Kamalabai Jethamal vs The State Of Maharashtra

Rewritten Version Notice: This is a rewritten version of the original judgment.

Court: Supreme Court of India

Case Number: Criminal Appeal No. 167 of 1961

Decision Date: 18 January 1962

Coram: J.L. Kapur, Raghubar Dayal

In the case titled Kamalabai Jethamal versus The State of Maharashtra, the judgment was delivered on 18 January 1962 by a bench of Justice J.L. Kapur and Justice Raghubar Dayal, with the opinion authored by Justice J.L. Kapur. The citation for the decision is recorded as 1962 AIR 1189 and 1962 SCR Supl. (2) 632, arising under the Immoral Traffic‑Suppression of Prostitution Act, specifically the provisions dealing with the employment of young men by the police for the detection of offences, the validity of a conviction, and the High Court’s power to order eviction under Section 18 of the Suppression of Immoral Traffic in Women and Girls Act, 1956 (Act 104 of 1946). The headnote recounts that, upon learning that the appellant was allegedly using her premises as a brothel and supplying girls for prostitution, the police arranged a trap. Two individuals, identified as M and L, each carrying a marked note of one hundred rupees supplied by the police, were sent to the appellant’s premises; M was instructed to request a girl for the purpose of prostitution while L served as a witness. M chose a girl and handed the one‑hundred‑rupee note to the appellant, who concealed the note beneath her blouse. When M and the girl entered a room, a pre‑arranged signal prompted the police to enter, finding the parties in a compromising situation. A woman named Panch, accompanying the police, conducted a search of the appellant and retrieved the one‑hundred‑rupee note from under her blouse. The appellant was subsequently tried before an Additional Chief Presidency Magistrate at the Esplanade in Bombay for offences under Sections 3(2) and 4(1) of the Suppression of Immoral Traffic in Women and Girls Act, 1956, but the magistrate acquitted her. On appeal, the Bombay High Court accepted the prosecution’s case, convicted the appellant, and further ordered her eviction. The High Court relied on the testimony of L regarding the payment of the one‑hundred‑rupee note and on other evidence showing that the amount was intended for the purpose of prostitution. The appellant contended that the conviction was unsound because it rested solely on the police and their agents’ evidence and that the search had not been conducted according to the provisions of the Code of Criminal Procedure; she also argued that, under Section 18 of the Act, only the magistrate possessed the authority to order eviction. The Supreme Court held that, based on the evidence accepted by the High Court, the conviction was valid. It further observed that the practice of governmental authorities, such as the police, employing young men—particularly students from educational institutions—to suppress immoral traffic and to combat prostitution, as occurred in the present case, was condemned. Finally, the Court affirmed that the High Court, having pronounced the conviction, possessed the power to order eviction under Section 18 of the Act.

On September 29 and October 11, 1961, the Bombay High Court delivered its judgment in Criminal Appeal No 906 of 1961. Counsel for the appellant comprised S G Patwardhan, J B Dadachanji, O C Mathur and Ravinder Narain, while counsel for the respondent was H R Khanna together with P D Menon. The decision of the Supreme Court was pronounced on January 18, 1962 by Justice Kapur. This appeal challenged the High Court’s order that set aside the magistrate’s acquittal of the appellant, imposed a term of one year’s rigorous imprisonment, and ordered her eviction from the premises she occupied as a tenant. The appellant had been tried before the Additional Chief Presidency Magistrate at Esplanade, Bombay, on charges under sections 3(2) and 4(1) of the Suppression of Immoral Traffic in Women and Girls Act, 1956 (the “Act”). The prosecution alleged that the appellant supplied a girl to a witness named Manmohan Anandji Mehta, that she kept or managed a brothel at Block No 6, Plot No 144, Shivaji Park, Bombay, that she knowingly lived on the proceeds of prostitution, and that she procured women for the purpose of prostitution. According to the police narrative, Superintendent Kanga received information that the premises were being used as a brothel and that the appellant was supplying girls for prostitution. He then devised a sting operation, sending two men, Manmohan Anandji Mehta and Prabhakar K Loke, the former to request a girl for prostitution and the latter to act as a witness. Sub‑Inspector Purohit allegedly gave Manmohan Anandji Mehta two hundred‑rupee marked notes with instructions to pay the appellant and thereby obtain a girl for prostitution. The two men went to the appellant’s house, rang the bell and were admitted. They asked the appellant to arrange a girl, stating that they wanted two girls for their enjoyment. The appellant presented two girls, Kamal Govind and Indu Bapurao Salunke, both of whom later testified as witnesses. The appellant quoted a price of one hundred rupees for Kamal and fifty rupees for Indu. Manmohan Anandji Mehta selected Kamal, handed a one‑hundred‑rupee note to the appellant, who concealed it under her blouse. Manmohan Anandji Mehta and the girl then proceeded to the kitchen, where they disrobed and were later found naked on the floor in a compromising position. At a pre‑arranged signal, Superintendent Kanga and Sub‑Inspector Purohit entered the premises, having been told by Loke that the two were in the kitchen. They opened the kitchen door and discovered both Manmohan Anandji Mehta and the girl.

After the police entered the kitchen, they found Manmohan Anandji Mehta and the girl Kamal completely naked and in a compromising position, their clothes lying beside the mattress. The officers instructed them to dress and exit the kitchen. Subsequently, Manmohan Anandji Mehta handed a one‑hundred‑rupee note back to Superintendent Kanga. A woman who accompanied the police party, identified as a Panch, then searched the appellant and recovered the same one‑hundred‑rupee note from under the appellant’s blouse. At the time of this search, the male members of the police party were positioned in a passage adjoining the hall where the appellant was examined. The appellant was tried for the offences described earlier, but the Additional Chief Presidency Magistrate acquitted her. On appeal, the High Court set aside the acquittal, sentenced the appellant to one year of rigorous imprisonment, and ordered her eviction from the premises she occupied as a tenant.

The prosecution’s evidence consisted mainly of the testimony of Manmohan Anandji Mehta, Loke, Superintendent Kanga and Sub‑Inspector Purohit. While the statements of Manmohan Anandji Mehta and Loke might, taken alone, have limited persuasive value, their accounts were corroborated by the police officers, thereby lending credibility to the prosecution’s case. Superintendent Kanga testified that when the kitchen door was forced open, both Kamal and Manmohan Anandji Mehta were found naked, their garments discarded beside the mattress; Sub‑Inspector Purohit gave a consistent description. An additional circumstance unfavorable to the appellant was the recovery of the one‑hundred‑rupee note from under her blouse during the search, a fact recorded by both Superintendent Kanga and Sub‑Inspector Purohit, and also attested to by Loke. The appellant’s counsel argued that the search was illegal because, under sections 52 and 103 of the Criminal Procedure Code, a woman may be searched only by another woman, emphasizing decency requirements. No evidence was presented, except that of Manmohan Anandji Mehta, showing that the male police officers had left the hall during the search. Even assuming their absence, it would not be extraordinary for any of them to have observed the note being removed from the appellant’s attire. The High Court accepted Loke’s testimony, and this Court finds no reason to depart from the established practice of accepting such findings. Moreover, the High Court relied on Loke’s statement that a one‑hundred‑rupee note had been paid to the appellant, establishing that money was given before Kamal was taken to accompany Manmohan Anandji Mehta for the purpose of prostitution.

Counsel for the appellant raised two principal objections. First, he pointed out that the woman who had been brought by the police to conduct the search of the appellant and who was alleged to have recovered a one‑hundred‑rupee note from her possession had not been produced before the Court. Second, he argued that because the person to be searched was a woman, the law and the requirements of decency demanded that no man could have been present at the time of the search. To support the first objection, counsel referred to the judgment of this Court in Purvez Ardeshir Poonawalla v. The State of Bombay, where the importance of producing a search witness was emphasized. The Court in that case observed: “This is, one of those cases where the rule in regard to search witnesses becomes applicable and importance must be attached to the lack of that class, of search witnesses which are envisaged by the Criminal Procedure Code in s. 103.” Counsel also cited the Privy Council decision in Malak Khan v. Emperor, in which Lord Porter stressed the desirability of having witnesses present at a search, stating: “In their Lordship’s opinion the presence of witnesses, at a search is always desirable and their absence will weaken and may sometimes destroy the acceptance of the evidence as, to the finding of the articles….”

The Court noted that the observations in Poonawalla and the remarks of Lord Porter, while instructive, were not directly applicable to the present facts. The record contained evidence, which the High Court had accepted, showing that a one‑hundred‑rupee note had been handed to the appellant by Manmohan Anandji Mehta. Further, the evidence demonstrated that, as a result of this payment, Manmohan had engaged Kamal Govind for the purpose of prostitution. The Court expressed regret that the money supplied by the police had not merely made Manmohan a “bogus customer” as described, but had enabled his participation in conduct that was active, reprehensible, immodest, indecent and indecorous. The Court then considered the relevance of Lord Goddard’s observations in Brannan v. Peek, observing that the principle could be applied by substituting the words “aid an act of prostitution” for “to commit an offence.” Lord Goddard had warned that it was wholly wrong for a police officer or any other person to be sent to commit an offence in order to detect an offence by another. In the present case, two young men had been given money to go to the appellant’s house and to use that money in an improper manner. The Court described Manmohan Anandji Mehta as a person of doubtful character and regarded the employment of such individuals for the detection of offences as a matter that brought no credit to any authority.

In this case the Court noted that employing individuals to facilitate offences was not a credit to anyone and was highly condemnable. The Court found it even more reprehensible that a young student, who was preparing for his Matriculation examination, was sent along with the operative to carry out the illicit plan. It was expressed that the use of students in such a manner could not be permitted by any governmental authority in a nation such as ours. The Court rejected the justification that, in order to suppress immoral traffic in women and to stop prostitution, it was necessary to employ persons like Manmohan Anandji Mehta, who was openly a police agent, and a young man named Loke, who was willing to act as a police operative. After addressing this point, the Court turned to the consequences of the testimony of these witnesses that had been produced in the proceedings. The High Court had accepted the testimony of Loke concerning the payment of one hundred rupees and had found evidence that the amount was used to procure Kamla for the purpose of prostitution. Consequently, the Court held that the payment must be deemed proved. Although the search may have been contrary to the spirit or even the letter of the Criminal Procedure Code, the fact remained that the High Court had accepted that a search had taken place and that a hundred‑rupee note had been recovered. Moreover, even if the recovery of the note were later held not to be proved, the payment itself would remain proved based on the evidence that the High Court had accepted. Relying on the findings of the High Court, the Court was unable to reach any conclusion other than the one already reached by that court—that the appellant was guilty of the offences with which she had been charged. The next argument presented by counsel for the appellant was that the High Court, in its appellate jurisdiction, could not order the appellant’s eviction because such power was vested only in a magistrate under section 18 of the Act. The counsel further contended that the powers of an appellate court under section 423 of the Criminal Procedure Code were limited to reversing an acquittal, ordering a fresh enquiry, or ordering a retrial, and did not extend to ordering eviction. The Court found this argument untenable, observing that the Act itself contained a specific provision in section 18 authorising a court convicting a person of an offence under section 3 or section 7 to make an eviction order. The relevant portion of section 18 states that if, after hearing the concerned person, the magistrate is satisfied that a house or portion thereof is being used as a brothel or for prostitution, the magistrate may direct the occupier to vacate the premises within seven days, and that a court convicting a person of any offence under section 3 or section 7 may also pass such an order without further notice.

In its reasoning, the Court pointed out that the provision contained in sub‑section (1) of the relevant statutory section empowers a magistrate or a court to issue an eviction order without giving the occupier any additional notice to show cause, because the statute itself expressly allows the order to be made without further notice. The Court then observed that the High Court had previously convicted the appellant under section 3 of the Act, and that such a conviction automatically gave the High Court the statutory authority to order the appellant’s eviction from the premises under the same provision. The Court explained that because the conviction fell within the class of offences contemplated by the statute, the High Court was fully within its power to pass the eviction order as prescribed by sub‑section (1), without the need to serve any extra notice. The appellant also raised a second line of argument challenging the legality of the eviction order; the Court found that this second contention lacked any substantive legal basis and did not demonstrate any error in the High Court’s exercise of its statutory jurisdiction. Having carefully considered the submissions, the Court concluded that the High Court had correctly applied the statutory provision and that the appellant’s challenges were without merit. Consequently, the Court dismissed the appeal, affirmed the eviction order, and made clear that the appeal could not proceed further.