CHANDRI BAWOO Vs. EMPEROR

JUDGEMENT

(1.) We have been engaged for over an hour and a quarter in considering the question whether an alleged prostitute has been rightly fined Rs. 5. But the apparent minor nature of the offence is quite disproportionate to the points of general jurisdiction and policy involved.

(2.) Shortly stated, the accused alleges that she was wrongfully arrested under Section 10(1) of the Bombay Act XI of 1923 (the Bombay Prevention of Prostitution Act, 1923) and that accordingly the Magistrate had no jurisdiction to hear the case and that consequently her conviction, notwithstanding her protest, was illegal.

(3.) Now under Section 10(1): "Any Police Officer on complaint, and any Police Officer authorized in this behalf by the Commissioner of Police by special order without such complaint, may arrest without a warrant v any person committing, in his view, any offence punishable under Section 3, if the name and address of such person be unknown to such Police Officer and cannot be ascertained by him then and there." 2. The offence in question under Section 3 is, to put it shortly, soliciting. I will assume for a moment that the name and address of the accused were unknown to the Police Officer who arrested her, and that it could not be ascertained by him then and there. It is common ground that this Police Officer had not been authorised by the Commissioner of Police by any special order to effect such an arrest. So there is no dispute on this point. 3. But it was said that this Police Officer had arrested her "on complaint" within the meaning of Section 10(1). As to that it was contended for the accused that the expression "complaint" meant a formal complaint as defined by Section 4 of the Cr.P.C. It was argued, however, by the prosecution, that the true construction of Section 10(1) is that a complaint means a complaint oral or otherwise made to a particular Police Officer at or about the time when the offence in question is committed, and that it is not confined to a technical complaint within the meaning of Section 4 of the Cr.P.C. Assuming that to be so, there is no evidence here that any such complaint was in fact made to the Police Officer. Counsel for the accused who was also in the proceedings before the Magistrate tells us that no evidence whatever on that point was led by the prosecution, and that on the contrary the Police admitted that there had been he complaint. The learned Government Pleader on instructions told us in reply that the Police had received an allegation about the accused the evening before the arrest and that was why they sent a Police Constable to this particular street the next day. But even if any such allegation made the day before the arrest could be such a complaint as is contemplated by Section 10, as to which I say nothing, there is no evidence on that point, and I Accept Counsel's statement that in the Court below nothing of the sort was ever said there. 3. That being so, it follows that the Police Officer in question cannot rely on Section 10 of the 1923 Act to justify, the arrest of the accused he made. In other words, the arrest was illegal.