# Bhagwan,bhai Dulahbhai Jarthav v. State •f JltSftara•hlra

- **Citation:** [1963] 3 S.C.R. 396
- **Court:** Supreme Court of India
- **Decided:** 1960-12-20
- **Bench:** B. i'. SINHA. C.J, K. N. Wanohoo, J. c. SHAH
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/bhagwan-bhai-dulahbhai-jarthav-v-state-f-jltsftara-hlra-2631
- **Pages:** 9

## Headnote

Criminal Law-Seduction-Aasisting pro•titvte in her
pro/eaaion-IJ amoQts to
induc•ment to forced or seduced
Illicit int<rcourse-Inffian Penal Ooae (Act 45 of 1860), ••·
/U, 809, 366, 366 A.
,
The appellant was convicted of the offence under s. 366A
read withs. 109 of the Indian Penal Code. The case against
him was that A who was a minor below the age of 18 years
was brought up by P and had before the date of the offence
been habituated to the life of a prostitute. On the day in
question the appellant went to the residence of P and
aaked him to bring A to a theatre, P accompanied A to the
f-
>-
-
3 S.C.R.
SUPREME OOURT REPoRTS
307
theatre where the latter sought some customers.
They were
taken by another person to a plaee called Bohori Kath~da. at
which place A was invited for the purpose of prostitution.
When p accompanied A to the theatre and from there to
Bohori Kathada he knew that she was going for plying her
profession as a prostitute.
Held that the appellant could not in law be held guilty
of abetting the commission of an offence under s. 366A of
the Indian Penal Code by P.
A person who merely accompanies a woman going out
to ply her orofession of a prostitute, even if she has not
attained the age of 18 years, could not be said thereby to
induce her to go from any place or to do any act with the
intent or knowledge that she will be forced or seduced to
illicit intercourse within the meaning of s. 366 A.
Seduction implies surrender of her body by a woman
who is otherwise reluctant or unwilling to submit herself to
illicit intercourse whether such surrender is for the firb t time or
is preceded by similar surrender on earlier occasions ; but
where a person in the course of her profession as a prostitute
offers herself for profession as a prostitute offers herself for
intercourse, there are no sucruplcs nor reluctance to be over·
come, and surrender by her is not seduction within the Code.
CRIMINAL APPELLATE JuRISDIOTION: Criminal
.Appeal No. 72 of 196I.
Appeal by special leave from tbs judgment
and order dated December 20, 1960, of the Bombay
High Court in Criminal A peal No. 1207 of 1960.
J ai Gopal Sethi, O.L, Sareen and R.L. Kohli,
for the appellant,
G. 0. Mathur and P, D. Menon, for the
respondent.
1962. July 24. The Judgment of the Court
was delivered by
SHAH, J.-On May i', 1962, we ordered•after
arguments were concluded that the appeal be allowed and the conviction of the appellant be set aside.
We now proceed to record our reasons in support
of the order.
1962
Flainesh
. ,v.
Slate of
:Maha•111htr11
,,~,. J.
1988
B•Mesh
v.
sea1e of
Mqharaalltr•
ShahJ.
a9S
SUP~~ COU:R.1' REPORTS (1963)
The appellant, Ramesh Amin, and seven others
were tried in the Court of Session, Aur<1ngabad, for
offences punishable under ss.
366, 366A. Indian
Penal Code, and abetment thereof. The appellant
was the third accused at the trial. The Sessions
Judge convicted accused Nos. I to 4 and 7 of the
offences charged against them and sentenced them
to suffer rigorous imprisonment for two years for
each offence, and acquitted the rest. The High
Court of Bombay entertained appeal of accused
Nos. 1 to 4 (bnt not of accused No. 7) and set aside
the order of conviction and sentence against them
for 'the offences punishable under s. 366 read with
s. 34 and s. 366A of the Indi:i.n Penal Code. The
High Court, however, convicted the appellant of
abetting the seventh accused in ind<iiling a minor
girl, Anusaya,, to go. with other persons from her
residence at Kabadipura to Guizar '.fheatre, and
then to a house known as Bohori Kathada with
intent that she may or knowing that she was likely
to be eeduoed to illicit intercourse. With special
leave the appellant has appealed to this Court.
The seventh accused, Patilba, is a resident
of Aura~gabii-d and 1 the. eighth accused is his wife.
Anusaya is, the, daughter of Shakuntala by her
husband Kashinath.. After the death of Kashinath,
Shakuntala brought' her infant daughter Anusaya
to tl;ie house of Patilba and s

## Text

1961
Bhagwan,bhai
Dulahbhai Jarthav
v.
State •f
JltSftara•hlra
--
Shalz J.
1961
. 1
.. 1,"
were accordingly liable to be convicted only of the
offence under s. 66(b) of the Act, and the ms.ximum
term of imprisonment for a first offence punishable
under that section is rigorous imprisonment for six
months and a fine of Rs. I, 000/·. We accordingly
modify the order passed by the High Court and
maintain the conviction of accused Nos. I and 5
under s. 06 (b) and set a.side the order of conviction
under ss. 65 (a), 81 and 83 of the Act and the sentence passed in respect of those offences. We also
modify the sentence imposed by the High Court for
the offence under s. 66 (b) of the Act, and direct
that each appellant do suffer rigorous imprisonment
for six months and pay a fine of Rs. 500/·, and in
default of payment of fine do suffer rigorous imprisonment for one month and fifteen days.
Subject to that modification the appeal is
dismissed.
RAMF.SH
v •
THE STATE OF MAHARASHTRA
(B. i'. SINHA. C.J., K. N. WANOHOO and
J. c. SHAH, JJ.)
Criminal Law-Seduction-Aasisting pro•titvte in her
pro/eaaion-IJ amoQts to
induc•ment to forced or seduced
Illicit int<rcourse-Inffian Penal Ooae (Act 45 of 1860), ••·
/U, 809, 366, 366 A.
,
The appellant was convicted of the offence under s. 366A
read withs. 109 of the Indian Penal Code. The case against
him was that A who was a minor below the age of 18 years
was brought up by P and had before the date of the offence
been habituated to the life of a prostitute. On the day in
question the appellant went to the residence of P and
aaked him to bring A to a theatre, P accompanied A to the
f-
>-
-
3 S.C.R.
SUPREME OOURT REPoRTS
307
theatre where the latter sought some customers.
They were
taken by another person to a plaee called Bohori Kath~da. at
which place A was invited for the purpose of prostitution.
When p accompanied A to the theatre and from there to
Bohori Kathada he knew that she was going for plying her
profession as a prostitute.
Held that the appellant could not in law be held guilty
of abetting the commission of an offence under s. 366A of
the Indian Penal Code by P.
A person who merely accompanies a woman going out
to ply her orofession of a prostitute, even if she has not
attained the age of 18 years, could not be said thereby to
induce her to go from any place or to do any act with the
intent or knowledge that she will be forced or seduced to
illicit intercourse within the meaning of s. 366 A.
Seduction implies surrender of her body by a woman
who is otherwise reluctant or unwilling to submit herself to
illicit intercourse whether such surrender is for the firb t time or
is preceded by similar surrender on earlier occasions ; but
where a person in the course of her profession as a prostitute
offers herself for profession as a prostitute offers herself for
intercourse, there are no sucruplcs nor reluctance to be over·
come, and surrender by her is not seduction within the Code.
CRIMINAL APPELLATE JuRISDIOTION: Criminal
.Appeal No. 72 of 196I.
Appeal by special leave from tbs judgment
and order dated December 20, 1960, of the Bombay
High Court in Criminal A peal No. 1207 of 1960.
J ai Gopal Sethi, O.L, Sareen and R.L. Kohli,
for the appellant,
G. 0. Mathur and P, D. Menon, for the
respondent.
1962. July 24. The Judgment of the Court
was delivered by
SHAH, J.-On May i', 1962, we ordered•after
arguments were concluded that the appeal be allowed and the conviction of the appellant be set aside.
We now proceed to record our reasons in support
of the order.
1962
Flainesh
. ,v.
Slate of
:Maha•111htr11
,,~,. J.
1988
B•Mesh
v.
sea1e of
Mqharaalltr•
ShahJ.
a9S
SUP~~ COU:R.1' REPORTS (1963)
The appellant, Ramesh Amin, and seven others
were tried in the Court of Session, Aur<1ngabad, for
offences punishable under ss.
366, 366A. Indian
Penal Code, and abetment thereof. The appellant
was the third accused at the trial. The Sessions
Judge convicted accused Nos. I to 4 and 7 of the
offences charged against them and sentenced them
to suffer rigorous imprisonment for two years for
each offence, and acquitted the rest. The High
Court of Bombay entertained appeal of accused
Nos. 1 to 4 (bnt not of accused No. 7) and set aside
the order of conviction and sentence against them
for 'the offences punishable under s. 366 read with
s. 34 and s. 366A of the Indi:i.n Penal Code. The
High Court, however, convicted the appellant of
abetting the seventh accused in ind<iiling a minor
girl, Anusaya,, to go. with other persons from her
residence at Kabadipura to Guizar '.fheatre, and
then to a house known as Bohori Kathada with
intent that she may or knowing that she was likely
to be eeduoed to illicit intercourse. With special
leave the appellant has appealed to this Court.
The seventh accused, Patilba, is a resident
of Aura~gabii-d and 1 the. eighth accused is his wife.
Anusaya is, the, daughter of Shakuntala by her
husband Kashinath.. After the death of Kashinath,
Shakuntala brought' her infant daughter Anusaya
to tl;ie house of Patilba and started living with him
as his mistress. Sometime later Shakuntala left
the house of Patilba.and took up residence at Nasik
but Anusaya contiiihed' to . live with Patilba and
was brought up by him. Marriage was arranged
by. Patilba between Anusaya and one Ramlal, but
Anusaya declined to live with her husband. Pat·
ilba introduced Anus~y!l- to some "custoJl!.ers" and
sne started indulging in promiscuous intercourse,
for money. It wa8 the 'prosecution case that on
January 13, 1960, the appellant went to the resid·
enoe of Patilba and asked him to bring Anusaya and
-
'
•
-
.J
3 s.c.:R.
SUPREME COURT REPORTS
399
one Chandrakala. (a woman following the profession
of a prostitute) to the Guizar Theatre, and accordingly, Patilba, the eighth accused, Chandrakala
and .Anusaya went to the Theatre. .At the instance
of the appellant, Anusaya and Chandrakala were
taken by one Devidas (who has given evidence as
an approver) to Bohori Kathada. 8ub-Inspector
Pagare of the Police Station City Police Chowk,
Aurangabad, had reoeived information that some
persons were consuming illicit liquor in a room at
Bohori Kathada and he arranged to raid that house.
Pagare found accused Nos. 1 to 5 and Devidae in
a room consuming liquor. He also found Chandrakala and Anusaya in an inner apartment. Persons
found in the room were arrested and sent for medical examination to the local Civil Hospital, and it
was found that Anusaya· had not attained the age
of 18 years. Pagare then laid an information before
the Judicial Magistrate, Aurangabad, for offence
punishable under the Bombay Pl'ohibition Act,
1949-(we are informed at the Bar that in respect
of those offences the accused w9re acquitted and
we are not concerned in this case with those offence)
-and,,.a.lso for offences punishable under ss. 366
and 3ti'S! of the Indian Penal Code against nine
persons including the appellant, Patilba and Devidas. In the course of proceedings for commitment
to the Court of Session, Devidas was tendered pardon on condition of his making a full disclosure of
the circumstances within his knowledge.. The case
was then committed to the Court of Session, Aura-
-ngabad for trial. The Court of Session held that
accused Noa. I to 4 had in furtherance of their common intention kidnapped Anusaya-a girl below
the age of 18 years-in order that she may be forced
or seduced to illicit intercourse or knowing it to be
likely that she would be forced or seduced to illicit
intercourse, and the seventh accused Patilba had.·
abetted the commission of that offence, and that
accused Nos. I to 4 and 7 had induced Anusaya to
11162
Rame•h
.,,
Stale of
Maharashtra
Shah J,
1962
Ramesh
••
Stat• of
JI ah•ra1htra
400
SUPREME COURT REPORTS [1963]
go from hi>r residence to the Guizar Theatre and
from the theatre to Bohori Kathada with intent
that she may be or knowing that it was likely that
she would be forced or seduced to illicit intercourse.
He accordingly convicted accused Nos. 1 to 4 of the
offence under s. 366 read with s. ~4 of the Indian
Penal Code and also of the offence under s. 366A of
the Indian Penal Code.
The High Court of Bombay in appeal acquitted accused Nos, 1 to 4 of the offence of kidnapping
becauEll!', in their view, accused Nos. 1 to 4 bad
•'nothing whatever to do with the original kidnapp·
ing by Patilba (the 7th accused) and since he was
not the lawful guardian of this girl, her being brought to this room cannot be regarded as kidnapp·
ing". The learned Judges also acquitted accused Nos. 1 to 4 of the offence under s. 366A observ·
ing that "there is no evidence of any direct talk
between any of the accused and the girl, nor even
of any inducement offered through Patilba (accused
No. 7). Even so far as accused No. 3 is concerned,
there is no direct talk between Anusaya and accused No. 3 which can be regarded as an inducement
to her to move either from the house of Patilba or
from the theatre to the room in question." But in
their view the case against the appellant "did not
end with this" : They observed:
"The evidence ........................ clearly
indicates that accused No. 3 instigated Pat·
ilba and Devidas to bring the girl to the
theatre and thereafter to the room in question.
Patilba, as we have stated, being in custody
of this girl and the girl being minor and helpless, induced or forced her to go to the cinema
and thereafter to this room and actually left
her there. So far Patilba was concerned, he
intended that she should be forced or seduced
to illicit intercourse· by one . or the other of
•
•
/
r
. '
r
y
$ s.c.R.
SU:l?REME COURT REPORTS
401
the accused. Accused No. 3 by asking Patilba
to bring the girl to the theatre and asking
Devidas and Patilha to bring the girl to the
room clearly instigated Patilba in the commission of this offence. He must, therefore,
be held clearly guilty of the offence of abetment of this offence by Patilba."
The
High Court accordingly convicted the
appellant of the offevce under s. 366A read with
s. 109 of the Indian Penal Code, because, in their
view, he had abetted the commission of an offence
punishable l\Ilder s. 366A by Patilba by instigating
the latter to bring Anusaya to the theatre and by
by further instigating Patilba and Devidas to bring
Anusaya from t~e theatre to Bohori Kathada.
In our view, the appellant cannot in law
be held guilty of abetting the commission of an
offence punishable under s. 366A, Indian Penal
Code, by Patilba.
The facts proved by the evidence · are these:
Anusaya at the material time had not attained the
age of 18 years. She was brought up by Patilba
and even though she had married Ram Lal she was at
the material time and for many months before living
under the guardianship of Patilba. For a long
time before the date of the offence Anusaya was
accustomed to indulge in promiscuous intercoure
with "customers" for money. She used to entertain
as she herself admitted, ''one or two
customer~
every day" and had before the date of the offence
been habituated to the life of a prostitute. On
the day in question she and her companion Ohandrkala went to the Gulzar Theatre accumpanied by
Patilba.. In the theatre Anusaya and Chandrakala
were seeking customers: they repaired during the
break in the show to the entrance of the theatre
for that purpose, but she had to return disappointed
because they found a police van parked near the
1962
Ramesh
••
State of
Maharashtra
Shah J.
1961
Ramesh
v.
8'at6 of
Mahara1htro
Shah J
402
SUPREME COURT REPORTS (1963]
entrance. Anusaya and the 6th acoused went to
Bohori Kathada for carrying on thfir profession as
prostitutes. There is no evidence that she was not
willing to go to Guizar Theatre on the night in
question nor is there any evidence that she was
unwilling to go to 'Bohori Kathad"' to which she
and her companion were invited for the purpose
of prostituti<in.
Do these facts make out a case against the
appellant of a.betment of the offence of procuration
of a minor girl punishable under s. ,366A of the
Indian Penal Code? Section 366A was enacted by
Act XX of 1923 to give effect to certain Articles
of the International Convention for the Suppression
of Traffic in Women and Children signed by various
nations at Paris on May 4, 1910.
There are three
·principal ingredients of the offence:
(a) that a minor girl below the age of
18 years is induceed by the accused,
·
(b) that she is induced to go from any
place or to do any act, and
·
· (c) that she is so induced with intent
that she may be or knowing that it is likely
that she will b.e forced or seduced to illicit
intercourse with another person.
The evidence clearly establishes that Anusaya had
not at the material time attained the age of 18 .
yea.rs.
But there is no evidence on the record that
Pa.tilba induced Anusaya to go to the theratre or
from the theatre to Bohori Kathada. It must be
assumed that when Patilba accompanied Anusaya
to the theatre and from the theatre to the Bohori
Ka.thada at the suggestion of the appellant he knew
that she was going for plying her profession as a
prostitute.
But in our ju<lgment a person who
merely accompanies a woman going out to ply
her profession of a. prostitute, even if she has not
....
+ i
3 S.C.R.
SUPREME COURT REPORTS
403
attained the age of eighteen years, does not thereby
commit an offence under s. 366A of the Indian
Penal Code. It cannot be said that thereby he indu·
ces her to go from any place or to do any act
with the intent or knowledge contemplated by
the section.
We agree that seduction to illicit intercourse
contemplated by the section does not mean merely
straying from the path of virtue by a female for
the first time.
The verb 'seduce' is used in two
senses. It is used in its ordinary and narrow, sense
as inducing, a woman to stray from the path of
virtue for the first time: it is also used in the wider
sense of iducing a woman to submit to illicit intercourse at any time or on any occasion. It is in
the latter sense that the expression has been used
in as. 366 and 366A of the Indinn Penal Code which
sections partially overlap. This view has been
taken in a large number of cases by the Superior
Courts in Tndia, e. g. Prafulakumar Basu v. The
Emperor (1), Emperor v. Laxman Bala (2), Krishna
Maharana v. The King Emperor('), In re Khalandar
Saheb (4), Suppiah v. Emperor
(0), Pessumal v.
Emperor {6), King Emperor v. Nga Ni Ta (7) and
Kartara f. The State (8). The view expressed to
the contrary in Emperor v. Baijnath (9), 8haheb
Ali v. Emperor (1 1), Aswini Kumar Roy v. The
State (1°) and Nura v. Emperor (l2) that the phrase
used in s. 366 of the Indian Penal Code is "pro·
perly applicable to the first act of illicit intercourse,
unless there be proof of a return to chastity on the
part of the girl since the first act" is having regard
to the object of the Legislature unduly restrictive ,
of the content of the expression "seduce'' used in
the Code.
But this is not a case in whfoh a girl
who had strayed from the path of virtue when she
( IJ (1929) I. L. R. 57 Cal. T074
(3) ( 1919) I. L. R. 9 Pat. 647.
(5) A. r. R. 193J Mad. 9qo.
l7J (1903) 10 Burma L. R. J96.
(9) (IS92J I. L. R. 54 All. 756.
(11) A, I. R. 1955 CaJ, 100.
i
.•
(2) (1934) I. L. R. 59 Dom. 652.
(4J A. I. R. 1955 A. P. 59.
(6) (1924) 27 Cr. L.J.1292.
(8) I, L. R. fJ957] Punjab 2003.
(IO) (1933) I. L, R. 60 Cal. 1457
{12) A. I. R. 1934 Lab. 227.
.
t
Ramesh
v.
S1at1 qf
Maharashlt:11.
-
Shah J,
19H --
v.
_Slat~ of
Malraraahtra
~hahJ.
404
SUPREME COURT REPOR'fS n1963J
was in the custody of her guardian and had with
a view to carry on her affair accompanied her sedu.
cer or another person. Such a case may certainly fall
within the terms of s.366 or s.366A whichever applies.
But where a woman follows the profession of a
prostitute, that is, she is accustomed to offer herself promiscuously for money to "customers", and in
following that profession she is encouraged or assisted by someone, no offence under s. 366A is
committed by such person, for it cannot be said
that the person who assists a girl accustomed to
indulge in promiscuous intercourse for. money in
carrying on her profession acts with intent or
knowledge that she will be forced or seduced to
illicit intercourse. Intention on the part of Patilba
or knowledge that Anusaya will be forced to subject
herself to illicit intercourse is ruled out by the
evidence: such a case was not even sugge9ted.
Seduction implies surrender of her body by a woman
who is otherwise reluctant or unwilling to submit herself to illicit intercourse in consquence of persuasion,
flattery,
blandishment or
importunity, whether
such surrenrler is for the first time or is preceded
by similar surrender on ·earlier occasions.
But
where a woman offers herself for intercl\urse for
money-not casually but in the course of her profession as a prostitute-there are no scruples nor
reluctance to be overcome, and .surrender by her
is not seduction within the Code. It would then
be impossible to hold that a person who instigates
another to assist a woman following the profession
of a prostitute abets him to do an act with intent .
that she may or with knowledge t;hat she will be
seduced to illicit intercourse.
Appeal allowed.
-... --.
.,.
' ..