JUDGMENT
Anand Prasad Sinha, J.
1. All the three applications arise out of the same order of cognizance having been taken against the three petitioners, namely, Arun Kumar, Bishwanath Prasad and Baliram Giri. Accordingly, they have been heard together and are being disposed of by this common judgment.
2. These three applications are directed against the Order dated 10.12.1981 passed in G.R. Case No. 3468 of 1981/T.R. No. 1569 of 1982 by the Chief Judicial Magistrate, Patna, taking cognizance under Sections 3, 5 and 7 of the Suppression of Immoral Traffic In Women And Girls Act, 1956 (hereinafter referred to as ‘the Act’).
3. The prosecution has been initiated on the basis of a first information report lodged by the Sub Inspector of Police, Pirbahore police Nation on 31.8.1981. It appears that on getting confidential information at about 9.30 P.M., the Sub Inspector of Police of Pirbahore Police Station on 30.8.1981 had gone to a hotel, named and styled as ‘Ajanta Hotel’ situated at Govind Mitra Road, within Patna Town. The information was that in the aforesaid hotel, some women for the purpose of prostitution have been brought and that has also caused some sort of tension. The Sub Inspector of Police accompanied with other constables and Havaldar and also the Assistant Sub Inspector of Police reached the hotel, as stated above, and found the main gate closed. However, the gate was opened by the Proprietor Bishwanath Prasad and an employee Ram Sharan Mahto. The Sub Inspector found that room Nos. 1 and 2 were bolted from inside. It was made known to him that some persons were staying inside the two rooms. However, he did not find any entry what-so-ever in the register maintained by the hotel for that purpose regarding the two rooms i.e. room Nos. 1 and 2. One Jagdish Narayan, Investigating Inspector, Wireless, North Bihar Zone P. & T Department, Muzaffarpur was staying in Room No. 3 and in Room No. 4 one Shri Pashupati Singh of Siwan was staying. The Sub Inspector of Police took both the persons along with him and got Room No. 1 opened. He found a lady and a male inside the room. They did not disclose convincing relationship inter se. When they were repeatedly questioned, the lady disclosed her name to be Malti Devi daughter of Ram Lagan Prasad, resident of Barao, P.S. Nokha, District Rohtas. The male disclosed his name to be Balram Giri son of Raghunath Giri, resident of Katahri, P.S. Shikarpur, District West Champaran. From Room No. 2, two ladies and one male were detected. The male disclosed his name to be Arun Kumar son of Mohan Prasad, resident of Murgia Tola, P.S. Sasa Musa, District Gopalganj and the two ladies disclosed their names to be Chandrawati Charan daughter of Raja Ram Prasad, resident of Urdu Bazar, Gorakhpur, present address being Student, Nurses Hostel, Patna Medical College Hospital and Asha Kumar alias Seema Kumari daughter of Md. Habib, resident of Shahganj, P.S. Sultanganj, District Patna. These two women also could not disclose satisfactory relationship with the male person Arun Kumar.
4. The chargesheet has been submitted against the proprietor of the hotel Bishwanath Prasad and the two male accused Arun Kumar and Balram Giri, who are the petitioners before me, and others.
5. The learned Counsel appearing on behalf of the petitioners has challenged the impugned order on the basis that absolutely no case has been made out as contemplated under Sections 3, 5 and 7 of the Act. Further, the learned Counsel has relied upon the definition of ‘prostitute’ ‘prostitution’ and ‘brothel’ as laid down under Sections 2(e), (f) and (a) respectively.
6. According to the petitioners, in order to constitute the offence, there ought to be an evidence that the female had offered her body for promiscuous sexual intercourse for hire, whether in money or in kind and also that there ought to be an act on the part of the female offering her body for promiscuous sexual intercourse for hire, whether in money or in kind. Accordingly, the submission is that there is no sexual intercourse, which will be apparent from the medical report, which has been made annexure to this application. It appears that the petitioners and also the three ladies had been sent for medical examination and it is a fact, which appears from a perusal of the medical report, that there was no sign of sexual intercourse.
7. Considering the submissions made, as stated above, and also the law relied upon, the main point for consideration will be as to whether a case has been made out or not justifying the impugned order of cognizance.
8. First, I will take up the case of Bishwanath Prasad, who is stated to be the proprietor of Ajanta Hotel. The fact that there has been no entry regarding Room Nos. 1 and 2 in the regular register maintained for such purposes is a very strong point for making out a prima facie case that the non-entry was intentional and that was because the genuine persons had not stayed in those rooms and the rooms might not have been taken on rent for the whole night, but might be for a part of the night or the other possibility can be said to be that more than one persons could have been entertained in the two rooms for the purposes of prostitution Definitely, the rooms must have been offered for use for the gain. Under the circumstances, prima fade, according to the definition of ‘Brothel’ as laid down under Section 2(a) of the Act, I have no hesitation in saying that if any room of any hotel is being used for the purpose of prostitution, definitely that will fall under the definition of ‘brothel’.
9. As stated and indicated above, the proprietor of the hotel, in the facts and circumstances of the case, becomes liable for prosecution as contemplated under Section 3(1) of the Act.
10. The next important point for consideration is as to whether, in the facts and circumstances of the case, there has been any element of ‘prostitute’ and ‘prostitution’ linked with the three women recovered from the two rooms, as stated above, and the petitioners Arun Kumar and Bali Ram Giri.
11. Reliance has been placed on behalf of the petitioners in the cases of T. Jacob v. State of Kerala Bai Shanta v. State of Gujarat and State of Bihar v. Jagrup Singh and Ors. .
12. In the first case, the question for consideration was with respect to Sections 7(1), 8 and 2(f) of the Act. It has been held in that case that “prostitution” in itself is no offence except in-the manner given under Sections 7 and 8. The word ‘promiscuous’ in Section 7(1) means indiscriminate sexuality which refers to a commercial vice such as in a brothel and more than one customer of the prostitute will be necessary to prove it ”
13. In the second case, the same legal provision as in the first case has been under consideration. In this decision also, it has been held that “although indiscriminate sexuality on the part of the woman has got to be established, but it is not necessary to have evidence that there were more than one customers and it is enough if the facts proved entitle the court to raise inference to hold that she carries on prostitution as contemplated under Section 7(1) of the Act.”
14. In the 3rd Patna’s case, the facts are quite different altogether. The three female accused were standing on the Balcony in the upper storey of the house. They were making certain gestures and postures with a view to attract the customers, who were passing on the road. The two male accused being attracted were just leading to the Kotha. In that process they had been caught by the members of the police party on the stair case itself. It was held that “upon the evidence adduced by the prosecution the most that could be said was that the male accused, while they were passing on the road, were being attracted by the accused females and dirty demeanor of the three female accused attracted ascending the stair case, but their attempt was foiled by their sudden arrest by the police. They might have committed sexual intercourse, but they were prevented by the police. It has been further held that before the actual coming in contact with the female accused, the male accused might have changed their minds for the sexual intercourse. That being so, there was no material on record which might lead to draw any inference that the male accused had any intention of paying hire, either in money or in kind, in consideration of the alleged attempt of indulging sexual intercourse.”
15. However, from the decisions mentioned above, it appears that there ought to be offer of the body for hire and also there ought to be indiscriminate sexual intercourse for establishing the element of ‘prostitute’ and ‘prostitution’.
16. From the facts involved in the instant case, it will appear that one female had been found bolted inside Room No. 1 and from their respective addresses, it is clear that they are strangers as their whereabouts indicated a fact of disparity and not an element of unity. Similar is the case with the two females and one male of Room No. 2, that the two ladies of different places, having no link with one another, were bolted inside the room along with the male petitioners, who was also resident of altogether, a different place, apparently indicating no link what-so-ever inter se.
17. All these facts, coupled with the fact, mentioned above, that there was no entry of their occupying the two rooms in the regular register, which is always maintained by hotels which provide rooms for staying on hire charges, proves existence of a brothel and offer of body for hire.
18. It will be significant to find in the definition of ‘prostitute’ as laid down under Section 2(e) of the Act that the mere offer of female’s body constitute the definition of ‘prostitute’, of course that offer should be for promiscuous sexual intercourse for hire, whether in money or in kind. Therefore the dominant element in the definition of ‘prostitute’ will be said to be the officer of her body and the other two conditions for promiscuous sexual intercourse for hire whether in money or in kind may be derived as an inference if the offer of body is established. It is because neither it is possible to have a direct evidence for the sexual intercourse nor passing of the consideration for hire whether in money or in kind. Very similar and close to this will be the interpretation of the definition of ‘prostitution’ as laid down under Section 2(f) of the Act. This definition of prostitution extends a little further that if there is some act of a female in offering her body, then the element of prostitution becomes complete.
19. In the instant case the fact that quite un-known and strangers, which can be derived from the fact that females resident of different places and/or of different castes were found inside the two rooms, one of them happened to be a student nurse residing in the Nurses hostel and another residing in a Mohalla in Patna City, were found inside the hotel rooms, is enough to draw an inference that their presence was for offer of their body and further an act of offering body, prima facie, had been made out.
20. The fact of dissimilarity and lack of unity, existing in the relationship of the petitioners and the females inter se, will further draw an inference that their presence was for hire whether in money or kind and that shall be a natural inference. As stated above, it is difficult to always, to have a direct evidence on these points.
21. So far as the element of promiscuous sexual intercourse is concerned, in addition to any fact if so discovered, it will be mainly dependent upon the medical report indicating habitual indulgence in sexual intercourse and that will be a proof of the fact that a woman attributed to be either prostitute or indulging into prostitution is, in fact, so, for the application of the Act. This is also because it is very difficult to have a direct evidence of this fact even and thus the medical report will be a confirmatory test that a particular lady or girl has adopted prostitution coupled with the other facts and evidence of the type that a particular girl or woman having no link with the male is found bolted inside the hotel room without any justification whatsoever.
22. The contention put forward in this case that according to the medical evidence, as a matter of fact, no sexual intercourse had taken place is of no avail to the petitioners. It is not necessary that only if there be any sexual intercourse, the offence will be attracted. It will appear from the definition of both ‘prostitute’ and ‘prostitution’ that mere offer of the body shall constitute the offence. Taking the facts of this case, the absence of any medical evidence regarding the sexual intercourse might be on account of the fact that the petitioners had been apprehended or detected at the very early stage and inspite of that stage if other elements are available, constituting the offence as contemplated under the Act, the offence is complete.
23. The prima facie evidence available in this case coupled with the other facts will be enough to constitute the offence, as in this case, under Sections 3, 5 and 7 of the Act.
24. From a reading of the preamble of the Act, I have no hesitation in saying that this social legislation has been enacted on the principle of social solidarity for counteracting social disturbances for the restoration of social and moral equilibrium in the society. That being so, while putting the interpretation to the different provisions of the Act the humane purpose of the Act has to be considered so that the organized proposes of the society are achieved and the force of the law serving as levers.
25. Therefore, even on careful consideration of the definition of ‘prostitute’ and ‘prostitution’ and in view of the discussions made above, I am of the opinion that, in the facts and circumstances of the cases in hand, no point has been made out to strike down the cognizance on any of the grounds that no case is disclosed or there has been misapplication of the provisions of the Act.
26. The observations and discussions made above is strictly confined to the disposal of these applications and it shall not affect the trial of the petitioners and the fate of the petitioners will depend upon the nature of evidence to be adduced in this case and that being so, I find no case for interference with the impugned order of cognizance and prosecution at this stage.
27. In the result the applications fail and are dismissed.