State v. Premchand Kubchand, Accused.
Criminal Appeal No. 1721 of 1962,
D/- 22 -7 -1963.bombay high court
Suppression of Immoral Traffic in Women and Girls Act (104 of 1956), S.8 and S.2(f) - IMMORAL TRAFFIC - Cl. (b) of S.8 applies also to person who solicit others for purpose of prostitution.
Clause (b) of S. 8 of the Act applies not only to the prostitute herself but also to those others who solicit a person for the purpose of prostitution. Cr. Revn. Appln. No. 601 of 1962, D/-30-11-1962 (Bom) and Cri. Appeals Nos. 1719 and 1720 of 1962 (Bom), Rel. on. (Para 8)
It may be that clause (a) of S. 8 is capable of application only to the prostitute, particularly in view of the words "wilful exposure of her person" and also because of the context in which the words in the paranthesis are used. But the language used in cl. (b) contains no words which could justify the operation of that clause being restricted to the prostitute.
(Para 3)
The word 'solicit' as used in cl. (b) means to urge or importune or to accost a man for immoral purposes. Hence cl. (b) which provides for a penalty for one who solicits a person for prostitution, must be held to cover every case in which a person urges or accosts another for the purposes of prostitution and whether the urging or accosting is by the prostitute herself or by any other person can make no difference to the criminality of the act. (Para 5)
To hold that cl. (b) of S. 8 applies to the prostitute herself and to no one else is to add restrictive words to that clause, which are not there and is to take a view which is not warranted by the plain language used in the clause. (Para 7)
Judgement
CHANDRACHUD, J. :- The question which arises in this appeal is whether Section 8 clause (b) of the Suppression of Immoral Traffic in Women and Girls Act (Act 104 of 1956) applies only to the prostitute herself or whether it also applies to those others who solicit a person for the purpose of prostitution.
2. On the night of the 7th of December 1961, Inspector Patkar and Sub-Inspector Mehta of the Vigilance Branch were accosted by the respondent with a suggestive inquiry as to whether he could be of any use to them. Sub-Inspector Mehta asked the respondent as to what he could do for him, and on the respondent saying that he could supply a girl for Rs. 40/- for the night, the two Police Officers disclosed their identity and put the respondent under arrest. The respondent was thereafter put up for trial before the learned Presidency Magistrate, 4th Court. Bombay for an offence under Section 8(b) of the Suppression of Immoral Traffic in Women and Girls Act, which will hereinafter be referred to as the Act. The learned Magistrate has accepted the evidence of the Police Officers and has held on a question of fact that the respondent did offer a girl for prostitution to Sub-Inspector Mehta. The learned Magistrate, has, however, acquitted the respondent as he took the view that clause (b) of Section 8, like clause (a) thereof, applies only to the prostitute herself. The learned Magistrate observes that it may have been possible to convict the respondent under some other provision of the Act, but he holds that as the respondent is not the prostitute herself and as the respondent has only accosted the Police Officers in order to induce them to go to a prostitute, no offence can be said to have been committed under clause (b) of Section 8 of the Act. Being aggrieved by the order of acquittal, the State has filed this appeal.
3. Section 8 of the Act reads thus :
"Whoever, in any public place or within sight of, and in such manner as to be seen or heard from, any public place, whether from within any building or house or not
(a) by words, gestures, wilful exposure of her person (whether by sitting by a window or on the balcony of a building or house or in any other way), or otherwise tempts or endeavours to tempt, or attracts or endeavours to attract the attention of, any person for the purpose of prostitution; or
(b) solicits or molests any person, or loiters or acts in such manner as to cause obstruction or annoyance to persons residing nearby or passing by such public place or to offend against public decency, for the purpose of prostitution, shall be punishable on first conviction with imprisonment for a term which may extend to six months, or with fine which may extend to five hundred rupees, or with both and in the event of a second or subsequent conviction, with imprisonment for a term which may extend to one year, and also with fine which may extend to five hundred rupees."
The question which falls for determination is as to what is the true construction of the words :
"whoever solicits any person for the purpose of prostitution." The argument which found favour with the learned Magistrate and the argument which has been canvassed before us on behalf of the accused is that since clause (a) of Section 8 can apply only to the prostitute herself, the application of clause (b) must be restricted similarly. It may perhaps be correct, though we do not feel called upon to decide the question, that clause (a) of Section 8, is capable of application only to the prostitute, particularly in view of the words "wilful exposure of her person" and also because of the context in which the words in the parenthesis are used. The question however is, whether there is any justification for construing the language of clause (b) of Section 8 so as to restrict its operation in a manner similar to the one in which the operation of clause (a) appears to have been restricted. In our opinion, the words used in clause (b) of Section 8 must be given then plain, grammatical meaning and there is no warrant for restricting the operation of that clause so as to make it applicable only to prostitutes. If the charging words make it penal for "whoever" to solicit any person for the purpose of prostitution, there would be no justification for rutting down the ambit of those words by excluding from their scope all persons except the prostitute herself.
4. In the construction of the words : "Whoever solicits any person for the purpose of prostitution," one may with advantage consult the dictionary for the meaning of the word 'solicit" as the word is not defined in the Act. In the Oxford Dictionary, Vol. 10, 1961 Edition, the word "Solicit' is defined under sub-heading 3, to mean "to urge or importune" and under sub-heading 4(c), the meaning of the word is seated to be "to make immoral attempts upon''. In Webster's Dictionary, 1961 Edition, the word "Solicit' is defined to mean "to entreat or importune" under sub-heading 3, and "to accost (a man) for immoral purposes" under sub-heading 6(c). The word 'prostitution' is defined in Section 2(f) of the Act to mean "the act of a female offering her body for promiscuous sexual intercourse for hire, whether in money or in kind.
5. If word 'solicit' as stated in the two standard dictionaries, means to urge or importune or to accost a man for immoral purposes, then clause (b) of Section 8, which provide a penalty for one who solicits a person for prostitution must be held to cover every case in which a person urges or accosts another for the purposes of prostitution, and whether the urging or accosting is by the prostitute herself or by any other person can make no difference to the criminality of the act.
6. Mr. Nair, who appears for the respondent, contends that the meaning of clause (b) must be controlled by the language of clause (a) of Section 8 and the argument of the learned Counsel is that if the Legislature has intended that clause (a) must apply only to females, it would be a reasonable construction to place on clause (b) to restrict its operation to females. We are prepared to assume, though we are not called upon to decide, that the whole of clause (a) can apply only to females. We are, however, unable to agree that clause (b) must be construed as being applicable to females only, because clause (a) applies to females. An answer to this contention can be found in the circumstance that the wording of the two sub-clauses is in material respect, different and that whereas the language used in clause (a) may be capable of being applied, expressly or by necessary implication, to females only, the language used in clause (b) contains no words which would justify the operation of that clause being restricted to females. We are unable to appreciate the argument that the two sub-clauses of S. 8 must be construed not separately or independently of each, other but that the operation of one must be held to be curtailed by the language used in the other. If even a proviso could conceivably be wider than the parent section, we cannot understand why one sub-clause cannot have a wider operation than another sub-clause of the same section.
7. In coming to the conclusion that clause (b) of Section 8 applies only to the prostitute herself, the learned Magistrate has been partly influence by the language used in clause (a) and partly by the definition of the word 'prostitution' as contained in Section 2 clause (f) of the Act. The learned Magistrate observes that :
".........Section 2(f) of the Act which, defines ''prostitution'' says in clear terms that prostitution means that act of a female offering her body for promiscuous sexual intercourse for hire whether in money or in kind. The Act applies only to females carrying on the business of prostitution. The words, therefore, in Section 8(b) viz., "Solicits......... for the purpose of ''prostitution" can reasonably only mean "soliciting for the purpose of offering her body for promiscuous sexual intercourse for hire, whether in money or in kind''........ Section 8 has to be read as a whole and the only reasonable interpretation would be, without doing violence to the language of the Section that it applies only to female prostitutes." With respect, we are unable to agree that the only reasonable interpretation to put on clause (b) of Section 8 is to hold that it applies only to female prostitutes and that to come to any other conclusion is doing violence to the language of the Section. To hold that clause (b) of Section 8 applies to the prostitute herself and to no one else is to add restrictive words to that clause which are not there, and is to take a view which is not warranted by the plain language used in the clause. The error into which the learned Magistrate has fallen is to assume that because the word 'prostitution' means "the act of a female offering her body for promiscuous sexual intercourse," therefore, "Soliciting for the purposes of prostitution" would imply that the female must herself solicit another person in order that he, may avail himself of her body for promiscuous sexual intercourse. It has been overlooked that persons other than the prostitute could urge or accost others for purposes of prostitution and indeed it is not unoften that the soliciting is indulged in more by the mobile middleman than by the prostitute herself.
8. We are fortified in the view which we have taken by the judgments of two single Judges of this Court. The earlier of these judgments is of my brother Palekar, J. in Criminal Reven. Appln. No. 601 of 1962 decided on the 30th of November, 1962, whereas the later judgment is by Naik, J. in criminal Appeals Nos. 1719 and 1720 of 1962 decided on the 29th April 1963. Both the learned Judges have held that there is no warrant for restricting the operation of clause (b) of S. 8 to the prostitute herself.
9. For these reasons, the appeal is allowed and the order of acquittal is set aside. We convict the respondent under Section 8 clause (b) of the Suppression of Immoral Traffic in Women and Girls Act, 1956, and sentence him to suffer rigorous imprisonment for a period of one month.
Appeal allowed.
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