In Re: Lakhimani Bar

Norman, J.—The defendant has been convicted, under the provisions of the 11th section of Act XIV of 1868, for not having presented herself for medical examination, as required by her registration ticket, and by Rule No. 23 made by the Government of Bengal in pursuance of the provisions of sections 10th and 11th of that Act, and sentenced to 15 days'' imprisonment and a fine of 25 rupees, or 15 days'' further imprisonment. The defendant contended before the Deputy Magistrate, Kumar Harendra Krishna Bahadoor, that she was not a public prostitute, and that she was not duly registered. The Deputy Magistrate considered that he had no power to go into these questions, and that under the rules made by the Government of Bengal, the Commissioner and Deputy Commissioner of Police are the proper persons to enquire into them.

The case was sent up to this Court by the Judge of the 24-Pergunnahs, u/s 434 of the Code of Criminal Procedure. Now the 11th section of Act XIV of 1868 enacts that any registered woman disobeying any rule made under this section shall, on conviction before a Magistrate, be punished with simple imprisonment for a term which may extend to one month, and with fine, &c. The question is whether the defendant is a registered woman within the meaning of that clause.

The 5th section provides that the Local Government may make rules for the registration of common prostitutes, and that every woman complying with such rules shall be deemed to be registered under that Act. And the registering officer is to furnish her with such evidence of registration as the Local Government shall, from time to time, direct. Rule No. 3 provides that when a woman desires to carry on the business of a common prostitute, she should present herself at the Police Section in which she resides, and state her name, age, caste or religion, place of birth, residence, and the proximate date when she commenced a life of prostitution; and in the event of her living in a brothel, she shall further state the name of the owner of the house, &c. By Rule 4, the Inspector of Police shall, on receipt of this information, forthwith record it in a register (Form A) to be kept up at each Police Section. He shall then fill up the columns of the registration ticket (Form B) and forward it for signature to the office of the Commissioner of Police. By Rule 5, it shall be the duty of the Commissioner of Police to have such woman entered in a general register, &c. The registration ticket is to be signed by the Commissioner or Deputy Commissioner of Police, and returned to the Inspector, who, after noting the serial number in his register, is to deliver it to the woman to whom it belongs.

The defendant is in possession of a registration ticket dated the 7th of May 1869. Except her own admission, there is no evidence to show how she became possessed of it. She says herself : "I did not attend for examination twice a month as I have not been a prostitute." She says, "I had my name registered at the Thanna. The Inspector registered my name. I did not voluntarily register my name at the Thanna." In a petition presented by the defendant to the Commissioner of Police, on the 9th of August, she says that she is not a common prostitute; but works at Mr. Angelo''s factory, and lives under the protection of one Matooh, who is also employed in the same factory. She says that, in the beginning of May last, she was informed by the Police that they had orders to arrest her, and take her to the Thanna, if she did not go; she accordingly went, and was asked her name, father''s name, &c. By answering which questions, she did not know that she was rendering herself liable to registration under Act XIV of 1868; and certainly never intended to register herself as a common prostitute. She says, that, on the 30th of June last, she was served with the registration ticket of a common prostitute, and the next morning appeared before the Deputy Commissioner with a petition requesting that her name might be removed from the list; but in consequence of the delay in serving her with the ticket, her petition was rejected, and she was made to appear before the Deputy Commissioner on the next morning.

It is clear that neither the Act nor the Rules empower the Police to put women on the register against their will. If a woman carries on the business of a prostitute without having been registered, she incurs the penalty provided by section 4 and alluded to in Rule 10. Mr. Wingrove''s evidence shows that notices were served on women to appear at the Thanna. He says, "if any woman failed to appear at the Thanna, she was to be summoned. No compulsory measures were adopted against any woman in my jurisdiction." But he adds, what is a matter of more significance "they were brought to the Thanna by the Police officer, at least the Police accompanied each woman."

The register was in Court. By reference to it, if kept in proper form, it would have shown whether the woman who appeared and was registered as Lakhimani Bar, No. 153, stated from what date she commenced a life of prostitution. But the register book does not appear to have been put in evidence. And this, though the Police authorities knew that on the day following that on which she says the registration ticket was served upon her she had protested by appealing to the Commissioner of Police, and by letter to the Government of Bengal, through Mr. Angelo, that she was not a prostitute and that her name had been improperly placed on the register. If she merely appeared in obedience to a summons or order from the Police and answered questions put to her, without stating or showing that she desired to be registered as a prostitute, the officer had no right under the Act or Rules to register her name as such.

The delay in forwarding the registration ticket from 9th of May to the 30th of June is uncontradicted and unexplained. In my opinion the Magistrate was bound to have tried the question whether the defendant''s name was legally placed upon the register, and as I am satisfied that on the evidence there is not any sufficient proof of that which is a necessary ingredient in the offence, I would quash the conviction.

Glover, J.

The only point which has been referred to this Court, u/s 434 of the Code of Criminal Procedure, by the Sessions Judge, is whether or not the Deputy Magistrate was wrong in refusing to adjudicate on the defendant''s objection that she was not a duly "registered" prostitute in the terms of Act XIV of 1868. The Deputy Magistrate considered that as the woman was in possession of a registry ticket, she must be presumed to have been property registered, and ha therefore refused to decide on the evidence whether the woman had voluntarily registered herself, or whether she was in fact a common prostitute or not.

In this, I think, he was wrong. The mere possession of a registry ticket would not necessarily make the holder of it a duly registered prostitute under the Act, for registration must be voluntary, and this is a condition precedent. Section 4 of the Act prescribes penalties in case of non registration, but a woman may, if she pleases, elect to pay these penalties over and over again, and refuse to register herself, and the Act cannot make her do so.

In this case the defence of Lakhimani Ear was that she did not voluntarily register herself, but was compelled to take the registry ticket; and as corroborative of this declaration she averred that she had no reason to take out a registry ticket, not being and never having been a common prostitute, and she offered evidence to make out her plea.

If Magistrates are not competent by reason of Act XIV of 1869 to take cognizance of and to determine pleas of this description, the result will be that every woman of a certain class will be at the mercy of the Police, and will be called a "common prostitute" or not as it suits their will and pleasure. There is nothing in the Act that gives the Police this irresponsible power, and their possession of it would be in every respect most objectionable.

I think that the woman Lakhimani was entitled to prove, if she could, that she had not voluntarily registered herself as a common prostitute, and that the Deputy Magistrate ought to have adjudicated on the plea. Her further plea, that she was not a common prostitute at all, could only have been taken in connection with her special defence; for if she were proved to have voluntarily registered herself as a common prostitute, I do not think that she could be allowed afterwards to give evidence that she did not, as a matter of fact, belong to that class, in order to avoid the effects of a previous voluntary registration. Her remedy in that case would, I suppose, be u/s 21 of the Act. I concur therefore so far with Mr. Justice Norman in that I would quash the Deputy Magistrate''s conviction. I do not, however, think it necessary to give any opinion on the merits of the case, nor does the Sessions Judge ask it. They ought to be considered and disposed of by the Court below.