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PETITIONER: KRISHNAMURTHY @ TAILOR KRISHNAN

       Vs.

RESPONDENT: PUBLIC PROSECUTOR, MADRAS

DATE OF JUDGMENT: 26/09/1966

BENCH: DAYAL, RAGHUBAR BENCH: DAYAL, RAGHUBAR RAMASWAMI, V. BHARGAVA, VISHISHTHA

CITATION:  1967 AIR  567            1967 SCR  (1) 586

ACT: Suppression of Immoral Traffic in Women and Girls Act,  1956 (Act  104  of 1956),  s.  3(i)-Ingredients-Single  instance, sufficiency-Conviction  under Madras Suppression of  Immoral Traffic Act-If previous conviction.

HEADNOTE: On  information  received  that the house  occupied  by  the appellant, was used as a brothel, the police laid a trap and recovered  marked  currency  notes from the  person  of  the appellant,  and  the  decoy  and a  girt  were  found  in  a dishevelled  condition in a room.  Thereupon  the  appellant was  charged  under s. 3(1) of the  Suppression  of  Immoral Traffic  in Women and Girls Act and was convicted  under  s. 4(1)  of the Act.  He ,and the State appealed to  the  High. Court.   The High Court dismissed the  appellant’s  appeal,, but  allowed the State’s appeal by altering  the  conviction under s. 3(1) and enhancing his punishment as he was  second offender.  In appeal to this Court, the appellant  contended that  (i)  the facts did not make out the offence  under  s. 3(1)  of the Act, and (ii) his present conviction could  not be considered to be a second conviction under s. 3(1) of the Act  as  his  previous  conviction  was  under  the   Madras Suppression of Immoral Traffic Act, 1930. HELD  : (i) The appellant’& conviction under s. 3(1) of  the Act  was  correct.   The  facts in  this  case  justify  the conclusion  that the appellant was keeping a brothel at  his house.   One will be guilty of the offence under s. 3(1)  of the  Act if he does any of the acts mentioned in  that  sub- section  in relation to a brothel.  The girls  were  offered for  the  purpose of prostitution.  The house was  used  for such purposes, undoubtedly for the gain of the appellant who pocketed  the money for committing prostitution.  Of  course it can be presumed that the girls who were being offered for the purpose of prostitution, would also obtain monetary gain out of the amount paid. [587 H-588 B] It was not necessary that there should have been evidence of repeated  visits by persons to the place for the purpose  of prostitution.   A single instance coupled  with  surrounding circumstances  was  sufficient to establish  both  that  the place  was  being  used as a brothel  and  that  the  person

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alleged was so keeping it. [588 E] (ii) The conviction of the appellant was a second conviction within the meaning of s. 3(1) of the Act.  When the Act came into  force  in 1956, the corresponding  provisions  of  the Madras Act stood repealed, by virtue of s. 25(1).  By virtue of  sub-s.  (2) the conviction of the  appellant  under  the Madras  Act would be deemed to be in force at the  time  the conviction took place. [589 E]

JUDGMENT: CRIMINAL APPELLATE JURISDICTION : Criminal Appeal No. 251 of 1964. Appeal  by special leave from the judgment and  order  dated August 19, 1964 of the Madras High Court in Criminal Appeals Nos. 197 and 430 of 1963. 587 R. Thiagarajan and A. V. V. Nair, for the appellant. Bishan Narain and A. V. Rangam, for the respondent. The Judgment of the Court was delivered by Raghubar  Dayal, J. Krishnamurthy Krishnan was convicted  by the  III  Presidency Magistrate, Saidapet,  Madras,  of  the offence under s. 4(1) of the Suppression of Immoral  Traffic in Women and Girls Act, 1956 (Act 104 of 1956),  hereinafter called  the Act, and was sentenced to nine months’  rigorous imprisonment, though he was charged with an offence under s. 3(1) of that Act.  He appealed against his conviction to the High Court.  The State Government appealed to the High Court against the acquittal of the appellant of the offence  under s.   3(1)  of  the  Act.   The  High  Court  dismissed   the appellants’appeal  but allowed the State appeal and  altered the appellant’s conviction to one Linder s. 3( 1) of the Act and sentenced him to two years’ rigorous imprisonment and  a fine of Rs. 50/- as he was a second offender.  It is against this order of the High Court that the appellant appeals,  by special leave. The  prosecution  case,  briefly,  is  that  the   Assistant Commissioner   of   Police   (Vigilance),   P.W.4,    having information  that  the house occupied by the  appellant  was being used as a brothel with three girls, Saroja, Ambika and Lakshmi,  deputed Shanmugham, P.W.2, as a decoy;  on  August 22,  1962.   Shanmugham  was  given  three  marked  10-rupee currency  notes by P.W.4. He went to the  appellant’s  place and was shown the three girls.  He selected Ambika and  paid Rs.  30/- in those marked currency notes to  the  appellant. He  and  Ambika then went inside a  room.   Thereafter,  the police party raided the house and found the decoy Shanmugham and Ambika in a dishevelled condition in that room.  P.W.  4 recovered  the marked currency notes from the possession  of the appellant. The main question in this appeal is whether the facts  found make Out the offence under s. 3(1) of the Act.  Section 3(1) reads:               "Any  person who keeps or manages, or acts  or               assists  in  the keeping or management  of,  a               brothel   shall   be   punishable   on   first               conviction  with rigorous imprisonment  for  a               term  of not less than one year and  not  more               than  three years and also with a  fine  which               may  extend to two thousand rupees and in  the               event  of a second or  subsequent  conviction,               with  rigorous imprisonment for a term of  not               less  than  two years and not more  than  five               years  and also with fine which may extend  to

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             two thousand rupees." ’Brothel’  is  defined in cl. (a) of s. 2. It  includes  any house,  room or place or any portion of any house,  room  or place  which  is used for purposes of prostitution  for  the gain of another person or for the mutual gain of two or more prostitutes.   One  will be guilty of the offence  under  s. 3(1) of the Act if he does any of the acts mention- 588 ed  in  that  sub-section in relation  to  a  brothel.   The appellant’s  house, on the facts found, was being used as  a brothel.   The  girls  were  offered  for  the  purpose   of prostitution.   The  house  was  used  for  such   purposes, undoubtedly  for the gain of the appellant who pocketed  the money  which was given by P.W.2 for committing  prostitution on Ambika  of course, it can be presumed that the girls  who were  being offered for the purpose of  prostitution,  would also  obtain monetary gain out of the amount paid by  P.W.2. The  appellant  can  therefore justifiably  be  said  to  be ’keeping a brothel’. It has been urged, however, that a solitary instance of  the house  of  the  appellant  being used  for  the  purpose  of prostitution  will  not suffice for  establishing  that  the house was being ’kept as a brothel’.  It may be true that  a place used once for the purpose of prostitution may not be a brothel, but it is a question of fact as to what  conclusion should  be  drawn  about  the use of  a  place  about  which information  had been received that it was being used  as  a brothel,  to which a person goes and freely asks for  girls, where the person is shown girls to select from and where  he does  engage  a girl for the purpose of  prostitution.   The conclusion to be derived from these circumstances about  the place  and the person ’keeping it’ can be nothing else  than that  the place was being used as a brothel and the  person. in charge was so keeping it.  It is not necessary that there should  be  evidence of repeated visits by  persons  to  the place  for the purpose of prostitution.  A  single  instance coupled with the surrounding circumstances is sufficient  to establish  both that the place was being used as  a  brothel and that the person alleged was so keeping it. We  are of opinion that the facts found in the present  case justify  the  conclusion that the appellant  was  keeping  a brothel  at his house.  The appellant’s conviction under  s. 3(1) of the Act is therefore correct. The  appellant has been awarded enhanced punishment  as  his present  conviction  was  a second  conviction.   His  first conviction  was  under  ss.  5(1) and  8(1)  of  the  Madras Suppression  of  Immoral  Traffic  Act,  1930  (5  of  1930) hereinafter called the Madras Act, in Criminal Case No. 1028 of  1955  from the Court of the III  Presidency  Magistrate, Madras.   The previous conviction is not disputed.  What  is urged  for  the appellant is that it was  not  a  conviction under the Act and therefore his present conviction cannot be considered  to be a second conviction under s. 3(1)  of  the Act. Section 5(1) of the Madras Act provided that any person  who kept or managed or acted or assisted in the management of  a brothel  would  be punished with  imprisonment  which  might extend  to two years or with fine which might extend to  one thousand rupees  589 or  with  both.  The appellant’s conviction under  s.  5(1), therefore,  was  for  an offence which would  have  been  an offence under s. 3(1) of the Act also.               Section 25 of the Act reads:               "(1) As from the date of the coming into force

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             in  any  State of the  provisions  other  than               section 1 of this Act, all State Acts relating               to suppression of immoral traffic in women and               girls or to the prevention of prostitution, in               force  in that State immediately  before  such               date shall stand repealed.               (2) Notwithstanding the repeal by this Act  of               any State Act referred to in sub-section  (1),               anything  done or any action taken  (including               any  direction  given, any register,  rule  or               order made, any restriction imposed) under the               provisions  of such State Act shall in so  far               as  such thing or action is  not  inconsistent               with  the provisions of this Act be deemed  to               have  been done or taken under the  provisions               of this Act as if the said provisions were  in               force when Such thing was done or such  action               was   taken  and  shall  continue   in   force               accordingly until superseded by any thing done               or any action taken under this Act." Thus,   when   the  Act  came  into  force  in   1956,   the corresponding  provisions of the Madras Act stood  repealed, by  virtue of subs. (1) of s. 25.  By virtue of sub-s.  (2), the conviction of the appellant under S. 5(1) of the  Madras Act  would be deemed to be conviction under s. 3(1)  of  the Act, an Act deemed to be in force at the time the conviction took  place . It follows that the present conviction of  the appellant  will  have to be taken as  a  second  conviction, within  the meaning of the expression in sub-s. (1) of s.  3 of  the  Act, and the appellant would be  liable  to  suffer enhanced punishment under that sub-section. The result is that there is no force in this appeal.  It  is accordingly dismissed Y.P                                  Appeal dismissed. 590