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PETITIONER: RAMESH

       Vs.

RESPONDENT: THE STATE OF MAHARASHTRA

DATE OF JUDGMENT: 24/07/1962

BENCH: SHAH, J.C. BENCH: 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.

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JUDGMENT: 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.  Pat- ilba 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  Chandra- kala 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

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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  com- mon  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  bro- ught  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  Pat-               ilba  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  comm-               ission  of this offence.  He must,  therefore,               be held clearly guilty of the offence of abet-               ment of this offence by Patilba." The  High Court accordingly convicted the appellant  of  the

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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  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 theratre 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

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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

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act with intent that she may or with knowledge that she will be seduced to illicit intercourse.                                           Appeal allowed.  405