-In the High Court of Punjab and Haryana at Chandigarh Crl. Revision No. 1804 of 2001 Date of decision: April 29, 2009 Renu Bansal ... Petitioner vs. U.T. Chandigarh ... Respondent Crl. Revision No. 1803 of 2001 Deepak Chauhan ... Petitioner vs. U.T. Chandigarh ... Respondent Crl. Revision No. 1802 of 2001 Rekha ... Petitioner vs. U.T. Chandigarh ... Respondent Coram: Hon'ble Mr. Justice A.N. Jindal Present: Mrs. Naveen Malik, Advocate for the petitioner(s). Mr. Rajiv Sharma, Advocate for U.T. Chandigarh. A.N. Jindal, J This judgment shall dispose of three connected criminal revision petitions bearing No.1802 of 2001 filed by Rekha; No.1803 of 2001 filed by Deepak Chauhan and No.1804 of 2001 filed by Renu Bansal, all accused petitioners (herein referred as petitioners) having arisen out of the judgment dated 24.11.2001 passed by the learned Additional Sessions Judge, Chandigarh. All the three petitioners were convicted under Sections 4, 5 and 6 of Immoral Traffic (Prevention) Act, 1956, (herein referred as 'the Act') Crl. Revision No. 1804 of 2001, Crl. Revision No. 1803 of 2001 & Crl. Revision No. 1802 of 2001 -2- vide judgment dated 18.12.1997 passed by the learned Chief Judicial Magistrate, Chandigarh and sentenced as under :- Renu Bansal and Rekha U/s 8 of the Act : To undergo rigorous imprisonment for six months and to pay fine of Rs.250/- each. Deepak Chauhan U/s 4 of the Act : To undergo rigorous imprisonment for two years and to pay fine of Rs.1000/-. U/s 5 of the Act : To undergo rigorous imprisonment for three years and to pay fine of Rs.2000/-. However, accused Puja Chauhan was acquitted of the charges framed against her. Their appeals were dismissed vide judgment dated 21.11.2001 passed by the learned Additional Sessions Judge, Chandigarh. The brief resume of facts is that on 4.11.1996, DSP Surjit Singh along with ASI Rajinderpal and ASI Jagat Ram was present near small chowk of Sector 40-41, Chandigarh, where Inspector Mani Ram joined them. In the meantime, DSP Surjit Singh received a secret information to the effect that Deepak Chauhan and his wife Puja were indulging in the business of flesh trade in Chandigarh and had been supplying women @ Rs.500/- per lady for the purpose of prostitution. He was further informed that they were standing near Government school Sector 40-B, Chandigarh in red maruti car, in order to attract customers. Then, Chander Parkash Gandhi was made a decoy customer; was handed over a sum of Rs.1000/- and sent to them at the place pointed by the informer. Accordingly, he contacted them and gave a signal to DSP Surjit Singh, who along with raiding party apprehended the petitioners. Renu Bansal and Rekha were sitting in the car along with Puja, whereas, Deepak Chauhan was standing outside the car. On their search, marked currency notes were recovered from Puja Chauhan and also from Rekha and Renu Bansal, which were bearing the initials of the Investigating Officer (DSP Surjit Singh). The same were taken into possession vide recovery memo. The pager and the car were also taken into possession. The ruqa was sent, on the basis of which FIR was registered. The case was investigated and Crl. Revision No. 1804 of 2001, Crl. Revision No. 1803 of 2001 & Crl. Revision No. 1802 of 2001 -3- challan was presented in the Court. The petitioner Deepak Chauhan and Puja Chauhan (since acquitted) were charged for the offence under Section 4 & 5 of the Act, whereas, petitioner Renu Bansal and Rekha were charged for the offence under Section 8 of the Act, to which they pleaded not guilty and opted to contest. In order to substantiate the charges, the prosecution examined SI Balhar Singh (PW1), Chander Parkash Gandhi (PW2), ASI Kulbir Kaur (PW3) and DSP Surjit Singh (PW4). During their statements under Section 313 Cr.P.C. the petitioners denied the allegations and pleaded their false implication in the case. Puja Chauhan further explained that she was a housewife and her parents were Principals of the Schools. She had been involved on account of enmity of her husband with one Dimpi. She was whisked away along with her children so as Renu Bansal, Rekha and her husband involved in this false case. Renu Bansal also pleaded her false implication. Rekha also explained that she was suffering from ailment, therefore, she was referred to P.G.I. by Dr. (Mrs.) Maini with a letter to stay at the house of Puja Chauhan. When they were proceeding towards PGI, police forcibly pulled her from inside the gypsy and took them to the Police Station, where they were falsely implicated in the case. Deepak Chauhan took the same plea as was taken by his wife Puja Chauhan. As many as six witnesses were examined in defence. The trial ended in conviction. The appeals preferred by them also failed. Arguments heard. Record perused. The prosecution in order to prove the offence under the Act was to establish that whether Deepak Chauhan and Puja Chauhan knowingly lived wholly or in part on the earnings of the prostitution of Rekha and Renu Bansal; and whether Rekha and Renu Bansal were prostitutes as defined under the Act. It is also to be determined whether Deepak Chauhan and Puja Chauhan procured Rekha and Renu Bansal with or without their consent for the purpose of prostitution. It is further to be established if Rekha and Renu Bansal, by means of gestures etc. attempted Crl. Revision No. 1804 of 2001, Crl. Revision No. 1803 of 2001 & Crl. Revision No. 1802 of 2001 -4- or made endeavour to tempt Chander Parkash Gandhi; a decoy customer. Before proceeding to decide the aforesaid legal posers, I must notice that in addition to the official testimony, the prosecution has relied upon the statement of Chander Parkash Gandhi (PW2) who is proved to be stock witness. The trial court has also held that in a case FIR No.204 of 1996, Chander Parkash Gandhi was cited as a witness and the court in that case observed in para NO.18 of the judgment that Chander Parkash Gandhi was one of the notified persons for the Police Station Sector 39, Chandigarh to be associated at any time. Such being the situation, Chander Parkash Gandhi being always at the beck hand call of the police, could be introduced at any stage of time can't be said to be an independent witness. In any case, he has failed to withstand the test of scrutiny to prove himself as a reliable witness. The informer or the associate or any other person available to the Investigating Officer (other than a stock witness) was the best person to be posted as decoy customer. I also find force in the next argument that the evidence led by the prosecution is full of material contradictions and discrepancies going to the root of the case. SI Jangir Singh and Mani Ram have not been examined. With regard to discrepancies, Chander Parkash Gandhi (PW2) has testified in cross examination that the car was parked at kacha berm and distance of the road from the car was 10-12 feet. To the contrary, ASI Kulbir Kaur (PW3) has stated that car was parked on the metalled part of one side of the road. Chander Parkash Gandhi (PW2) has stated that there were residential houses nearby the place of incident, whereas, ASI Kulbir Kaur (PW3) has stated that there was no residential houses. Deepak Chauhan is not shown as standing on the side of the car in the FIR, Chander Parkash Gandhi (PW2) has stated that Rekha was wearing pant shirt, whereas, the other two ladies were wearing suits. To the contrary, ASI Kulbir Kaur (PW3) has stated that all were wearing suits. They also contradicted each other regarding the presence of children at the spot with ladies. Chander Parkash Gandhi (PW2) has stated that he met ASI Kulbir Kaur at the spot, whereas, ASI Kulbir Kaur has stated that she met him at the place wherefrom the police party set out. Chander Parkash Gandhi (PW2) has stated that police party had arrived on foot at the spot, whereas, DSP Surjit Singh (PW4) has Crl. Revision No. 1804 of 2001, Crl. Revision No. 1803 of 2001 & Crl. Revision No. 1802 of 2001 -5- stated that he reached the spot in the vehicle from the place where the police party was standing. Chander Parkash Gandhi (PW2) has stated that ladies were searched in their presence, whereas, ASI Kulbir Kaur (PW3) has stated that they were searched in the vehicle. Chander Parkaksh Gandhi (PW2) has stated that general public had gathered at the spot when the police party had reached but none was joined by the police party. To the contrary, Kulbir Kaur (PW3) has stated that no one else had gathered at the spot and she did not observe any person coming or going. The witnesses are also discrepant regarding putting of marked currency notes in the envelope and then sealing the same. These discrepancies cannot be termed as minor so as to ignore them, but the aforesaid discrepancies materially effect the prosecution case particularly when Chander Parkash Gandhi as joined by the police is proved to be a stock witness and that also goes to show the intent of the police for implicating the accused. Now coming to the other aspect of the case, if the circumstances as set out by the prosecution, are taken as correct, though it is not so, then if such acts fall within the preview of the Sections 4, 5 and 8 of the Act. Before interpreting Section 4 of the Act, I need to reproduce the same :- “4. Punishment for living on the earnings of prostitution - (1) Any person over the age of eighteen years who knowingly lives, wholly or in part, on the earnings of the prostitution of any other person shall be punishable with imprisonment for a term which may extend to two years, or with fine which may extend to one thousand rupees or with both and where such earnings relate to the prostitution of a child or a minor, shall be punishable with the imprisonment for a term not less than seven years and not more than ten years. (2) Where any person over the age of eighteen years is proved - (a) to be living with, or to be habitually in the company of, a prostitute; or Crl. Revision No. 1804 of 2001, Crl. Revision No. 1803 of 2001 & Crl. Revision No. 1802 of 2001 -6- (b) to have exercised control, direction or influence over the movements of a prostitute in such a manner as to show that such person is aiding, abetting or compelling her prostitution; or (c) to be acting as a tout or pimp on behalf of a prostitute, it shall be presumed, until the contrary is proved, that such person is knowingly living on the earnings of prostitution of another person within the meaning of sub-section (1).” On a bare reading of the section, it transpires that in order to constitute an offence the following constituents must be completed :- (i) The person must be over the age of eighteen years; (ii) He is knowingly living on the earning of the prostitute; (iii) whether such earning relate to the prostitution of the child and of minor. The Second clause of the Section refers to the offence committed by the said person if (a) he is living with or to be habitually in the company of a prostitute; or (b) if he has exercised control, direction or influence over the movements of a prostitute in such a manner as to show that such person is aiding, abetting or compelling her prostitution; or (C) if he acts as a tout or pimp on behalf of a prostitute. No doubt if the aforesaid constituents are proved, then the presumption is attached that he has been knowingly living on the earning of the prostitution. Section 5 of the Act is reproduced as under:- “5. Procuring, indulging or taking person for the sake of prostitution - (1) Any person who - (a) procures or attempts to procure a person whether with or without his consent, for the purpose of prostitution; or (b) intices a person to go from any place, with the intent that he may for the purpose of prostitution become inmate of, Crl. Revision No. 1804 of 2001, Crl. Revision No. 1803 of 2001 & Crl. Revision No. 1802 of 2001 -7- or frequent, a brothel; or © takes or attempts to take a person or causes a person to be taken, from one place to another with a view to his carrying on, or being brought up to carry on prostitution; or (d) causes or induces a person to carry on prostitution; shall be punishable on conviction with rigorous imprisonment for a term of not less than three years and not more than seven years and also with fine which may extend to two thousand rupees, and if any offence under this sub-section is committed against the will of any person, the punishment of imprisonment for a term of seven years shall extend to imprisonment for a term of fourteen years. Provided that if the person in respect of whom an offence committed under this sub-section - (i) is a child, the punishment provided under this sub- section shall extend to rigorous imprisonment for a term of not less than seven years but may extend to life; and (ii) is a minor, the punishment provided under this sub- section shall extend to rigorous imprisonment for a term of not less than seven years and not more than fourteen years; (Sub-section (2) omitted by Act 44 of 1986) (3) An offence under this section shall be triable - (a) in the place from which a person is procured, induced to go, taken or caused to be taken or from which an attempt to procure or take such person is made; or (b) in the place to which he may have gone as a result of the inducement or to which he is taken or caused to be taken or an attempt to take him is made.” In order to establish an offence under Section 5 of the Act, the prosecution has to prove that the person who (a) procures a girl or woman with or without her consent for the purpose of prostitution; or (b) if he Crl. Revision No. 1804 of 2001, Crl. Revision No. 1803 of 2001 & Crl. Revision No. 1802 of 2001 -8- induces a person to go from any place with intent that he/she may for the purpose of prostitution become inmate or frequent a brothel; or (c) takes or attempts to take a person or causes a person to be taken from one place to another with a view to his/her carrying on prostitution; or (d) causes or induces a person to carry on prostitution. From the bare reading of the aforesaid Section the golden thread running through the section is that the sole purpose of the accused must be to procure a girl or woman for prostitution. Now the prostitution as defined in clause 2 (f) of the Act reads as under :- “prostitution” means the sexual exploitation or abuse of persons for commercial purposes, and the expression “prostitute” shall be construed accordingly.” From the bare reading of the Section it transpires that the word “prostitute” means a female who offers her body for promiscuous sexual intercourse for hire, whether in money or kind. As to the meaning of 'prostitute' Beaumont, C.J. Has observed as follows :- “A kept woman who confers her favours exclusively to one man, even though he is not her husband, is not, in my opinion, a prostitute. Of course a kept woman may also be a prostitute as may be a married woman. But I think that prostitution involves a more or less indiscriminate employment of the woman's body for hire. The definition of a prostitute in the Oxford Dictionary is 'a woman who offers her body to indiscriminate sexual intercourse, especially for hire'. I do not say that that is a universal definition and I do not suggest that a prostitute is bounded to be entirely indiscriminate and to accept the first customer who offers her price like a cabman or a rank. But I certainly think that prostitution involves intercourse with more than one man.” Crl. Revision No. 1804 of 2001, Crl. Revision No. 1803 of 2001 & Crl. Revision No. 1802 of 2001 -9- The judgment refers me to observe that if a man keeps a woman for four years and she also has a paramour for that period, then she is not a prostitute. The real meaning of prostitution is that a woman who surrenders her body for monetary consideration to some one who is not in law entitled to have sexual intercourse with her and she should indiscriminately offer for sexual intercourse for some consideration in money or kind. While taking from another angle, a female who frequently lives in houses of ill fame or at a house which men of bad character frequently, associate with women of bad character for chastity may be deemed a prostitute. However, it excludes the intercourse which a person may have with a permanently kept concubine or with a woman without paying any consideration either in cash or in kind. To convict a person for carrying on prostitution, there must be indiscriminate sexuality requiring more than one customer of the prostitute, but in a given case where there are circumstances which would legitimately lead to the inference that the person concerned has been indulging in a sexual intercourse for money indiscriminately, a conviction can well be sustained on such evidence. Now putting the facts of the present case on parameters of the aforesaid interpretations, I am inclined to hold that facts and circumstances prevailing over the case do not constitute offences under Sections 4 and 5 of the Act. The facts as exposed before me are that three ladies were sitting in the car, whereas, Deepak Chauhan, was standing outside. He received a sum of Rs.1000/- from the decoy customer, later on that money was recovered from the ladies. There is no such evidence that the ladies came out of the car intending to go with the decoy customer or that they offered their body for sexual intercourse to him. The allegations is only that as soon as decoy customer handed over the money to Deepak Chauhan, raid was conducted and money was recovered from the ladies, therefore, to my mind no ingredients appear to have been completed in order to record observations that either Deepak Chauhan was living on the earning of the prostitution or he was habitually in their company; he handed over the ladies for sexual intercourse to the decoy customer; he was acting as a tout or pimp between the ladies and the decoy customer or that the ladies were the prostitutes as defined under Section 2(f) of the Act. Crl. Revision No. 1804 of 2001, Crl. Revision No. 1803 of 2001 & Crl. Revision No. 1802 of 2001 -10- Now coming to the offence under Section 8 of the Act, it is not the case of chance detection. It was the decoy customer who had intentionally gone to Deepak Chauhan treating him to be as pimp or tout. Since there is no evidence that the ladies were offered to the decoy customer. Mere acceptance of money by him from the decoy customer and in the absence of other evidence of any other overt act leading to sexual intercourse, merely handing over the money to the ladies is hardly sufficient to prove that the money was received on behalf of ladies by him for the purpose of prostitution, much less for the purpose of sexual intercourse with those ladies or offering them for prostitution. As a matter of fact, since the three ladies sitting in the car are not covered within the definition of 'prostitutes', the offence of acting as a tout or pimp by Deepak Chauhan as provided under Section 4 of the Act is not established. Similarly, when the ladies are not proved to be prostitutes having been found in the houses of defame and they even did not come out of the car or did any act towards sexual intercourse, they did not even show their intention to move with the decoy customer then to attract or endeavour to attract the customers by the three ladies by making gestures also can't be said to be proved. Particularly when no such part of the body was shown or offered by them to the decoy customer. The aforesaid aspects of the case have not been noticed by the Courts below while holding the guilt of the petitioners. The impugned judgment is based on the assumptions that Renu Bansal and Rekha were the prostitutes, whereas, the court should have made due observations by holding as such. In the absence of any proof regarding their prostitution, the aforesaid offence cannot be said to have been committed by them. Similarly, in the absence of any overt-act committed by the accused Deepak Chauhan regarding handing over the ladies to the decoy customer, he cannot be termed as pimp or tout also. As such, it would not be unsafe to hold that the trial court has committed an error in appreciating evidence and the law on the point. Crl. Revision No. 1804 of 2001, Crl. Revision No. 1803 of 2001 & Crl. Revision No. 1802 of 2001 -11- Resultantly, I accept the revision petitions, set aside the impugned judgment and acquit the petitioners of the charges framed against them. Bail bonds and surety bonds furnished by them stand discharged. Fine, if any deposited by them, be refunded. April 29, 2009 (A.N. Jindal) deepak Judge