EMPEROR Vs. VITHABAI SUKHA

JUDGEMENT

(1.) The offence is alleged to have been committed in respect of the girl Hansabai, wife of Laxrnan. According to the prosecution, accused No. 1 took Hansabai away from the service of a Parsi, where accused No. 1 and Hansabai were serving, to the house of accused No. 1's sister-in-law, accused No. 2, and after a couple of days accused No. 2 took her to the brothel of accused No. 3, left her there for two or three hours for six or seven nights, and brought her back to her own house regularly, the earnings of Hansabai by prostitution being equally divided by accused Nos. 2 and 3. Hansabai then ran away from accused No. 2 and was found by the police.

(2.) The first point of law raised on behalf of accused No. 3 is that possession under Section 373, Indian Penal code, must be complete and exclusive possession and that possession for two hours or so for four or five nights, as is alleged in this case, in the house of the brothel- keeper accused No. 3, was not possession within the meaning of Section 373, Indian Penal Code. Reliance was placed for this contention on two cases: The Queen V/s. Shaik Ali (1870) 5 M.H.C.R. 473 and Queen V/s. Nourjan and Jaggat Tara (1870) 6 Beng. L.R. App. 34. It is argued by the learned Counsel for the Crown that there was no such limitation in law.

(3.) In my opinion, Section 373, Indian Penal Code, must be read in conjunction with the previous Section 372, which is its counterpart. And the questions, whether a person under eighteen has been bought and sold, hired and let to hire, disposed of and possession obtained, are all, in each case, questions of fact for the jury and not of law for the Judge. The law does not specify the nature of the possession, nor its duration, nor intensity. It merely are specifies the object, namely, prostitution or illicit intercourse. Whether, in each case, the possession is such as to be consistent with the purpose or intention or knowledge of prostitution or illicit intercourse this is the only teat which in law is necessary and sufficient. This is the view which has been laid down by this Court in Queen-Empress V/s. Tippa (1892) I.L.R. 16 Bom. 737 where the fact that the father had performed a certain ceremony of dedication of his daughter, a child of four, as a dancing girl in a temple, was held to be sufficient to constitute disposal under Section 373, Indian Penal Code. In regard to the two cases relied upon, it is to be observed that the facts in each of these cases were entirely different. In the Madras case the facts found were that the prisoner met a girl under the then statutory age and on a promise of a price was allowed to have sexual intercourse arid both were detected in the act. On this state of facts, in the opinion of the learned Judges, there was no selling or buying or letting or hiring or disposal or possession. But it is to be noted that in the section as it then stood, the words "illicit intercourse with any person" did not find place but were subsequently added. The addition of these words, as pointed out by Messrs. Ratanla and Dhirajlal in their "Law of Crimes", renders this ruling, to all intents and purposes, obsolete. Similarly, in the Bengal case, it appears that the brothel-keeper merely allowed her house to be used as a more convenient place for the assignation of illicit lover and his mistress. Moreover, it is a case on which the two Judges differed. Speaking for myself, I agree with Glover J. who thought that the facts constituted the offence rather than with Jackson