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1. This appeal arises out of an order passed on 9-1-1965 by Mr. R.N. Desai, Judicial Magistrate, First Class, Narol, in Criminal Case No. 380 of 1964 whereby the respondents-original accused Nos. 1 and 3, and one Natverlal Ramshanker-original accused No. 2 came to be acquitted in respect of the charges levelled against them under Sections 3, 4 and 5 of the Suppression of Immoral Traffic in Women and Girls Act, 1956, hereinafter referred to as 'the Act.'

2. Several residents of Saijpur Dhanushdhar Society situated in the village of Saijpur Bogha sent an application Ex. 7 to the Commissioner of Police, City of Ahmedabad, stating inter alia that one Bai Radha living in that Society brings girls from outside and runs a brothel and she has been maintaining herself on such income. When she was told not to invite people of immoral character to her house, she got excited and abused them. It is that way that they requested the Commissioner of Police to look into the matter and do the needful. It appears that this application was forwarded by him to Mr. Mankad Ex. 8 who was then serving as a Superintendent of Police, Crime Branch at Ahmedabad a few days before 1-12-63. Mr. Mankad verified the information which he had received as to Bai Radha carrying on a brothel at her house and maintaining herself from such immoral income and then arranged for a trap being laid in respect thereof. On the morning of 1-12-1963 he called the panchas and one decoy witness Kishan Ex. 4 and explained to them the purpose for which they were called. Kishan agreed to work as a punter, and after ascertaining that he had no money with him, he was given Rs. 8/- in all. That amount included the currency note of Rs. 5/-and three currency notes of Re. 1/- each the numbers whereof were noted down in the first part of the panchnama Ex. 3 made in that respect. The punter was told that the Police Head Constable Ratansing would point out one person who has been acting as a tout and who has been waiting near Taj Mahal Hotel at Kalupur in Ahmedabad. He was further instructed to hand over the amount for the charges that would have to be paid for having sexual intercourse with any girl or woman, and at the same time he was asked not to have any sexual intercourse with any such woman and that he should keep himself talking with her. The first part of the panchnama was completed and the punter Kishan was asked to go along with One of the panchas Premsing Ex. 2 with that Head Constable Ratansing. Head Constable Ratansing was instructed to go by the same bus by which they were to go. Mr. Mankad and the other panch Bai Shanta and some other police officers had then gone to wait somewhere near Chamunda Char Rasta. The police Head Constable Ratansing was asked to make a sign when the bus taking the punter, the other panch and the tout, said to be accused No. 3 in the case, going towards Saijpur Bogha passed by them. He was also instructed that after Kishan and Premsing entered the house of Bai Radha, he should return and inform him about the same.

6. All of them pleaded not guilty to the charges levelled against them. By her statement Ex. 12 accused No. 1 denied to have committed any offence and according to her, the house situated in Fadeli in Saijpur Bogha stands in the name of herself and her daughter Godavari. While some portion thereof has been let out bringing the income by way of rent of Rs. 80/-, the other part was occupied by them. She also said that she had another house in Patasa Pole, Ahmedabad, from where she used to get monthly income of Rs. 75/- by way of rent. That house has been, however, sold away. She has then stated that no brothel was run in her house and that it is not true that she was maintaining out of the income of the brother. As to Bai Kanta's presence, she stated that she had come to her house for inquiring for keeping the house on rent and she denied to have made use of her for any immoral purpose as was alleged by the prosecution. She also denied to have taken any money from any one as also about her having produced the same before the panchas and the police. She denied to have paid any amount such as Re. 1/- to accused No. 1 about his being her tout. She has then added that the police had sent a bogus customer on 1-12-1963 under the pretext of seizing liquor and since no liquor was found, they have made out a false case against them. Accused No. 2 has been acquitted by the Court and there has been no appeal preferred by the State against his acquittal. He was, however, not present at the time when the incident took place and had come up later on while the panchnama was being written. Accused No. 3 has also denied about any person such as Kishan and Premsing having approached him and about his having taken them to Bai Radha's house. He also denied to have been working as a broker or tout for Radha or his having received any amount from Radha. He denied about the currency note of Re. 1/- having been found from his pocket on a search made of him.

(c) to be acting as a tout or pimp on behalf of a prostitute, it shall be presumed, until the contrary is proved, that such person is knowingly living on the earnings of prostitution of another person within the meaning of Sub-section (1):
xx xxx xx xxx xx xx xx Mr. Nanavati, the learned Assistant Govt. Pleader, relies upon Clause (b) of Sub-section (2) of Section 4 by saying that Bai Radha exercised control, direction or influence over the movements of the prostitute, namely, Bai Kanta in such a manner as to show that she was aiding her prostitution, and if that is established, a presumption can be raised against her that she was knowingly on the earnings of prostitution of another person within the meaning of Sub-section (1) of Section 4 of the Act.

25. That takes me to the case of accused No. 3-respondent No. 2. The contention of Mr. Nanavati, the learned Assistant Government Pleader is that the case against him would fall within Clause (c) of Sub-section (2) of Section 4 as also under Clause (a) of Sub-section (1) of Section 5 of the Act. Turning, therefore, to the first part of the charge, viz. about his acting as a tout or pimp on behalf of a prostitute as contained in Clause (c) of Sub-section (2) of Section 4 of the Act, it is necessary for the prosecution to establish that be acted as a tout or pimp on behalf of a prostitute. It is only when that is established that the presumption contemplated under that clause would arise so as to make him liable under Section 4(1). The evidence, so far as accused No. 3 is concerned, is to the effect that Kishan and Premsing in company of one H.C. Ratansing had approached him somewhere near Kalupur and Kishan had spoken to him that he would like to have a woman for enjoyment. It was that way that accused No. 3 accompanied them and took them to the house of accused No. 1. Then the evidence against him is that he told Bai Radha that he had brought a customer and that later on, he received a currency note of Re. 1 from Bai Radha, presumbly for his having brought a customer at her place. Now, it is amply clear and it is, at any rate, not the case of the prosecution that Bai Radha was a prostitute within the meaning of the term defined under Section 2(e) of the Act. The evidence thus takes us to is that he acted as a tout or a broker inasmuch as he took a customer to Bai Radha's place. There is no evidence whatever on record to show that he knew Bai Radha keeping some other prostitutes at her place. On the contrary, the only inference from the circumstance established against him would be that he acted for Bai Radha and at any rate, it would be too much to say that he also acted for a prostitute living in the house of Bai Radha. In order to raise a presumption against him that he knowingly lives on the earnings of the prostitution of another person, it has to be shown that he was acting as a tout on behalf of a prostitute. It is true that the prosecution may not have to show as to on whose behalf in particular he was acting as such, but it has to show that he was acting on behalf of a prostitute. In other words, it must be shown that he acted as an agent, father even a direct agent of a prostitute so as to bring him within Clause (c) of Sub-section (2) of Section 4 of the Act. Mr. Nanavati's attempt was that accused No, 3 was a sub-agent, i. e. if Bai Radha was an agent for Bai Kanta who was a prostitute at her house, then accused No. 3 can be taken as her sub-agent and that way, can be called a tout or an agent on behalf of Bai Kanta. I do not think, we can extend the meaning sought to be attributed by Mr. Nanavati to the extent that he wants. The evidence merely establishes that he was acting as a tout for Bai Radha and since Bai Radha could not be said to be a prostitute, he cannot be held liable for the offence under Section 4(1) of the Act.