Ramesh vs The State of Maharashtra

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

Court: supreme-court

Case Number: Criminal Appeal No. 72 of 1961

Decision Date: 24 July, 1962

Coram: J.C. Shah, Bhuvneshwar P. Sinha, K.N. Wanchoo

In the matter Ramesh versus the State of Maharashtra, decided on 24 July 1962, the Supreme Court of India delivered its judgment through a bench consisting of Justice J.C. Shah, Justice Bhuvneshwar P. Sinha, who acted as Chief Justice, and Justice K.N. Wanchoo. The petitioner was Ramesh and the respondent was the State of Maharashtra. The judgment was recorded on 24 July 1962 and the citation for the decision is 1962 AIR 1908 and 1963 SCR (3) 396. The case concerned a criminal law question relating to seduction and the assistance of a prostitute in her profession, specifically whether such conduct amounted to an inducement to forced or seduced illicit intercourse under the Indian Penal Code (Act 45 of 1860), sections 84, 809, 366 and 366A. The headnote notes that the appellant had been convicted of an offence under section 366A read with section 109 of the Indian Penal Code. The facts conveyed to the Court were that a minor girl, identified as A and under the age of eighteen, had been brought up by a person identified as P and, before the incident in question, had become habituated to the life of a prostitute. On the day of the alleged offence, the appellant went to P’s residence and requested that P bring A to a theatre; P accompanied A to the theatre where she sought customers, and subsequently another individual took them to a place called Bohori Kathada where A was invited to engage in prostitution. It was established that when P escorted A to the theatre and then to Bohori Kathada, he was aware that she was proceeding to ply her profession as a prostitute. The Court held that the appellant could not, in law, be found guilty of abetting an offence under section 366A of the Indian Penal Code by P. The Court explained that a person who merely accompanies a woman who is going out to practice her profession as a prostitute, even if the woman is under eighteen, cannot be said to have induced her to move from any place or to perform any act with the intention or knowledge that she will be forced or seduced into illicit intercourse within the meaning of section 366A. The Court further clarified that “seduction” under the Code implies the surrender of a woman’s body who is otherwise reluctant or unwilling to submit to illicit intercourse, whether for the first time or after previous similar surrender; however, where a woman, in the course of her profession, offers herself for intercourse, there is no reluctance to be overcome, and such surrender does not constitute “seduction” within the Code. The judgment was delivered in a criminal appellate jurisdiction as Criminal Appeal No. 72 of 1961, arising by special leave from the Bombay High Court’s judgment dated 20 December 1960 in Criminal Appeal No. 1207 of 1960. Counsel for the appellant comprised Jai Gopal Sethi, C.L. Sareen and R.L. Kohli, while counsel for the respondent were G.C. Mathur and P.D. Menon. On 1 May 1962, after hearing the arguments, the Court ordered that the appeal be allowed.

In this case the Court first set aside the conviction of the appellant and then recorded the reasons for that order. The appellant, Ramesh Amin, together with seven other persons, had been tried before the Court of Session at Aurangabad for offences punishable under sections 366 and 366A of the Indian Penal Code and for the abetment of those offences. At the trial the appellant was the third accused listed. The Sessions Judge convicted accused numbers 1, 2, 3, 4 and 7 of the offences charged and imposed rigorous imprisonment of two years for each count, while the remaining accused were acquitted. On appeal, the Bombay High Court entertained the appeals of accused numbers 1 to 4 but not that of accused number 7. The High Court set aside the convictions and sentences of those four accused with respect to the offences under section 366 read with section 34 and section 366A of the Indian Penal Code. However, the High Court convicted the appellant of abetting the seventh accused in inducing a minor girl, Anusaya, to leave her residence at Kabadipura, go to the Gulzar Theatre and thereafter be taken to a house known as Bohori Kathada, with the intention that she might be seduced to illicit intercourse, or at the very least with the knowledge that such a seduction was likely to occur. The appellant subsequently obtained special leave to appeal to this Court.

The background of the facts is as follows. The seventh accused, Patilba, was a resident of Aurangabad and the eighth accused was his wife. Anusaya was the daughter of Shakuntala and her husband Kashinath. After Kashinath’s death, Shakuntala brought the infant Anusaya to Patilba’s house and lived there as his mistress. Later Shakuntala left Patilba’s house and settled in Nasik, but Anusaya continued to reside with Patilba, who brought her up as his own child. Patilba arranged a marriage for Anusaya with a man named Ramlal, which she refused. Subsequently Patilba introduced Anusaya to various “customers,” and she began to engage in promiscuous sexual intercourse for money.

According to the prosecution, on 13 January 1960 the appellant visited Patilba’s residence and requested that Patilba bring Anusaya and Chandrakala—a woman employed as a prostitute—to the Gulzar Theatre. Patilba complied, and together with the eighth accused, Chandrakala and Anusaya proceeded to the theatre. Acting on the appellant’s instructions, Anusaya and Chandrakala were later taken by a person named Devidas, who testified as an approver, to the house called Bohori Kathada. Sub‑Inspector Pagare of the City Police Chowk, Aurangabad, received information that illicit liquor was being consumed in a room at Bohori Kathada. He organised a raid on the premises and discovered accused numbers 1 to 5 and Devidas inside a room where liquor was being consumed. In an inner apartment of the same house he found Chandrakala and Anusaya. All the persons present were arrested and sent to the local Civil Hospital for medical examination, which established that Anusaya was below the age of eighteen years. Sub‑Inspector Pagare then filed an information before the Judicial Magistrate of Aurangabad for an offence punishable under the Bombay Prohibition Act, 1949, and also for offences punishable under sections 366 and 366A of the Indian Penal Code against nine persons, including the appellant, Patilba and Devidas. During the commitment proceedings, Devidas was offered a pardon on the condition that he made a full disclosure of all circumstances within his knowledge. The matter was thereafter committed to the Court of Session, Aurangabad, for trial. The Sessions Court held that accused numbers 1 to 4, acting in furtherance of a common intention, had kidnapped Anusaya—a girl under eighteen years of age—so that she might be forced or seduced to illicit intercourse, or with knowledge that such a result was likely, and that the seventh accused, Patilba, had abetted the commission of that offence. The Court also concluded that accused numbers 1 to 4 and 7 had induced Anusaya to leave her residence.

The Court noted that the matter also involved offences under the Prohibition Act of 1949, but the parties were informed at the Bar that the accused had been acquitted of those charges and that the present judgment would not consider them. The prosecution, however, pursued charges under sections 366 and 366A of the Indian Penal Code against nine individuals, among whom were the appellant, the seventh accused identified as Patilba, and the approver Devidas. During the proceedings that led to the commitment of the case to the Court of Session, Devidas was offered a pardon on the express condition that he would fully disclose all circumstances within his knowledge. Following his cooperation, the matter was formally committed to the Aurangabad Court of Session for trial.

The Court of Session held that accused numbers one through four, acting with a common intention, had kidnapped Anusaya, a girl who had not yet attained the age of eighteen, for the purpose of forcing or seducing her to illicit intercourse or, at the very least, knowing that such a result was probable. The Court further found that the seventh accused, Patilba, had abetted the commission of that offence, and that accused numbers one through four together with Patilba had induced Anusaya to leave her residence, travel to the Gulzar Theatre, and thereafter proceed to Bohori Kathada with the intent, or with knowledge of the probability, that she would be forced or seduced to illicit intercourse. Consequently, the Court convicted accused numbers one to four of the offence under section 366 read with section 34 of the Indian Penal Code, as well as of the offence under section 366A of the same Code. On appeal, the High Court of Bombay acquitted accused numbers one to four of the kidnapping allegation, reasoning that they had “nothing whatever to do with the original kidnapping by Patilba, the seventh accused,” and that because Patilba was not the girl’s lawful guardian, her being taken to the room could not be deemed kidnapping. The appellate judges also acquitted accused numbers one to four of the charge under section 366A, observing that there was no evidence of any direct conversation between any of the accused and the girl, nor any inducement offered through Patilba. Regarding accused number three, the High Court noted that there was no direct communication between him and Anusaya that could be construed as an inducement to move her either from Patilba’s house or from the theatre to the room in question. Nonetheless, the High Court held that the case against the appellant did not conclude with those findings. The Court observed that the evidence clearly indicated that accused number three had instigated both Patilba and Devidas to bring the girl to the theatre and subsequently to the room. It further stated that Patilba, while in custody of the minor and aware of her helplessness, had induced or forced her to go to the cinema and then to the room, leaving her there, and that Patilba intended that she should be forced.

In the Matter of Ramesh v. The State of Maharashtra, the Court observed that accused number three had asked Patilba to bring the girl to the theatre and had further requested that Devidas and Patilba escort the girl from the theatre to a room, thereby clearly instigating Patilba in the commission of the offence. On that basis, the Court concluded that accused number three must be held guilty of abetment of the offence committed by Patilba. Consequently, the High Court had convicted the appellant under section 366A read with section 109 of the Indian Penal Code, reasoning that the appellant had abetted the commission of an offence punishable under section 366A by inducing Patilba to bring the girl, identified as Anusaya, to the theatre and subsequently by further urging Patilba and Devidas to bring her from the theatre to Bohori Kathada. The Supreme Court, however, held that the appellant could not, in law, be found guilty of abetting the offence under section 366A. The Court set out the factual matrix proved by the evidence: at the material time Anusaya had not attained the age of eighteen years; she was under the guardianship of Patilba although she had married Ram Lal; for many months before the incident she lived under Patilba’s care; and she had long been accustomed to engage in promiscuous intercourse with customers for money, admitting that she entertained one or two customers daily and had become habituated to a prostitute’s life. On the day in question Anusaya and her companion Chandrakala attended the Gulzar Theatre accompanied by Patilba, seeking customers; during the intermission they moved to the theatre entrance for that purpose but returned disappointed when they saw a police van parked there. Subsequently, Anusaya and the sixth accused proceeded to Bohori Kathada to continue their profession as prostitutes. The evidence showed no indication that Anusaya was unwilling to go to the theatre that night nor that she was unwilling to proceed to Bohori Kathada, where she and her companion had been invited for the purpose of prostitution.

The Court then considered whether these facts established a case of abetment of the offence of procuration of a minor girl punishable under section 366A of the Indian Penal Code. Section 366A, enacted by Act XX of 1923 to give effect to articles of the International Convention for the Suppression of Traffic in Women and Children signed at Paris on 4 May 1910, contains three essential ingredients: first, that a minor girl below the age of eighteen is induced by the accused; second, that she is induced to go from any place or to do any act; and third, that she is so induced with the intent, or with the knowledge that it is likely, that she may be forced or seduced to illicit intercourse with another person. While the evidence unquestionably established that Anusaya had not attained the age of eighteen at the material time, there was no evidence that Patilba induced her to go to the theatre or from the theatre to Bohori Kathada. The Court inferred that when Patilba accompanied Anusaya to the theatre and thereafter to Bohori Kathada at the appellant’s suggestion, he was aware that she was going to ply her profession as a prostitute. Nevertheless, the Court held that a person who merely accompanies a woman who is going out to practice prostitution, even where she is a minor, does not by that conduct commit an offence under section 366A. Accordingly, the appellant could not be said to have induced the girl to go from any place or to do any act with the requisite intent or knowledge contemplated by the statute, and therefore could not be held guilty of abetment of the offence under section 366A.

The Court observed that the statutory requirement of inducement under section 366A demands that the accused act with the intention that the minor may be, or with the knowledge that it is likely she will be, forced or seduced to illicit intercourse with another person. The record clearly established that Anusaya had not, at the material time, attained the age of eighteen years. Nevertheless, the prosecution failed to produce any evidence that Patilba induced Anusaya to go to the theatre or to travel from the theatre to Bohori Kathada. The Court noted that it could only be inferred that, when Patilba accompanied Anusaya to the theatre and subsequently from the theatre to Bohori Kathada at the suggestion of the appellant, he was aware that she was proceeding to ply her profession as a prostitute. The Court held, however, that a person who merely accompanies a woman who is already engaged in the business of prostitution, even if that woman is a minor, does not thereby commit an offence under section 366A of the Indian Penal Code. Such accompaniment cannot be said to constitute inducement to go from any place or to perform any act with the specific intent or knowledge contemplated by the provision.

The Court further explained that the term “seduce” as used in the sections does not refer only to a woman’s first deviation from the path of virtue. It is employed in two senses: the ordinary, narrow sense of inducing a woman to stray from virtue for the first time, and a broader sense of causing a woman to submit to illicit intercourse at any time or on any occasion. The latter, broader sense is the one intended in sections 366 and 366A, which overlap in part. This interpretation has been adopted by many superior courts in India, for example in Prafula Kumar Basu v. The Emperor, Emperor v. Laxman Bala, Krishna Maharana v. The King Emperor, In re Khalandar Saheb, Suppiah v. Emperor, Pessumal v. Emperor, King Emperor v. Nga Ni Ta, and Kartara v. The State. Conversely, a contrary view expressed in Emperor v. Baijnath, Saheb Ali v. Emperor, Aswini Kumar Roy v. The State, and Nara v. Emperor—that the phrase in section 366 applies only to the first illicit act unless the girl has returned to chastity—was held by the Court to be unduly restrictive of the legislative purpose and of the meaning of “seduce” in the Code. The Court emphasized that the present case does not involve a minor who, having previously strayed from virtue, was under the custody of a guardian and was escorted by a seducer; therefore, the broader interpretation of “seduce” applies, and no offence under section 366A is made out against Patilba.

According to the record, the girl was in the custody of her guardian and, with a view to continuing her illicit affair, she accompanied her seducer or another person. Such a situation unquestionably falls within the terms of section 366 or, as the appropriate provision, section 366A of the Indian Penal Code. However, where a woman has adopted the profession of prostitution—meaning she habitually offers herself for sexual intercourse in exchange for money to customers—and she pursues that profession with encouragement or assistance from another person, the assisting person does not commit an offence under section 366A. This is because it cannot be said that the person who aids a girl accustomed to indulging in promiscuous intercourse for money does so with the intention or knowledge that she will be forced or seduced into illicit intercourse. The evidence excludes any intention on the part of Patilba, and excludes any knowledge that Anusaya would be compelled to submit to illicit intercourse; the case record does not even suggest such a circumstance. The term “seduction” as used in the Code implies the surrender of a woman’s body who is otherwise reluctant or unwilling to submit to illicit intercourse, persuaded, flattered, coaxed, or importuned into such surrender, whether for the first time or after earlier similar surrender. In contrast, where a woman offers herself for intercourse for money as part of her professional activity as a prostitute, there is no reluctance to be overcome, and her surrender does not constitute seduction within the meaning of the Code. Consequently, it would be untenable to hold that a person who instigates another to assist a woman engaged in prostitution aids him in committing an act with the intent that she may be seduced, or with knowledge that she will be seduced, to illicit intercourse. The appellate court therefore allowed the appeal. (5) A. I. R. 1930 Mad. 930. (6) (1924) 27 Cr. L. J. 1292. (7) (1903) 10 Burma L. R. 196. (8) I. L. R. [1957] Punjab 2003. (9) (1932) I. L. R. 54 All. 756. (10) (1933) I. L. R. 60 Col. 1457. (11) A. I. R. 1955 Cal. 100. (12) A. I. R. 1934 Lah. 227.