STATE BY PUBLIC PROSECUTOR Vs. PADMA AND ANOTHER

JUDGEMENT

(1.) 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 under Section 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 under Section 7(1) of the Act. The Public Prosecutor has filed this revision challenging the correctness of this order.

(2.) 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 A.C. Aggarwal, Sub -Divisional Magistrate, Delhi v. Mst. Ramkali etc., : A.I.R. 1968 S.C. 1 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 under Section 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 v. State of Mahrashtra : A.I.R. 1968 S. C. 938. A Division Bench of this Court P. Shirajuddin v. State of Madras, A.I.R. 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:

(3.) THE order is set aside and the revision is allowed.