JUDGMENT
T.V.R. Tatachari, J.
(1) The facts which have given rise to this Revision on reference by Shri B.D. Sharma, Sessions Judge, Mahasu District, have been set out fully in the reference order.
(2) The petitioners, Smt. Mangli and Smt. Nurpu, are the daughters of one Zalmu, resident of village Dashlani, Tehsil Rohru, District Mahasu. They have been living with their mother at Dashlani. On 20-9-1967, one Kalma Singh of the said village filed a complaint in the court of the Magistrate 1st Class, Rohru, alleging that the petitioners are of immoral character and indulge in prostitution. The Magistrate served a notice, which bore no date, upon the petitioners under section 20(1) of the Suppression of Immoral Traffic in Woman and Gills Act, 1956, on 21-9-1967, stating that information was laid before the Magistrate that they are prostitutes, and that they should therefore appear before him at 3 p.m. on the same date and show cause why they should not be required to remove themselves from “this place” (apparently meaning Deshlani) and be prohibited from re-entering the same in future. The petitioners appeared accordingly, and denied that they were prostitutes. They were ordered by the Magistrate to execute personal bonds of Rs. 200.00 each and furnish sureties for like amounts, and they complied with the order. Thereafter, they filed their written statement, and the Magistrate conducted an enquiry. The complainant examined ten witnesses in support of his complaint, and the petitioners examined three witnesses in rebuttal of the allegations in the complaint. On a consideration of the evidence, the learned Magistrate, by his order, dated 6-11-1967, held that the evidence established that The petitioners are prostitutes, and ordered that they should remove themselves on or before 15-14-1967 “from the locality comprising Patwar Circles Rohru, Gangtoli, Batholi and Kaloti”, and that they are prohibited from re-entering the same without his written permission.
(3) Against that order, the petitioners filed a writ petition in the High Court wherein they contended that Section 20 of the Act was violative of Articles 14 and 19 of the Constitution of India. But, in view of the decision of the Supreme Court in State of Uttar Pradesh v. Kaushailya in which Section 20 was held to be intra vires, the learned counsel for the peti- tioners in the writ petition did not press the writ Petition stating that the petitioners would assail the findings of the learned Magistrate by prefering a revision under the Code of Criminal Procedure. The writ petition v/as therefore dismissed by H.R. Khanna, J. (as his Lordship then was) on 25-7-1969. Thereafter, the petitioners preferred a revision, Cr. R. No. 17-H/10 of 1969 to the Court of the Sessions Judge, Mahasu, under sections 435/439 of the Criminal Procedure Code. In that revision, three contentions were advanced on behalf of the state that the Magistrate who passed the order sought to be revised was not acting as a Court and therefore the Revision was not competent, that the Magistrate was not empowered Under Section 2(c) of the Act to exercise jurisdiction under the Act, and was not therefore competent to pass the impugned order, and that the Revision was barred by limitation. All the three contentions were negatived by the learned Sessions Judge, and they no longer survive as the learned counsel for the State did not urge, in my opinion rightly, the said contentions again in the present Second Appeal. On behalf of the petitioners, it was contended before the learned Sessions Judge that the impugned order of the Magistrate was against the procedure and was contrary to the provisions in Section 20 of the Act, that no proper opportunity was given to the petitioners to put up their defense, and that it was not proved that the petitioners were “prostitutes” within the meaning of the Act. The learned Sessions Judge, by his reference order, dated Novemebr 18, 1969, held that the enquiry held by the Magistrate was not proper and the notice served upon the petitioners was defective in that the learned Magistrate was somewhat hasty in issuing the show-cause notice to the petitioners immediately on the receipt of the complaint without verifying its truthfulness by holding a preliminary enquiry, and the notice served on the petitioners did not specify the place from which and the place to which they were to remove themselves, and that the evidence led by the State was not sufficient at all and was not of such positive and convincing character as to hold the petitioners as prostitutes within the meaning of the Act. He thus come to the conclusion that the impugned order of the Magistrate was had in law and liable to be set aside, and made the present reference to this Court with the recommendation that the impugned order to set aside and the notice issued to the petitioners be cancelled. Shri Chitkara, learned counsel for the petitioners, put forward the same contentions which were urged before the learned Sessions Judge on behalf of the petitioners. As regards the view expressed by the learned Sessions Judge that the learned Magistrate acted in a hasty manner in issuing a show-cause notice immediately on receiving the complaint, I consider that it cannot be accepted as correct. As observed by thelearned Sessions Judge himself in his order. Section 20 of the Act is a self-contained provision and lays down the entire procedure. Sub-section(l) of Section 20 provides that a Magistrate on receiving information that any woman or girl residing or frequenting any place within the local limits of his jurisdiction is a prostitute may record the substance of the information received and issue a notice to such woman or girl requiring her to appear before the Magistrate and show-cause why she should not be required to remove herself from the place and be prohibited from re-entering it. The section does not provide that the Magistrate should hold a preliminary enquiry before issuing the notice to the woman or girl. No doubt, as observed by the learned Sessions Judge, the provision might be abused by unscrupulous persons and “any enemy can play any mischief to bring a girl or woman into disrepute for any ulterior motive”. But, the Magistrate empowered to act under section 20 is, as defined in Section 2(c) of the Act, either a District Magistrate, or a Sub-Divisional Magistrate or a Presidency Magistrate or a Magistrate of the first class specially empowered by the State Government, and can therefore be expected to act with circumspection. Section 20(1) does not make it obligatory but leaves it to the discretion of the Magistrate to issue a notice to a woman or girl on receiving information that such woman or girl is a prostitute. The Magistrate has therefore to exercise his discretion and issue a notice only when he has reasons to think that the information received by him was reliable. But, that does not mean that he should conduct a preliminary enquiry before issuing a notice undei section 20(1). The Magistrate cannot therefore be said to have acted in a hasty manner in issuing a notice on receiving information, merely because he did not conduct a preliminary enquiry before issuing the notice.
(4) The learned Sessions Judge was, however, right in taking the view that the evidence led by the State was not sufficient at all and was not of such positive and convincing character as to hold the petitioners as prostitutes within the meaning of the Act. Section 2(e) of the Act defines the term "prostitute as under: "PROSTITUTEmeans a female who offers her body for promiscuous sexual intercourse for hire, whether in money or in kind": AND-SECTION2(f) defines the term "prostitution as under:- "PROSTITUTIONmeans the act of a female offering her body for promiscuous sexual intercourse for hire, whether in money or in kind." THEevidence led by the prosecution in the present case consists of the oral evidence of ten witnesses. Shri Man Mohan Nath has filed translations of the statements of the witnesses.P.W.1 is Kahna Singh, the complainant. He is aged 35 years. He stated that the petitioners live with their parents in Dashlani, that he and the other villagers were tired of the petitioners, that 6,7 or 8 persons visit petitioners at night sometimes, that the petitioners call those persons for prostitution and take money from those persons for their livlihood, that the said persons visit in the night time and it was therefore difficult to recognise them, and that both the girls were "ill-reputed for prostitution". (5) Public Witness 2, Bahadur Singh, is aged about 54 years and lives in Lower Koti. He stated that there is a Kul (Stream) below his house, that the petitioners wash their clothes in that stream, that his house is vacant and the petitioners indulge in prostitution in that house, and that several people told him about the said work of the petitioners.
(6) Public Witness 3, Prem Krishan Gautam, is a teacher in the High School, Rohru. He stated that he was teaching in the High School since March, 1967, that he stayed in the Boarding House in Dashlani Village for the first three months, and thereafter in a private house in the same village, that the house of the petitioners was opposite to his house and hotel, that whenever he got up at night there used to be plenty of light in the house of the petitioners and he used to see people coming to that house and “hear noise and talk of 4 to 6 persons”, that he asked the people in the village and the hotel boys about the matter and found that both the petitioners indulge in prostitution, that he could not identify or recognize the people who go to the house of the petitioners at night, that prostitution was the source of the petitioners livlihood, and that the petitioners take money from those who go to their house.
(7) Public Witness 4 is Padam Dass and is aged about 60 years. He lives in Rohru. He stated that the road to the village of the petitioners passes near his house, that he sits in his varandah in the evening and sometimes sees the petitioners sitting on a wall on the side of the road till late in the darkness, that when he asks them as to why they sit in that manner they tell him that they have been waiting for their parents, but when they leave later their parents are not seen with them, but four or five persons are seen going with them, that he could not, however, recognise those persons on account of the darkness, that the petitioners do not stay with their husbands, that the
(8) Public Witness 5, Sohan Lal is aged about 40 years. He stated that he sometimes sees the petitioners sitting opposite to the house of Public Witness 3 accompanied by 2 to 4 persons, that sometimes he sees four to six rsons sitting with the petitioners in the fields and cutting jokes with and catching the hands of the petitioners, that sometimes he sees 4 to 8 persons going to the house of the petitioners in the night time, that the petitioners indulge in prostitution with those persons, that the petitioners sometimes sing in their compound till I P.M. and it has a had effect upon the boys in the school and the hostel, that the persons who go to the house of the petitioners cannot be recognised, and if somebody asks them they begin to beat the persons who so asks them, that they threatened to beat him also on one occasion, that on one occasion when one Giasu caught a man in the house of the petitioners, the petitioners reported to the police, and when Giasu stated that some members of the public visited the house of the petitioners, the police started to beat him, and that far that reason he (the witness) and others dare not catch the persons who go to the house of the petitioners.
(9) Public Witness 6, Rehu, is aged about 23 years. He also stated that his house is near the house of the petitioners, that he daily sees many people going to the house of the petitioners at night, that those people go there to indulge in prostitution, that the petitioners are not of good character, and that he saw a man giving money to the petitioners near Holote (a big field) for prostitution, but that he does not know the name of that man.
(10) Public Witness 7, Major Sen, is aged about 40 years He stated that the house of the petitioners is behind his house, that he and others see 6 to 7 persons daily in the house of the petitioners, but those persons cannot be recognised, that they indulge in prostitution, and the petitioners take money from those who go to their house, and that he (the witness) and others were afraid of catching these persons who go to the house of the petitioners lest those persons may kill them, and the mother of the petitioners may abuse them.
(11) Public Witness 8, Phishu, is aged 28 years. He stated that the petitioners take 7 to 8 men with them and indulge in prostitution with them after taking money, that he met them several times on the road, that at night he and others cannot recognize the persons who are with the petitioners, that once he met three men going to the house of the petitioners, and when he enquired as to where they were going, they replied that they were patrolling and started to beat him, that the petitioners reported the matter to the police, that he was sent for, and when he stated in the police station that even the police people go to the house of the petitioners a policeman slapped on his face, and thereafter he does not do anything out of fear of the police people.
(12) W. 9, Kesru, is aged about 25 years. He stated that when he sits in the verandah of his house he can see the other side of the house of the petitioners, that he sees 6 to 7 men enter the house of the petitioners at night and indulge in prostitution giving money to the petitioners, that the petitioners sing the song of “Gangi” at night which has a had effect upon the village and that when he or others tell the persons who go to the house of the petitioners anything or try to catch them, they are abused, and, therefore, he and others keep quiet.
(13) Public Witness 10, Gudru, is aged about 28 years and lives at Dashlani, but works as tailor in Rohru. He stated that when he goes to his house at 8 or 9 P.M. he meets the petitioners on the way accompanied by 4 or 5 men, that he sometimes sees the petitioners sitting on the road side with some people, that the villagers also tell him that people go to the house of the petitioners at night, that people go to the house of the petitioners to indulge in prostitution, and that the petitioners are of had character.
(14) On the other hand, the petitioners examined three witnesses. D.W. 1 is Jatu, a mason aged about 60 years and resident of village Basola. He deposed that he goes to Dashlani often, that the parents of the petitioners are agriculturists and have got land, that both the petitioners were married and sometimes they go to their parent’s house, and that he did not see any person going to the house of the parents of the petitioners. But, in crossexamination he admitted that he went to Dashlani three years prior to the date of his deposition and did not go again thereafter.
(15) D.W. 2 is Vidya Ram, aged about 19 years and resident of village Sangla. He deposed that the petitioner Nurpu was married to him a year prior to the date of his deposition, that the petitioners stay in the house of their parents and he goes to that house often, that the villagers were inimical to them, that the case was brought out of enemity, that his father-in-law has got 16 bighas of land, half of which was in his name and the other half in the name of his wife, and that the petitioners go to the Bazar for doing their job and come back to their house in the evening.
(16) D.W. 3, Sadhu, is about 40 years old. He stated that. the petitioner-Nurpu was married, that her husband remains with her and lives in Dashlani and that at one time he came for marriage alliance with Mangli, but could not succeed because of the fear of Gudlu and the complainant. The burden of proving that the petitioners were “prostitutes'” lies, admittedly, on the State a.nd the question is whether the evidence led by the State has estab- lished that the petitioners were “prostitutes” within the meaning of the Act, whatever may be the effect of the evidence adduced on behalf of the petitioners. perusal of the statements of the ten witnesses examined on behalf of the State which has been referred to above shows only that the petitioners are some-times found in the company of a number of men, that some men often visit their house in the night time. and that the petitioners sing in their home in the company of the said persons till late in the night. These circumstances, even if true, do not necessarily mean that the petitioners were indulging in prostitution within the meaning of the Act. It is true that it is difficult to get direct evidence that the petitioners indulge in prostitution. But, merely because direct evidence would be difficult to secure, a woman or girl cannot be characterized as a prostitute within the meaning of the Act without evidence direct or circumstancial which necessarily leads to the inference that the woman or girl is a “prostitute”. The provision in Section 20 of the Act is a penal provision, and an order under the section affects the honour and liberty of the woman or girl in question. Such an order cannot and should not be passed on mere suspicion and unless there is reliable evidence of a positive nature which leads necessarily to the inference that the woman or girl is a “prostitute” as defined in the Act. In the present case, each of the ten witnesses asserted that the petitioners have been indulging in prostitution. But, the said assertions v/ere based on. mere surmise or conjecture and suspicion. Such surmises or conjectures cannot take the place of proof. None of the witnesses could identify or recognise or give the name of at least a single person who had indulged in sexual intercourse for money with either of the petitioners. As already stated, even if it is true that a number of men visit the home of the petitioners during night, it does not necessarily imply that they go to that house for sexual intercourse and prostitution. The evidence led by the State in the present case shows at the most that the petitioners had earned a had reputation in the village. But, a mere had reputation is not sufficient to characterize a woman or girl as a “prostitute” within the meaning of the Act. As pointed out by the learned Sessions Judge, it has to be held that the evidence led by the State in the present case does not establish or prove that the petitioners are the prostitutes, and that the finding arrived at by the learned Magistrate is not supported by the evidence in the case.
(17) The learned Sessions, Judge also pointed out that the order issued by the learned Magistrate is defective in that it did not mention “the place” to which the petitioners were to remove themselves. According to Section 20 of the Act, the order of the Magistrate should state clearly the place from which and the place to which the woman or girl should remove herself. In Shefali Banerjee v. The State Air 1969 Calcutta 5440, A.K. Das J. observed as follows:- “THEplain meaning of the clause “to remove herself from the place to such place whether within or without the local limits of his jurisdiction by such route or routes appearing in Section 29(3) of the Suppression of Immoral Traffic in Women and Girls Act, 1956, is that the Magistrate will not only direct her removal from the place where she was residing but also specify the place where she will go and by what route. A social legislation cannot have the object of throwing a woman on the street nor does the legislation contemplates that one Magistrate will throw her out from his jurisdiction to another Magistrate’s jurisdiction to be similarly kicked out. A social legislation has double objective both penal and ameliorative and the legislatures not only wanted prostitution to stop but to provide for rehabilitation of prostitutes. The State Govt. has to provide for protection before enforcing the penal provisions and no tinkering with the problem will serve the purpose. If the penal provision has to be invoked, the ameliorative measure enjoined by the same provision has to be undertaken or else the order simply directing a woman to remove herself from her premises and prohibiting her from re-entering the said premises becomes bad in law.”
(18) I am in respectful agreement with the above observation of the learned Judge. In the present case in the order passed by the learned Magistrate after the enquiry, the place to which the petitioners were to remove them- selves was not specified. They were merely required to remove themselves from Patwar Circles, vil Rohru, Gangtoli, Batholi and Kalooti. The said order is clearly defective and is not in accordance with the provision in section 20 of the Act.
(19) For the above reasons, the revision and reference are accepted, the impugned order of the learned Magistrate is set aside, and the notice (order) served on the petitioners requiring them to remove themselves from the aforesaid Patwar Circles, Vil. Rohru, Gangtoli, Batholi and Kalooti is cancelled.
