State by Public Prosecutor vs Padma and Another

Somasundaram, J.—Two persons, Padma and Kamala, were charged before the III President Magistrate, Saidapet, Madras, for offences

punishable under Ss. 3(1), 7(1) of the Suppression of Immoral Traffic in Women and Girls Act, 1956 (hereinafter called the Act), on the allegation

that the first of them was running a brothel at house No. 27 VII Main Road, Raja Annamalaipuram, Madras and was living on the earnings of the

second accused, a prostitute and that the second accused prostituted herself for consideration with one Venkataraman on the 22nd of March,

1968. Venkataraman was the decoy sent by the police to this premises before the raid. He was cited as a witness in the charge sheet. Observing

that S. 7(1) of the Act provides for punishing not only the girl who carries on prostitution but also the person with whom such prostitution is

carried, the learned Magistrate took cognisance of the offence committed by the decoy Venkataraman u/s 190(1)(a) and (b) Crl. P. C. and

directed the issue of summons to him for appearance on a particular day to answer the charge u/s 7(1) of the Act. The Public Prosecutor has filed

this revision challenging the correctness of this order.

The competency of the Magistrate to take cognisance of offence (under Section 190(1)(b) Crl. P. C.) disclosed in the Polices record against

offenders not having been charged by the police cannot be disputed. The Supreme Court in Shri A.C. Aggarwal, Sub-divisional Magistrate, Delhi

and Another Vs. Mst. Ram Kali, etc., has held that the Magistrate is bound to proceed against the accused under Sections 3 and 7, the penal

provisions of the Suppression of Immoral Traffic in Women and Girls Act, before taking action u/s 18 of the Act. In this context it has to be

remembered that the prosecution has got a right to examine as a witness even an unpardoned co-accused, and such a course has been approved

by the Supreme Court in Laxmipat Choraria and Others Vs. State of Maharashtra, . A Division Bench of this Court P. Shirajuddin v. State of

Madras AIR 1958 Mad. 117 has also approved the examination of accomplice without tender of pardon. The evidence of an accomplice in such

matters is tolerated as of necessity as it may be impossible to get sufficient evidence of many crimes unless some of the participants or at least one

of them disclose the circumstances within his knowledge. Usually pardon is tendered and an accomplice is taken as an approver. The policy of not

securing judicial pardon to accomplices and bringing them as approvers but retaining them as witnesses at the sole discretion of the prosecution

may be open to question but that cannot by itself invalidate the arrangement of the person actually put up for the trial. Their Lordships of the

Supreme Court have also approved the above view expressed by the Division Bench of this Court by the following observations:

We are not impressed by the argument that the Appellant was singled out from a number of persons who had aided the Appellant in the

commission of various acts of misconduct and that they were really in the position of accomplices. It was pointed out by the High Court that the

prosecution may have felt that ''if the subordinate officers were joined along with the Appellant as accused the whole case may fall for lack of

evidence.'' In our view, if it be a fact that it was the Appellant who was the head of the, department actively responsible for directing the

commission of offences by his subordinates in a particular manner, he cannot be allowed to take the plea that unless the subordinates were also

joined as co-accused with him the case should not be allowed to proceed.

(Vide P. Sirajuddin, etc. Vs. State of Madras, etc., Thus the prosecution has got a right to examine the decoy witness who may be a co-accused

and if he is ordered to be tried along with the same accused, that right of the prosecution will be rendered nugatory.

The prosecution has go an unfettered discretion to examine a co-accused as a witness in the case. The Magistrate by virtue of his powers u/s 191

(b) and (c) Crl. P. C, has powers to take cognisance of an offence even against persons not charged. When such a situation arises the intent and

purport of the Act should be kept in view in the matter of construction of the provisions of the Act and a decision arrived at on a harmonious

construction of the Various provisions of the Act. Their Lordships of the Supreme Court have observed in Shri A.C. Aggarwal, Sub-divisional

Magistrate, Delhi and Another Vs. Mst. Ram Kali, etc., as below:

Bearing in mind the purpose of these provisions as well as the scheme of the Act and on a harmonious construction of the various provisions of the

Act, we are of the opinion that in cases like those before us the Magistrate who is also a court as provided in S. 22 must at the first instance

proceed against the persons complained against, under the penal provisions in Ss. 3 or 7 as the case may be, and only after the disposal of those

cases take action u/s 18 if there is occasion for it.

The purpose and the scheme of this Act is the eradication of the vice of immoral traffic in women and girls in a commercialized form, by bringing

the offender to punishment by prosecuting them in courts of law. For the purpose of prosecution, for proving the offence of prostitution the

evidence of the decoy witness is very necessary in most of the cases and if that decoy witness is to be transposed by the Magistrate as an accused

by taking cognisance of the offence u/s 7 which he might be deemed to have committed while acting as decoy, it would be stifling the prosecution

and thereby defeating the very object of the Act. Further, no person can be a witness and an accused in the same trial. Thus, on the facts of this

case, the action of the Magistrate in summoning the decoy witness as an accused for an offence u/s 7(1) of the Suppression of Immoral Traffic in

Women and Girls Act, cannot be sustained.

The order is set aside and the revision is allowed.