# 632 SUPREME COt.:RT liEfORTS (!~(,~] Stf P. ,!·62 KAMALABAI JETHAMAL ]C?t;,.iry 18 v. THE STATE u.b' .MAHARASHTRA

- **Citation:** [1962] Supp. 2 S.C.R. 632
- **Court:** Supreme Court of India
- **Decided:** 1962
- **Case number:** Criminal Appeal No. lti74of 1901
- **Bench:** J. L. Kapur, Raguubar Dayal
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/632-supreme-cot-rt-lieforts-stf-p-62-kamalabai-jethamal-c-t-iry-18-v-the-state-2331
- **Pages:** 8

## Headnote

Imnwral TralJic-Suppre.,ion rf prostitution-Employ-
·monl of youngmen by the po/ice for JJe1rr1;, n of n!Jence-lf
proper-Validity of C<mt'iction- lli~J. Court's P""" <f ri:iction-
~uppr ... <ion of lmnwral Traffic ;,. Wom,n and (;iris Ad,
1956 (104 of 1946), of as. 3(2j, 4(1), JU.
On learning that tt1c appcHant \\as using her prcmhcs a!
a broihcl aud was supplyu11, gi1ls for the purpo>e ul prosti·
tution, the poJtLC arranged to lay a trap.
With two ouc
hundred rupees mJ.rked cur1c11cy nutcs given Liy tlJe police
two per:-.•n1s, M anU L, \Vent to the prcml!,cs cxcupicd by the
appellant ; M was lo a•k for a girl for the purpose of pros·
tnution aud L wa" to Uc a witness ol the fact.
M selected a
girl and gave the oue uundrcd rupees uote to the appellant
who put u under her l>luus_c.
\\.hen Mand the ~irJ were in
the roon1, on signal Oe1ug giver1, the pvlicc entered the room
and found then1 in a r;1t11cr cumpromrsing po.sition. A v-·oman
Panch v.: ho had .1ccoH1pan1cJ rhc Police party searched the
appelJanr and recovt(cd the one hundred rupees cur1 ency
note frorn under tl1e liJousc.
The appellant was tried tor ottcnces under ss.3(2) and
4(1) of the SuppresSlc>n of Immoral Tratic in Women and
Girl.i Act,
l~.(>6, !Jy
th~ !\.Iag1srrat~ who, however, acquitted
her.
Ou appeal, the High Court ac.;ccpte<l 1he prosecution
case an<l conv1cle<l the appellant and, hu ther ordered her
eviction. The High Court accepted the le>umoney of L in
regard to the J.iaymtllt of the htJnd1t<1 rupce.s currency note
to the appcilant a11tl also the evidence 1n the case to show
that the amount was u~ed lor t11c
pw·po~c of pro:ititution.
The appellant contended (I) that tt.c convic1ion was bad
because it was based only on the evidence o! the police and its
agents, and the search was not ~onductcd in accordance with
the provisions of the Code ot Crunmal ProceJure, and ( 2)
that, in any case, only the Magi:.trate was given the power
of eviction under s. 18 of the Act.
Held, that on 1he evidence accepted by the High Court,
the conviction of the appellant wa:i valid.
The practice of the Governmental authomy, like the
police employing young men, particularly studenlS studying
at th~ educational insututions, as in the picacnt caK, m
28.C.R.
SUPREME COURT REPORTS
633
order to suppress immoral traffic in women and to stop
prostitution, cohdemned.
Held, further, that the High Court having ordered the
conviction of the appellant, had the power to evict her under
'· 18 of the Act.

## Text

632 SUPREME COt.:RT liEfORTS (!~(,~] Stf P.
,!·62
KAMALABAI JETHAMAL
]C?t;,.iry 18.
v.
THE STATE u.b' .MAHARASHTRA
(J. L. KAPUR and RAGUUBAR DAYAL, JJ.)
Imnwral TralJic-Suppre.,ion rf prostitution-Employ-
·monl of youngmen by the po/ice for JJe1rr1;, n of n!Jence-lf
proper-Validity of C<mt'iction- lli~J. Court's P""" <f ri:iction-
~uppr ... <ion of lmnwral Traffic ;,. Wom,n and (;iris Ad,
1956 (104 of 1946), of as. 3(2j, 4(1), JU.
On learning that tt1c appcHant \\as using her prcmhcs a!
a broihcl aud was supplyu11, gi1ls for the purpo>e ul prosti·
tution, the poJtLC arranged to lay a trap.
With two ouc
hundred rupees mJ.rked cur1c11cy nutcs given Liy tlJe police
two per:-.•n1s, M anU L, \Vent to the prcml!,cs cxcupicd by the
appellant ; M was lo a•k for a girl for the purpose of pros·
tnution aud L wa" to Uc a witness ol the fact.
M selected a
girl and gave the oue uundrcd rupees uote to the appellant
who put u under her l>luus_c.
\\.hen Mand the ~irJ were in
the roon1, on signal Oe1ug giver1, the pvlicc entered the room
and found then1 in a r;1t11cr cumpromrsing po.sition. A v-·oman
Panch v.: ho had .1ccoH1pan1cJ rhc Police party searched the
appelJanr and recovt(cd the one hundred rupees cur1 ency
note frorn under tl1e liJousc.
The appellant was tried tor ottcnces under ss.3(2) and
4(1) of the SuppresSlc>n of Immoral Tratic in Women and
Girl.i Act,
l~.(>6, !Jy
th~ !\.Iag1srrat~ who, however, acquitted
her.
Ou appeal, the High Court ac.;ccpte<l 1he prosecution
case an<l conv1cle<l the appellant and, hu ther ordered her
eviction. The High Court accepted the le>umoney of L in
regard to the J.iaymtllt of the htJnd1t<1 rupce.s currency note
to the appcilant a11tl also the evidence 1n the case to show
that the amount was u~ed lor t11c
pw·po~c of pro:ititution.
The appellant contended (I) that tt.c convic1ion was bad
because it was based only on the evidence o! the police and its
agents, and the search was not ~onductcd in accordance with
the provisions of the Code ot Crunmal ProceJure, and ( 2)
that, in any case, only the Magi:.trate was given the power
of eviction under s. 18 of the Act.
Held, that on 1he evidence accepted by the High Court,
the conviction of the appellant wa:i valid.
The practice of the Governmental authomy, like the
police employing young men, particularly studenlS studying
at th~ educational insututions, as in the picacnt caK, m
28.C.R.
SUPREME COURT REPORTS
633
order to suppress immoral traffic in women and to stop
prostitution, cohdemned.
Held, further, that the High Court having ordered the
conviction of the appellant, had the power to evict her under
'· 18 of the Act.
CRIMINAL APPELLATE JURISDICTION : Criminal Appeal No. lti74of 1901.
Appeal by special leave from the judgment
and order dated September 29, and October 11,
ll!61, of the .Bombay ,_High. _Court in Criminal
Appeal No. 906 of 1961.
S.
G. Patwardhan, J. B. Dadachanji, O. C.
Mathur and Ravinder Nara·in for the appellant.
H. R. Khanna and P. D. Me'fl(ll'I for the respondent.
1962. January 18.-The Judgment of the Court
was delivered by
KAPUR J.-This is an appeal against the judgment and order of the High Court of Bombay set·
ting a.side the order of acquittal of the appellant
and sentencing her to one year's rigorous imprison·
ment and evicting her from the premises which she
wa.s occupying as a tenant.
The appellant was tried by the Additional
Chief Presidency Magistrate, Esplanade, Bombay,
for offences under ss, 3(2) and 4(1) of the Suppression of Immoral Traffic in Women and Girls Aot
(Act 104 of 1956) hereinafter called the' Act'. The
charge against the appellant was that she supplied a
girl to Mall!Ilohan Anandji Mehta who is a witness
and she kept or managed a brothel at block No. 6,
plot No. 144, Shivaji Park, Bombay;- that she
knowingly lived on the earnings of prostitution and
that she procured women for the purpose of prostitution.
The story of the prosecution was
that information was received by Police Superin·
tendent Kanga that the premises were being used
as a brothel and that the appellant was supplying
lu6Z
Kamalahai J11hamal
v.
The Slate of
Maharrrshlra.
Knpur J.
19tS
Earr.alabrii Jethamal
v.
Th, Stale of
M aharalhtra
Kapt1r.J.
634 SUPREME COURT REFORTS [1962) SUPP.
girls for the purpose of prostitution. He thereupon
laid a trap and sent two persons, Manmohan Anandji
Mehta and Prabhak11r K. Loke, the former was to
a8k for a. girl for thti purpose of prostitution and the
lattnr was to be a panch i. e. a. witness of that fact.
S11ldnspector Purohit, it is stated, gave two one
hundred rupees marked currency notes to Manmohan Ammdji Mehta with the instruction that he
was to pay out of th11t to the appellant and thus to
obtain a. gil I from her for the purpose of prostitution.
He a.long with Loke went to the house of the appellant, rang the bell and was admitted by her.
Ho
then asked the appellant to arrange a girl for him
and both Manmohan Ana.ndji Mehta. and Loke are
alleged to have said that they wanted two girls for
enjoyment.
Two girls were shown, one Kamal
Govind and the other lndu Bapurao Salunke both
of whom are witnesses. The amount quoted by the
appellant in the case of the former was Rs. 100/·
aurl fc,?· the lattc-r Rs. 50/-. Manmohan Anandji
Mehtb. selected Kamal and handed over heroine one
hu.idred rupees currency note to tho appellant
which she put under her blouse. Manmi;han Anandji
Mehta and the girl then went into the kitchen a.nd
there they undressed and were later found naked on
the floor and in a rather compromisinp: position.
On a signal being given the police i.o. Superintendent Kanga and Sub-Inspector Purobit entered the
premises and were told by Loke that Ma.nmoha.n
Ana.ndji Mehta and the girl were in the kitrhen.
The police officers opened the door of the kitchen
and found both Manmohan Anandji Mehta. and
Kamal as stated above.
Th<'v then were asked to
dre88 and come out. Manmohan Anandji Mehta
then returned the other one hundred rupees currency note to .:::iuperintendent Kanga. A woman
Panch who had accompanied the police party
searched the appellant and recovered the one
hundred rupees currency note from under the
blouee. It is stated that the male members of the
party were at tha\ time in a pwage adjoining the
2 S.C.R.
SUPREME COURT R.I<.;PORTS
635
hall where the appellant was searched.
The appellant was tried for the offences above mentioned but
was acquitted by the Additional Chief Presidency
Magistrate. On appeal the High Court set aside
the order of acquittal and sentenced her to a year's
rigorous imprisonment and also ordered her eviction
from the premises she was occupying as a tenant.
The evidence mainly consists of Manrnohan
Anandji Mehta and Loke and the two police oilieern.
'fbe testimony of Manmohan .Anandj1 Mehta and
Loke by itself may not, in the circumstances of the
case, be of much value but their testimony receives
corroboration and thus gives credence to the prosecution case. The evidence of Police Superintendent
Kanga shows that when the door of the kitchen was
pushed open both Kamal and Manmohan Anandji
Mehta were naked and were in a compromising
position ; their clothes were lying by the side of the
mattress. The testimony of Sub-Inspector Purohit
is also to the same effect. The other circumstance
which is very much against the appellant is that
there is evidence to show that when the woman
panch accompanied the police party. and searched
the appellant a hundred rupees currency note was
found from her person under her blouse. The fact
is deposed to by Sub-Inspector Purohit and by
Police Superintendent Kanga. Loke has also deposed
to the same effect.
But it was submitted on behalf
of the appellant that this evidence should not be
accepted as, according to law, no woman can be
searched except by ,another woman and having
regard to the emphasis on decency under ss. 52 and
103 of the Criminal Procedure Code that cannot
be done in the presence of men. There iS no evirlence to show except that of Manmohan Anandji
Mehta that the men were asked to move a.way from
the hall or had actually left the hall during the
search. But al!Buming they were not in the hall
even the}\.it will not be an extraordinary oircum.;
1JI02
Kamalabai Jeth1Jtnal
v.
The State of
Maha,.i.~hlra
Kapur J.
1962
;a,11alobai J,thJmal
v.
Tli1 SUJ•1 of
M ailarorli.tru
Irop.4 J.
636 SUPREME COCRT REPORTS [19E2] SUPP.
stnnce that one or all of them should have seen the
handred rupees note being taken out from under
tho ulouse of the appellant. The High Court has
acceptl'd the te.itimony of Loke and wo find no
re'\son tu <l•·part from the u;ual practice of this
Court of acenpting such findings.
Besides ths High
Court has also accepted the testimony of Loke in
regard to tho payment of a hundred rupees currency
note to the appellant "hich pruves that money was
paid before the >iirl, Kamal Govind, was a8ked to
go with jfanmoha.n Anaudji ,\fohta for the purpose
of pro.titution.
Counsel for the appellant emphasised two
points : t I) that the woman, who was brought by
the police to sea.rob tho appellant and is alleged to
have recovered the hundred rupees note from her
por·son, he.a not been produced and (2) that considering that the person to be searched was a woman
it muot be prcsum~J that in accoruance with the
requirements of law and of decency no man could
have been pr~scnt when tho search of the appellant
took place. In support of tho first contention
reference is made to a judgment of this Court in
Puivez Art:Ushir Pooruiu-alla v. The State of Bombay('),
where the nectBBity of producing the search witneBB
was emphasised and it was observed :-
"This is one of those cases where the rule
in rogard to search witnll&leS becomes applicable and impor ta.nee must be attached to the
la.ck of that class of search wituedses which
a.re enviHaged by the Criminal Procedurn Code
in s. 103."
The Privy Couneil also in ltlal.ak Khan v. Emperor(')
emphasised the necessity of the presence of search
witnesses. Lord Port~r there said :
'·In their Lordship's opinion the presence
of witneBBes at a search is always desirable and
their absence will weaken and may sometimes
destroy the a.cceptanoe of the evidence as to
the fiuding of the articles ............ "
(lj Cr. A. No. 122 of 19;+ decided NI 211-1~-57,
(2
(l!lt!i) L, R. 72 l, A. 311.5.
2S.C.R.
SUPREME COURT REPORTS
637
The observations in Poonawalla' s case e) and Lord
Porter in Malikkhan v. Emperor (')are not directly
applicable in the present case. As we have said
above there is evidence ;n this case which has been
accepted by the High Court that a hundred rupees
note was given to the appellant by Manmohan
Anandji Mehtar There is also evidence that as a
consequence of the payment of money Manmohan
Anandji Mehta did hire Kamal Govind for prostitution and it is regrettable to say that with the
money given to him by the police he acted not
merely as a 'bogus customer', as he has been described, but his participation was more active, reprehensible, immodest, indecent and indecorous. If in
any case the following observations of Lord Goddard, Chief Justice, in Brannan v. Pe,ek (') are apposite
it is this case :
·
"The court observes with concern and
disapproval the fact that the polico au th 1rity
as Derby thought it right to send a police
officer into a public house to commit an
offence. It cannot be too strongly emphasisPd
that, ........ .it is wholly wrong for a police
officer or anv other person to be sent to
commit an offence in order that an offence
by another person may be detected."
We have only to substitute the words "aid an act of
prostitution" for "to commit an offence" and the
analogy is complete. In this case two youngmen
were given mJney to go to the house of the appellant and also to use that money in rather an improper manner. Manmohan Anandji Mehta seems to
be a person of rather doubtful character and the
employment of this class of persons for detection
of offences is hardly a credit to any one. ·What is
more reprehensible &nd a matter of greater concern
i1 the sending with him a young student who was
reading for his Matriculation. To use students in
(11 Cr. A. No. 122of1914 decided on 20-12-1957.
(2:
(lq};) L. R. 7l I.-\. 30>.
131 [lqH] 2 AU. E. R. 573·1.
196f
Kam'llabai Jerhamal
v.
The Stale of
11-f aharas~luJ
Kopur .'.
K-loboij<IA•nl
••
7 II. Stoteof
Jloltartuhlra
K..p...f.
638 SUPREME COURT REPORTS [1962] SUPP.
this manner should not be allowed by any governm<'nh1l authoritv in a <'nuntry like oul'I!. It. is no
justification to say that in order to suppr08B immoral traffic in women and to stop prostitution somebody has to be u1ed and the only class of people
that can be emploved are persons lik11 Manmohan
Anandji Mehta who is confessedly a polioe agent
and Loke who is a youngman willing to be employed
by the police. After saying this we have still to
see "·hat is the consequence of the testimonv of
these witnessess produced in thiR case. The High
Court has believed the testimony of Loke in regard
to the payment of one hunitred rupees and th11re is
evidenP,e to Rhow that t.bat amount was used for
fhe purpose of proC'uring Kam la for prostitution.
The payment must therefore be held to be proved.
It may b11 that the search was contrary to the
spirit or even the lrtfor of the Criminal Procedure
Code but tho fact remains that the High C0urt has
accepted that there was a search and a hundred
rupc' s currency note was recovered and even if the
recovery of a hundred rupees curr<>ncy note were
held not proved, the payment of fhat amount will
not th!'rebv become unproved if there is t>videnco
which the High Court has accepted.
On the findings of the High Court we are unable to come to any other conclusion but the one to
which the High Court came that the appellant is
guilty of the offences of which she was accW1cd.
The next submission of Counsel for the apveJlant was that the High Court in appeal could not
order the appellant's eviction because t1'at power
only a Magistrate hae unrler s. J 8 of the Act. The
argumiint raised was that tht> powers of the appeal
court under A. 423, Criminal Procedure Code are to
rl'ver~e th11 order of acquittal or to order a fresh
enquiry or a retrial eto. but not to order eviotion.
But this argument is untenable in view of the fa.ct
that in the Act there is a specifio provision in s. 18
2 s.c.R.
SUPREME COURT REPORTS
639
of the Aot authorising the making of such an order
by a court convicting a person of offences under s. 3
or s. 7 of the Act. The relevant portion of s. 18
is as follows :-
S.
18 "Closure of brothels anrl eviction of offenders
from the premises.-
(I) ......... ,and if after hearing the person
concerned, the magistrate is satisfied that the
house ...... or portion is being used as a brothel
or for carrying on prostitution then the magistrate may pass orders~-
(a) directing eviction of the occupier within seven days of the passing of the order from
the house .........
(2) A court convicting a person of any
offence under section 3 or section 7 may pass
orders under sub·section (I) without further
notice to such person to show cause as required
in that sub-section."
The High Court ordered the conviction of the appellant under s. 3 of the Act and therefore it had the
power to order her eviction. The second contention
is also without substance.
The appeal is therefore dismissed;
Appeal dismissed.
1982
.Kaulabai .ldhlm•l
v.
The State 1
M aharash It
Ira/JU' J,