Sham Sunder Prusti vs Emperor

Scroope, J.—The petitioner has been convicted u/s 373, I.P.C., by Mr. Ahad, Clause 1, Deputy Magistrate of Cuttack, and sentenced to one year''s rigorous imprisonment and a fine of Rs. 50 and his appeal has been dismissed by the Sessions Judge of Cuttack.

The finding, of the Courts below is that the petitioner Shamsunder brought a girl Khalia Dei to the house in which he was living with his mistress and another woman under promise of getting her married and there employed her as a prostitute. These findings are not disputed now, but it is urged by the learned advocate for the defence that they are not sufficient to constitute the offence contemplated by Section 373, I.P.C., and he relies as was done in the lower Court, on the judgment of Holloway, J. in Dowlath Bee v. Shaik Ali 5 M.H.C.R. 473 . Ho also cites other cases, notably the ruling of the Madras High Court in The Public Prosecutor Vs. Maddila Mutyalu and Another, , Queen Empress v. Suker Raur [1894] 21 Cal. 97 and a case in Empress v. Mt. Ganga [1898] 11 C.P.L.R. 6.

Now a case is only authority for what it decides, and the judgment of Scotland C.J. which deals with the judgment of Holloway relates to a case of a single instance of sexual intercourse, not as here, to a case of a minor being employed as a prostitute. On the strength of this judgment the learned advocate argues that it is essential for an offence u/s 373, I.P.C., that the obtaining of possession of the minor should be from a third person; but I entirely fail to see why one should read into the section a gratuitous limitation of this kind. And as a matter of fact this view of the law was expressly negatived by Scotland, C.J. in his judgment though he held, however, that to bring a case within this section:

it is essential to show that possession of the minor has been obtained under a distinot arrangement come to between the parties that the minor''s person should be for some time, completely in the keeping and under the control and direction of the party having the possession.

Now this judgment dealt, as I say, with a, case of a single act of illicit intercourse and undoubtedly as the section stood before its recent amendment by Act 18 of 1924 it could hardly cover such a case. The section since its amendment runs as follows:

With intent that such person shall at any age be employed or used for the purposes of prostitution or illicit intercourse with any person or for any unlawful or immoral purpose or knowing it to be likely that such person etc.

Before the amendment the section ran thus:

With intent that such minor shall be employed or used for the purposes of prostitution or for any unlawful or immoral purpose or knowing it to be likely that such minor will be.

It is noticeable that the words "or illicit intercourse" are new and would in my opinion, cover the act of the accused in the case in question which was decided in 1870, that is to say, before the amendment. It is obvious that what impressed the learned Judges there was the fact that the prisoner was being tried for a single instance of sexual intercourse with a minor girl on an isolated occasion. Here it has been found that the girl was in the keeping and under the control and direction of the petitioner and was visited by different men for immoral purposes. Obviously the facts come within the mischief of the section and I disagree therefore with the learned advocate for the petitioner that it was necessary for the prosecution to prove that the petitioner had secured possession of the girl through the intervension of some third party. There is no special virtue from the accused''s point of view in the words "to obtain possession" that will justify supplying the words "from a third party." A man obviously can "obtain possession" of a thing without such intervention.

The other rulings cited by the learned advocate follow the judgment in Emperor v. Dowlath Bee 5 M.H.C.R. 473, with the exception of The Public Prosecutor Vs. Maddila Mutyalu and Another, . That was an entirely different kind of case. There the alleged sexual intercourse was in connexion with the nuptials of a minor girl. The girl continued to live with her parents and never passed into the possession of the accused. The learned Sessions Judge rightly relied on Emperor v. Shamsunder Bai AIR 1921 Bom. 323 as containing the view of the law which is applicable to the facts of the present case. That case is on all fours with the present and Shah, J''s. view of the law is as follows:

I am of opinion that it is not requisite for the purpose of Section 373, I.P.C., that the possession of the minor should be obtained from a third parson. It is enough if it is established that the accused in fact obtained possession of the minor with intent that the minor shall be used for the purpose of prostitution.

To hold otherwise would be equivalent to saying that if a minor girl of her own accord resorts to a brothel and is employed as a prostitute by the owner knowing that she is a minor it will be no offence. Obviously this will defea the whole purpose of the section which is to prevent the prostitution of minor girls.

I think therefore that the view of the law taken by both the Courts below is quite correct and I decline to interfered

Ross. J.

I agree.