In Re: Nangil N.V. Rajendran and Another

K.N. Mudaliyar, J.—The two Appellants (A 1 and 2) appeal against their convictions for offences u/s 3(1) (A-1 only) and 7 (1) (A-2 only)

of the Suppression of Immoral Traffic in Women and Girls Act, respectively.

The accusation against the first accused is that on the 21st May of February, 1969 between 7-50 and 8-30 P.M. at No. 23, Mandaveli Street,

he was the occupant of the said premises and in the said premises he was found keeping and managing a brothel with the assistance of Vasantha

(A-2) and another girl Sudha (A-3 acquitted)

The accusation against Vasantha (A-2) was that she was found offering herself for the purpose of prostitution, with a distance of 200 yards of

Pillayar Koil, a place of worship. Undoubtedly, the facts proved in this case by the prosecution do fall into a familiar type-design pattern.

In about the beginning of February, 1969 Mr. H. M. Papa (P. W. 4), the Assistant Commissioner of Police in the vigilance branch had

information that one H.V. Rajendran alias Rajan (A1) was keeping and running a brothel at No. 23 Mandavali Street employing two prostitutes

and on personal verification P. W. 4 found the information to be true. Thereupon, he arranged for the laying of a trap on 21st February 1969 with

the assistance of the members of his staff, Thiru A. Vinnalan (P. W. 1) of Chintadripet and one Ranganayagi Ammal had been approached in this

connection, they were agreeable to serve as witnesses during the projected raid. P. W. 2 is a tailor having his shop in Harris Road in Chintadripet.

He agreed to serve as a decoy. When the decoy and the witnesses had all assembled at his office in Egmore at about 6 p.m. on 21st February

1969, he explained to them the details connected with the proposed raid on the part to be played by each of them. There was one informant

present at the time and it was arranged that P. W. 2 (decoy) was to accompany the informant to the brothel and after introduction to the brothel-

keeper (A-1) by the informant, the decoy was to select one of the prostitutes available at the brothel and have sexual intercourse with her on

payment of the hire charges demanded by the brothel-keeper (A-1). For this purpose P, W. 2 was given a hundred rupee currency note, M.

Order 1 the serial number of which was also noted down for subsequent identification, Ex. P. 1 being the mahazer drawn up by P.W. 4 in order to

evidence the entrustment of M. Order 1. The entire party was to proceed to Mandaveli bus-stand from, where P. W. 2 and the informant were to

leave for the brothel in Mandaveli Street. The informant was to return to the bus-stand and rejoin the party after the decoy had been

accommodated in the brothel. Thereafter, P. W. 4 and his party were to rush to the brothel and raid the place.

P.W. 2 had also been further instructed to remain within the bed room and open the door in response to a knock at the door followed by a call

by his name by P. W. 4.

The entire party left Egmore in a police van at about 6. 30 or 6. 45 P. M. and reached the bus-stand in Mandaveli at about 7 P. M. From there,

the informant and P. W. 2 left in a taxi while the others stayed back at the bus-stand. On reaching Mandaveli Street, the informant and P. W. 2

went to the house bearing door No. 23; Rajendra (A-1) was found seated on a chair in the front hall The informant introduced P. W. 2 to him.

Thereupon, A-1 informed the decoy (P. W. 2) that he had two girls available and that the hire charges for sexual intercourse with either of them

would be Rs. 100/- per hour. P. W. 2 wanted to have a look at the girls There upon, in response to A 1''s call, A-2 and A-3 came to the hall from

the inner compartment of the building. When P. W. 2 tried to bargain with them regarding the hire charges, both the girls firmly stated that they

would not be available for anything less than the stipulated amount. P. W. 2 agreed to their terms. He selected Vasantha (A-2) and also handed

over M. Order 1 to her. Vasantha (A-2) passed on the amount to A-1 who put it in his trouser pocket and directed the girl to take the witness to

the bed room. Accordingly, P. W. 2 was taken into the bed room adjoining the hall on the western side. After bolting the doors both Vasantha and

Mani P. W. 2, undressed themselves and had sexual intercourse. In the mean while, the informant returned to the bus-stand and informed P. W. 4

of everything. It was then about 7. 30 P. M. Thereupon, P.W. 4 decided to raid the premises. After recording the information and the grounds of

his belief in a memorandum (Ex. P. 3), P, W. 4 left with his party comprising Ranganayaki Ammal and Vinnalan P. W. 1 for Mandaveli Street. On

entering into the building P. W. 4 and his party found A-1 seated in the front hall. P. W. 4 questioned the accused regarding the visitor. A-1

pointed out the bed room, the doors of which were found shut and bolted from within. P. W. 4 walked up to the door and gave a knock calling

out P. W. 2 by his name. P.W. 2 completed his sexual intercourse with Vasantha. He was chatting with her at the time. He took the key and

opened the door. When the door was opened, P. W. 4, P. W. 1 and others found A-2 and P. W. 2 together inside the bed room, both in scanty

dress. According to P. W. 2, Vasantha was stark naked while he was wearing only a banian. P. W. 4 directed both the persons to dress up

properly and this was done. P. W. 4 enquired P. W. 2 who told the entire story. On the strength of P. W. 2''s statement P. W. 4 asked A. 1 for

the production of the money which had been received by him as hire charges. Rajendran, A-1 took out M. Order 1 from his trouser pocket and

produced the same. P. W. 4 seized the currency note under a mahazar, Ex. P, 2 after duly checking up and verifying the serial number with

reference to Ex. P. 1. P. W. 4, thereupon arrested A-1 and A-2. Sudha, A-3, who was found in the premises was also arrested on the basis of P.

W. 2''s statement that she had also offered herself for prostitution. He drew up a rough sketch of the house which, it was found, was within a

distance of 100 yards from a Pillayar temple. The arrested persons were taken to the Mylapore police Station where cases were registered against

them. Ex. P. 5 is the first information report.

The plea of the accused is substantially one of denial. The statutory explanations of the accused u/s 342, Cr. P. C. have been elaborately set

down in paragraph 5 of the judgment of the trial Court. The defence also contended that P. W. 2 has figured as a decoy in C. C. 19815 of 70 also

on the file of the trial Court.

The learned trial Magistrate held that on his own showing P. W. 2 is but an accomplice. He further held that the corroboration of the evidence of

P. W. 2 is completely absent in the present case in regard to the proof of the offence against A-3 and the learned trial Magistrate gave the finding

that A.3 is not guilty of the offence u/s 7(1) of the Suppression of Immoral Traffic in Women and Girls Act. A.3 was acquitted.

It has been argued that the evidence of P.Ws. 1 and 2 is unworthy of total reliance, because they appear to be jointly obliging the police with

false evidence. P.W. 1 (Vinnalan) stated that he was living in 38, Harris Road. In his cross-examination P.W. 1 stated that for a period of three

months he lived in No. 38, Harris Road. K.S. Mani, P.W. 2 had his tailoring shop in the front portion of 38, Harris Road, but that particular fact is

known to him only at the time of his giving evidence, so he claimed. He (P.W. 1) admitted that there is a tailoring shop in the front portion of 38,

Harris Road. But he disclaimed residing in the front portion of 38, Harris Road. But he admitted that he never paid any rent for his residence. It

was suggested to him that P. Ws. 1 and 2 are friends and that during his leisure time P.W. 1 spent all the time with P.W. 2 gossiping; no doubt this

has been refuted by P.W. 1. P.W. 2 stated that he was running his tailoring shop for the last twelve years at 38, Harris Road, He stated that P.W.

1 was staying in a room next to his tailoring shop and that the said room is a part of the premises, 38, Harris Road. He admitted that P.W. 2 often

frequented his tailoring shop. P.W. 2 further stated that P.W. 1 was unemployed and that he was frequenting his shop since one or two months

prior to the date of the occurrence viz., 21st February 1969. He used to keep his clothing in the shop of P.W. 2. It has been suggested to P.W. 4

the Assistant Commissioner of Police that P. Ws. 1 and 2 are stock witnesses of the police. P.W. 4 denied the suggestion. In the light of the

evidence of P. Ws. 1 and 2, it emerges clearly that these two witnesses were handpicked by P.W. 4 for supporting the prosecution case although

P. Ws. 1 and 2 have given varied versions about the residence of P.W. 1 and the degree of friendship that subsisted between them. The two

prevaricating versions of P.Ws. 1 and 2 as noticed above would, in my view, give room for casting a doubt on the veracity of the testimony of

P.Ws. 1 and 2. It also emerges from the record that P.W. 2, K.S. Mani had been cited as a witness in C.C. No. 19815 of 1970 and that he was a

decoy who had been sent to the brothel run by one Rita at Crescent Avenue in Kesavaperumalpuram on 8th April 1970. If P.W. 2 played the role

of a decoy even in a second case as a stock witness for the prosecution that would certainly be indicative of the fact of P.W.2''s partitionship in the

cases filed by P.W. 4 and in my view such a circumstance would induce or impel considerable hesitancy on my part to accept the testimony of

P,W. 2 even in regard to the main features of this case.

Serious criticism has been made that the search was conducted without obtaining a warrant from the Magistrate and such a procedure

followed by P.W. 4 is tantamount to total disregard of the provisions of Sections 15(1) and 15(2) of the Suppression of Immoral Traffic in Women

and Girls Act and, therefore, the entire proceedings were vitiated. The stark and stubborn fact emerging from the entire record is that the search

had been made without a warrant and that neither of the two such witnesses viz., P.W. 1 and Ranganayaki Ammal was resident of Mandaveli

Street. Admittedly, they come from a different locality. S. 15(2) of the Act no doubt lays down that the Police Officer (P.W. 4) should call upon

two or more respectable inhabitants of the locality in which the premises to be searched was situated to attend and witness the search. The learned

trial Magistrate observes that ""P.W. 4''s explanation that he did not call any of the neighbouring residents only to guard against leakage of

information to the accused may or may not be acceptable. It may even be said that there could be no question of any leakage of information after

the arrival of the police party at the place and the local residents could then have been called. Without attempting to justify the course adopted by

P.W. 4 one may yet observe that in matters of this kind the stress has always been more on respectability and veracity than on locality"". I am

unable to find any justification for the view of the learned trial Magistrate on the basis of proper construction of S. 15(2) of the Central Act No.

104 of 1956. That section is mandatory in compelling the special police officer to call upon two or more respectable inhabitants (at least one of

whom shall be a woman) of the locality in which the place to be searched is situate, to attend and witness the search before making a search u/s

15(1). It would not appear that P.W. 4 has even made any effort to call upon two or more respectable inhabitants of that locality. Undoubtedly,

there is the non-observance or contravention of the mandatory requirements of S. 15(2) of the Act by the Assistant Commissioner of Police, P.W.

It is true that the transgression of the provisions of S. 15(2) would not render the entire proceedings invalid as was rightly observed by the trial

Magistrate. But such a procedure, as has been adopted in this case, found in the act of P.W. 4 in hand-picking P. Ws. 1 and 2 for the purpose of

trap would stamp their testimony as interested, partisan and, therefore, unreliable.

The learned Counsel for the Appellants argued that there is no guarantee or contemporaneous evidence for proving that P.W. 4 recorded his

information and the grounds of his belief in Ex. P. 3 at about 7.00 P.M. on 21st February 1969. Admittedly, Ex. P. 3 had not been sent by P.W. 4

immediately to the Chief Presidency Magistrate or any other presidency Magistrate. It appears to have been sent to Court only long afterwards

along with the charge sheet and other records. The criticism of this procedure is that the failure on the part of P.W. 4 in sending the memorandum,

Ex. P. 3, to the Magistrate immediately, the entire proceedings of the case regarding the search ought to be rejected. S. 15(1) of the Suppression

of Immoral Traffic in Women and Girls Act, 1956 runs as follows: ""15 (1) Notwithstanding anything contained in any other law for the time being in

force, whenever the special police officer has reasonable grounds for believing that an offence punishable under this Act has been or is being

committed in respect of a woman or girl living in any premises and that search of the premises with warrant cannot be made without undue delay,

such officer may, after recording the grounds of his belief, enter and search such premises without a warrant.

According to P.W. 4 he got information about the beginning of February, 1969 that A-1 was running a brothel at No. 23, Mandaveli Street

employing two prostitutes. P.W. 4 personally verified the information and found the same to be true. On 21st February 1969 he arranged a trap

with the assistance of the members of his staff. He collected P. Ws. 1, 2 and a lady by name Ranganayaki Ammal at his office at Egmore at about

6 P.M. His informant was introduced to P. Ws. 1, 2 and Ranganayaki Ammal. He explained to them the details concerning the proposed raid. All

the witnesses agreed to assist P.W. 4 in the proceedings. P.W. 2 agreed to serve as a decoy to visit the brothel. He entrusted M. Order 1 to P.

W. 2 under Ex. P-1 All these things were done by about 6 P.M. But in cross-examination P.W. 4 stated that he did not apply for a search warrant

only because he had not decided to raid the premises till 7.30 P.M. on 21st February 1969. P.W. 4 stated that he handed over Ex. P-3 to the

Sub-Inspector with instructions to send the same to the Court. But he admits that Ex. P-3 had been sent to Court along with charge-sheet and

other papers. Frankly the testimony of P.W. 4 does not commend itself for my acceptance. To say that P. W. 4 had not decided to raid the

premises till 7.30 P.M. on 21st February 1969 is obviously unbelievable in the face of various measures he has taken by 6 P.M. for executing the

proposed raid. There is no reason why P. W. 4 did not place the materials before any Stipendiary Magistrate and obtain a warrant. In fact, the

averments in the First Information Report, Ex P-5 show that P. W. 4 personally watched the premises for a period of one week and he noticed

taxis and strangers visiting the house during nights. The averment in the First information Report, is that he had information that the premises was

being used as a brothel by Rajendran, A-1 and he had been allowing the two girls for prostitution in his own premises after collecting hire charges.

It is even stated in the First Information Report that the decoy witness P. W. 2 was instructed to proceed to the brothel along with the informant. I

do not consider that the circumstances were so compelling that search of the premises with warrant cannot be made without undue delay, in this

case. P. W. 4 can enter and search a premises lawfully, only when the prosecution placed such irrefutable proof of facts and circumstances which

would warrant the conclusion that search of the premises with warrant cannot be made without undue delay. I do not consider that such

circumstances have been proved in this case by the prosecution and therefore I have no hesitation in holding the search conducted by P. W. 4 is in

contravention of the provisions of S. 15(1) of the Act. The Special Police Officer (P. W. 4) must have reasonable grounds for believing (i) that an

offence publishable under the Act has been or is being committed (ii) in respect of woman or girl living in any premises (iii) that search of the

premises with warrant cannot be made without undue delay (iv) such officer must record the grounds of his belief and (v) only thereafter the Officer

may enter and search such premises without a warrant. ""As search is a process exceedingly arbitrary in character, stringent statutory conditions are

imposed on the exercise of the power"" Vide. The The State of Rajasthan Vs. Rehman, . India is a land of freedom. Even prostitutes or managers

of brothels have some rights. Their premises cannot be invaded by means of illegal searches and seizures. On the basis of the facts and

circumstances proved in this case, I have no hesitation in holding that the search of the premises of A-1 conducted by P.W. 4 is against law. But I

am not prepared to uphold the argument that the illegality of search conducted by P.W. 4 would render the entire proceedings of the case as

illegal. But I, have no hesitation in holding that the illegality of search, as it found in this case, would throw a cloud of doubt on the proceedings of

the search and therefore I am not prepared to place any reliance on the testimony of P. Ws. 1,2 and 4.

Under S. 7(1) of the Suppression of Immoral Traffic in Women and Girls Act, 1956 it is obvious that P. W. 2 is equally culpable in other

words, he can be placed in the dock along with A-2 and tried jointly for the offence u/s 7(1) of the Act. Therefore, at least in so far as the alleged

commission of the offence u/s 7(1) of the Act by A-2 is concerned, P. W. 2 must be treated as an accomplice. Therefore, his evidence must be

corroborated. According to P. W. 4 his informant was introduced to P. Ws. 1. 2 and a lady by name Ranganayaki Ammal at about 6 P.M. on

21st February 1969. After P.W. 2 agreed to serve as a decoy to visit the brothel, P. W. 4 entrusted M. Order1 to P.W. 1. under Ex. P-2. P.W. 2

was instructed to accompany the informant to No. 23, Mandaveli Street and to engage one of the prostitutes soon after his introduction by the

informant to use brothel-keeper (A-l) and to have sexual intercourse with the woman after paying the hire charges out of M. Order 1 to the

brothel-keeper through the woman. The informant was directed by P. W. 4 to meet him at the bus-stand at Mandavali after P. W. 2 had been

accommodated in the brothel. About half an hour later, according to P. W. 4 the informant returned to P. W. 4 and others with the information that

the decoy had been accommodated. P. W. 2 speaks about the presence of informant and the introduction of the informant to him by P. W. 4. P.

W. 2 went to No. 23, Mandaveli Street in the company of the informant and P. W. 2 speaks about the role played by the informant for the

accomplishment of the final consummation. P. W. 2 elaborately speaks about the part played by the informant in negotiating with the first

Appellant. The best person who can corroborate P. W. 2 is the informant or the broker who gave the information to the police. It is true u/s 125 of

the Evidence Act no Police Officer should be compelled to say whence he got any information as to the commission of of any offence. But in this

case the identity of the informant has been revealed by the Assistant Commissioner of Police, P. W. 4. At least, the identity of the informant is

known to P. Ws. 1,2 and Ranganayaki Ammal and A-1 and A-2. In Re: Ratnamala and Another, the non examination of the informant was

commented upon by the learned advocate for the accused. But it was observed in that decision that it may be that for several reasons the

prosecution deemed it inexpedient to do so and considered it likely to have untoward consequences upon the further implementation of the

provisions of the Act. There might be such consideration prevailing in case where the identity of the informant has not been revealed. No doubt, the

necessity for examining the informant whose identity is revealed would depend on facts and circumstances of each case. When once it is held that

the evidence of P. W. 2 is that of an accomplice in regard to the proof of an offence u/s 7(1) of the Act against A-2, the evidence of P. W. 2 must

be corroborated in material particulars. There cannot be better evidence than that of the informant for providing corroboration of the testimony of

P. W. 2 in material particulars. It makes one feel that the evidence of the broker might throw a flood of light about the truth of the evidence of P.

W. 2. Informants are found to be a dozen a dime and certainly the tribe of informants is not becoming scarce or extinct. In my view, the informant

in this case must have been examined to corroborate the testimony of P. W. 2 in material particulars. In my view, it is desirable and necessary and

expedient to examine the broker or the informant in all cases where there is a charge against a woman or girl for an offence u/s 7(1) of the Act.

The learned Counsel for the Appellants invited the attention of the court to the text of the first charge which runs as follows:

That you A-1 on the 21st February, 1969 between 7.50 and 8.30 p.m. at No. 23 Mandaveli Street, Madras-28 being the occupant of the said

premises were found keeping and managing a brothel with the assistance of A-2 and A-3 and thereby committed an offence punishable u/s 3(1) of

S. I. T. Act and within my cognizance.

The learned Counsel drew my attention to the form of the charge which is extracted here below.

A B, on the day of and on other days between that date and the of day of-, in the country of-, for the purpose of gain, kept and maintained a

brothel called No. 37, St. Martin''s Lane"". (Vide Archbold, Pleading, Evidence and Practice in Criminal Cases, Thirty-seventh Edition, Chapter 17

S. 3, page 3856).

In other words, his argument is that a single, stray or isolated instance does not convert the premises into a brothel kept or managed by the first

accused. In the First Information Report, Ex P-5 there is the following allegation.

There was information that one Nangil N.V. Rajendran alias Raju was running a brothel at No. 23, Mandaveli Street, Madras with the assistance

of two girls. I verified this information and found the same to be true. I personally watched the premises for a period of one week and I noticed taxi

is coming to the said premises and strangers visiting the house during nights. I thereby confirmed the information that the premises was being used

as a brothel by the said Rajendran and he had been allowing the two girls for prostitution in his own premises after collecting hire charges at the

rate of Rs. 100/- for having sexual intercourse, once with any one of the two girls and the hire charges are used for their mutual benefit.

The argument of the learned Counsel is that the prosecution must prove facts constituting ""keeping a brothel"" u/s 3(1) of the Act and such a

proof ought to consist of more than one single instance spread over a number of dates indicating a continuity of visitors visiting the house of ill-

fame. In view of the decision of the Supreme Court in Krishnamurthy v. Public Prosecutor (1967) M.L.J. Cr. 479 wherein it is held that ""A single

instance coupled with the surrounding circumstances is sufficient to establish both that the place was being used a brothel and that the Appellant

was so keeping it; it is not necessary that there should be evidence of repeated visits by persons for the purpose of prostitution"". I consider that

there is no onus on the part of the prosecution to prove repeated visits by persons for the purpose of prostitution. I reject this argument.

Regarding the proof of offence u/s 7(1) of the Act against A-2. I have already characterised the evidence of P. W. 2, decoy as that of an

accomplice and that his testimony needed corroboration in material particulars. I should not be understood as stating as a matter of law that in

every prosecution under the Act for other offence a decoy must be treated as an accomplice. In my view, he is not an accomplice excepting in

prosecutions for the proof of the offence u/s 7(1) of the Act. A decoy is only a trap witness and his evidence must be scrutinised with great care

and when once the testimony of a decoy witness is found to be reliable; a conviction can be based on that.

It is argued that in prosecuting the second accused for an offence u/s 7(1) of the Act, the evidence of the decoy witness (P. W. 2) must be

corroborated in material particulars since the decoy witness also is punishable u/s 7(1) of the Act along with A-2. In the cross-examination of P.

W. 4 it has been elicited as follows:

Under Section 7(1) of the Suppression of Immoral Traffic in Women and Girls Act the prostitute as well as the person having sexual intercourse

with her on payment of the hire charges would be liable for punishment. Yet, I sent P. W. 2 to the brothel as a decoy as I was laying a trap in

public interest.

P.W. 4 also stated that he did not seize the the garments worn by P. W. 2 or A-1 or A-2 nor the bed spread. He also admitted that he did not

send P. W 2 or A-2 for medical examination to ascertain as to whether they had recent sexual intercourse. I am of the view that either P. W. 2 or

A-2 must have been subjected to medical examination and any evidence of recent sexual intercourse would constitute corroboration of the

testimony of P. W. 2 at least in one material particular or even the medical testimony in regard to the proof of presence of seminal stains found

either on the clothing of P. W. 2 or A-2 or the bed spread would certainly furnish corroboration to the testimony of P. W. 2 in one important

particular. Such a testimony is lacking in this case. I should feel hesitant to act on the evidence of P. W. 2 when he stated that Vasantha, A-2 and

he undressed themselves and indulged in sexual intercourse once.

I expressed my hesitation to act on the testimony of P. Ws. 1, 2 and 4 and therefore I give the bereft of doubt to the Appellants (A-1 and A-

2). I acquit A-1 of the offence u/s 3(1) the Act and A-2 of the offence u/s 7(1) of the Act. Their bail bonds stand cancelled. I set aside the

convictions of A 1. and A. 2 and sentences awarded against them. The criminal is allowed.