Prema Devi alias Prema Chowdhrain vs State of U.P.

B.K. Sharma, J.—This is an appeal against the judgment and order dated 26.7.1980 passed by the then Sessions Judge, Tehri Garhwal Sri D.P. Srivastava, in S. T. No. 9 of 1980 (UK), State v. Prema Devi alias Prema Chowdhrain, under Sections 368, 373, 366, 372, I.P.C. and u/s 3/5 Suppression of Immoral Traffic in Women and Girls Act, 1956, whereby he convicted the accused-Appellant Prema Devi alias Prema Chowdhrain for the offences under Sections 3 and 5 of the Suppression of Immoral Traffic in Women and Girls Act, 1956 and sentenced her to suffer R. I. for a period of one year each for the offences under Sections 3 and 5 of the said Act. Both the sentences were ordered to run concurrently.

The prosecutrix in this case was Meema alias Geeta. Padam Das (P.W. 6), social worker at Mussoorie, received an application of Meema alias Geeta addressed to Collector, Dehra Dun (F.I.R. Ext. Ka.-1) through post in which she gave her age as 17-18 years and said that one Shanti Lal came in Phwan Gaon and enticed away her as well as her husband to Mussoorie on the pretext of getting them employed in some service, then took her to Jwalapur where other ladies were also carrying on the business of prostitution, that she was also taken by him to the said place at Jwalapur and she was also asked to carry on the profession of prostitution against her will, that she was sold to accused Prema Devi, who was a prostitute and was carrying a den of prostitution. It was prayed in it that she be got released from there. It was also said in it that she wanted to go with her husband to her village. In the application Kesari co-accused was described as her husband. The stamp on the said written report showed that it was purchased on 22.4.1978 by Kesari co-accused.

Padam Dass (P.W. 6) passed on the said application (F.I.R. Ext. Ka. 1) to the Commissioner. Later on it was forwarded for action to Circle Officer II, Mussoorie and on the orders of Circle Officer II a check report was prepared and a case was registered on 28.6.78 under Sections 366, 372 and 376, I.P.C. at police station Mussoorie. The case related to Patti Godar Uttar Kashi. During the investigation Prema Devi accused-Appellant was arrested on 28.3.1980 at the pointing out of the prosecutrix Smt. Meema. A recovery Memo, Ext. Ka-6, was prepared in respect of her. Co-accused Kesari was also arrested during the investigation. The Investigating Officer had prepared site plans of various places viz., Damta, Mussoorie and Jwalapur where co-accused Kesari along with one Shanti had taken the prosecutrix from time to time. The site plans were Exts. Ka-9, Ka-10 and Ka-11, respectively. He also prepared the site plan of Chami (Ext. Ka-12). The age of prosecutrix estimated on the medical evidence was between 20-25 years on 25.3.1980 and on the evidence of her father at the trial her age was 18-20 years at that time. So in any case her age came to be near about 18 years on the date of the occurrence.

At the trial, the learned Sessions Judge found that Kesari co-accused was entitled to acquittal for the charge u/s 363, I.P.C. but found him guilty for the offence u/s 366, I.P.C. and also for the offences under Sections 3 and 5 of the Suppression of Immoral Traffic in Women and Girls Act, 1956. In regard to Prema Devi alias Prema Chowdharain, he awarded an acquittal for the offences under Sections 368, 372 and 373, I.P.C. but convicted her of the offences under Sections 3 and 5 of the Suppression of Immoral Traffic in Women and Girls Act, 1956.

Heard learned Counsel for the parties. There is no substance in this appeal. There is evidence of the prosecutrix Smt. Meema alias Geeta at the trial that she was initially married with one Purnu and she at that time was aged about 12 years, that be used to assault her and her father as well, that one day being dissatisfied she fled from Purnu''s house, that in the way, Kesari co-accused met her and asked her not to commit suicide and assured her to get the matter settled with her husband, that then he took her to village Chami where co-accused Shanti met her, that Shanti and Kesari both assured her to provide her with an employment, that from Chami she was taken to village Damta and then to Mussoorie by them, that from Mussoorie she was taken to Jwalapur town where she was sold to accused-Appellant Prema Chowdhrain for carrying on prostitution, that accused-Appellant Prema Chowdharain made her to carry on the profession of prostitution at her (accused-Appellant Prema Chowdhrain''s) house, that there were other girls like her (Smt. Meema) at the house of Prema Chowdhrain accused-Appellant for whom also prostitution work was taken by her (accused-Appellant Prema Chowdhrain). Her (prosecutrix Smt. Meema) evidence at the trial further was that she was sold for Rs. 4,000 to Prema Chowdhrain accused-Appellant, that after staying there for two months at the house of Prema Chowdhrain accused-Appellant, she could manage to escape from her house (house of accused-Appellant Prema Chowdhrain). She testified that she ran away with Kesari co-accused and reached Mussoorie and stayed there at the house of one Padam Dass along with Kesari co-accused and from Mussoorie Kesari co-accused took her (the prosecutrix Smt. Meema) to village Phuwangaon and from Phuwangaon she reached village Ganai, from where she was recovered by the Patwari and she was produced before the Sub-Divisional Magistrate, Bankot. She has proved the F.I.R., Ext. Ka-1. She has deposed that Prema Devi accused-Appellant was arrested from her house (Prema Chowdhrain''s house) at her instance (prosecutrix''s instance).

The presence of the stamps on the application (F.I.R. Ext. Ka-1) in the name of Kesari co-accused showed that co-accused Kesari was present with the prosecutrix even at the time when this application was got prepared by her (by the prosecutrix). The denial of Kesari co-accused that he was not in company of the prosecutrix was obviously not true and her (the prosecutrix''s) deposition at the trial established it beyond doubt that she was abducted by Kesari co-accused, who managed to get his name omitted in the F.I.R. substituting the name of Shanti therein. There is unimpeachable evidence of the prosecutrix that she (the prosecutrix Smt. Meema alias Geeta) was sold to Prema Chowdhrain accused-Appellant by co-accused Kesari and that there she was confined by the accused-Appellant Prema Chowdhrain and was not allowed to move out from there and this illegal confinement was made for immoral purposes, that she was forced to carry on the profession of prostitution against her (the prosecutrix''s) will. Had she not been taken to the said place and not forced by the accused-Appellant Prema Chowdhrain to carry on the profession of prostitution, she (the prosecutrix) could not have implicated her. The false implication of accused-Appellant Prema Chowdhrain is ruled out. It was on the pointing out of the prosecutrix that Prema Chowdhrain accused-Appellant was arrested from her (Prema Chowdhrain''s) house. Had she not been taken to Prema Chowdhrain''s house and not forced to carry on the profession of prostitution by accused-Appellant, she (the prosecutrix) could not know the location of the house of Prema Chowdhrain accused-Appellant and could not have been able to lead the investigators to arrest her (Prema Chowdhrain accused-Appellant) from her (Prema Chowdhrain accused-Appellant''s) house. It was immaterial that the prosecutrix did not disclose to her customers the fact of her being sold to Prema Chowdhrain accused-Appellant. That was but natural as the accused-Appellant Prema Chowdhrain would not have allowed her to do so as she (the prosecutrix) was absolutely under her (accused-Appellant Prema Chowdhrain''s) control. So, the prosecutrix could not dare to disclose or divulge the fact of her being sold to accused-Appellant Prema Chowdhrain. There is evidence of the prosecutrix that Kesari co-accused and accused-Appellant Prema Chowdhrain both threatened and forced her (the prosecutrix) to live at her (Prema Chowdhrain accused-Appellant''s) house and it admits of no doubt that she (the prosecutrix) has given valid explanation in her (the prosecutrix''s) statement u/s 164, Code of Criminal Procedure as to why she had given the name of Kesari co-accused to be her husband as she was under the influence of Kesari co-accused at that time.

The evidence on record also established that Prema Chowdhrain accused-Appellant was keeping and managing a brothel. A ''brothel'' has been defined in Clause (a) of Section 2 of the Act as including a house, room, conveyance or place or portion thereof which is used for the purposes of prostitution for the gain of another person or for the mutual gain of two or more prostitutes. The evidence also established that the accused-Appellant was running a brothel at her house. The prosecution also establishes that the prosecutrix Smt. Meema alias Geeta was forced by her to carry on profession of prostitution at the brothel kept by her (accused-Appellant Prema Chowdhrain). So, the offences under Sections 3 and 5 of the Act are established against the accused-Appellant.

However, the learned Counsel for the accused-Appellant has prayed that the accused-Appellant may be extended the benefit of Probation law. This prayer has been opposed by learned Addl. Government Advocate on the ground that minimum sentences have been provided under the Act. He has pointed out that for the offence u/s 5 of the Suppression of Immoral Traffic in Women and Girls Act, 1956, the minimum sentence provided is 3 years but the Sessions Judge has imposed only a sentence of one year, which is, therefore, a breach of the mandate for imposing that minimum punishment. However, no Government appeal has been filed for enhancement of the sentence and, therefore, it is not possible to enhance the sentence of the accused-Appellant for the offence u/s 5 of the said Act.

The occurrence relates to the year 1978. The offences under Sections 3 and 5 of the Suppression of Immoral Traffic in Women and Girls Act, 1956 were committed in Jwalapur, which related to police station Patwari Patti Gaatu Gotsar, Tehsil Purola, district Uttar Kashi within the jurisdiction of Sessions Judge, Tehri Garhwal. Uttar Pradesh has got its own Act--United Provinces First Offenders Probation Act, 1938 (U.P. Act No. VI of 1938). In it there is a provision in Section 4 corresponding to Section 4 of Probation of Offenders Act, 1958 (Central Act). There was Section 14 in it, which stated that nothing as contained in it shall affect the provision of Section 31 of the Reformatory Schools Act, 1897. The Suppression of Immoral Traffic in Women and Girls Act, 1956 was a Central Act and also a special Act passed subsequent to the U.P. Act No. VI of 1938 aforesaid. The Probation of Offenders Act, 1958 (Central Act) was enforced in different parts of the states from different dates. In U.P. in the districts of Uttar Kashi and Tehri Garhwal, this Act was enforced with effect from 1.1.1984 by U.P. Government Gazette dated 11.2.84, Part I, Page 465. At the time of occurrence (June, 1978), the Central Act (Probation of Offenders Act, 1958) was not applicable to the said area. The judgment of the learned Sessions Judge was dated 26.7.1980. Even at that stage, the Central Act had not come into operation so far as that area was concerned.

Further, Section 18 of the Probation of Offenders Act, 1958 saves the provisions of certain enactments. Originally, the Suppression of Immoral Traffic in Women and Girls Act, 1956 was also excepted from the operation of the Probation of Offenders Act, 1958 in the saving Section 18. But to remove the difficulties in the implementation of the Suppression of Immoral Traffic in Women and Girls Act, 1956 that came to the surface during the course of time, it was amended by the Act No. 46 of 1978. Section 10 of the Suppression of Immoral Traffic in Women and Girls Act, 1956 as substituted by Act No. 46 of 1978, provided for the release on probation of good conduct or after due admonition of the offenders convicted for the first time of any offence u/s 7 or Section 8 of the Act. In a case arising in an area where the Probation of Offenders Act, 1958 was in force, the provisions of Section 4 of the said Act were to apply, and in any other case the procedure prescribed by Section 360 of the Code of Criminal Procedure, 1973 was to be followed. Since it was so provided in the Suppression of Immoral Traffic in Women and Girls Act, 1956, it was no longer necessary to save the said Act from the application of the Probation of Offenders Act, 1958 (Central Act). By the same amendment of 1978, Section 10A was inserted in the Suppression of Immoral Traffic in Women and Girls Act, 1956 providing for detention in a corrective institution of a female offender found guilty of an offence u/s 7 or 8, but not released on probation of good conduct or after due admonition under Sub-section (1) or Sub-section (2) of Section 10 of the Act.

However, subsequently by the Act No. 44 of 1986, Section 10 of the Suppression of Immoral Traffic Act, 1956 as substituted by amending Act No. 46 of 1978 was omitted. So, now the position is that neither the Probation of Offenders Act, 1958 applies to the Immoral Traffic (Prevention) Act, 1956, which is the amended title of the Suppression of Immoral Traffic in Women and Girls Act, 1956, nor does there exist any provision in the Immoral Traffic (Prevention) Act, 1956 for the release of an offender on probation of good conduct or after due admonition. Resultantly, the offences under the Immoral Traffic (Prevention) Act, 1956 have been rendered more stringent.

It is true that the Probation of Offenders Act, 1958 (Central Act) has now become applicable to Tehri Garhwal also but even then in view of the above background of the Legislative history, it will only be proper to conclude that neither the United Provinces First Offenders Probation Act, 1938, nor the Central Act of 1958 aforesaid would be attracted to the offences under Sections 3 and 5 of the Suppression of Immoral Traffic in Women and Girls Act, 1956, committed in the district of Tehri Garhwal in Uttar Kashi, which was within the jurisdiction of the Sessions Judge, Tehri Garhwal at that time. Even today, even assuming that this provision applies, considering the nature of the offences and the circumstances, it is wholly undesirable that the benefit of Probation law be extended to the accused-Appellant, even though the case is an old one and she (the accused-Appellant) is on bail from this Court.

The appeal is accordingly dismissed. The conviction and sentence of the accused-Appellant is confirmed. She is on bail from this Court. Her bail is cancelled. A non-bailable warrant of arrest be issued against accused-Appellant Prema Devi alias Prema Chowdhrain by the learned C. J. M. concerned. She shall be arrested and lodged in the District Jail concerned for serving out her sentences according to law.

Let a certified copy of this judgment be sent for information and compliance to the Sessions Judge concerned within a week from today. The compliance report shall be submitted by the learned Sessions Judge concerned to this Court within a month from today.