EMPEROR Vs. SHAMSUNDERBAI

JUDGEMENT

(1.) In this case, the accused was tried apparently in respect of a charge under Section 872, Indian Penal Code. But in the course of the trial the prosecution tried to prove that she was guilty under Section 373 of the Indian Penal Code. After the prosecution evidence was recorded the trial Magistrate considered the case with reference to Section 873, arid discharged the accused. The present application has been made to this Court on behalf of the Government of Bombay for revising this order of discharge and for a further inquiry into this case. We have heard the arguments on both sides, and in view of the order which we propose to make, 1 do not desire to say anything as to the merits of the case.

(2.) It is necessary, however, to state the facts alleged on behalf of the Crown briefly in order to understand the point of law which has been argued and to appreciate the case for the Crown. The accused in this case, Shamsunderbai, is a brothel-keeper. A girl, Chandrabai, who used to stay with her husband, and who was about fifteen years old at the material time, was taken by two men to Shamsunderbai. At that time, the girl stayed with her for about three days. Chandrabai s husband and his relatives traced her at the house of the accused and at the time the girl was brought back to her husband s place. She stayed with her husband for about a week and again went back to the accused. On this second occasion, after a few days, it is said that, she commenced to lead the life of a prostitute under the protection and guidance of the accused. The case for the prosecution is that both when the girl was kept on the first occasion for about three days by the accused and on the second occasion when she was kept by the accused for about a month, the accused kept her with the intention of using her for the purpose of prostitution, and that the accused is guilty under Section 373, Indian Penal Code. The learned Magistrate has come to the conclusion that when the girl stayed with the accused on the first occasion the latter had no criminal intention, that when the girl went to the accused on the second occasion, she went to the accused of her own accord, that the accused did not obtain possession of the girl from a third person, and that, therefore, she committed no offence under Section 373, Indian Penal Code. The contention for the Crown before us is that the conduct of the girl should be taken as a whole in judging of the intention of the accused. It is urged that her stay with the accused on the first occasion when there was no act of prostitution committed by her and her going to the accused on the second occasion, when she did take to prostitution, should be taken together as showing that the accused obtained possession of the girl from the two persons and ultimately succeeded in carrying out her evil intention, which she entertained from the beginning. The learned Magistrate has dealt with the two occasions separately and it is urged for the Crown that in doing so the Magistrate has misappreciated the situation. As regards the stay of the girl on the second occasion, apart from her first visit to the accused, it is contended that it is not essential for the purpose of Section 373, Indian Penal Code that the possession of the minor should be obtained by the accused from a third person. It is quite enough, it is urged, if in fact the accused obtains possession of the minor so as to have a sufficient control and power of disposal over her for the purpose of prostitution.

(3.) On the question of intention I do not desire to express any opinion beyond saying that a case for further inquiry is made out.