'd the te.itimony of Loke and wo find no Tli1 SUJ•1 of M ailarorli.tru re'\son tu <l•·part from the u;ual practice of this

J. Court of acenpting such findings. Besides ths High Irop.4

Court has also accepted the testimony of Loke in regard to tho payment of a hundred rupees currency note to the appellant "hich pruves that money was paid before the >iirl, Kamal Govind, was a8ked to go with jfanmoha.n Anaudji ,\fohta for the purpose of pro.titution.

Counsel for the appellant emphasised two points : t I) that the woman, who was brought by the police to sea.rob tho appellant and is alleged to have recovered the hundred rupees note from her por·son, he.a not been produced and (2) that consi-dering that the person to be searched was a woman it muot be prcsum~J that in accoruance with the requirements of law and of decency no man could have been pr~scnt when tho search of the appellant took place. In support of tho first contention reference is made to a judgment of this Court in Puivez Art:Ushir Pooruiu-alla v. The State of Bombay('), where the nectBBity of producing the search witneBB was emphasised and it was observed :- "This is one of those cases where the rule in rogard to search witnll&leS becomes appli-cable and impor ta.nee must be attached to the la.ck of that class of search wituedses which a.re enviHaged by the Criminal Procedurn Code in s. 103."

The Privy Couneil also in ltlal.ak Khan v. Emperor(') emphasised the necessity of the presence of search witnesses. Lord Port~r there said :

'·In their Lordship's opinion the presence of witneBBes at a search is always desirable and their absence will weaken and may sometimes destroy the a.cceptanoe of the evidence as to the fiuding of the articles ............ "

(lj Cr. A. No. 122 of 19;+ decided NI 211-1~-57, (2 (l!lt!i) L, R. 72 l, A. 311.5.

The observations in Poonawalla' s case e) and Lord 196f Porter in Malikkhan v. Emperor (')are not directly applicable in the present case. As we have said Kam'llabai Jerhamal v. above there is evidence ;n this case which has been The Stale of accepted by the High Court that a hundred rupees 11-f aharas~luJ note was given to the appellant by Manmohan Kopur Anandji Mehtar There is also evidence that as a consequence of the payment of money Manmohan Anandji Mehta did hire Kamal Govind for prosti-tution 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 des-cribed, but his participation was more active, repre-hensible, immodest, indecent and indecorous. If in any case the following observations of Lord Godda-rd, Chief Justice, in Brannan v. Pe,ek (') are apposite it is this case : ·

"The court observes with concern and disapproval the fact that the polico au th 1rity as Derby thought it right to send a police officer into a public house to commit an offence. It cannot be too strongly emphasisPd that, ........ .it is wholly wrong for a police officer or anv 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 mJney to go to the house of the appe-llant and also to use that money in rather an impr-oper 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 &nd a matter of greater concern i1 the sending with him a young student who was reading for his Matriculation. To use students in

(11 Cr. A. No. 122of1914 decided on 20-12-1957.

(2: (lq};) L. R. 7l I.-\. 30>. 131 [lqH] 2 AU. E. R. 573·1.

this manner should not be allowed by any govern-K-loboij<IA•nl m<'nh1l authoritv in a <'nuntry like oul'I!. It. is no

II. Stoteof justification to say that in order to suppr08B immo-Jloltartuhlra ral traffic in women and to stop prostitution some-K..p...f. body has to be u1ed and the only class of people

that can be emploved are persons lik11 Manmohan Anandji Mehta who is confessedly a polioe agent and Loke who is a youngman willing to be employed by the police. After saying this we have still to see "·hat is the consequence of the testimonv of these witnessess produced in thiR case. The High Court has believed the testimony of Loke in regard to the payment of one hunitred rupees and th11re is evidenP,e to Rhow that t.bat amount was used for fhe purpose of proC'uring Kam la for prostitution. The payment must therefore be held to be proved.

It may b11 that the search was contrary to the spirit or even the lrtfor of the Criminal Procedure Code but tho fact remains that the High C0urt has accepted that there was a search and a hundred rupc' s currency note was recovered and even if the recovery of a hundred rupees curr<>ncy note were held not proved, the payment of fhat amount will not th!'rebv become unproved if there is t>videnco which the High Court has accepted.

On the findings of the High Court we are un-able 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 accW1cd.

The next submission of Counsel for the apve-Jlant was that the High Court in appeal could not order the appellant's eviction because t1'at power only a Magistrate hae unrler s. J 8 of the Act. The argumiint raised was that tht> powers of the appeal court under A. 423, Criminal Procedure Code are to rl'ver~e th11 order of acquittal or to order a fresh enquiry or a retrial eto. but not to order eviotion. But this argument is untenable in view of the fa.ct that in the Act there is a specifio provision in s. 18 of the Aot authorising the making of such an order 1982 by a court convicting a person of offences under s. 3 .Kaulabai .ldhlm•l or s. 7 of the Act. The relevant portion of s. 18 v. The State is as follows :- M aharash It S. 18 "Closure of brothels anrl eviction of offenders Ira/JU' J, from the premises.-

(I) ......... ,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 magis-trate may pass orders~-

(a) directing eviction of the occupier with-in 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 (I) without further notice to such person to show cause as required in that sub-section."

llant 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.

CRIMINAL APPELLATE JURISDICTION : Crimi-nal Appeal No. lti74of 1901.

Appeal by special leave from the judgment and order dated September 29, and October 11, ll!61, of the .Bombay ,_High. _Court in Criminal Appeal No. 906 of 1961.