CHAPTER - IV

LAW RELATING TO PREVENTION OF IMMORAL

TRAFFIC IN INDIA
India has drafted many Laws and Procedures to deal with the issue of trafficking in
human beings. The basis of these Laws finds expression in the Indian Constitution, and
in enactments such as the Immoral Traffic Prevention Act, 1956. The Juvenile Justice
[Care and Protection Act] 2000, Indian Penal Code and other Laws.

4.1 Indian Constitution

Article 21 of the Indian Constitution provides that no person shall be deprived of

his life, of personal liberty except according to procedure established by Law. In the
case of Francis Coralie Muffin V/S the Union Territory of Delhi273, the Supreme Court
held that this right includes the right to live with human dignity. Whereas, in the case of
L'pendra Bales hi V/S State of Uttar Pradesh, the Supreme Court held that Article 21
includes providing human conditions in Protective Homes. In another landmark
judgement in Chandrabhan V/S State of Maharashtra274, the Supreme Court observed
that the right to life enshrined in Article 21 implies something more than survival or
animal existence. It emphasized the right of women and girls in prostitution to rescue
and rehabilitation. In the case of Nirja Choudhary V/S State of Madhya Pradesh275, the
Supreme Court upheld the right of bonded labourers to rehabilitation.

Article 23 of the Constitution prohibits traffic in human being and begar and other
similar forms of forced labour. The second part of this Article declares that any
contravention of this provision shall be an offence punishable in accordance with Law

'Traffic in human beings' means selling and buying men and women like goods
and includes immoral traffic in women and children for immoral" or other purposes.
Though slavery is not expressly mentioned in Article 23, it is included in the expression
'traffic in human being'. Under Article 35 of the Constitution Parliament is authorised to
make Laws for punishing acts prohibited by this Article. In pursuance of this Article

273
AIR 1978 SC597
274
3 SCC 1983 387
275
AIR 1984 SC 1099

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Parliament has passed the Suppression of Immoral Traffic in Women and Girls Act.
1956, for punishing acts which result in traffic in human beings.

Article 23 protects the individual not only against the State but also private
citizens. It imposes a positive obligation on the State to take steps to abolish evils of
"traffic in human beings" and begar and other similar forms of forced labour wherever
they are found.

This Article therefore, declares traffic in human beings to be an offence punishable

in accordance with Law. Traffic in women for immoral purposes has been held to be
covered by the expression “traffic in human beings” in Article 23 (1) of the
Constitution of India.

Article 23 (1) provides that trafficking in human beings is prohibited and any
contravention of these provisions shall be an offence. Article 23 is enforceable not only
against the States but also against private persons indulging in trafficking, as held by
the Supreme Court in Sanjit Roy V/S the State of Rajasthan. In the landmark
judgements of Vishaljeet276, Upendra Baxi and Gourav Jain277, the Supreme Court has
repeatedly passed orders and directions to the State Governments to ensure the proper
rehabilitation of victims of prostitution.

Besides the Fundamental Rights, the following Directive Principles

also have relevance:
Article 39 (a) provides that the States shall in particular direct its policy towards
securing that citizens, men and women, equally have the right to an adequate means of
livelihood

Article 39 (e) states that the health and strength of workers, men and women and
children of tender age are not abused and that citizens are not forced by economic
necessity to enter a vocation unsuited to their age or strength.

Article 39 (f) provides that children be given opportunities and facilities to develop
in a healthy manner and in conditions of freedom-and dignity and that childhood and
youth are protected against exploitation and against moral and material abandonment.

276
AIR 1990 SC 1412
277
AIR 1997 SC 3021

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In the case of Bandua Mukti Morcha V/S the Union of India278, the Supreme Court
confirmed that right to live with human dignity, free from exploitation in the light of the
directive principles contained Article 39 (e) & (f).

Article 42 provides that the States shall make provisions for securing just and
human conditions of work.

Article 46 provides that the States shall promote the special care, education and
economic interests of weaker sections of the people and in particular of the SCs and STs
and shall protect them from social injustice and all forms of exploitation.

Article 47 provides that the States shall work towards raising the level of nutrition
and the standard of living of its people and the improvement of public health, as among
its primary duties.

4.2 Provisions of Indian Penal Code 1860 and Immoral Trafficking:

There are many sections in the IPC, which could be used against traffickers,
pimps, brothel keepers, and those Involved in commercializing prostitution and living
off the earnings of victims of prostitution:

Framers of the Indian Penal Code have not treated prostitution and immoral
trafficking as offences probably because those acts can be tackled as socio-economic
problems. However, there are abundant numbers of provisions in Sections 359 to 376
of the code that have a direct or indirect bearing on immoral trafficking. In this age of
criminalisation of every field in human sphere, no person indulges in acts like
prostitution unless there is a criminal act on part of others either in the form of
abatement, kidnapping, abduction, buying and selling of persons including minors for
purposes including prostitution and last but not the least rape. Therefore, it becomes
necessary to discuss these aspects to render substantial justice to any commentary on
the immoral trafficking in India.

Section 294 IPC:

Whoever to the annoyance of others,

a) does any obscene act in any public place, or
278
AIR1984 SC 802

145
 b) Sings, recites or utters any obscene song, ballad or words in or near any public
place, shall be punished with imprisonment up to 3 months or with fine or with
both.

This is also a section being used randomly against victims of prostitution and
the logic of using this as against the ITP ACT is questionable.

Section 359 of the Indian Penal Code recognises two kinds of kidnapping
from India and kidnapping from Lawful guardianship. Kidnapping literally means
child stealing but the Code considers the act of taking away a person of any age unless
specifically mentioned, as the offence of kidnapping. Section 360 details the offence
of kidnapping from India of any person irrespective of age. Section 361 in its first part
lays down what kidnapping from Lawful guardianship stands for. The object of this
section is to protect children of tender age from being abducted for improper
purposes, and also to protect the defined as compelling a person by force or inducing
such person by deceitful means to go from any place. Kidnapping or maiming a minor
for purposes of begging has been made an offence under section 363-A which was
inserted in 1959. Section 365 embodies an aggravated form of offence of kidnapping
as defined in Section 360 and 361, of abduction as defined in Section 362. This
Section 365 is attracted when the kidnapping or abduction is committed with intent to
secretly and wrongfully confine the victim.

Whoever kidnaps or abducts any woman with intent that she may be
compelled, or knowing it, to be likely that she will be compelled, to marry any person
against her will, or in order that she may be forced or seduced to illicit intercourse,
will be guilty of an offence under Section 366, were charged to have abducted the
poor women for forcing them to prostitution whereas they were carried away by
making false promise of providing them jobs. There was sufficient evidence to prove
that the accused had taken away the women for the purpose of prostitution and minor
discrepancy in evidence of particular witness was considered to carry no weight. It
was held that the conviction of the accused was proper.

Sections 366-A and 366-B intend to punish the export and import of girls for
prostitution.

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 Section 366-A- deals with transportation of minor girls from one part of India
to another for prostitution or illicit intercourse.

Section 366-B makes it an offence to import into India from any country
outside India, girls below the age of 21 years for the purpose of prostitution.

Kidnapping or abducting in order to subject person to grievous hurt, slavery or

to the unnatural just of any person, has been made an offence under section 367.
Section 368 imposes a proactive duty on any person who has knowledge of any
kidnap or abduction but who wrongfully conceals or confines such person to reveal
such offence. Any person assisting the principal offender of such kidnapping or
abduction will be liable to be punished in the like manner the principal offender is
punished.

Whoever imports, exports, removes, buys, sells or disposes of any person as a

slave, or accepts, receives or detains any person against his/her will as a slave is
punishable under Sections 370 and 371.

Section 372 of Indian Penal Code, deals with, the offence of selling, letting,
hiring or otherwise disposing, of a minor for the purpose of prostitution or illicit
intercourse, with any person, or for any unlawful and immoral purposes.

This section applies to both, males or females under the age of 18 years,
irrespective of their marital status or background. It is worthwhile to note that under
Section 2 (i) of the Immoral Traffic (Prevention) Act, 1986, prostitution means the
sexual exploitation or abuse of persons for commercial purpose and the same shall be
considered accordingly. However, it appears that the above definition does not control
the meaning of the term in Indian Penal Code. It is because, when the Acts are not
inpari material and the words in earlier Act have been used for totally different
purposes, Reference to earlier Act would be totally irrelevant. It is also important to
note in this context that Section 5 of the Act of 1956 also makes the procuring,
including or taking person for the sake for prostitution an offence. A closer look at
Section 372, Indian Penal Code and Section 5 of the Act of 1956 makes it clear that
they create distinct offences therefore, they do not overlap and conviction under both
the sections would be legal. Section 373 of the Code makes buying, hiring or
otherwise obtaining possession of any person under the age of 18 years for the

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purpose of employing or using them for the purpose of prostitution or illicit
intercourse an offence.

Indian Penal Code, 1860, makes kidnapping, abduction, slavery and forced
labour offences in Sections 359 to 374. Among these kidnapping from Lawful
guardianship under Section 361, abduction under Section 362, procreation of minor
girl under Section 366-A, importation of girl from foreign country under Section 366-
B, kidnapping or abducting in order to subject person to grievous hurt, slavery etc.,
under Section 367, selling minor for purposes of prostitution etc. under Section 372
and buying minor for purposes of prostitution etc. are directly relevant for the purpose
of Immoral Traffic (Prevention) Act, 1956 also

Section 359 IPC: Kidnapping:

Kidnapping is of two kinds; kidnapping from India and kidnapping from

Lawful guardianship.

Section 360 IPC: Kidnapping from India:

Whoever conveys and person beyond the limits of India without the consent of
that person, or of some person legally authorised to consent on behalf of that person,
is said to kidnap that person from India.

Section 361 IPC: Kidnapping from Lawful guardianship:

Whoever takes or entices any minor under sixteen years of age if a male, or
under eighteen years of age if a female, or any person of unsound mind, out of the
keeping of the Lawful guardian of such minor or person of unsound mind, without the
consent of such guardian, is said to kidnap such minor or person from Lawful
guardianship.

Explanation.- The words “Lawful guardian‟ in this section include any person
Lawfully entrusted with the care or custody of such minor or other person.

Exception.- This section does not extend to the act of any person who in good
faith believes himself to be the father of an illegitimate child, or who in good faith

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believes himself to be entitled to the Lawful custody of such child, unless such act is
committed for an immoral or Unlawful purpose.

Section 362 IPC: Abduction:

Whoever by force compels, or by any deceitful means induces, any person to

go from any place, is said to abduct that person.

Section 363 IPC: Punishment for kidnapping:

Whoever kidnaps any person from India or from Lawful guardianship shall be
punished with imprisonment of either description for a term which may extend to
seven years, and shall also be liable to fine.

Section 363-A IPC: Kidnapping or maiming a minor for purposes of begging:

(1) Whoever kidnaps any minor or, not being the Lawful guardian of a minor,
obtains the custody of the minor, in order that such minor may be employed or used
for the purposes of begging shall be punishable with imprisonment of either
description for a term which may extend to ten years, and shall also be liable to fine.

(2) Whoever maims any minor in order that such minor may be employed or
used for the purposes of begging shall be punishable with imprisonment for life, and
shall also be liable to fine.

(3) Where any person, not being the Lawful guardian of a minor, employs or
uses such minor for the purposes of begging, it shall be presumed, unless the contrary
is proved, that he kidnapped or otherwise obtained the custody of that minor in order
that the minor might be employed or used for the purposes of begging.

(4) In this section,-

(a) “begging” means

(i) soliciting or receiving alms in a public place, whether under the

pretence of singing, dancing, fortune-telling, performing tricks or
selling articles or otherwise;

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 (ii) entering on any private premises for the purpose of soliciting or
receiving alms;

(i) Exposing or exhibiting, with the object of obtaining or

extorting alms, any sore, wound, injury, deformity or disease,
whether of himself or of any other person or of an animal;

(ii) Using a minor as an exhibit for the purposes of soliciting or

receiving alms;

(b) “minor” means-

(i) in the case of a male, a person under sixteen years of age; and

(ii) in the case of a female, a person under eighteen years of age.

Section 365 IPC: Kidnapping or abducting with intent secretly and wrongfully to
confine person:

Whoever kidnaps or abducts any person with intent to cause that person to be
secretly and wrongfully confined, shall be punished with imprisonment of either
description for a term which may extend to seven years, and shall also be liable to
fine.

Section 366 IPC: Kidnapping abducting or inducing woman to compel her

marriage, etc:

Whoever kidnaps or abducts any woman with intent that she may be
compelled, or knowing it to be like that she will be compelled, to marry any person
against her will, or in order that she may be forced or seduced to illicit intercourse,
shall be punished with imprisonment of either description for a term which may
extend to ten years, and shall also be liable to fine, and whoever, by means of criminal
intimidation as defined in this Code or of abuse of authority or any other method of
compulsion, induces any woman to go from any place with intent that she may be, or
knowing that it is likely that she will be, forced or seduced to illicit intercourse with
another person, shall also be punishable as aforesaid.

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Section 366-A IPC: Procreation of minor girl:

Whoever, by any means whatsoever, induces any minor girl under the age of
eighteen years to go from any place or to do any act with intent that such girls may be,
or knowing that it is likely that she will be, forced or seduced to illicit intercourse
with another person shall be punishable with imprisonment which may extend to ten
years, and shall also be liable to fine.

Section 366-B IPC: Importation of girl from foreign country:

Whoever imports into India from any country outside India or from the State
of Jammu and Kashmir any girl under the age of twenty-one years with intent that she
may be, or knowing it to be likely that she will be, forced or seduced to illicit
intercourse with another person, shall be punishable with imprisonment which may
extend to ten years, and shall also be liable to fine.

Section 367 IPC: Kidnapping or abducting in order to subject person to grievous

hurt, slavery, etc:

Whoever kidnaps or abducts any person in order that such person may be
subjected, or may be so disposed of as to be put in danger of being subjected to
grievous hurt, or slavery, or to the unnatural lust of any person, or knowing it to be
likely that such person will be so subjected or disposed of, shall be punished with
imprisonment of either description for a term which may extend to ten years, and shall
also be liable to fine.

Section 368 IPC: Wrongfully concealing or keeping in confinement, kidnapped

or abducted person:

Whoever knowing that any person has been kidnapped or has been abducted,
wrongfully conceals or confines such person, shall be punished in the same manner as
if he had kidnapped or abducted such person with the same intention or knowledge, or
for the same purpose as that with or for which he conceals or detains such person in
confinement.

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Section 370 IPC: Buying or disposing of any person as a slave:

Whoever habitually imports, exports, removes, buys sells or disposes of any

person as a slave, or accepts receives or detains against his will any person as a slave,
shall be punished with imprisonment of either description for a term which may
extend to seven years, and shall also be liable to fine.

Section 371 IPC: Habitual dealing in salves:

Whoever habitually imports, exports, removes, buys, sells, traffics or deals in

slaves, shall be punished with imprisonment for life, or with imprisonment of either
description for a term not exceeding ten years, and shall also be liable to fine.

Section 372 IPC: Selling minor for purposes of prostitution, etc:

Whoever sells, lets to hire, or otherwise disposes of any person under the age
of eighteen years with intent that such person shall at any age be employed or used for
the purpose of prostitution or illicit intercourse with any person or for any Unlawful
and immoral purpose, or knowing it to be likely that such person will at any age be
employed or used for any such purpose, or knowing it to be likely that such person
will at any age be employed or used for any such purpose, shall be punished with
imprisonment of either description for a term which may extend to ten years, and shall
also be liable to fine.

Explanation I. When a female under the age of eighteen years is sold, let for
hire, or otherwise disposed of to a prostitute or to any person who keeps or manages a
brothel, the person so disposing of such female, shall, until the contrary is proved, be
presumed to have disposed of her with the intent that she shall be used for the purpose
of prostitution.

Explanation II. For the purposes of this section “illicit intercourse” means
sexual intercourse between persons not united by marriage, or by any union or tie
which, though not amounting to a marriage, is recognised by the personal Law or
customs of the community to which they belong or, where they belong to different
communities, of both such communities, as constituting between them a quasi-marital
relation.

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Section 373 IPC: Buying minor for purposes of prostitution, etc:

Whoever buys, hires or otherwise obtains possession of any person under the
age of eighteen years with intent that such person shall at any age be employed or
used for the purpose of prostitution or illicit intercourse with any person or for any
Unlawful and immoral purpose, or knowing it to be likely that such person will at any
age be employed or used for any such purpose, shall be punished with imprisonment
of either description for a term which may extend to ten years, and shall also be liable
to fine.

Explanation I. Any prostitute or any person keeping or managing a brothel,

who buys, hires or otherwise obtains possession of a female under the age of eighteen
years shall, until the contrary is proved, be resumed to have obtained possession of
such female with the intent that she shall be used for the purpose of prostitution.

Explanation II “Illicit intercourse” has the same meaning as in Section 372.

Section 374 IPC: Unlawful compulsory labour:

Whoever unlawfully compels any person to labour against the will of that
person shall be punished with imprisonment of either description for a term which
may extend to one imprisonment of either description for a term which may extend to
one year, or with fine, or with both.”

Section 375 IPC: Offence of Rape:

The offence of rape under Section 375, Indian Penal Code is another relevant
provision having a bearing on the immoral trafficking. Rape is sexual intercourse with
a woman:

(i) Against her will;

(ii) Without her consent;

(iii) With her consent if it is obtained by putting her or her dear ones in
fear of death or hurt;

(iv) With her consent, if the same is caused by deception of marriage;

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 (v) With her consent if the same is given due to intoxication or,
unsoundness of mind or some drug; and

(vi) With or without consent, when she is under 16 years of age.

Section 376 IPC - Punishment for rape:

(1) Whoever, except in the cases provided for by sub-section (2), commits
rape shall be punished with imprisonment of either description for a term which shall
not be less than seven years but which may be for life or for a term which may extend
to ten years and shall also be liable to fine unless the woman raped is his own wife
and is not under twelve years of age, in which case, he shall be punished with
imprisonment of either description for a term which may extend to two years or with
fine or with both :

Provided that the court may for adequate and special reasons to be mentioned in
the judgment, impose a sentence of imprisonment for a term of less than seven years.

(2) Whoever,

(a) being a police officer commits rape

(i) within the limits of the police station to which he is appointed ;or

(ii) in the premises of any station house whether or not situated in the police
station to which he is appointed ; or

(iii) on a woman in his custody or in the custody of a police officer subordinate

to him ; or

b. being a public servant, takes advantage of his official position and commits
rape on a woman in his custody as such public servant or in the custody of
a public servant subordinate to him ; or

c. being on the management or on the staff of a jail, remand home or other

place of custody established by or under any Law for the time being in
force or of a women's or children's institution takes advantage of his official

154
 position and commits rape on any inmate of such jail, remand home, place
or institution ; or

d. being on the management or on the staff of a hospital, takes advantage of

his official position and commits rape on a woman in that hospital ; or

e. commits rape on a woman knowing her to be pregnant ; or

f. commits rape on a woman when she is under twelve years of age ; or

g. commits gang rape

shall be punished with rigorous imprisonment for a term which shall not be less
than ten years but which may be for life and shall also be liable to fine :

Provided that the court may, for adequate and special reasons to be mentioned in
the judgment, impose a sentence of imprisonment of either description for a term of
less than ten years.

Explanation 1. where a woman is raped by one or more in a group of persons

acting in furtherance of their common intention, each of the persons
shall be deemed to have committed gang rape within the meaning of
this sub-section.

Explanation 2. "Women's or children's institution" means an institution, whether

called an orphanage or a home for neglected women or children or a
widows' home or by any other name, which is established and
maintained for the reception and care of women or children.

Explanation 3. "Hospital" means the precincts of the hospital and includes the
precincts of any institution for the reception and treatment of
persons during convalescence or of persons requiring medical
attention or rehabilitation.

Section 377-Unnatural offences:

Whoever voluntarily has carnal intercourse against the order of nature with
any man, woman or animal shall be punished with imprisonment for life, or with

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imprisonment of either description for a term which may extend to ten years, and
shall also be liable to fine.

Explanation : Penetration is sufficient to constitute the carnal intercourse necessary to

the offence described in this section.

This section is intended to punish certain unnatural offences like sodomy,

buggery and bestiality. The offence consists in having carnal knowledge against the
order of nature by a person with a man, or in the same unnatural manner with a
woman or by a man or woman in any manner with an animal.

In Fazal Rab Chodhary v. State of Bihar, 279 the accused was charged for
committing an unnatural offence upon a young boy. In view of the fact that no force
was used, the sentence of three years imprisonment was reduced to six months. It was
held that in judging the depravity of the action for determining quantum of sentence,
all aspects of the matter having a bearing on the question of nature of offence must be
considered.

In Brother John Antony v. State,280 the petitioner a sub-warden of a Boarding

Home was alleged to have committed unnatural offence with the inmates. The acts
committed by the petitioner fell in two categories, namely (1) insertion of the penis
into the mouth of the victim boy and doing the act of in carnal intercourse up to the
point of ejaculation of semen into the mouth; and (2) manipulation and movement of
the penis of the petitioner whilst being held by the victim boys in such a way as to
create an orifice like thing for making the manipulated movements of insertion and
withdrawal up to the point of ejaculation of semen.

It was held that both the above categories of acts fall within the sweep of
unnatural carnal offences under section 377. As far as the second category is
concerned in the process of such manipulation, the visiting male organ is enveloped
at least partially by organism visited, namely, the hands which held tight the penis.
The sexual appetite was thus quenched by the ejaculation of semen into the hands of
the victims.

279
1983 Cr. L.J 632 (S.C.).
280
1992 Cri. L.J. 1352 (Madras).

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4.3 The Criminal Law (Amendment) Act 2013 (Nirbhaya Act) No.13
of 2013:
Chapter I: Short title and commencement:

This Act may be called the Criminal Law (Amendment) Act, 2013. It shall
be deemed to have come into force on the 3rd day of February, 2013.

Chapter II: Amendments to the Indian Penal Code:

Amendment of Section 100:-

In the Indian Penal Code (45 of 1860) (hereafter in this Chapter referred to as the
Penal Code), in section 100, after clause sixthly, the following clause shall be
inserted, namely:

"Seventhly. An act of throwing or administering acid or an attempt to throw or

administer acid which may reasonably cause the apprehension that grievous hurt will
otherwise be the consequence of such act.".

Insertion of new section 166A and 166B:

After section 166 of the Penal Code, the following sections shall be inserted, '
namely:

Section 166A Public servant disobeying direction under Law:

Whoever, being a public servant,

a) knowingly disobeys any direction of the Law which prohibits him from
requiring the attendance at any place of any person for the purpose of
investigation into an offence or any other matter, or

b) knowingly disobeys, to the prejudice of any person, any other direction of the
Law regulating the manner in which he shall conduct such investigation, or

c) fails to record any information given to him under sub-section (/) of section
154 of the Code of Criminal Procedure, 1973, in relation to cognizable
offence punishable under section 326A, section 326B, section 354, section

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 354B, section 370, section 370A, section 376, section 376A, section 376B,
section 376C, section 376D, section 376E or section 509, shall be punished
with rigorous imprisonment for a term which shall not be less than six months
but which may extend to two years, and shall also be liable to fine.

Section 166B Punishment for non-treatment of victim:

Whoever, being in charge of a hospital, public or private, whether run by the

Central Government, the State Government, local bodies or any other person,
contravenes the provisions of section 357C of the Code of Criminal Procedure, 1973,
shall be punished with imprisonment for a term which may extend to one year or with
fine or with both."

Amendment of section 228A:

In section 228A of the Penal Code, in sub-section (l), for the words, figures and
letters "offence under section 376, section 376A, section 376B, section 376C or
section 376D", the words, figures and letters "offence under section 376, section
376A, section 376B, section 376C, section 376D or section 376E" shall be
substituted.

Insertion of new sections 326A and 326B:

After section 326 of the Penal Code, the following sections shall be inserted,
namely:

Section 326A: Voluntarily causing grievous hurt by use of acid, etc.

Whoever causes permanent or partial damage or deformity to, or burns or maims

or disfigures or disables, any part or parts of the body of a person or causes grievous
hurt by throwing acid on or by administering acid to that person, or by using any
other means with the intention of causing or with the knowledge that he is likely to
cause such injury or hurt, shall be punished with imprisonment of either description
for a term which shall not be less than ten years but which may extend to
imprisonment for life, and with fine provided that such fine shall be just and
reasonable to meet the medical expenses of the treatment of the victim provided
further that any fine imposed under this section shall be paid to the victim.

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Section 326B - Voluntarily throwing or attempting to throw acid:

Whoever throws or attempts to throw acid on any person or attempts to

administer acid to any person, or attempts to use any other means, with the intention
of causing permanent or partial damage or deformity or burns or maiming or
disfigurement or disability or grievous hurt to that person, shall be punished with
imprisonment of either description for a term which shall not be less than five years
but which may extend to seven years, and shall also be liable to fine.

Explanation 1. For the purposes of section 326A and this section, "acid" includes
any substance which has acidic or corrosive character or burning
nature, that is capable of causing bodily injury leading to scars or
disfigurement or temporary or permanent disability.

Explanation 2. For the purposes of section 326A and this section, permanent or
partial damage or deformity shall not be required to be
irreversible.

Amendment of Section 354:

In section 354 of the Penal Code, for the words "shall be punished with
imprisonment of either description for a term which may extend to two years, or with
fine, or with both", the words "shall be punished with imprisonment of either
description for a term which shall not be less than one year but which may extend to
five years, and shall also be liable to fine" shall be substituted.

Insertion of new sections 354A, 354B, 354C and 354D:

After section 354 of the Penal Code, the following sections shall be inserted,
namely:

Section 354A - Sexual harassment and punishment for sexual harassment:

(1) A man committing any of the following acts

(i) physical contact and advances involving unwelcome and explicit

sexual overtures; or

(ii) a demand or request for sexual favours; or

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 (iii) showing pornography against the will of a woman; or

(iv) making sexually coloured remarks, shall be guilty of the offence of

sexual harassment.

(2) Any man who commits the offence specified in clause (i) or clause (ii) or
clause (iii) of sub-section (l) shall be punished with rigorous imprisonment
for a term which may extend to three years, or with fine, or with both.

(3) Any man who commits the offence specified in clause (iv) of sub-section (l)
shall be punished with imprisonment of either description for a term which
may extend to one year, or with fine, or with both.

Section 354B - Assault or use of criminal force to women with intent to disrobe:

Any man who assaults or uses criminal force to any woman or abets such act
with the intention of disrobing or compelling her to be naked, shall be punished with
imprisonment of either description for a term which shall not be less than three years
but which may extend to seven years, and shall also be liable to fine.

Section 354C - Voyeurism:

Any man who watches, or captures the image of a woman engaging in a

private act in circumstances where she would usually have the expectation of not
being observed either by the perpetrator or by any other person at the behest of the
perpetrator or disseminates such image shall be punished on first conviction with
imprisonment of either description for a term which shall not be less than one year,
but which may extend to three years, and shall also be liable to fine, and be punished
on a second or subsequent conviction, with imprisonment of either description for a
term which shall not be less than three years, but which may extend to seven years,
and shall also be liable to fine.

Explanation 1 For the purpose of this section, "private act" includes an act of
watching carried out in a place which, in the circumstances, would
reasonably be expected to provide privacy and where the victim's
genitals, posterior or breasts are exposed or covered only in

160
 underwear; or the victim is using a lavatory; or the victim is doing a
sexual act that is not of a kind ordinarily done in public.

Explanation 2. where the victim consents to the capture of the images or any act, but
not to their dissemination to third persons and where such image or
act is disseminated, such dissemination shall be considered an
offence under this section.

Section 354D - Stalking:

(i) Any man who

(i) follows a woman and contacts, or attempts to contact such woman to foster
personal interaction repeatedly despite a clear indication of disinterest by
such woman; or

(ii) monitors the use by a woman of the internet, email or any other form of
electronic communication, commits the offence of stalking:

Provided that such conduct shall not amount to stalking if the man
who pursued it proves that

(i) it was pursued for the purpose of preventing or detecting crime and the
man accused of stalking had been entrusted with the responsibility of
prevention and detection of crime by the State; or

(ii) it was pursued under any Law or to comply with any condition or
requirement imposed by any person under any Law; or

(iii) in the particular circumstances such conduct was reasonable and justified.

(2) Whoever commits the offence of stalking shall be punished on first conviction
with imprisonment of either description for a term which may extend to three
years, and shall also be liable to fine; and be punished on a second or subsequent
conviction, with imprisonment of either description for a term which may extend
to five years, and shall also be liable to fine.'.

161
Substitution of new sections 370 and 370A for section 370:

For section 370 of the Penal Code, the following sections shall be substituted,
namely:

Section 370 - Trafficking of person:

(1) Whoever, for the purpose of exploitation, (a) recruits, (b) transports, (c)
harbours, (d) transfers, or (e) receives, a person or persons, by

First. using threats, or

Secondly. using force, or any other form of coercion, or

Thirdly. by abduction, or

Fourthly. by practicing fraud, or deception, or

Fifthly. by abuse of power, or

Sixthly. by inducement, including the giving or receiving of payments or

benefits, in order to achieve the consent of any person having
control over the person recruited, transported, harboured,
transferred or received, commits the offence of trafficking.

Explanation 1. The expression "exploitation" shall include any act of physical

exploitation or any form of sexual exploitation, slavery or
practices similar to slavery, servitude, or the forced removal of
organs.

Explanation 2. the consent of the victim is immaterial in determination of the

offence of trafficking.

(2) Whoever commits the offence of trafficking shall be punished with rigorous
imprisonment for a term which shall not be less than seven years, but which
may extend to ten years, and shall also be liable to fine.

(3) Where the offence involves the trafficking of more than one person, it shall be
punishable with rigorous imprisonment for a term which shall not be less than

162
 ten years but which may extend to imprisonment for life, and shall also be
liable to fine.

(4) Where the offence involves the trafficking of a minor, it shall be punishable
with rigorous imprisonment for a term which shall not be less than ten years,
but which may extend to imprisonment for life, and shall also be liable to fine.

(5) Where the offence involves the trafficking of more than one minor, it shall be
punishable with rigorous imprisonment for a term which shall not be less than
fourteen years, but which may extend to imprisonment for life, and shall also
be liable to fine.

(6) If a person is convicted of the offence of trafficking of minor on more than

one occasion, then such person shall be punished with imprisonment for life,
which shall mean imprisonment for the remainder of that person's natural life,
and shall also be liable to fine.

(7) When a public servant or a police officer is involved in the trafficking of any
person then, such public servant or police officer shall be punished with
imprisonment for life, which shall mean imprisonment for the remainder of
that person's natural life, and shall also be liable to fine.

Section 370A - Exploitation of trafficked persons:

(1) Whoever, knowingly or having reason to believe that a minor has been
trafficked, engages such minor for sexual exploitation in any manner, shall be
punished with rigorous imprisonment for a term which shall not be less than
five years, but which may extend to seven years, and shall also be liable to
fine.

(2) Whoever, knowingly by or having reason to believe that a person has been
trafficked, engages such person for sexual exploitation in any manner, shall be
punished with rigorous imprisonment for a term which shall not be less than
three years, but which may extend to five years, and shall also be liable to
fine.'.

163
Substitution of new sections for sections 375, 376, 376A, 376B, 376C and 376D:

For sections 375,376,376A, 376B, 376C and 376D of the Penal Code, the
following sections shall be substituted, namely:

Section 375 - Rape:

A man is said to commit "rape" if he

(a) Penetrates his penis, to any extent, into the vagina, mouth, urethra or anus of a
woman or makes her to do so with him or any other person; or

(b) inserts, to any extent, any object or a part of the body, not being the penis, into
the vagina, the urethra or anus of a woman or makes her to do so with him or
any other person; or

(c) manipulates any part of the body of a woman so as to cause penetration into the
vagina, urethra, anus or any part of body of such woman or makes her to do so
with him or any other person; or

(d) applies his mouth to the vagina, anus, urethra of a woman or makes her to do
so with him or any other person, under the circumstances falling under any of
the following seven descriptions:

First. against her will.

Secondly. without her consent.

Thirdly. with her consent, when her consent has been obtained by
putting her or any person in whom she is interested in fear of
death or of hurt.

Fourthly. with her consent, when the man knows that he is not her
husband and that her consent is given because she believes
that he is another man to whom she is or believes herself to be
lawfully married.

Fifthly. With her consent when, at the time of giving such consent, by
reason of unsoundness of mind or intoxication or the

164
 administration by him personally or through another of any
stupefying or unwholesome substance, she is unable to
understand the nature and consequences of that to which she
gives consent.

Sixthly. with or without her consent when she is below eighteen years
of age.

Seventhly. when she is unable to communicate consent.

Explanation 1. for the purposes of this section, "vagina" shall also include
labia majora.

Explanation 2. Consent means an unequivocal voluntary agreement when the

woman by words, gestures or any form of verbal or non-
verbal communication, communicates willingness to
participate in the specific sexual act:

Provided that a woman who does not physically resist to the act of penetration
shall not by the reason only of that fact, be regarded as consenting to the sexual
activity.

Exception 1. A medical procedure or intervention shall not constitute rape.

Exception 2. Sexual intercourse or sexual acts by a man with his own wife, the
wife not being under fifteen years of age, is not rape.'.

Section 376 - Punishment for Rape:

(1) Whoever, except in the cases provided for in sub-section (2), commits rape,
shall be punished with rigorous imprisonment of either description for a term
which shall not be less than seven years, but which may extend to
imprisonment for life, and shall also be liable to fine.

(2) Whoever,

(a) being a police officer, commits rape

165
 (i) within the limits of the police station to which such police officer is
appointed; or

(ii) in the premises of any station house; or

(iii) on a woman in such police officer's custody or in the custody of a

police officer subordinate to such police officer; or

(b) being a public servant, commits rape on a woman in such public servant's
custody or in the custody of a public servant subordinate to such public
servant; or

(c) being a member of the armed forces deployed in an area by the Central or
a State Government commits rape in such area; or

(d) being on the management or on the staff of a jail, remand home or other
place of custody established by or under any Law for the time being in
force or of a women's or children's institution, commits rape on any
inmate of such jail, remand home, place or institution; or

(e) being on the management or on the staff of a hospital, commits rape on a

woman in that hospital; or

(f) being a relative, guardian or teacher of, or a person in a position of trust or

authority towards the woman, commits rape on such woman; or

(g) commits rape during communal or sectarian violence; or

(h) commits rape on a woman knowing her to be pregnant; or

(i) commits rape on a woman when she is under sixteen years of age; or

(j) commits rape, on a woman incapable of giving consent; or

(k) being in a position of control or dominance over a woman, commits rape

on such woman; or

(l) commits rape on a woman suffering from mental or physical disability; or

166
 (m) while committing rape causes grievous bodily harm or maims or
disfigures or endangers the life of a woman; or

(n) commits rape repeatedly on the same woman,

shall be punished with rigorous imprisonment for a term which shall not be less
than ten years, but which may extend to imprisonment for life, which shall mean
imprisonment for the remainder of that person's natural life, and shall also be liable to
fine.

Explanation. For the purposes of this sub-section,

(a) "armed forces" means the naval, military and air forces and includes any
member of the Armed Forces constituted under any Law for the time being in
force, including the paramilitary forces and any auxiliary forces that are under
the control of the Central Government or the State Government;

(b) "hospital" means the precincts of the hospital and includes the precincts of any
institution for the reception and treatment of persons during convalescence or of
persons requiring medical attention or rehabilitation;

(c) "police officer" shall have the same meaning as assigned to the expression
"police" under the Police Act, 1861;

(d) "women's or children's institution" means an institution, whether called an

orphanage or a home for neglected women or children or a widow's home or an
institution called by any other name, which is established and maintained for the
reception and care of women or children.

Section 376A - Punishment for causing death or resulting in persistent

vegetative state of victim:-

Whoever, commits an offence punishable under sub-section (1) or subsection (2)

of section 376 and in the course of such commission inflicts an injury which causes
the death of the woman or causes the woman to be in a persistent vegetative state,
shall be punished with rigorous imprisonment for a term which shall not be less than
twenty years, but which may extend to imprisonment for life, which shall mean
imprisonment for the remainder of that person's natural life, or with death.

167
Section 376B - Sexual intercourse by husband upon his wife during separation:-

Whoever has sexual intercourse with his own wife, who is living separately,
whether under a decree of separation or otherwise, without her consent, shall be
punished with imprisonment of either description for a term which shall not be less
than two years but which may extend to seven years, and shall also be liable to fine.

Explanation. In this section, "sexual intercourse" shall mean any of the acts
mentioned in clauses (a) to (d) of section 375.

Section 376C - Sexual intercourse by a person in authority:- Whoever, being

(a) in a position of authority or in a fiduciary relationship; or

(b) a public servant; or

(c) superintendent or manager of a jail, remand home or other place of custody

established by or under any Law for the time being in force, or a women's or
children's institution; or

(d) on the management of a hospital or being on the staff of a hospital, abuses

such position or fiduciary relationship to induce or seduce any woman either
in his custody or under his charge or present in the premises to have sexual
intercourse with him, such sexual intercourse not amounting to the offence
of rape, shall be punished with rigorous imprisonment of either description
for a term which shall not be less than five years, but which may extend to
ten years, and shall also be liable to fine.

Explanation 1. In this section, "sexual intercourse" shall mean any of the acts
mentioned in clauses (a) to (d) of section 375.

Explanation 2. For the purposes of this section, Explanation 1 to section 375

shall also be applicable.

Explanation 3. "Superintendent", in relation to a jail, remand home or other place

of custody or a women's or children's institution, includes a
person holding any other office in such jail, remand home, place

168
 or institution by virtue of which such person can exercise any
authority or control over its inmates.

Explanation 4. The expressions "hospital" and "women's or children's institution"

shall respectively have the same meaning as in Explanation to
sub-section (2) of section 376.

Section 376D - Gang Rape:

Where a woman is raped by one or more persons constituting a group or acting

in furtherance of a common intention, each of those persons shall be deemed to have
committed the offence of rape and shall be punished with rigorous imprisonment for a
term which shall not be less than twenty years, but which may extend to life which
shall mean imprisonment for the remainder of that person's natural life, and with fine
provided that such fine shall be just and reasonable to meet the medical expenses and
rehabilitation of the victim provided further that any fine imposed under this section
shall be paid to the victim.

Section 376E - Punishment for repeat offenders:

Whoever has been previously convicted of an offence punishable under section

376 or section 376A or section 376D and is subsequently convicted of an offence
punishable under any of the said sections shall be punished with imprisonment for life
which shall mean imprisonment for the remainder of that person's natural life, or with
death.'.

Amendment of section 509:

In section 509 of the Penal Code, for the words "shall be punished with simple
imprisonment for a term which may extend to one year, or with fine, or with both",
the words "shall be punished with simple imprisonment for a term which may extend
to three years, and also with fine" shall be substituted.

169
Chapter-III: Amendments to the code of Criminal Procedure, 1973:

Amendment of Section 26:

In the Code of Criminal Procedure, 1973 (hereafter in this Chapter referred to

as 2 the Code of Criminal Procedure), in section 26, in the proviso to clause (a), for
the words, figures and letters "offence under section 376 and sections 376A to 376D
of the Indian Penal Code", the words, figures and letters "offence under section 376,
section 376A, 4 section 376B, section 376C, section 376D or section 376E of the
Indian Penal Code" shall be substituted.

Amendment of Section 54 A:

In section 54A of the Code of Criminal Procedure, the following provisions

shall be inserted, namely:

"Provided that, if the person identifying the person arrested is mentally or

physically disabled, such process of identification shall take place under the
supervision of a Judicial Magistrate who shall take appropriate steps to ensure that
such person identifies the person arrested using methods that person is comfortable
with: Provided further that if the person identifying die person arrested is mentally or
physically disabled, the identification process shall be video graphed.".

Amendment of Section 154:

In section 154 of the Code of Criminal Procedure, in sub-section (7), the

following provisos shall be inserted, namely:

"Provided that if the information is given by the woman against whom an

offence under section 326A, section 326B, section 354, section 354A, section 354B,
section 354C, section 354D, section 376, section 376A, section 376B, section 376C,
section 376D, section 376E or section 509 of the Indian Penal Code is alleged to have
been committed or attempted, then such information shall be recorded, by a woman
police officer or any woman officer:

170
Provided further that

(а) in the event that the person against whom an offence under section 354,
section 354A, section 354B, section 354C, section 354D, section 376,
section 376A, section 376B, section 376C, section 376D, section 376E or
section 509 of the Indian Penal Code is alleged to have been committed or
attempted, is temporarily or permanently mentally or physically disabled,
then such information shall be recorded by a police officer, at the residence
of the person seeking to report such offence or at a convenient place of such
person's choice, in the presence of an interpreter or a special educator, as
the case may be;

(b) the recording of such information shall be video graphed;

(c) the police officer shall get the statement of the person recorded by a Judicial
Magistrate under clause (a) of sub-section (5A) of section 164 as soon as
possible.".

Amendment of Section 160:

In section 160 of the Code of Criminal Procedure, in sub-section (7), in the

proviso, for the words "under the age of fifteen years or woman", the words "under
the age of fifteen years or above the age of sixty-five years or a woman or a mentally
or physically disabled person" shall be substituted.

Amendment of Section 161:

In section 161 of the Code of Criminal Procedure, in sub-section (3), after the
proviso, the following proviso shall be inserted, namely:

"Provided further that the statement of a woman against whom an offence

under section 354, section 354A, section 354B, section 354C, section 354D, section
376, section 376A, section 376B, section 376C, section 376D, section 376E or section
509 of the Indian Penal Code is alleged to have been committed or attempted shall be
recorded, by a woman police officer or any woman officer.".

171
Amendment of Section 164:

In section 164 of the Code of Criminal Procedure, after sub-section (J), the
following sub-section shall be inserted, namely:

"(5A) (a) In cases punishable under section 354, section 354A, section 354B,
section 354C, section 354D, sub-section (7) or sub-section (2) of section 376, section
376A, section 376B, section 376C, section 376D, section 376E or section 509 of the
Indian Penal Code, the Judicial Magistrate shall record the statement of the person
against whom such offence has been committed in the manner prescribed in sub-
section (5), as soon as the commission of the offence is brought to the notice of the
police:

Provided that if the person making the statement is temporarily or permanently

mentally or physically disabled, the Magistrate shall take the assistance of an
interpreter or a special educator in recording the statement:

Provided further that if the person making the statement is temporarily or

permanently mentally or physically disabled, the statement made by the person, with
the assistance of an interpreter or a special educator, shall be video graphed.

(b) A statement recorded under clause (a) of a person, who is temporarily or

permanently mentally or physically disabled, shall be considered a statement in lieu
of examination-in-chief, as specified in section 137 of the Indian Evidence Act, 1872
such that the maker of the statement can be cross-examined on such statement,
without the need for recording the same at the time of trial.".

Amendment of Section 173:

In section 173 of the Code of Criminal Procedure, in sub-section (2), in sub-

clause (h) of clause (0, for the words, figures and letter "or 376D of the Indian Penal
Code", the words, figures and letters "376D or section 376E of the Indian Penal Code"
shall be substituted.

172
Amendment of Section 197:

In section 197 of the Code of Criminal Procedure, after sub-section (1), the
following Explanation shall be inserted, namely:

"Explanation. For the removal of doubts it is hereby declared that no sanction shall
be required in case of a public servant accused of any offence alleged
to have been committed under section 166A, section 166B, section
354, section 3 54A, section 354B, section 354C, section 354D,
section 370, section 375, section 376, section 376A, section 376C,
section 376D or section 509 of the Indian Penal Code.".

Amendment of Section 198B:-

After section 198A of the Code of Criminal Procedure, the following section
shall be inserted, namely:

"198 B. No Court shall take cognizance of an offence punishable under

section 376 B of the Indian Penal Code where the persons are in a marital
relationship, except upon prima facie satisfaction of the facts which constitute the
offence upon a complaint having been filed or made by the wife against the
husband.".

Amendment of Section 273:

In section 273 of the Code of Criminal Procedure, before the Explanation, the
following proviso shall be inserted, namely:

"Provided that where the evidence of a woman below the age of eighteen
years who is alleged to have been subjected to rape or any other sexual offence, is to
be recorded, the court may take appropriate measures to ensure that such woman is
not confronted by the accused while at the same time ensuring the right of cross-
examination of the accused.".

Amendment of Section 309:

In section 309 of the Code of Criminal Procedure, for sub-section (7), the
following sub-section shall be substituted, namely:

173
 "(1) In every inquiry or trial the proceedings shall be continued from day-to-day
until all the witnesses in attendance have been examined, unless the Court finds the
adjournment of the same "beyond the following day to be necessary for reasons to be
recorded:

Provided that when the inquiry or trial relates to an offence under section 376,
section 376A, section 376B, section 376C or section 376D of the Indian Penal Code,
the inquiry or trial shall, as far as possible be completed within a period of two
months from the date of filing of the charge sheet.".

Amendment of Section 327:

In section 327 of the Code of Criminal Procedure, in sub-section (2), for the
words, figures and letter "or section 376D of the Indian Penal Code", the words,
figures and letters "section 376D or section 376E of the Indian Penal Code" shall be
substituted.

Insertion of new sections 357B and 357C:

After section 357A of the Code of Criminal Procedure, the following sections
shall be inserted, namely:

Section 357B

The compensation payable by the State Government under section 357A shall be
in addition to the payment of fine to the victim under section 326A or section 376D
of the Indian Penal Code.

Section 357C

All hospitals, public or private, whether run by the Central Government, the
State Government, local bodies or any other person, shall immediately, provide the
first-aid or medical treatment, free of cost, to the victims of any offence covered
under section 326A, 376,376A, 376B, 376C, 376D or section 376E of the Indian
Penal Code, and shall immediately inform the police of such incident.".

174
Chapter-IV: Amendments to the Indian Evidence Act, 1872:

Insertion of new section 53A:

After section 53 of the Indian Evidence Act, 1872 (hereafter in this Chapter
referred to as the Evidence Act), the following section shall be inserted, namely:

Section 53A

In a prosecution for an offence under section 354, section 354A, section 354B,
section 354C, section 354D, section 376, section 376A, section 376B, section 376C,
section 376D or section 376E of the Indian Penal Code or for attempt to commit any
such offence, where the question of consent is in issue, evidence of the 1 character of
the victim or of such person's previous sexual experience with any person shall not be
relevant on the issue of such consent or the quality of consent.".

Substitution of new section for section 114A:

For section 114A of the Evidence Act, the following section shall be
substituted, namely:

Section 114A

In a prosecution for rape under clause (a), clause (b), clause (c), clause (d),
clause (e), clause (f), clause (g), clause (h), clause (i), clause (J), clause (k), clause (J),
clause (m) or clause (n) of sub-section (2) of section 376 of the Indian , Penal Code,
where sexual intercourse by the accused is proved and the question is i whether it was
without the consent of the woman alleged to have been raped and such woman states
in her evidence before the court that she did not consent, the court shall presume that
she did not consent.

Explanation In this section, "sexual intercourse" shall mean any of the acts
mentioned in clauses (a) to (d) of section 375 of the Indian Penal
Code.'.

175
Substitution of new section for section 119:

For section 119 of the Evidence Act, the following section shall be
substituted, namely:

Section 119

A witness who is unable to speak may give his evidence in any other manner
in which he can make it intelligible, as by writing or by signs; but such writing ' must
be written and the signs made in open Court, evidence so given shall be deemed to be
oral evidence:

Provided that if the witness is unable to communicate verbally, the Court shall
take the assistance of an interpreter or a special educator in recording the statement,
and such statement shall be video graphed.".

Amendment of Section 146:

In section 146 of the Evidence Act, for the proviso, the following proviso shall
be substituted, namely:

"Provided that in a prosecution for an offence under section 376, section

376A, section 376B, section 376C, section 376D or section 376E of the Indian
Penal Code or for attempt to commit any such offence, where the question of
consent is an issue, it shall not be permissible to adduce evidence or to put
questions in the cross-examination of the victim as to the general immoral
character, or previous sexual experience, of such victim with any person for
proving such consent or the quality of consent.".

Amendment to the Protection of Children from Sexual offences

Act, 2012:
Substitution of new sections for section 42:

For section 42 of the Protection of Children from Sexual Offences Act, 2012,
the following sections shall be substituted, namely:

176
Section 42 - Alternative punishment:

Where an act or omission constitutes an offence punishable under this Act and
also under sections 166A, 354A, 354B, 354C, 354D, 370,370A, 375,376,376A,
376C, 376D, 376E or section 509 of the Indian Penal Code, then, notwithstanding
anything contained in any Law for the time being in force, the offender found guilty
of such offence shall be liable to punishment under this Act or under the Indian Penal
Code as provides for punishment which is greater in degree.

Section 42A - Act not in derogation of any other Law:

The provisions of this Act shall be in addition to and not in derogation of the
provisions of any other Law for the time being in force and, in case of any
inconsistency, the provisions of this Act shall have overriding effect on the provisions
of any such Law to the extent of the inconsistency.".

4.4 The Immoral Traffic (Prevention) Act, 1956:

This Act is enacted to provide in pursuance of the International Convention

signed at New York on the 9th day of May, 1950, for the prevention of immoral
traffic.

Section 1: Short title, extent and commencement of ITP ACT:

(1) This Act may be called The Immoral Traffic (Prevention) Act, 1956. 281

(2) It extends to the whole of India.

(3) This section shall come into force at once; and the remaining provisions of
this Act shall this come into force on such date282 as the Central Government
may, by notification in the official Gazette, appoint. Section 1 of the Act
came into force at once viz., 31st December 1956, while the remaining
sections of the Act came into force on the first day of May, 1958, vide
Central Government notification No. G.S.R. 269, dated the 16th April, 1958.

281
Subs. By Act 44 of 1986, Section 3 for the words “the Suppression of Immoral Traffic in Women and Girls” (w.e.f. 26 th
January, 1987).
282
Came into force on 1st May, 1958, vide G.S.R 269, dated 16th April, 1958, published in the Gazette of India, Pt. II, Section
3 (i), P.203.

177
Statement of objects and reasons behind the Act:

The Suppression of Immoral Traffic in Women and Girls Bill having been
passed by both the Houses of Parliament received the assent of the President on 30th
December, 1956. It came, on the Statute Book as the Suppression of Immoral Traffic
in Women and Girls Act, 1956 (104 of 1956). By section 3 of the Suppression of
Immoral Traffic in Women and Girls (Amendment) Act, 1986 (44 of 1986) the
nomenclature of the Act has been changed with effect from 20th January, 1987. Now it
stands as The Immoral Traffic (Prevention) Act, 1956 (104 of 1956).

The following Statement of the Objects and Reasons of the Suppression of

Immoral Traffic in Women and Girls Bill No. 58 of 1954 published in the Gazette of
India, Extraordinary, Part II Section2, dated the 20th December, 1954 is reproduced
below:

(1) In 1950, the Government of India ratified the International Convention for the
Suppression of Immoral Traffic in Persons and the Exploitation of the
Prostitution of Others. Under Article 23 of the Convention, traffic in human
beings is prohibited and any contravention of the prohibition is an offence
punishable by Law. Under Article 35 such a Law has to be passed by
Parliament as soon as may be after the commencement of the Constitution.

(2) Legislation on the subject of suppression of immoral traffic does exist in a few
States but the Laws are neither uniform nor do they go far enough. In the
remaining States there is no bar on the subject at all.

(3) In the circumstances it is necessary and desirable that a Central Law should be
passed which will not only secure uniformity but also would be sufficiently
deterrent for the purpose. But a special feature of the Bill as that it provides
that no person or authority other than the State Government shall establish or
maintain any protective home except under a licence issued by the State
Government. This will check the establishment of homes which are really dens
for prostitution.

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Legislative background of the Act:

The need for gratification of sexual urge has impelled men and women, of all
ages and in all countries of the world to exploit either sex. With the growing danger in
society to healthy and decent living with morality, the world public opinion
congregated at New York in an International Convention opened for signatures at
Lake Success, New York on the 21st March, 1950. It was signed by Shri Gopala
Menon on behalf of India on the 9th May, 1950. A Bill No. 58 of 1954, containing the
„Objects and Reasons‟ was published in the Gazette of India, Part II, Section 2, dated
the 20th December, 1954. The Bill received the assent of the President on the 30th
December, 1956 and became an Act, Section 1 whereof came into force from the 31st
December, 1956, while the remaining sections came into force from the 1st May,
1958. This in brief is the legislative background of the Act.

Act was called Suppression of Immoral Traffic in Women and Girls Act, 1956
(SITA for short), aimed at suppressing the evils of prostitution in women and girls,
and to provide opportunity to fallen women and girls to rehabilitate themselves as
decent members of the society.

The SITA did not succeed in ample measure to eradicate or suppress the evils
of prostitution, and so it was drastically amended in 1978. Besides other stringent
measures taken, one progressive measure was the opening of probation under the
Probation of Offenders Act. However, it was soon realised that the measures needed
to be made more stringent and the provision for release on probation was being
abused. So the Parliament again intervened and by Amendment Act 44 of 1986,
completely repealed the provisions relating to probation and provided stricter and
higher penalty for offences under the Act. It also realised that time had come when
male prostitution should also be covered by the Act, and so it changed the name of the
Act SITA to Immoral Traffic (Prevention) Act, 1956 (ITP ACT for short). In place of
women and girls to whom SITA was confined, the ITP ACT uses the expression
“person” thus covering both male and female. The definition of prostitution has also
been changed and mere gratification of sex without anything more has been taken out
of the purview of prostitution. Only where the exploitation or abuse of persons is for
commercial purposes, it is prostitution, and any place used for such abuse or
exploitation is a brothel.

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ITP ACT has been passed, to implement the international
Convention for the Suppression of the Traffic in Persons, etc, signed
on 9th May, 1950 at New York:
It cannot be denied that “prostitution and the accompanying evil of the traffic
in persons for the purpose of prostitution are incompatible with the dignity and worth
of the human person and endanger the welfare of the individual, the family and the
community. It must also be noticed that with respect to the suppression of the traffic
in women and children several international instruments are in force. They are
enumerated below.

1. International Agreement of 18th May, 1904 for the suppression of the

White Slave Traffic, as amended by the Protocol approved by the General
Assembly of the United Nations of 3rd December, 1948;

2. International Convention of 4th may 1910 for the suppression of the White
Slaves Traffic, as amended by the above mentioned Protocol;

3. International Convention of 30th September, 1921 for the Suppression of

the Traffic in Women and Children, as amended by the Protocol approved
by the General Assembly of the United Nations on 20th October, 1947.

4. International Convention of 11th October, 1933 for the Suppression of the

Traffic in Women of Full Age, as amended by the aforesaid Protocol.

In the 1937 the League of Nations prepared a draft Convention extending the
scope of the above mentioned instruments. In 1950 a Convention for the Suppression
of the Traffic in persons and of the Exploitation of the Prostitution of others was
signed at New York by several nations including ours. In this convention the above
mentioned instruments as also the draft Convention prepared by the League of
Nations in 1937 were consolidated and embodied.

The present Act has been passed with the view to implement the International
Convention signed at New York on 9th of May, 1950. Therefore, while considering
the reasonableness or other wise of the restrictions imposed on the trade or profession
of a prostitute by this Act we have to keep in mind that prostitution is slur on human

180
dignity and a shame to human civilisation. Its eradication by gradual and evolutionary
process is ultimate aim of all civilised nations.

So long as it is not possible to completely abolish it has got to be tolerated as

an evil necessity, but it is only reasonable that restrictions should be imposed to
mitigate so far as possible the evil effects of the trade or profession and to protect the
interest of the general public.283.

Object of the ITP ACT:

The object of ITP ACT is the suppression of commercialised vice which is

aimed at, not the abolition of prostitutes and prostitution. For instance, Section 4 lays
down the punishment for persons living on the earning of prostitution, other than the
prostitute herself, and Section 4 (2) raises certain presumptions, which are expressly
made inapplicable to the case of the son or a daughter of a prostitute below the age of
18 years. Section 5 deals with the procuring or inducement or the taking of women or
girls for prostitution, and section 6 similarly deals with the detention of a woman or
girl to the brothel. Sections 7 and 8 are of particular significance. Section 7 makes
punishable the practice of prostitution to or in the vicinity of certain public places,
such as places of public religious worship, educational institutions, hospitals and
nursing homes etc. this is an illuminating provision, throwing light upon the
intentions of the legislature. This provision, undoubtedly, inhibits the woman herself
from the practice of her profession in contravention of its terms, and, to that extent,
renders prostitution a penal offence. Similarly, Section 8 deals with seduction or
solicitation for prostitution by words, gestures or wilful exposure of person in a public
place. Again the intention is clear that it is the practice of prostitution in a particular
manner, which offends social decencies, which is sought to be penalised. Section 14
renders offences under the Act cognizable, and Section 15, which is particularly
important in the present case, deals with the powers of the Special Police Officer to
enter certain premises and make a search without a warrant. Under Section 15 (1), the
special police officer must record his reasons for such urgent search, and, under
Section 15 (2) of the Act, he must be accompanied by two respectful inhabitants of
the locality, one of whom at least must be a woman.284

283
Shama Bai v. State of U.P. AIR 1959 All. 57 at 61 : 1959 All. Cr. R. 427
284
In re : Ratnamala. AIR 1962 Mad. 31 at 33

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 The entire scheme behind the Act is not the proof of a single incident of
prostitution, or of the activities of a prostitute. The Act closely follows the English
Laws.

This Act was passed in the year 1956, long after the advent of the
Constitution of India, with the avowed object of suppressing immoral traffic in
women and girls. This legislation had become necessary also because Article 23 of
the Constitution of India in terms prohibits traffic in human beings and regards it as
an offence punishable in Law and Article 35 of the Constitution clearly lays down
that notwithstanding anything in the Constitution, Parliament shall have, and the
Legislature of a State shall not have, power to make Laws for prescribing
punishment for those acts which are declared to be offence under Part III, and that
the Parliament as soon as may be after the commencement of the Constitution shall
make Laws for prescribing punishment for those acts. The Statement of Objects and
Reasons published in the Gazette of India, dated 20-12-1954. Part II, Section 2,
Extraordinary, page 759 and also the report of the Select Committee published in the
Gazette of India, dated 21-11-1958, Part II, Section 2, Extraordinary page 885/3, also
give an idea of the reasons which led to the passing of this enactment.

A perusal of the various sections of the Act would show that apart from
suppression of immoral traffic in women and girls, they have for their object
reducing the opportunities for such women of contacting the members of the public
and also helping the women who have already taken to that life to rehabilitate
themselves by dissociating them from the previous environments. Whereas Sections
3,4 and 5 to 7 of the Act prescribe punishment for keeping a brothel or allowing
premises to be used as brothel or living on the earnings of prostitution, etc. sections 6
and 11 are designed to reduce the opportunities to contact the members of the public
and Sections 7 and 8 besides minimising such opportunities aim of preventing
prostitution from becoming source of danger to social decencies. Sections 17 and 18
provide for the closure of brothels and eviction of offenders from the premises, if
they happen to be within 200 yards of any place of public religious worship,
educational institution, hostel, hospital, nursing home or such other public place of
any kind as may be noted by the Commissioner of Police or District Magistrate in the
manner prescribed. Sections 10, 19 and 21 are calculated to help the women in

182
 reforming themselves by removing them from the old environments. Sections 13, 14,
15, 16 and 17 provide for investigation and Section for trial. Of course prostitution
by itself has not been made an offence punishable in Law. As already noticed, there
are however, provisions providing punishment for keeping a brothel or allowing a
premises to be used as a brothel or for living on the earnings of prostitution and also
for contravening certain provisions including an order under Section 20. Thus it
would be seen from the scheme of the Act that though the main purpose for enacting
this Law by the Parliament was to suppress traffic in women and girls to carry out
the purposes of Articles 23 read with 35 of the Constitution and to prohibit
exploitation of prostitute. Parliament made provisions for meeting all the evil
consequences flowing from the.285

The Act is not aimed at abolition of prostitutes and prostitution as such and
makes it per se a criminal offence or punishes a woman because she prostitutes
herself; and that the purpose of the enactment is to inhibit or abolish commercialised
vice namely the traffic in women and girls for purpose of prostitution as an organised
means of living. Various provisions of the Act tend to strengthen such a view.286

The evil of prostitution must be curbed. It is the mandate of the Constitution

which prohibits traffic in human beings. Keeping that object in view and in
pursuance to International Conventions for the Suppression of Traffic in persons and
of the Exploitation of the Prostitution of others signed at New York on May 9, 1950,
the Parliament enacted the Suppression of Immoral Traffic in Women and Girls Act,
1956. The Act was amended in 1978 to make good some inadequacies in the
implementation of the Act and in the light of the experience gained during the period
the Act was being implemented. Despite the amendments of the Act it was felt that
enforcement of the Act had not been effective enough to deal with the problems of
immoral traffic in all its dimensions. Suggestions had been made to Government by
all voluntary organisations working for women, advocacy groups and various
individuals urging the enlargement of the scope of the Act, to make penal provisions
more stringent and to provide for certain minimum standards for correctional
treatment and rehabilitation of the victims. The Act was, therefore, further amended
in 1986 making it more wide base. The Act is now called as Immoral Traffic

285
Seetharamma v. Sambasiva Rao AIR 1964 AP 400 at 402-403
286
Bai Shanta v. State of Gujarat, AIR 1967 GUJ. 211 at 213.

183
 (Prevention) Act, 1956 – Gaurav Jain v, Union of India.287 What is intended by this
legislation is not only to suppress traffic in women and girls but also to curtail the
activities of prostitutes if their activities have got a tendency to tempt young persons
or cause annoyance to even grown up persons who visit place of worship, hospitals
Nursing Homes and educational institutions and affect their susceptibilities.288

ITP ACT was conceived to serve a public purpose:

The preamble of the Act shows that the Act was made to provide in pursuance
of the International Convention signed at New York on May 9, 1950, for the
suppression of immoral traffic in women and girls. The short title of the Act says that
the Act may be called “The Suppression of Immoral Traffic in Women and Girls Act,
1950”, now “the Immoral Traffic (Prevention) Act, 1956”.

Though the preamble as well as the title shows that the Act was intended to
prevent immoral traffic in women and girls, the other sections of the Act indicate that
it was not the only purpose of the Act. Section 2 (b) defines “girl” to mean a female
who has not completed the age of twenty-one, Section 2 (j), “woman” to mean a
female who has completed the age of 21 years, Section 2 (e) “prostitute” to mean a
female who offers her body for promiscuous sexual inter course for hire, whether in
money or in kind. There are provisions in the Act for punishing men who run brothels
and who procure girls and women for prostitution, for punishing women and girls
who seduce or solicit for the purpose of prostitution in public places, for placing the
rescued women and girls in detention in protective homes, for closure of brothels and
eviction of offenders from premises, for restricting the movements of prostitutes and
even for deporting them to places outside the jurisdiction of the Magistrate. Section 7
(1) provides for the punishment of a prostitute, if she carries on prostitution in any
premises which are within a distance of two hundred yards of any place of public
religious worship, educational institution, hostels, hospitals, nursing home or such
other public place of any kind notified in that behalf by the Commissioner of Police or
the District Magistrate, as the case may be, Section 8 prohibits seducing or soliciting
for purpose of prostitution in any public place or within sight of, and in such manner
as to be seen or heard from, any public place, whether from within any building or
287
AIR 1997 SC 3021 at 3054: (1997) 8 SCC 114.
288
Begum d/o Hudsain Saheb Kalawat v. State, AIR 1963 Bom. 17

184
house or not, and makes such soliciting or seducing an offence under the Act. Section
18 provides for the closure of brothels and eviction of offenders from the premises, if
such premises are within a distance of two hundred yards from a public place
mentioned in section 7 (1) and are used or run as a brothel by any person or used by
prostitutes for carrying on their trade. The Act was conceived to serve a public social
purpose, viz, to suppress immoral traffic in women and girls, to rescue fallen women
and girls and to prevent deterioration in public morals. The Act clearly defines a
“prostitutes”, and definite indications from which places prostitutes should be
removed or in respect whereof their movements should be restricted.289

Whether ITP ACT is a penal statute:

Penal statutes must be strictly construed. They cannot be enlarged or extended

by intendment, implication or by any equitable considerations beyond the fair
meaning of the language used. In other words, only those persons, offences or
penalties which are clearly included will be considered within the operation of the
statute and all questions in doubt will be resolved in favour of the person who has
contravened the provisions of Law. At the same time it must be remembered that no
rule of construction requires that a penal statute should be, unreasonably construed so
as to defeat the obvious intention of the Legislature or construed in a manner as would
lead to absurd results. On the other hand, it is of utmost importance that the Court
should endeavour to ascertain the intention of the Legislature and to give effect
thereto.290

The Immoral Traffic (Prevention) Act is a penal statute. Penal statutes affect
the liberty of the subject, if two possible and reasonable constructions can be put upon
a penal provision; the Court must lean towards that provision which exempts the
subject from penalty rather than that which imposes a penalty.291

ITP ACT deals with a matter which has to be tackled with

consideration, intelligence and understanding of the problem:
Act is a complete Code with respect to what is to be done under it. It deals
with the suppression of immoral traffic in women and girls, a matter which has to be

289
State of Uttar Pradesh v. Kaushailiya, AIR 1964 SC 416 at 419, 420.
290
Teja Singh v. The State, AIR 1952 Punj 45 at 46: Cr. L.J. 131 (Punj.)
291
Tolaram Relumal v. The State, AIR 1953 Bom. 347 at 357: 1953 Cr. L.J. 1445.

185
tackled with considered intelligence and understanding of the problem. This is evident
from the provisions of clause (b) of sub-section (3) of Section 13 which provides for
the association of a non-official advisory body consisting of not more than five
leading social welfare workers of that area (including women social welfare workers
wherever practicable) with the special police officer in order to advise him on
questions of general importance regarding the working of the Act. The Act creates
new offences provides for the forum before which they would be tried and the orders
be passed on conviction of the offenders. Necessary provisions of the Code of
criminal Procedure have been adopted fully or with modifications. The Act provides
machinery to deal with the offences created and its necessary implication must be that
new machinery is to deal with those offences in accordance with the provisions of the
special Act and, when there is no specific provision in such Act, in accordance with
the general procedure and that no other machinery is to deal with those offences. It
does not appear reasonable that the investigation of offences would have been left un
provided and was to be done by the regular police, in accordance with the regular
procedure laid down under the Code.292

Provisions of the Criminal Procedure Code would be applicable in

regard to the matters for which there is no specific provision in the
ITP ACT:
The scheme and purpose of the Act clearly disclose that the special police
officer, who has been invested with police powers, may arrest an offender, carry out
searches of premises used, for the purpose of prostitution and file a charge-sheet in
Court against a person suspected of having committed and offence under the Act. At
the same time, the other modes of initiating prosecution as for example upon a
complaint by a private or upon his own knowledge or suspicion by a Magistrate are
not outside the Act.

The Act is silent upon these matters, and it must, therefore, be held that the
provisions of the Cr. P.C. would be applicable in regard to matters for which there is
no specific provision in the Act. The above conclusion finds support by Reference to
sub-section (2) of Section 5 (new Section 4) of the Code which states that all offences
under any other Law shall be investigated, inquired into, tried and otherwise dealt

292
Delhi Administration v. Ram Singh, AIR 1962 SC 63 at 65-66: 1962 (1) Cr. L.J. 106 : 1962 (2) SCR 694

186
with according to the same provisions but subject to any enactment for the time being
in force regulating the manner or place of investigating, inquiring, tying or otherwise
dealing with such offences.

Therefore, in so far as the Act makes provision for the offences being dealt
with in a particular manner and by a particular officer or class of officers, the
provisions of the Act shall override the provisions of the general Law. But in matters
with respect to which the Act is silent the provisions of the general Law will come
into operation.

None of the sections of the Act have the effect of stopping the
profession or trade of a prostitute altogether:
Under the provisions of the Penal Code Prostitution is not an offence. Section
372 of the Penal Code only prohibits sale, letting to hire, or otherwise disposing of
any person under the age of 18 years with intent that such person shall at any age be
employed or used for the purpose of prostitution or illicit intercourse with any person
or for an Unlawful and immoral purpose, or knowing it to be likely that such person
will at any age be employed or used for any such purpose. After having read the Act
carefully it is not quite correct to say that the Act prohibits the carrying on of the
profession or trade of a prostitute though it cannot also be denied that it has imposed
restrictions on the same. This Act has got twenty-five sections in all. Of these some
are penal. None of the sections, have the effect of stopping the profession or trade of a
prostitute altogether. The only question, therefore, is whether the restrictions which
are imposed upon the trade or profession of a prostitute by means of the provisions of
the Act are reasonable restrictions. “In order to determine the reasonableness of the
restrictions regard must be had to the nature of the business and the conditions
prevailing in the trade. It is obvious that these factors must differ from trade to trade
and no hard and fast rules concerning all trades can be laid down.”293

293
Shama Bai v. State of U.P., AIR 1959 All. 57 at 60, 61: 1959 All. Cr. R. 427 (All). (See the case of Cooverjee B. Bharucha
v. Excise Commissioner, Ajmer, AIR 1954 SC 220).

187
Section 2 of ITP ACT: Definitions:

In this Act, unless the context otherwise requires-

(a) "brothel" includes any house, room, conveyance or place, or any portion of
any house, room, conveyance or place, which is used for purposes of sexual
exploitation or abuse for the gain of another person or for the mutual gain of
two or more prostitutes;

(aa) "Child' means a person who has not completed the age of sixteen years;

(b) "Corrective institution" means an institution, by whatever name called (being

an institution established or licensed as such under Section 21), in which
persons, who are in need of correction, may be detained under this Act, and
includes a shelter where under trials may be kept in pursuance of this Act;

(c) "Magistrate" means a Magistrate specified in the second column of the

Schedule as being competent to exercise the powers conferred by the section
in which the expression occurs and which is specified in the first column of
the Schedule;

(ca) "Major" means a person who has completed the age of eighteen years;

(cb) "Minor" means a person who has completed the age of sixteen years but
has not completed the age of eighteen years;

(d) "Prescribed' means prescribed by rules made under this Act;

(e) "Prostitution" means the sexual exploitation or abuse of persons for

commercial purposes, and the expression "prostitute" shall be construed
accordingly;

(f) "Protective home" means an institution, by whatever name called (being an

institution established or licensed as such under Section 21), in which persons
who are in need of care and protection, may be kept under this Act and where
appropriate technically qualified persons, equipment‟s and other facilities have
been provided but does not include, -

188
 (i) A shelter where under trials may be kept in pursuance of this Act, or

(ii) A corrective institution;

(g) "Public place" means any place intended for use by, or accessible to, the
public and includes any public conveyance;

(h) "Special Police Officer" means a police officer appointed by or on behalf of

the State Government to be in charge of police duties within a specified area
for the purpose of this Act;

(i) "Trafficking Police Officer" means a police officer appointed by the Central
Government under sub-section (4) of Section 13.

Section 2a - Meaning of Brothel - Essentialities:

Section 2a of the Act (ITP ACT) defines Brothel is a place which should be
used for purposes of prostitution for the gain of another person or for mutual gain of
two or more prostitutes. “For purposes of prostitution” would undoubtedly mean more
than one instance of prostitution and solitary instance of prostitution in a place does
not make the place a „brothel‟.294

To constitute a brothel the place must have been used for purposes of
prostitution. A solitary instance of prostitution committed within any house or room
or place would not satisfy the ingredients of a brothel.295

This means that both women and men have to go to the place to constitute it a
brothel.296

A house can be called a brothel if women were kept in that house by another
woman or by a man for the purposes of prostitution. Where a woman who along with
her husband, is living with her husband‟s sister and practices prostitution, the sister of
the prostitute‟s husband cannot be called a brothel keeper.297

294
Susheela v. State, 1982 Cr. L.J. 702 (Mad.)
295
In re: John, AIR 1966 Mad. 167
296
Krishnamurthy v. Public Prosecutor, Madras, AIR 1967 SC 567 at 568
297
Rahto v. Emperor, AIR 1925 Lah. 146 at 148.

189
 It may be true that a place used once for the purpose of prostitution may not be
a brothel, but it is a question of fact as to what conclusion should be drawn about the
use of a place about which information had been received that it was being used as a
brothel to which a person goes and freely asks for girls, where purpose of prostitution.
The conclusion to be derived from these circumstances about the place and the person
keeping it can be nothing else than that the place was being used as a brothel and the
person in charge was so keeping it. It is not necessary that there should be evidence of
repeated visits by persons to the place for the purpose of prostitution. A single
instance coupled with the surrounding circumstances is sufficient to establish both
that the place was being used as a brothel, and that the person alleged was so keeping
it.298

If the husband lives with his wife and allows his wife to be a prostitute there is
no reason for not believing that the husband was doing so for the purpose of living on
the earnings of prostitution of his wife. There is therefore, no reason not to apply the
presumption mentioned in Section 4 (2) of the Act. When such a presumption is
drawn until the contrary is proved, it can be presumed that the husband is knowingly
living on the earnings of prostitution of his wife. When such a presumption is drawn,
that would be sufficient to constitute the house of the husband a “brothel” 299 The last
part of the definition is certainly significant. It implies that where is a single woman
practices prostitution for her own livelihood, without another prostitute, or some other
person being involved in the maintenance of such premises, her residence will not
amount to a “brothel”.300

When the prosecution proved only the presence of only one girl in the
premises and a single instance of prostitution, the premises cannot be held “used for
brothel” in the absence of any proof from the surrounding circumstance.301

A „brothel‟ means a place promiscuously resorted to by persons of both sexes

for the purposes of prostitution. A prostitute receiving men only into her own room
cannot be convicted of keeping a brothel.302

298
Krishnmurthy v. Public Prosecutor, Madras, AIR 1967 SC 567 at 568: 1967 All Cr. R. 367: 1967 (2) SCJ 27 : 1967 Cri.
L.J. 544 (SC)
299
Soni Bachu Lakhman v. State of Gujarat, AIR 1960 Guj. 37 at 38: 1960 Cr. L.J. 1585.
300
In re: Ratnamala, AIR 1962 Mad 31 at 33 : 1962 (1) Cr. L.J. 162 : 1961 MLJ (Cr.) 686.
301
In: Dhanalakshmi, 1974 Cr. L.J. 61 at 65: (Mad).
302
Singleton v. Ellison, (1895) 1 DB 607.

190
 A brothel includes a house, room, conveyance or place or a portion thereof
which is used for the purposes for prostitution for the gain of another person or for the
mutual gain of two or more prostitutes. To constitute a brothel there must be a person
who lets on hire a person for prostitution or there must be two or more prostitutes
carrying on prostitution there for their mutual gain.

To constitute brothel, the place must have been used for purposes of
prostitution. A solitary instance of prostitution committed within any house or room
or place would not satisfy the ingredient of brothel.303

Brothel is defined under Section 2 (a) of the Act so as to include any house,
room or place or any portion of any house, room or place which is used for purposes
of prostitution for the gain of another person or for the mutual gain of two or more
persons. “Prostitute‟ is defined in Section 2 (a) of the Act and it means a woman who
offers her body for promiscuous sexual intercourse for hire whether in money or in
kind. Any person, who keeps or maintains or acts or assists in the keeping and
management of a brothel, is liable to be punished under Section 3 of the Act.304

A perusal of the definition of the word “brothel” would clearly indicate that
the place must be used for purposes of prostitution for the gain of another person of
for the mutual gain of two or more prostitutes. The phrase „for purposes or
prostitution‟ postulates plurality of instances of prostitution.

In order to establish brothel, evidence of more than one customer is not always
necessary. – Brothel to mean any house, room, conveyance or place which issued for
purpose of sexual exploitation or abuse, for the gain of another person or for the
mutual gain of two or more prostitutes the essential exploitation or abuse. The phrase
„for the purpose of‟ indicates that the place being uses for the purpose of the
prostitution may be a brothel provide a person used the place and ask for girls, where
the person is shown girls to select from and where one does engage or offer her body
for promiscuous sexual intercourse for hire. In order to establish prostitution,
evidence of more than one customer is not always necessary. All that is essential to
prove is that a girl/lady should be a person offering her body for promiscuous sexual
intercourse for hire. Sexual intercourse is not an essential ingredient. The inference of
303
In re: Unnikumar, (1975) 1 MLJ 22 (Mad.)
304
State of Rajasthan v. Wahida. 1981 Raj Cr.. C. 42 at 43 (Raj.)

191
prostitution would be drawn from diverse circumstance established in a case.
Sexuality has got to be established but the does not require the evidence of more than
one customer and no evidence of actual intercourse should be adduced or proved. It is
not necessary that here should be repeated visits by persons to the place for the
purpose of prostitution. A single instance coupled with the surrounding circumstances
may be sufficient to establish that he place is being used as a brothel and the person
alleged was so keeping it, the prosecution has to prove only that in a premise a female
indulges in the act of offering her body for promiscuous sexual intercourse for hire.
On proof thereof, it becomes a brothel.305

Section 2 (a) will also have the effect of mitigating much of evil of the
prostitution. It would be noticed that what has been prohibited is not the profession or
trade of a prostitute but the carrying on of that profession for the gain of another
person or for mutual gain of two or more prostitutes. This section has obviously been
enacted to prohibit exploitation of a prostitute by a person who is not a prostitute, or
by one prostitute of another. This section will also have the effect of mitigating much
of the evils of the prostitution but also leads to the commission of various other
offences.306

The onus entirely remains on the prosecution and the legislature has not
deemed it fit or necessary to shift any part of the onus on the accused in any
circumstances. The only evidence brought in this case is from pimps and prostitutes-
pimps procure the visitors for gain and prostitutes offer their body for money. Either
of them is, therefore, an accomplice and judicial decisions have settled the value of
accomplice evidence. Although it is not entirely illegal to convict an accused on
accomplice evidence only the rule of prudence is to look for corroboration. This rule
of prudence is now virtually the Law enunciated by judicial decisions. It is also well
settled that evidence of accomplice is tainted evidence and tainted evidence cannot
corroborate another. There was an attempt to draw the analogy of the victim girl in a
rape case but this is not applicable in such cases, for the female is not a „victim „ but a
willing partner in the sexual act. Learned Judges were not unmindful of the difficulty
for the prosecution to adduce corroborating evidence; even the „test purchaser‟ of a
female body would be an accomplice and therefore, his evidence is tainted evidence.

305
Gaurav Jain v. Union of India, AIR 1997 SC 3021 at 3032: (1997) 8 SCC 114 a 126.
306
Shama Bai v. State of U.P., AIR 1959 All 57 at 62: 1959 All. Cr. R. 427 All)

192
The Law as it stands provides neither for presumptions nor shifting the onus on the
accused and puts an uphill task on the prosecution but that is entirely a matter of
policy for the legislature. Court did not think that such provision is beyond the genius
of the Law makers and the draftsmen. This is undoubtedly a measure for eradicating a
social evil by way of suppression of immoral traffic in women and girls in pursuance
of International Convention signed at New York in May 1950, as the preamble
discloses, but such legislation should be thorough going or else it loses its efficacy.307

Section 2aa: Meaning of Child:

Clause (a a) of Section 3 of the Act defines “child” means a person who has
not completed the age of sixteen years.

Whereas Section 2 (e) of the Children Act, 1960, defines the child as “child”
means a boy who has not attained the age of sixteen years or a girl who has not
attained the age of eighteen years.

Any person who is unable to maintain him or herself of whatever age would
be a child for purposes of maintenance under the Cr. P.C. because he or she is the
immediate issue of his or her father. If the word is to be restricted to a person who has
not yet attained the age of majority, a crippled or imbecile off-spring of well-to-do
parents and would be left to starve till he or she is able to attain relief through the
trade process of a civil suit. There is, hence, no reason to limit the meaning of the
word „child‟ to a person who has not yet attained the age of majority. The key-phrase
is inability to maintain itself, and not the age of the child. It is, no doubt, true that
normally a claim for maintenance will arise in cases of tender years because a strong
and healthy person of grown-up years is presumed to be able to maintain himself even
though he may have a father who is possessed of sufficient means but that person of
tender years or of a particular age. A fully grown person who is suffering from a
crippling disease or some physical or mental affliction is therefore, unable to maintain
himself, nor has he any dependent means of his own is as much a child entitled to
speedy and immediate relief from his parent as a person of tender years or one who

307
Bhulu Mia v. State, AIR 1969 Cal. 416 at 417, 418 : 1969 Cr. L.J. 1533 (Cal.)

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has not yet attained majority. „Child‟, therefore, in this context means an immediate
issue or off-spring of a parent and that age is not all a relevant consideration.308

The term means a person under the age of 14 years and when used in
Reference to a child sent to a certified school applies to that child during the whole
period of detention, notwithstanding that the child attains the age of 14 years before
the expiration of that period. With Reference to non-power, Factories Act and Shops
and Commercial Establishments Act the term „child‟ means a person who has not
completed 14 years. There are three strong reasons for construing the „child‟ in
Section 4 of the Fatal Accidents Act, 1855, as inclusive of an illegitimate child, viz,:
When the expression „child‟ as defined to include a step-son or a step-
daughter, who cannot be born of the loins of the deceased, there is no reason to
interpret the word „child‟ so as to exclude an illegitimate child who is born of the
loins of the deceased;

Section 2c: Meaning of Magistrate:

Section 2(c) (old) defines the word „Magistrate‟ to mean a District Magistrate,
a sub-Divisional Magistrate, a Presidency Magistrate, or a Magistrate of the first class
specifically empowered by the State Government, to exercise jurisdiction under the
Act. It would only mean that wherever the words “the Magistrate” occur such as in
Sections 16, 18, 19, 20 it must have the meaning as given in Section 2 (c). it is not and
could not have been intended that it should control in any manner the jurisdiction of
the Court which could take cognizance of the offence. The only section on which
Counsel for the respondent relies is Section 22. It provides that no Court inferior to
that of a Magistrate as defined in clause (c) of Section 2 shall try any offence under
Sections 3,4,5,6,7 and 8. It is clear that this is not a section which in terms excludes
the jurisdiction of any Court to take cognizance of an offence under the Act, shall be a
Court of either equal or superior jurisdiction to that of the Magistrate named. The
other provisions of the Act show that it could not be otherwise.309
A schedule has been added to the text of the Act, in which it has been
specified as who are those Magistrates who can exercise powers under the various
provisions of the Act.

308
Nanak Chand Benarsi Das v. Chandra Kishore Agarwal, AIR 1969 Delhi 235: 1969 Cr. L.J. 965 (Delhi).
309
State v. Mainabai, AIR 1962 Bom 202 at 204.

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 The table in the Schedule is self-contained. The Schedule when read with
section 22, gives a clear picture at a glance as to which Magistrate can try which
offence, e.g., offences under Sections 5 to 8 can be tried by a Metropolitan Magistrate
or a Judicial Magistrate first class while under Section 18 only District Magistrate or
Sub-Divisional Magistrate can exercise their powers.
Schedule

Section Magistrate competent to exercise the powers

7 (1) District Magistrate.

11 (4) Metropolitan Magistrate or judicial Magistrate of the first
class.
15 (5) Metropolitan Magistrate, Judicial Magistrate of the first class,
District Magistrate or Sub-Divisional Magistrate.
16 Metropolitan Magistrate, Judicial Magistrate of the first class,
District Magistrate or sub-divisional Magistrate.
18 District Magistrate or Sub-Divisional Magistrate
19 Metropolitan Magistrate, Judicial Magistrate of the first class,
District Magistrate or sub-divisional Magistrate.
20 District Magistrate, Sub-Divisional Magistrate or any
Executive Magistrate specially empowered by the State
Government.
22-B Metropolitan Magistrate or judicial Magistrate of the first
class.

Court of Magistrates under the Code of Criminal Procedure, 1973:

Sections 11 to 23 of the Code lay down the provisions as to various classes of

Magistrates and their jurisdiction. Sections 11 to 23 of the Code read as under:

1. In every district (not being a metropolitan area), there shall be established as

many Courts of Judicial Magistrates of the first class and of the second class, and at
such places, as the State Government may, after consultation with the High Court, by
notification, specify:

Provided that the State Government may, after consultation with the High
Court, establish, for any local area, one or more Special Courts of Judicial Magistrates
of the first class or of the second class to try any particular case or particular class of
cases, and where any such Special Court is established, no other of Magistrate in the

195
local area shall have jurisdiction to try any case or class of cases for the trial of which
such Special Court of Judicial Magistrate has been established.

2. The presiding officers of such Courts shall be appointed by the High Court.

3. The High Court may, whenever it appears to it to be expedient or necessary,

confer the powers of a Judicial Magistrate of the first class or of the second class on
any member of the Judicial Magistrate of the first class or of the second class on any
member of the judicial service of the State, functioning as a Judge in a Civil Court.

Sentence passed by a Magistrate:

Section 3 of the Act prescribes for the first offence, rigorous imprisonment for
not less than one year and not more than three years, and also a fine. In the case of
second or subsequent conviction, it prescribes imprisonment for not less than two
years and not more than five years in addition to fine. Similar punishments are
provided by Section 3(2), Section 4 and Section 5. Under the provisions of the
Criminal Procedure Code, which must be assumed to have been known to the
Legislature, when it framed these provisions, a District Magistrate, a Sub-Divisional
Magistrate, a Presidency Magistrate or a Magistrate of the First Class could not
impose a sentence of more than two years and fine. Inasmuch as the provisions of the
section prescribe sentences in excess of those that can be awarded by any one of the
aforesaid Magistrates, it is clear that the intention was that a Court equal to or superior
should try these offences.310 “The Act creates offences, provides for the forum before
which they would be tried and the orders to be passed on conviction.”311

Section 2f - Meaning of Prostitution:

Normally, the word “prostitution” means an act of promiscuous sexual

intercourse or any Unlawful sexual act for hire as was the connotation of the Act. It
has been brought within its frame, by amendment, the act of a female and exploitation
of her person by an act or process of exploitation for commercial purpose making use
of or working up for exploitation of the person of the women taking unjust and

310
State v. Mainabai, AIR 1962 Bom 202 at 205: 1962 (2) Cr. L.J. 323 (Bom.)
311
Delhi Administration v. Ram Singh, AIR 1962 SC 63: 1962 (1) Cr. L.J. 106.

196
Unlawful advantage of trapped women for one‟s benefit of sexual intercourse.312 Prior
to the 1986 Amendment (Act No. 44 of 1986, w.e.f 26-1-1987), the definition given
under Section 2(f) was:-

“Prostitution” means the act of a female offering her body for promiscuous
sexual intercourse for hire, whether in money or in kind.”

It is clear from this definition, that, in order to constitute prostitution, the act
of the female must be an act of offering her body for promiscuous sexual intercourse
and that this must be for some consideration or hire, whether in money or in kind. In
other words, it is not enough to constitute prostitution within the meaning of the Act
to offer the feminine body for promiscuous sexual intercourse, but it must be further
established that such offering was for hire which might be either in money or in kind.
It must also be recognised that in most cases these two ingredients of prostitution can
only be established by some circumstantial evidence, because direct evidence is
usually impossible to obtain in offences of this nature.313

The ordinary and commonly understood meaning of the term „prostitution‟ is

the offering of the person for promiscuous sexual intercourse with men and that must
be taken to be the meaning. The word “prostitution” is no confined to acts of natural
sexual intercourse but includes any act of lewdness. Prostitution is provided if it is
shown that the woman offers her body for purposes amounting to common lewdness
in return in for the payment of money.314

Connotation of term “prostitution”:

“Prostitution” is the practice of a female offering her body to an discriminate

intercourse with men, usually for hire. Prostitution involves indiscriminate
employment of a woman‟s body for hire. Obviously, it excludes intercourse which a
person may have with a permanently kept concubine or with a woman without
paying any consideration either in case or in kind. For convicting 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

312
Gaurav Jain v. Union of India, AIR 1997 SC 3021 at 3033: (1997) 8 SCC 114.
313
State of Bihar.v Jagrup Singh, AIR 1963 Patna 381 at 382.
314
Emperor v. Lalya Bapu Jadhav, AIR 1929 Bom. 266.

197
 which would legitimately lead to the inference that the person concerned has been
indulging in sexual intercourse for money indiscriminately, a conviction can well as
be sustained on such evidence.315

Clause (e) of Section 2 which defined “prostitute” has since been deleted by
Amendment Act 46 of 1978, with effect from 2-10-1979, but the definition of
“prostitution” in clause (f) of Section 2, as it now stands after 1986 amendment
specifically covers the term “prostitute” also. Acts of sexual intercourse re acts of
prostitution in one strict sense of the term. The ordinary and commonly understood
meaning of the word „prostitution‟ is the offering of the person for promiscuous
intercourse with men, and that must be taken to be its meaning.

The fact that a woman was the kept of one person for four years and during
that time she also had paramour is not sufficient to constitute the woman prostitute.
The ideal underlying prostitution is that a woman should surrender her body for
monetary consideration to someone who is not in Law entitled to have sexual
intercourse with her. The position of a mistress is not necessarily that of a prostitute.
The relationship is of a more permanent nature than casual relationship implied in
prostitution. Having a stray paramour would not constitute a woman a prostitute.316

A woman who is prostitute by profession and whose trade is to let out her
body to all or to visitors of a specified class is a public prostitute but where she is the
employee of one man or has been living with different lovers at different occasions
but with one at a time, she is not a public prostitute.317

A prostitute would answer the description of a public prostitute unless she be

kept by some persons exclusively in which case she can be said to be kept by that
person and to be not available for the purposes of prostitution. The expression
“prostitute” itself means a woman who offers her body to indiscriminate sexual
intercourse especially for hire. Such a person would answer the description of a public
prostitute.318

315
In re: Devkumar, 1972 Mad. L.J. (Cr.) 150.
316
Emperor v. Lalya Bapu Jadhav, AIR 1929 Bom. 266.
317
Moti Jan v. Municipal Committee, Delhi, AIR 1926 Lahore 461 at 463.
318
Razia v. State, AIR 1957 All. 340 at 341.

198
 Where one of the accused persons was found having sexual intercourse in a
room in the circuit house with a woman and Rs. 1,000/- were recovered from her
house but there was absolutely no admissible evidence to show that this sum of Rs.
1,000/- was given to her for the purpose of the sexual intercourse, so as to bring it
within the clause “sexual exploitation for commercial purposes” and though the
witnesses had spoken in detail, the contents of the confessional statement of the
woman could not be looked into excepting to the limited extent that the sum of Rs.
1,000/- was seized from the house of the woman, it was held that there was no
admissible evidence to show that the sum of Rs. 1000/- was paid by any one of the
accused to her for the purpose of sexual exploitation. Thus, evidence was lacking to
show that there was prostitution.319

Ingredients of prostitution:

In order to constitute an act of prostitution the following ingredients have/had

to be present:

Prior to Amendment Act 44 of 1986:

i. A female must offer her body to an indiscriminate intercourse with men,

usually for hire. It must be promiscuous intercourse for hire.

ii. There must be „sexual intercourse‟.

iii. It must be for hire. The consideration may be in cash or kind.

After Amendment, Act 44 of 1986.

(i) there must be sexual exploitation or abuse of any person;

(ii) It must be for commercial purposes.

Meaning of word „abuse‟:

The word “abuse” has a very wide meaning everything which is contrary to
good order established by usage amounts to abuse. Physical or mental maltreatment

319
Kalyanasundaram v. State, 1994 Cr. L.J. 2487 at 2489 (Mad.)

199
also is an abuse. An injury to genital organs in an attempt of sexual intercourse also
amounts to sexual abuse.320

Meaning of the term „promiscuous‟:

After the amendment to the Act in 1986, prostitution is not confined to

offering of the body to a promiscuous sexual intercourse.

In shorter Oxford English dictionary the term, “promiscuous” has been

explained as:

Consisting of members or elements of different kinds massed together without

order, or mixed or disorderly composition or character, also of various kinds mixed
together;

That is without discrimination or method; confusedly mingled, indiscriminate;

of an agent or agency; Making no distinctions; indiscriminating

The word “promiscuous” means “indiscriminate”. It excludes intercourse

which a person may have with a permanently kept concubine. The important of that
word is that the woman or girl offering her body offers it for hire to anyone who
desires it for sexual intercourse.321

Prostitution involves a more or less plural and indiscriminate sexuality.

Ramaswami, J. in K.E. Adam. V. State322 has cited with approval an observation by
Beaumont C.J. in an unreported case, to the effect that:

“Prostitution involves a more or less indiscriminate employment of the

woman‟s body for hire. I do not say that it is a universal definition, and I do not
suggest that a prostitute is bound to be entirely indiscriminate and to accept the first
customer who offers her price like cabman on the rank. But I certainly think that
prostitution involves more than intercourse with the man.”

The point here is that, as the definition is framed, this plural and
indiscriminate sexuality will be a matter of interference from the facts; it is certainly

320
Gaurav Jain v. Union of India, 1997 SC 3021 at 3033: (1997) 8 SCC 114.
321
State of Kerala v. Pathumma, 1969 Cr. L.J. 697 at 698 (Ker).
322
C.A. No. 536 of 1959

200
not necessary that the evidence of more than one customer of the prostitute should be
adduced.323

It is true that the Magistrate did not make any definite finding that the woman
indulged in prostitution in the flat No. 59, Rafi Ahmed Kidwai Road. Even if there is
such a finding by implication, there is hardly any evidence to show that she indulged
in prostitution in that flat. Prostitution is defined in the Act as an act of female
offering her body for promiscuous sexual intercourse for hire, whether in money or in
kind and nothing short of that would be prostitution. The Magistrate has found on the
evidence that various people used to visit the flat and were entertained with drinks. He
also found that they created disturbance causing annoyance to other tenants of the
house, and several witnesses spoke about great noise coming from inside the room in
her occupation. This does not prove that she indulged in prostitution in the room, i.e.,
she offered her body for promiscuous sexual intercourse for money. The prosecution
examined PW.5 an Assistant Commissioner of Police but he stated that he had no
information as to the fact that the woman was using the room in the said premises as a
brothel. This is a finding based upon no evidence and a wrong interpretation of the
provision relating to prostitution.324

Connotations of “Police Duties”‟ and “dealing with offences”:

By the conjoint reading of Section 2 (i) and Section 13 (1), the special police
officer, in charge of police duties within a specified area for the purpose of the Act,
shall be dealing with offences under the Act in that area. Both these expressions
“Police duties” and “dealing with offences” are of the widest amplitude and
necessarily connote all that the police have to do in connection with the offences
under the Act, including detection, prevention and investigation.325

The gamut of police activities cannot be restricted to the duties assigned to a

Special police Officer .- They key to the whole construction is provided by the
definition of a special police officer in clause (i) of Section 2 of the Act. A special
police officer appointed by the State Government is to be “in charge of police duties”
within a specified area for the purposes of this Act. The gamut of police activities

323
In re: Ratnamala, AIR 1962 Mad. 31 at 33: 1961 MLJ (Cr) 686: 1961 All Cr. R 155: 1962 (1) Cr. L.J. 162 (Mad.)
324
Shefali Banergee v. State, AIR 1969 Cal. 544 at 545-46 : 1969 Cr.L.J. 1367 (Cal.).
325
State of West Bengal v. Sardar Bahadur, AIR 1969 Cal 451.

201
cannot be restricted to the duties assigned to a special police officer under Sections
14, 15 and 16 of the Act. The police duties number both in range and variety and the
restricted meaning which Mr. Dhebar has invited Court to give to the duties and
functions of a special police officer under the Act does not appear to be warranted by
the words used in the statute. It would, lead to both confusion and inconvenience if
the duties of investigation are assigned to one set of police agency while the special
police officer is left to deal only with the special functions under the Act.

The entire hierarchy of police officers who are to assist the special police
officer would be purposeless if they are to deal only with the rescue and search
operations envisaged in the Act. A wider meaning of the term “dealing with” would,
be in harmony with legislative intendment and purpose. The Act does not just create
„an‟ authority in the person of a special police officer as contended for but such an
officer is „the‟ authority for purposes of the Act.326

Powers of Magistrates:

Under the scheme of the Act, large powers are given by Sections 16, 18, 19
and 20 to the Magistrates for the purposes of the Act. Section 16 gives power to the
Magistrate to direct the special police officer to enter a brothel and to remove there
from the girl mentioned in that section and produce her before him. Section 19
enables a woman or a girl who is carrying on prostitution to make an application to a
Magistrate for an order that she may be kept in a protective home. Section 20 gives
powers to a Magistrate to direct the removal of a woman or a girl from the place
where she is suspected of carrying on prostitution. Section 2 sub-section © defines the
word „Magistrate‟. It would only mean that wherever the words “the Magistrate”
occur such as in Sections 16, 1819, 20 it must have the meaning as given in Section
2©. It is not and could not have been intended that it should control in any manner the
jurisdiction of the Court which could take cognizance of the offence.327

Only the Special Police Officer appointed under the Act is competent to
investigate the offences under the Act. – Decision of three Judges Bench of Supreme
Court in the case of Delhi328 Administration v. Ram Singh, , wherein the facts were

326
State v. Mehro S/o Lakshman, AIR 1962 Punj. 91 at 92: 1962 (1) Cr. L.J. 561 (Punj.)
327
State v. Mainabai, AIR 1962 Bom. 202 at 204: 1962 (2) Cr. L.J. 323: 64 Bom LR 127.
328
AIR 1962 SC 63 : 1962 (1) Cri L.J. 106

202
that the respondent who was suspected of having committed an offence under Section
6 of the Act was prosecuted vide challan filed by Sub-Inspector who had not been
appointed as Special Police Officer by the State Government. The Magistrate quashed
the charge-sheets holding that the SI was not competent to investigate the case. On
revision by the State, High Court agreed with the view of the Magistrate and
dismissed the revision. Delhi Administration preferred appeal before the Supreme
Court. After a detailed analysis of various provisions of Act, Hon‟ble Supreme Court
observed that the Act is a complete Code with respect to what is to be done under it.
The entire police duties in connection with the purposes of Act within a certain area
have been put in the charge of a special police officer. The expression „police duties‟
under Section 2 (1) includes all the functions of the police in connection with the
purpose of the Act and in the special context of the Act they will include the
detection, prevention and investigation of offences and the other duties which have
been specially imposed on them under the Act. Hon‟ble Supreme Court further
observed that if power of the Special Police Officer to deal with the offences under
the Act and therefore, to investigate into the offences, be not held exclusive, there can
be two investigating carried on by two different agencies, one by Special Police
Officer and the other by the ordinary police. It is easy to imagine the difficulties
which such duplication of proceedings can lead to. There is nothing in the Act to co-
ordinate the activities of the regular police with respect to the cognizable offence
sunder the Act and those of the special police officer. It was further held that only the
special police officer appointed under the Act is competent to investigate offence
sunder the Act and the police officers not specially appointed as special police
officers cannot investigate offences under the Act even though they are cognizable
offences. Accordingly, the appeal filed by the Delhi Administration was dismissed.

Sec2(A): Rule of construction regarding enactments not extending

to Jammu and Kashmir:
Any reference in this Act to a Law which is not in force in the State of Jammu
and Kashmir shall, in relation to that State, be construed as a Reference to the
corresponding Law, if any, in force in that State.

203
Section 3: Punishment for keeping a brothel or allowing premises to
be used as a brothel:
(1) Any person who keeps or manages, or acts or assists in the keeping or
management of, a brothel, shall be punishable on first conviction with rigorous
imprisonment for a term of not less than one year and not more than three years and
also with fine which may extend to two thousand rupees and in the event of a second
or subsequent conviction with rigorous imprisonment for a term of not less than two
years and not more than five and also with fine which may extend to two thousand
rupees.

(2) Any person who-

(a) being the tenant, lessee, occupier or person in charge of any premises, uses or
knowingly allows any other person to use, such premises or any part thereof as
a brothel, or

(b) being the owner, lessor or landlord of any premises or the agent of such
owner, lessor or landlord, lets the same or any part thereof with the knowledge
that the same or any part thereof is intended to be sued as a brothel, or is
wilfully a party to the use of such premises or any part thereof as a brothel,
shall be punishable of first conviction with imprisonment for a term which
may extend to two years and with fine which may extend to two thousand
rupees and in the event of a second or subsequent conviction, with rigorous
imprisonment for a term which may extend to five years and also with fine.

(2-A) For the purposes of sub-section (2), it shall be presumed until the
contrary is proved, that any person referred to in clause (a) or clause (b) of that sub-
section, is knowingly allowing the premises or any part thereof to be used as a brothel
or, as the case may be, has knowledge that the premises or any part thereof are being
used as a brothel if,

(a) A report is published in a newspaper having circulation in that area in

which such person resides to the effect that the premises or any part
thereof have been found to be used for prostitution as a result or a search
made under this Act; or

204
 (b) A copy of the list of all things found during the search referred to in
clause (a) is given to such person.

3. Notwithstanding anything contained in any other Law for the time being in
force, on conviction of any person referred to in clause (a) or clause (b) of sub-section
(2) of any offence under that sub-section in respect of any premises or any part
thereof, any lease or agreement under which such premises have been leased out or
are held or occupied at the time of commission of the offence, shall become void and
inoperative with effect from the date of the said conviction.

Object of Section 3:

Section 3 of the Act deals with punishment for keeping a brothel or allowing
premises to be used as a brothel.

For proving an offence under Section 3, some specific instances of prostitution

must be proved. Section 3 of the Act provides the punishment for keeping/managing
or assisting in keeping or managing of a brothel. Section 2 (a) of the Act defines that
brothel includes any house, room or place or any portion of any house, room or place,
which is used for the purposes of sexual exploitation or abuse for the gain of another
person or for the mutual gain of two or more prostitutes. It is obvious that for proving
an offence under Section 3 of the Act some specific instances of prostitution must be
proved and then it must further be proved that the accused was managing/keeping the
place with the knowledge that same is being used for the purposes of sexual
exploitation or abuse for the ain of another person or for the mutual gain of two or
more prostitutes.

State v. Gaya,329 was a trap case, with the use of a decoy witness, upon lines
very similar to the present prosecution, if not almost identical. The conviction was
under Section 3(1) of the Central Act 104 of 1956, and the Judge made the following
observations, which are highly pertinent:

“The Act was passed in pursuance of the international Convention signed at

New York for the suppression of immoral traffic in women and girls. It was never
intended that the woman or girls used for such traffic should be liable to punishment.

329
AIR 1960 Bom 289

205
To my mind, nothing can be more reprehensible than the conduct of this investigation.
Under the very auspicious of the officers charged with the duty of suppressing
immoral traffic in women and girls Sk. Kasom had sexual intercourse with Saru.
Rather than suppress such traffic, the investigation encouraged it. If investigations
under this Act are to proceed in this manner, in conceivable cases it will be difficult to
determine whether a person was committing an offence under the Act or carrying on
an investigation. Such investigations also will not have any salubrious effect upon the
public mind and will not achieve the object for which the Act was passed”.330

Onus to prove a particular premise is a brothel is on prosecution:

In order to prove that a particular, premises is a brothel, prosecution has to

prove that it is used for purposes of prostitution for gain of another person or for
mutual gain of another person or for mutual gain of two or more prostitutes, in other
words, onus entirely remains on the prosecution and the Legislature has not deemed it
fit or necessary to shift any part of the onus on the accused in any circumstances. The
only evidence brought in this case is from pimps and prostitutes-pimps procure the
visitors for gain and prostitutes offer their body for money. Either of them is,
therefore, an accomplice and judicial decisions have settled the value of accomplice
evidence. Although it is not entirely illegal to convict an accused on accomplice
evidence only, the rule of prudence is to look for corroboration. This rule of prudence
is now virtually the Law enunciated by judicial decisions.331

Where single woman practices prostitution for her own livelihood at

her residence will not amount to a “brothel”:
The purpose of the enactment was to inhibit or abolish commercialised vice,
namely, the traffic in women and girls, for purposes for prostitution per se a criminal
offence, or to punish a woman merely because she prostitutes herself. In C.A. No. 536
of 1956, K.E. Adam v. State, Ramaswami, J. has reviewed the available literature
upon this subject, in an extensive manner. After making a historical survey, the
learned Judge proceeded to observe that legislation, by itself, was almost powerless to
eradicate this, evil, and added. “Nor have all the social and administrative resources of
modern civilisation availed to exercise an effective control.”

330
In re: Ratnamala, AIR 1962 Mad. 31 at 34 : 1962 (1) Cr. L.J. 162
331
Bhulu Mia v. State, AIR 1969 Cal 416 at 417 : 1969 Cr. L.J. 1533 (Cal.)

206
 A carefully scrutiny of the Central Act 104 of 1956 clearly reveals that the Act
was aimed at the suppression of commercialised vice, and not at the penalisation of
the individual prostitute, or of prostitution in itself. This is of some importance in
considering the case against the appellant Ratnamala (accused 3).

Section 3(1) of Central Act, 104 of 1956 runs as follows:

“Any person who keeps or manages, or acts or assists in the keeping or

management of, a brothel shall be punishable.”

The public Prosecutor has rightly emphasised that this wording is different
from the text of the corresponding Section 5 (1) in Madras Act V of 1930, which was
to the effect that

“Any person who keeps or manages or acts or assists in the management of a

brothel shall be punished”

The central Act deliberately includes the words “or acts or assists in the
keeping or management of” Thus implying at least a fine shade of distinction between
„keeping‟ and management”. “Brothel” is defined under Section 2(a) as
including.”“any house, room or place or any portion of any house, room or place
which is used for purposes of prostitution for the gain of another person or for the
mutual gain of two or more prostitutes.”

The last part of the definition is certainly significant. It implies that where a
single woman practices prostitution, for her own livelihood another prostitute, or
some other person being involved in the maintenance of such premises, her residence
will not amount to a “brothel”.

There cannot be any clearer indication of the purposes of the Act, which is to
strike down commercialised vice, not to make the unfortunate prostitute, herself often
a victim of economic pressures and social maladjustment, a criminal under the
Law.332

332
In re: Ratnamala, AIR 1962 Mad. 31 at 33: 1961 MLJ (Cr.) 686: 1961 All Cr. R. 155 : 1962 (1) Cr. L.J. 162 (Mad.).

207
Meaning of word “keeping” in Section 3 (1):

The entire scheme of the Act is not such as to render the prostitute herself
criminally liable, for the mere act of prostitution.

It is not correct to suggest that the word “keeping” occurring in Section 3 (1)
of the Act implies that even the prostitute, by her prostitution may be assisting in the
“keeping” of the brothel, if not in its management or maintenance. There is no doubt
that this was not the intention of the Legislature. Had that been so, nothing would
have been easier than to make the prostitute strictly liable for any act of prostitution
carried in the premises which could be inferred to be a brothel. On the contrary it is
significant that “keeping” though distinct from “management” has to be construed
ejusdem generis with that latter word, and in the “Law Lexicon” (Ramanatha Iyer,
1940) the verb “to keep” is said to include the sense of “to conduct or mange, to have
the control and management of”. There is absolutely nothing in the evidence which
would justify the inference that accused 3, Ratnamala was liable for this offence. The
entire record merely established that she, young girls of about 19, was either the
victim of circumstances, or of her own predispositions, to the extent of wilfully
prostituting herself upon the occasion for hire, with the decoy witness, PW 1. There is
absolutely nothing else against her held that she was clearly entitled to acquittal.333

Section 3 of the Immoral Traffic (Prevention) Act penalises the keeper of

manager or the person who acts as or accepts in the keeping or management of a
brothel. It is clear that it is intended to hit at persons who establish and maintain house
of prostitution, or assist in their keeping or managing.334

Women or girls used for immoral traffic cannot be liable for

punishment:

The prosecution case was that on the outskirts of Akola town near the temple
of Kala Mandir there is a house of prostitution being run by one Janabai accused No.
1, who is the mistress of one Brahmanand. On 20-8-1958 the Sub-Divisional Police
Officer, City Division, Akola, decided to send a customer into this house. He was
Sheikh Kasam. He was given live currency notes of Rs. 1/- each in the presence of

333
In re : Ratanamala, AIR 1962 Mad. 31 at 34: 1962 (1) Cr. L.J. 162 (Mad).
334
State v. Gaya, AIR 1960 Bom. 289 :1960 Cr. L.J. 893 (Bom.)

208
panchas and ordered to go to the brothel and have sexual intercourse with one of the
girls in that brothel on payment. It was the prosecution case that accordingly Sheikh
Kasam went to the brothel, talked to Janabai, accused No. 1 and asked for a girl or
woman for sexual intercourse. Accused No 1 showed him four girls, the opponents
before the court, and Sheikh Kasam selected the opponent Saru wife of Vikram. He
agreed to pay Rs. 3/- which accused No. 1 accepted. She then allowed Sheikh Kasam
to have sexual intercourse with Saru in one of the rooms in the brothel. The Sub-
Divisional Officers and the punches were hiding themselves in the darkness round
about the brothel waiting for Sheikh Kasam to come out. It was the prosecution case
that Sheikh Kasam, after having sexual intercourse, came out of the brothel and
lighted a cigarette which was a pre-arranged signal that he had done his bob.
Thereupon the police officers and the paunches raided the brothel and the house of the
first accused. Three currency notes of Rs. 1/- each were seized from the possession of
the first accused and they were attached under a seizure memo.

It was upon these facts that the four opponents along with Janabai were put up
for trial before the Sub-Divisional Magistrate who framed charges under Section 3 of
the Act against all of them. Court was not concerned here with sub-section (2) of
Section 3 of the Act but only with sub-section (1) thereof which runs as follows:

“Any person who keeps or manages, or acts or assists in the keeping or

management of , a brothel shall be punishable on first conviction with rigorous
imprisonment for a term of not less than one year and not more than three years and
also with fine which may extend to two thousand rupees and in the event of a second
or subsequent conviction, with rigorous imprisonment for a term of not less than two
years and not more than five years and also with fine which may extend to two
thousand rupees.”

The sub-section penalises the keepers or manager or the person who acts or
assists in the keeping or managing of a brothel. It is clear that it is intended to hit at
persons who establish and maintain houses of prostitution or act or assist in keeping
or managing them. There is absolutely nothing in the complaint so far as the four
opponents are concerned, from which it can be held that they were either keeping or
managing or acting or assisting in the “keeping or management” of a brothel. On the
other hand, it appears that these four girls were the unfortunate victims and were the

209
persons who were being used by those who kept or managed the brothel or acted or
assisted in keeping or managing it.

The Act was passed in pursuance of the International Convention signed at

New York for the suppression of immoral traffic in women and girls. It was never
intended that the women or girls used for such traffic should be liable to
punishment.335

In the instant case, on 16-9-1995 the Inspector in charge of Bhubaneswar P.S.

drew up a plain paper FIR stating that on the same day after receiving a reliable
information with regard to prostitution at Sangwa (Shiva) Lodge at Dhauli Junction,
he conducted a raid with the assistance of other police officers and some local persons
and during search three women were located in the ground floor concealing
themselves under a bed. All the three women were within the age group of 18 to 26.
During raid, five customers were apprehended, including all the three petitioners. It is
further stated in the FIR that during raid the petitioners and the other two accused
persons were trying to escape. On the basis of such allegations, investigation was
taken up and charge-sheet was submitted for offences committed under Sections
3,4,5,6 and 7 of the Act.

The facts giving rise to this case, as is evident from the FIR as well as the
statements rendered during investigation, is that a raid was conducted in the aforesaid
hotel on 19-9-1995 and during raid, three girls were found concealing themselves
under a bed in the ground floor of the hotel. The petitioners and two others were
apprehended while trying to escape. The undergarments of the petitioners were seized
and sent for examination. The report of the District Forensic Science Laboratory,
Khurda, indicated that the said undergarments sent for examination did not contain
any women stain. From these facts court came to the view that offences so far as
Sections 3,4,5 and 6 are concerned are not at all attracted.336

Section 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

335
State v. Gaya, AIR 1960 Bom. 289: 1960 Cr. L.J. 893 (Bom.)
336
Sushanta Kumar Patra alias Hemanta Kumar Das v. State of Orissa, 2000 Cr. L.J. 2689 at 2689, 2690 (Orissa).

210
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 imprisonment for a term of
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 habitually in the company of, a prostitute; or

(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-sec (1).

Object of Section 4:
Section 4 of the Act deals with punishment for living on the earnings of
prostitution.

Unlike most of the other countries in our country there is a practice under
which members of a family usually live together, e.g., father and mother, and their
children live together. It is quite conceivable, in fact it must be so, that there would be
hundreds of prostitutes whose parents or other family members live with them, though
they may not be economically dependent upon them and may not in any manner be
encouraging, aiding abetting or helping them in the carrying on of their profession or
trade.

In the absence of there being any evidence that they are either living on the
income of the prostitutes with whom they are living or are encouraging, aiding,
abetting or helping them towards prostitution, it would be extremely risky and not free
from danger to draw any presumption as contemplated by the above sub-section.337

337
Shama Bai v. State of U.P., AIR 1959 All. 57 at 61.

211
 A close scrutiny of the ingredients of the respective Sections 3 and 4 would
clearly indicate that the ingredients of the offence under Section 3 are fundamentally
different from the ingredients of the offence under Section 4. Although Section 4 (1)
is a lesser offence in point of the punishment there ought to be a separate charge of
which the accused must have sufficient notice to meet. In the absence of the charge
under Section 4 (1) of the Act and on the strength of a mere presumption embodied in
Section 4 (2) it may not be legally correct to convict the accused appellant for an
offence under Section 4 (1) of the Act.338

1. Applicability of sub-section (1):

In order to bring home the guilt against the accused for an offence under
Section 4 (1) of the Act, it is necessary to analyse Section 4 (1) of the Act. Sub-
section (1) of Section 4 of the Act may be analysed as under:

If any person over the age of eighteen years knowingly lives, wholly or in part,
on the earnings of prostitution of a woman or girl, he shall be punishable with
Imprisonment for a term which may extend to two years, or Fine which may extend to
one thousand rupees, or Both, and

Where the earnings relate to the prostitution of a child or a minor, shall be

punishable with imprisonment for a term of not less than seven years and not more
than ten years.

The provisions of Section 4 are justifiable on the ground that to allow a person
over the age of eighteen years to live on the earnings of a prostitute is not only to
encourage parasitism but also to offer inducement to the prostitute to carry on her
profession or trade which she may not be inclined to carry on otherwise. Similarly the
presumption against touts and pimps or persons who exercise control, direction or
influence over a prostitute or aid, abet or compel her to carry on the trade or
profession of a prostitute is a reasonable presumption and is in the interests of the
public at large.339

338
In re: Dhanalakshmi, 1974 Cr. L.J. 61 at 66 (Mad.)
339
Shama Bai v. State of U.P., AIR 1959 All 57 at 62: 1959 All. Cr. R. 427 (All.)

212
2. Presumption mentioned in Section 4 (2) more strongly apply to husband:

In the instant case, on the evidence it is clear that the wife of the applicant was
a prostitute, and that the applicant, her husband, was living with her. The presumption
mentioned in Section 4 (2) of the Act may therefore, be drawn. But, it is contended
that the presumption should be drawn only in the case of strangers living with or
habitually in the company of a prostitute, and that such a presumption should not be
drawn in the case of the husband of the prostitute, who is living with her. There is no
reason to restrict the scope of the presumption provided in Section 4 (2) of the Act. If
a stranger lives with a prostitute, a rebuttable presumption may be drawn, that such
person is knowingly living on the earning of a prostitute. If the husband lives with his
wife, and allows his wife to be a prostitute, the presumption would be stronger that he
was doing so for the purpose of living on her earnings of prostitution is drawn, until
the contrary is proved, it can be presumed that the applicant was knowingly living on
the earnings of the prostitution of his wife. If the husband allows his own wife to be a
prostitute, the presumption would be stronger that he was doing so for the purpose of
living on her earnings of prostitution. There is, therefore, no reason not to apply the
presumption mentioned in Section 4 (2) of the Act to the case of a husband living with
his prostitute wife. In this case, therefore, such a presumption can be drawn, and when
such a presumption is drawn, until the contrary is proved, it can be presumed that the
applicant was knowingly living on the earning of the prostitution of his wife. When
such a presumption is drawn, that would be sufficient to constitute the house of the
applicant a brothel, because „brothel‟ includes and house, room, or place which is
used for purposes of prostitution for the gain of another person. That the house in
question was a brothel is therefore, proved by the evidence on record and the
presumption to be drawn from Section 4 (2) of the Act.340

In the instant case, So far as accused 1 is concerned, there is ample evidence to

show that, though he is the servant of accused 2, he actively abetted the act of
prostitution by accused 2. Under Section 4 (1) of the Act “Any person over the age of
18 years, who knowingly lives wholly or in part, on the earnings of the prostitution of
a woman or girl shall be punishable…..” Under Section 4 (2) if a person is proved to
have exercised influence over the movements of a prostitute in such a manner as to

340
Soni Bachu Lakhman v. State of Gujarat, AIR 1960 Guj 37 at 39.

213
show that such person is aiding, abetting or compelling her prostitution, he shall be
presumed to be living on the earnings of prostitution. Here, accused 1 on the arrival of
PW 1 negotiated the terms of the prostitution of accused 2. He receives money from
PW 1 and gave it to accused 2. Though, he has been charged only under Section (1) of
the Act, he can be offence. Two unreported judgments of Madras High Court in C.A.
No. 663 of 1960 (Mad) and 667 of 1962 (Mad)_ have laid down a similar view that
even if the charge be under Section 3 (1) of the Act, a conviction can be had on the
same facts for an offence under Section 4 (1) of the Act.341

The sections 3, 4, 5, 6 and 9 deal with offences against the victims of

prostitution. The punishment provided under these sections for the offences
committed becomes serious when committed against the child or minor. For example
Section 4 provides for a punishment of up to two years or fine up to rupees 1000/- in
case the of adult victims but punishment of up to life imprisonment if the victim is a
minor.

Section 5: Procuring, inducing or taking person, for the sake of

prostitution:

(1) Any person who-Procures or attempts to procure a person, whether with or

without his consent, for the purpose of prostitution; or Induces a person to go from
any place, with the intent that he may for the purpose of prostitution become the
inmate of, 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 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:

341
In re : John, AIR 1966 Mad. 164 at 169: 1965 MLJ (Cr.) 654 : 1965 All. Cr. R. 433 : 1966 Cr. L.J. 551 (Mad.).

214
 Provided that if the person in respect of whom an offence committed under
this sub-section,-

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

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;

(3) An offence under this section shall be trial able-

(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.

Object of Section 5:

Section 5 of the Act deals with procuring inducing or taking person for the
sake of prostitution. It is the only section in the Act that punishes the traffickers, who
procure, induce or bring victims into prostitution with or without their consent. In
case it is without consent, the punishment is up to fourteen years. Section 13 provides
for the appointment of trafficking police officers by the Central Government. This
provision has not yet been implemented in its spirit. Recently, the CB1 has been
entrusted with the role of investigating cases of large-scale trafficking.

Applicability of the section:

In T. Jacob vs. state of Kerala 342 the prosecutrix lived with her parents in
Mhow. The appellant lived in the neighbourhood and used to frequent the house of
the prosecutrix. The appellant invited the prosecutrix to go with her to the fair held on
that day. The appellant took the prosecutrix from her house to the fair. The appellant
gave a tawiz to the prosecutrix on wearing which the prosecutrix deposed that she lost

342
AIR 1971 Ker. 166 of 167 : 1971 Cr. L.J. 962 (Ker)

215
control over herself. The appellant then took her in a truck to Bombay. She was kept
at the Bombay railway station for two or three days. She was renamed Mumtaj and
taken the appellant‟s friend Shehnaj and then to one, Maqboolbhai. The appellant took
her to a taxi driver Shanker. They took her to a hotel and there the appellant told her
to go and share the bed with Shanker. Shanker had sexual intercourse with her in a
room in that hotel and paid Rs. 500/- to the appellant in lieu of this. The prosecutrix
was compelled to have sexual intercourse with other persons also. The prosecutrix
was compelled by the appellant to engage in prostitution and was also ill-treated. On
her swearing not to harm or complain against the appellant, the appellant brought her
back to Mhow where already a report of her missing had been lodged. The prosecutrix
on her arrival also lodged a report at the police station. There was no reason to
disbelieve the statement of the prosecutrix. It was held that an offence had been
committed under Section 5 of the Act which makes procurement or an attempt to
procedure a person with or without the consent of that person for the purpose of
prostitution punishable. Taking or inducing the person from one place to another with
a view to a carrying on prostitution or becoming an inmate of a brothel has also been
made punishable under this section.343

Under Section 5 (1) (d) it is necessary that the accused should have caused or
induced the woman to carry on prostitution. In the absence of evidence that the
accused was in any way connected with the woman prior to the incident, he cannot be
held guilty. To carry on prostitution, is suggestive of more than a solitary instance of
prostitution, which means that there must be indiscriminate sexuality, requiring of
more than one customer of the prostitute before she can be held guilty. Where in the
light of the evidence in the case that the accused would not have any hand in the
conduct with the woman now or at any time previous to the incident, in the absence of
any such evidence, the prosecution cannot invoke the provision of Section 5 (1) to
implicate the accused to a charge under that section.

Jurisdiction of the Court for offences committed outside India:

The scheme underlying Section 188 (Cr. P.C) is to dispel any objection or plea
of want of jurisdiction at the behest of a fugitive who has committed an offence in any
other country. If such a person is found anywhere in India, the offence can be inquired

343
Hasina v. State 1994 (2) Crimes 593 at 594.

216
into and tried by any Court that may be approached by the victim. The victim who has
suffered at the hands of the accused on a foreign land can complain about the offence
to a Court, otherwise competent, which he may be find convenient. The convenience
is of the victim and not that of the accused. It is not the requirement of Section 188
that the victim shall state in the complaint as to which place the accused may be
found. It is enough to allege and the accused either appears voluntarily pursuant to
issue of process or is Court within the meaning of Section 188 of the Code as that
Court would find the accused before him when he appears. The finding has to be by
the Court. It has neither to be by the complainant nor by the Police. The section deems
the offence to be committed within the jurisdiction of the Court where the accused
may be found.344

Meaning of word „procure‟:

In the Chambers Twentieth Century Dictionary, at page 733, the following

meanings are given: “To obtain for one‟s self or for another; to bring about; to attract;
to urge earnestly; to pander; pimp.”

In the Concise Oxford Dictionary of Current English, Fourth Edition, at page

956, the meanings given for the word „procure‟ are: “obtain by care or effort; acquire;
bring about”.

In the Random House Dictionary of the English Language (unabridged

edition) at page 1147, the meanings given are:

1. To obtain or get by care, effort, of the use or special means: to procure

evidence.

2. To bring about, especially unscrupulous and indirect means: to procure secret

documents.

3. To obtain (women or girls) for the purpose of prostitution.

4. To act as a procurer or pimp.”

344
Om Hemrajani v. State of U.P., AIR 2005 SC 392 at 395-396: 2005 Cri L.J. 665.

217
 In the Oxford Dictionary, meaning of the word „procure‟ is, “to succeed in
getting (for another or with double object, or for oneself; please procure me a copy;
will procure it for you; must try to procure one), to bring about or cause by other‟s
agency; be a procurer or procuress”. In the same Dictionary, the word “procuration” is
said to mean, “acting as another‟s agent, authority to do this. In the Webster‟s Seventh
New Collegiate Dictionary, the meanings given for the word „procure‟ are “to take
care of; to get possession of; obtain, to get and make available for promiscuous sexual
intercourse; to bring about; achieve; to procure women.”

In the Readers‟ Digest Great Encyclopaedic Dictionary, „procure‟ means

“obtain by care or effort; acquire; act as procurer or procuress‟, and „procurers‟ means
“men or women who procure women for gratification of another‟s lust”.

In the New English Dictionary, Vol. VII, Part II, page 1418, the word
„procure‟ means “to obtain (woman) for gratification of lust”.345

The various meanings extracted above would indicate that the word „procure‟
means not only procuring for others but procuring for oneself. In enacting Section 5
(1) (a), the Legislature meant only persons who procure girls or women for the
purpose of others, then the Legislature would have made its intention clearer by using
proper words for it, for it is well-known that the Legislature would not an do not shy
at repetitions. From the meaning given above, the word „procure‟ takes in not only
persons who procure women for others but persons who procure women for
themselves.346

Section 6: Detaining a person in premises where prostitution is

carried on:
(1) Any person who detains any other person, whether wither with or without his
consent-

(a) in any brothel, or

(b) in or upon any premises with intent that such person may have sexual
intercourse with a person who is not the spouse of such person

345
See Iyer‟s Judicial Dictionary, 11th Ed. at p. 912
346
Cheriyan v. State, 1973 Cr.L.J. 839.

218
 Shall be punishable on conviction, with imprisonment of either description for
a term which shall not be less than seven years but which may be for life or for a term
which may extend to ten years and shall also be liable to fine:

Provided that the Court may, for adequate and special reasons to be mentioned
in the judgment, impose a sentence of imprisonment for a term of less than seven
years

(2) Where any person is found with a child in a brothel, it shall be presumed,
unless the contrary is proved, that he has committed an offence under sub-
section (1).

(2-A) Where a child or minor found in a brothel, is on medical examination,

detected to have been sexually abused, it shall be presumed, unless the
contrary is proved, that the child or minor has been detained for
purposes of prostitution or, as the case may be, has been sexually
exploited for commercial purposes.

(3) A person shall be presumed to detain a woman or girl in a brothel or in or

upon any premises for the purpose of sexual intercourse with a man other than
her Lawful husband, if such person, with intent to compel or induce her to
remain there,-

(a) withholds from her any jewellery, wearing apparel, money or other
property belonging to her, or

(b) threatens her with legal proceedings if she takes away with her any
jewellery, wearing apparel, money or other property lent or supplied
to her by or by the direction of such person.

(4) Notwithstanding any Law to the contrary, no suit, prosecution or other legal
proceeding shall be against such woman or girl at the instance of the person
by whom she has been detained, for the recovery of any jewellery, wearing
apparel or other property alleged to have been lent or supplied to or for such
woman or girl or to have been pledged by such woman or girl or for the
recovery of any money alleged to be payable by such woman or girl.

219
Object of Section 6:

Section 6 of the Act deals with detaining a person in premises where prostitution
is carried on.

Section 6 (3) provides for recovery of property viz. Jewellery, wearing apparel,
money or other property of the victim from the brothel keeper and provide for her
immunity from any legal proceedings by the offender.

This provision gives her protection against any legal proceeding and civil suits
by the pimps or 'gharwalis'.

Section 7: Prostitution in or in the vicinity of public places:

(1) Any person, who carries on prostitution and the person with whom such
prostitution is carried on, in any premises:-

(a) which are within the area or areas, notified under sub-section (3), or

(b) which are within a distance of two hundred metres of any place of public
religious worship, educational institution, hostel, hospital, nursing home or such other
public place of any kind as may be notified in this behalf by the Commissioner of
Police or Magistrate in the manner prescribed, shall be punishable with imprisonment
for a term which may extend to three months.

(1-A) Where an offence committed under sub-section (1) is in respect of a

child or minor, the person committing the offence shall be punishable with
imprisonment of either description for a term which shall not be less than seven years
but which may be for life or for a term which may extend to ten years shall also be
liable to fine:

Provided that the Court may, for adequate and special reasons to be mentioned
in the judgment, impose sentence of imprisonment for a term of less than seven years.

(2) Any person who-

(a) Being the keeper of any public place knowingly permits prostitutes for
purposes of their trade to resort to or remain in such place; or

220
 (b) Being the tenant, lessee, occupier or person in charge of any premises
referred to in sub-section (1) knowingly permits the same or any part
thereof to be used for prostitution; or

(c) Being the owner, lessor or landlord, or any premises referred to in sub-
section (1), or the agent of such owner, lessor or landlord, lets the same
or any part thereof with the knowledge that the same or any part
thereof may be used for prostitution, or is wilfully a party to such use,

Shall be punishable on first conviction with imprisonment for a term which

may extend to three months, or with fine which may extend to two hundred rupees, or
with both, and in the event of a second or subsequent conviction with imprisonment
for a term which may extend to six months and also with fine 347[which may extend to
two hundred rupees, and if the public place or premises happen to be a hotel, the
licence for carrying on the business of such hotel under any Law for time being in
force shall also be liable to be suspended for a period of not less than three months but
which may extend to one year:

Provided that if an offence committed under this sub-section is in respect of a

child or minor in a hotel, such licence shall also be liable to be cancelled.

Explanation:-For the purposes of this sub-section, “hotel” shall have the

meaning as in clause (6) of section 2 of the Hotel Receipts Tax Act, 1980 (54 of
1980).

(3) The State Government may, having regard to the kinds of persons,
frequenting any area or areas in the State the nature and the density of population
therein and other relevant consideration, by notification in the Official Gazette, direct
that prostitution shall not be carried on in such area areas as may be specified in the
notification.

(4) Where a notification is issued under sub-section (3) in respect of any area
or areas, the State Government shall define the limits of such area or areas in the
notification with reasonable certainty.

347
Subs.by Act 44 of 1986, Section 10, for the words, “which may extend to two hundred rupees”, (w.e.f. 26 th January, 1987).

221
 (5) No such notification shall be issued so as to have effect from a date earlier
than the expiry of a period of ninety days after the date on which it is issued.

Object of Section 7:

Section 7 of the Act deals with prostitution in or in the vicinity of public place. It
provides for punishment for an offence to carry on prostitution in or in the vicinity of
public place and Section 8 punishes the victim for seducing or soliciting for the
purpose of prostitution in a public place.

According to Section 7 any person who carries on prostitution and the persons
with whom such prostitution is carried on in any public place shall be punishable up
to three months imprisonment. It needs to be highlighted here that under this section,
action can be taken against the customers.

Section 7 (1) (a) provides severe punishment of up to life, when the offence
committed in respect of a child or a minor. In order to prove this offence, it has to be
proved that the offence was committed in a public place. A public place has been
defined as (a) within the area notified or (b) 200 meters of any place of religion
worship, educational institution, hotel, hospital or such other public place of any kind
notified by the Commissioner of Police,

Section 7 (2) (a) provides for punishment for the keepers of public places who
knowingly permit prostitution in that place. If the public place is a hotel, then its
license may be suspended for 3 months to a year. If the offence is committed in
respect of a child or minor, such license shall also be liable to be cancelled.

Section 7 (2) (b) provides for punishment for the tenant, lessee or person in
charge, who allows the premises to be used for prostitution.

Section 7 (2) (c) provides for punishment for the owner, lessor or landlord or the
agent of the above parties up to 3 months or with fine of up to Rs. 200/- or with both
and on second conviction imprisonment up to 6 months and also fine.

The above sections can be used positively, if simultaneously applied with

Section 10(a), which is rehabilitative in nature. Section 10(a) provides detention in a
Corrective Institution after conviction under Section 7 or 8. This is very important

222
section of the Act which has a rehabilitation purpose, whereby instead of
imprisonment, the Court may send the person to the Protective Home for the period of
2 to 5 years, after considering the report of the Probation Officer about the character,
state of health and mental condition of the offender and the other circumstances of the
case.

But proving the offence under Section 7 is very difficult. The essential ingredient
here is to prove promiscuous sexual intercourse under Section 1(b), whereby the
person concerned has indulged in indiscriminate sexual intercourse with several
persons.

In practice, the police also resort to using sections relating to indecent behaviour
in public places, such as Section 110 of the Bombay Police Act or Section 145 (b) of
the Indian Railway Act. Such sections provide for fine or imprisonment in lieu of
fine, and the Court summarily tries these cases. There is no rehabilitative purpose
behind these sections, beyond temporarily 'clearing' a public place. The police instead
of using Section 110 or 145 lb) could "use Section 7 or 8 along with the
corresponding Section of 10(a) of the ITP ACT, as these sections do not carry any
fines or sentence in default of payment of fine, and have a scope to rehabilitate the
victim by detaining her in a Protective Home.

The idea behind the enactment of Section 7 is that the atmosphere of places of
public religious worship or educational institutions or hostels or hospitals or nursing
homes or other such institutions should be kept pure and free from the contaminated
atmosphere of a place where prostitution is being carried on. It cannot be denied that
this is a reasonable restriction. The bar created against a tenant, lessee, occupier,
lessor or landlord of any premises which falls within 200 yards of the places
mentioned above and where prostitution is carried on is also reasonable restriction.348

Section 7 is an illuminating provision throwing light upon the intention of the

legislature. This provision inhibits a woman herself from the practice of her
profession in contravention of its terms and to that extent renders prostitution a penal
offence.349

348
Shama Bai v. State of U.P., AIR 1957 All. 57 at 62.
349
Bai Shanta v. State of Gujarat, AIR 1967 Guj 211 at 213.

223
 Section 7 (1) has for its aim the maintenance of an atmosphere of purity in the
area surrounding public institutions to which it refers and the prevention of the
pollution of that atmosphere by degrading activities such as prostitution in the
neighbourhood. That being the aim of this section it is plain that if there be actual
sexual intercourse, the female who offers her body for such sexual intercourse for
gain and the man to whom it is offered commit an offence under Section 7 (1). The
prohibition against such activity in the neighbourhood of a public institution which is
so detrimental to a public interest is therefore, intelligible.350

The Restrictions imposed by Section 7 of the Act on a prostitute are reasonable

restrictions:

The restrictions imposed by Section 7 of the Act on a prostitute not to carry on

her trade or profession in any premises which are within a distance of two hundred
yards of any place of public religious worship educational institution, hostel, hospital,
nursing home or such other public place of any kind as may be notified in this behalf
by the Commissioner of Police or District Magistrate is also a bar in the interest of the
general public. Nobody can seriously doubt that it is not in public interest to allow
prostitution to be carried on in the places mentioned above. No one has a fundamental
right to carry on business wherever he chooses and his right must be subject to any
reasonable restrictions imposed by the State in the State in the interest of the general
public (See T.B. Ibrahim v. The Regional Transport Authority, Tanjore, AIR 1953 SC
79 (C). It was contended that even though there may be nothing unreasonably in
prohibiting prostitution within 200 yards of a place of public religious worship or
educational institution, hostel, hospital or nursing home, there was an option with the
Commissioner of Police or the District Magistrate to notify other public places within
200 yards of which prostitution cannot be carried on and those places may not be of
such a nature as mentioned above held that this argument is not correct. The use of the
words “or such other public place” before the words “of any kind as may be notified
in this behalf by the Commissioner of Police or District Magistrate” clearly show that
the places to be notified must be similar in nature to those mentioned above, i.e.
places of public religious worship, educational institutions, hostels, hospitals, nursing
homes etc. The words “such other public places” are ejusdem generis with those
mentioned above.

350
State of Mysore v. Susheela, AIR 1966 Mys. 194 at 197.

224
 The idea behind the enactment of Section 7 is that the atmosphere of places of
public religious worship or educational institutions or hostels or hospitals or nursing
homes or other such institutions should be kept pure and free from the contaminated
atmosphere of a place where prostitution is being carried on. It cannot be denied that
this is a reasonable restriction. The bar created against a tenant, lessee, occupier,
lessor or landlord of any premises which falls within 200 yards of the places
mentioned above and where prostitution is carried on is also reasonable restriction351

Magistrate must at the first instance proceed under Section 3 or 7 as the case
may be:

On perusal of police report under Section 18 also disclosing offences under

Sections 3 and 7 the Magistrate cannot choose to ignore the cognizable offence
complained of and merely having recourse to Section 18 and thus deprive the parties
proceeded against of the benefit of a regular trial as well as the right of appeal in the
event of their conviction. Bearing in the mind the purpose of these provisions as well
as the scheme of the Act and on a harmonious construction of the various provisions
in the Act, in such cases the Magistrate who is also a Court as provided in Section 22
must at the first instance proceed against the persons complained against under the
penal provisions in Section 3 or 7 as the case may be, and only after the disposal of
those cases take action under Section 18 if there is occasion for it. Under Section 190
(I) (b) of the Code of Criminal Procedure, the Magistrate is bound to take cognizance
of any cognizable offence brought to his notice. The words “may take cognizance” in
the context means “must take cognizance”.352

Section 8: Seducing of soliciting for purpose of prostitution:

Whoever, in any public place or within sight of, and in such manner as to be
seen or heard from, any public place, whether from within any building or house or
not –

a) By words, gestures, wilful exposure of his person (whether by sitting by a

window or on the balcony of a building or house or in any other way), or
otherwise tempts or endeavours to tempt, or attracts or endeavours to
attract the attention of, any person for the purpose of prostitution: or
351
Shama Bai v. State of U.P., AIR 1959 All. 57 at 61-62 : 1959 All. Cr. R. 427 (All.)
352
A.C. Aggarwal, Sub-Divisional Magistrate, Delhi v. Ram Kali, AIR 1968 SC 1 at 5.

225
 b) Solicits or molests any person, or loiters or acts in such manner as to cause
obstruction or annoyance to persons residing nearby or passing by such
public place or to offend against public decency, for the purpose of
prostitution, shall be punishable on first conviction with imprisonment for
a term which may extend to six months, or with fine which may extend to
five hundred rupees, or with both, and in the event of a second or
subsequent conviction, with imprisonment for a term which may extend to
one year, and also with fine which may extend to five hundred rupees:

Provided that where an offence under this section is committed by a man, he

shall be punishable with imprisonment for a period of not less than seven days but
which may extend to three months.

Object of Section 8:

Section 8 of the Act deals with seducing or soliciting for purpose of

prostitution.353

Prostitution in itself is no offence except in the manner given under Sections 7

and 8. The word “promiscuous” in Section 7(1) means indiscriminate sexuality which
refers to a commercial vice such as in a brothel and more than one customer of the
prostitute will be necessary to prove it.354

Under the provisions of Section 17(2) of the Act of the Magistrate can pass
either of the two orders i.e. he can either direct the detention of the girl in a protective
home for such period as he considers proper or he may allow her to remain in the
custody of someone else who, in his opinion, is suitable for that purpose.355

The witness being a decoy witness and his evidence being in the nature of
accomplice, his evidence should be corroborated in respect of material particulars.356

The failure to observe the procedure laid down in Section 15(1) (2) of the Act
shows that no reliance could be placed on the evidence of the Investigating Officer.357

353
In re Kamal, AIR 1966 Mad. 312
354
Jacob v. State of Kerala, AIR 1971 Ker. 166; See: State of Kerala v. Pathumma 1969 Cr.LJ. 697 = 1968 Ker.LT 453; Bai
Shanta v. State of Gujarat, AIR 1967 Guj. 211 – 1967 Cr.LJ. 1140. See Also : In re Ratnamala, AIR 1962 Mad. 31 = 1962
(1) Cr.LJ. 162.
355
Kumari Pokh Raj v. Superintendent, Protective Home, Allahabad 1963 All. 434.
356
State by Public Prosecutor v. Amaldoss 1988 MLJ (Cri.) 233.

226
 In Moainuddin v. State of A.P.358, the learned Judge of AP High court held
that Sections 4 and 8 of the Act cannot be said to be ultra vires of Art 14 of the
Constitution of India on the ground that the male partner in the evil doing or act is
spared from any attack under the Act.

The word “Procure” in Sec 5(1) (a) of the Act would mean not only persons
who procure women for others but also persons who procure women for
themselves.359

Under the Act it is not necessary that panchas should be residents of the same
street. Panchas belonging to different parts of the same town, belong to the same
locality.360

In cases falling under the Act, it is not necessary for the Assistant
Superintendent of Police to depose that he had record the grounds for his belief when
action under Section 15 of the Act. When an official act is done under Section 114 of
the Evidence Act, it is presumed to have been properly done.361

It is not required that the appointment of special police officer must be by

362
name.

If the husband lives with his wife and allows his wife to be a prostitute, the
husband is doing so for the purpose of living on the earnings of prostitution of his
wife.363

In order to establish indiscriminate prostitution on the part of any such woman

or girl, it is difficult to get evidence of different persons and therefore one has to
adopt trap evidence. That becomes inevitable and what is essential to be avoided is
about the bogus customer not to have actual sexual intercourse with her. Though no
doubt in order to hold that a women carries on prostitution, plural and indiscriminate
sexuality on her part has got to be established but that does not necessarily require
that the evidence of more than one customer of the prostitute should be adduced and it

357
State by Public Prosecutor v. Amaldoss, 1988 MLJ (Cri.) 233.
358
1986 Cr.LJ. 1397
359
Cheriyan v. State, 1973 Cr. LJ. 839.
360
Soni Bachu Lakshman v. State of Gujarat, AIR1960 Guj. 37.
361
Soni Bachu Lakhman v. State of Gujarat, AIR 1960 Guj. 37.
362
Soni Bachu Lakshman v. State of Gujarat, AIR 1960 Guj. 37.
363
Ibid

227
would be enough if the facts established entitle the court to raise an inference to hold
that she carried on prostitution as contemplated under Section 7 (1) of the Act.364

Sub – section (2) of Section 15 of the Act requires that the special police
officer shall call upon two or more respectable inhabitant one of whom shall be a
women of the locality in which the place to be searched is situate. The inhabitants of
the locality amply suggest meaning the residents of that locality. At any rate, the term
inhabitant does not convey the sense of a person found all of a sudden at some place
where the police officers were standing.365

Reading Section 13(1) of the Act along with Section 15 of the General Clauses
Act 1897, it cannot be said that a special officer appointed means an officer appointed
by name. The notification need not refer to the name of any officer. It is enough if a
police officer in charge of any division is appointed by the Government as a special
police officer for purposes of the Act.366

In cannot be said that uncontrolled power has been delegat3ed to the executive
and that unfettered and unguided power to a Subordinate Magistrate also amounts to
an infringement of the right to equality before the Law guaranteed by Art 14 as there
is nothing in the Act to guide the Magistrate in the exercise of his discretion when
deciding the cases of individual prostitute.367

Section 20 of the Act is constitutionally valid and does not offend Art. 14 or
Art. 19(1) (d) (e) and (g) of the Constitution of India.368

Sec. 2 (c) and Sec 8 of the Act: - It is abundantly clear that Section 537 of the
Code of Criminal Procedure would be applicable to the proceedings in the present
case. Section 5 (2) of the Code provides that all offences under the Indian Penal Code
shall be investigated, inquired into, tried or otherwise dealt with according to the
provisions of said Code. All offences under any other Law shall be similarly
investigated etc. according to the same provisions but subject to any enactment
regulating the manner or place of investigating, inquiring into, trying or otherwise
dealing with such offences. According to Section 22 no Court inferior to that of a

364
State of Gujarat v. Bai Radha, 1968 Gujarat Law Reporter 278.
365
Ibid
366
Ibid
367
Seetharamamma v. Sambasiva Rao, AIR 1964 AP 400; Sec: AIR 1963 All. 71 AIR 1963 Bom. AIR 1963 Punj. 36.
368
Vanga Seetharamamma v. Chitta Sambasia Rao, AIR 1964 AP 400.

228
Magistrate as defined in clause (c) of Section 2 shall try any offence under Sections 3
to 8 of the Act.369

By words, gestures, wilful exposure of her person: Section 8(a) of the Act says
that whoever in any public place or within sight of and in such manner as to be seen
or heard from any public place whether from within any building or house or not by
words, gestures, wilful exposure of her person whether by sitting by a window or on
the balcony of a building or house or any other way or otherwise tempts or
endeavours to tempt or attracts or endeavours to attract the attention of any person for
the purpose of prostitution shall be punishable on first conviction with imprisonment
for a term which may extend to six months or with fine which may extend to five
hundred rupees or with both and in the event of a second or subsequent conviction
with imprisonment for a term which may extend to one year and also with fine which
may extend to five hundred rupees.

Solicits or molests any person: - Section 8(b) or the Act says that whoever in
any public place or within sight of and in such manner as to be seen or heard from any
public place whether from within any building or house or not, solicits or molests any
person or acts in such manner as to cause obstruction or annoyance to persons
residing nearby or passing by such public place or to offend against public decency
for the purpose of prostitution shall be punishable on first conviction with
imprisonment for a term which may extend to six months or with fine which may
extend to five hundred rupees or with both and in the event of a second or subsequent
conviction, with imprisonment for a term which may extend to one year and also with
fine which may extend to five hundred rupees.

Proviso:
Proviso specifies that provided that where an offence under this section is
committed by a man, he shall be punishable with imprisonment for a period of not
less than seven days but which may extend to three months.

Section 9: Seduction of a person in custody:

Any person who having the custody, charge or care of, or a position of
authority over any person, causes or aids or abets the seduction for prostitution of that

369
Bai Radha v. State Gujarat, AIR 1970 SC 1396.

229
person Shall be punishable on conviction with imprisonment of either description for
a term which shall not be less than seven years but which may be for life or for a term
which may extend to ten years and shall also be liable to fine:

Provided that the court may, for adequate and special reasons to be mentioned in
the judgement, impose a sentence of imprisonment for a term of less than seven years.

Object of Section 9:

Section 9 provides punishment for seduction of a person in custody. Any person

who having the custody, charge or care of or in a position of authority over any
person causes or aids or abets the seduction for prostitution shall be punishable up to
life, Section 11 provides notification of address of previously convicted offenders.
This is a preventive section and requires the offender to notify his address so as to
prevent him from committing further offences or to arrest him if required.

In practice this provision is rarely applicable because very rarely does an

offender of this type .get convicted twice (either under ITP ACT or under IPC
Sections such as 363. 365, 366. 366(A), 366(B), 367, 368, 370, 371, 372 and 373).

Section 10: Release on probation of good conduct or after due

admonition:
It is repealed by Suppression of Immoral Traffic in Women and Girls
(Amendment) Act, 1986 (44 of 1986), Section 13 (w.e.f. 26.1.1987).

Section 10A: Detention in a corrective institution:

(1) Where
a. A female offender is found guilty of an offence under Section 7 or
Section 8, 370[xxx]; and
b. the character, state of health and mental condition of the offender
and the other circumstances of the case are such that it is expedient
that she should be subject to detention for such term and such
instruction and discipline as are conducive to her correction,

370
Certain words omitted by Act 44 of 1986, S. 14, w.e.f. 26.1.1987

230
 it shall be Lawful for the court to pass, in lieu of a sentence of
imprisonment, an order for detention in a corrective institution for
such term, not being less than two years and not being more than
five years, as the court thinks fit:

Provided that before passing such an order-

(a) the court shall give an opportunity to the offender to be heard and shall also
consider any representation which the offender may make to the court as to the
suitability of the case for treatment in such an institution, as also the report of
the probation officer appointed under the Probation of Offenders Act, 1958 (20
of 1958); and
(b) the court shall record that it is satisfied that the character, state of health and
mental condition of the offender and the other circumstances of the case are
such that the offender is likely to benefit by such instruction and discipline as
aforesaid.
1. Subject to the provisions of sub – section (3), the provisions of the Code of
Criminal Procedure, 1973 (2 of 1974), relating to appeal, reference and
revision of the Limitation Act, 1963 (36 of 1963), as to the period within
which an appeal shall be filed, shall apply in relation to an order of detention
under sub-section (1) as if the order had been a sentence of imprisonment for
the same period as the period for which the detention was ordered.
2. The conditions on which an offender is discharged under sub – section (3)
may include requirements relating to residence of the offender and
supervision over the offender‟s activities and movements].

Object of Section 10A:

Section 10A of the Act deals with detention in a corrective institution. The
question whether a particular woman is a prostitute and running a brothel in her
house, need not necessarily be proved by direct evidence i.e. by the testimony of
persons who had direct dealings with the woman. It is however necessary that the
evidence adduced should be of a clear and convincing nature.371

371
Vanga Setharamamma v. Chitta Sambasiva Rao, AIR 1964 AP 400.

231
 In Dr. Upendra Baxi v. State of UP,.372 the Apex court issued directions to
authorities to improve the conditions of protective Home and to State Govt. to
constitute Board of visitors and to formulate programme of rehabilitation of inmates.

An order under Section 10A of the Act be justified, if accused a paid servant
had committed an offence under Section 4(1) of the Act for first time under the
influence of his employer.373

An order for detention in a corrective institution for such term:-

Where a female offender is found guilty of an offender under Section 7 or

Section 8 and the character, state of the health and mental condition of the offender
and the other circumstances of the case are such that it is expedient that she should be
subject to detention for such term and such instruction and discipline as are conducive
to her correction, it shall be Lawful for the court to pass, in lieu of a sentence of
imprisonment, an order for detention in a corrective institution for such term, not
being less than two years and not being more than five years, as the court thinks fit.

Sub-section (3) of Section 10A of the Act says that subject to such rules as
may be made in this behalf, the State Government or authority authorised in this
behalf may at any time after the expiration of six months from the date of an order for
detention in a corrective institution, if it is satisfied that there is a reasonable
probability that the offender will lead a useful and industrious life discharge her from
such an institution, without condition or with such conditions as may be considered fit
and grant her a written license in such form as may be prescribed.

Sub-section (4) of Section 10A of the Act says that the conditions, on which
an offender is discharged under sub-section (3), may include requirements relating to
residence of the offender and supervision over the offender‟s activities and
movements.

372
AIR 1987 SC 191
373
In re John and others, AIR 1966 Mad. 167.

232
Section 11: Notification of address of previously convicted offenders:
1) When any person having been convicted

a) by a court in India of an offence punishable under this Act or punishable under

Section 363, Section 365, Section 366, Section 366A, Section 366B, Section
373 of the Indian Penal Code (45 of 1860), with imprisonment for a term of
two years or upwards; or

b) by a court or tribunal in any other country of an offence which would, if

committed in India, have been punishable under this Act or under any of the
aforesaid sections with imprisonment for a like term, is within a period of five
years after release from prison, again convicted of any offence punishable
under this Act or under any of those sections with imprisonment for a term of
two years or upwards by a court, such court may, if it thinks fit, at the time of
passing the sentence of imprisonment on such person, also order that his
residence, and any change of, or absence from such residence after release be
notified according to rules made under Section 23 for a period not exceeding
five years from the date of expiration of that sentence.

(2) If such conviction is set aside on appeal or otherwise, such order shall become
void.
(3) An order under this section may also be made by an Appellate Court or by the
High Court when exercising its powers or revision.
(4) Any person charged with a breach of any rule referred to in sub – section (1)
may be tried by a Magistrate of competent jurisdiction in the district in which
the place last notified as his residence is situated.

Object of Section 11:

A. Section 11 of the Act deals with Notification of address of previously

convicted offenders.

B. Sub-section (2):- Section 11 (2) of the Act says that if such conviction is set
aside on appeal or otherwise such order shall be void.

233
 C. Sub-section (3):- Section 11 (3) of the Act says that any order under this
Section may also be made by an Appellate court or by the High Court when
exercising its power of revision.
D. Sub-section (4) : - Section 11(4) of the Act says that any person charged with
a breach of any rule referred to in sub – section (1) may be tried by a
Magistrate of competent jurisdiction in the district in which the place last
notified as his residence is situated.

Section 12: Security for good behaviour from habitual offenders: -

Section 12 was repealed by the suppression of Immoral Traffic in Women and

Girls (Amendment) Act 1986 with effect from 26.1.1987.

Section 13: Special Police Officer and advisory body: -

(1) There shall be for each area to be specified by the State Government in this
behalf a special police officer appointed by or on behalf of that Government
for dealing with offences under this Act in that area.

374
[(2) The special police officer shall not be below the rank of an Inspector of
Police.
(2A) The District Magistrate may, if he considers necessary or expedient so to
do, confer upon any retired police or military officer all or any of the
powers conferred by or under this Act on a special police officer, with
respect to particular cases or classes of cases or to cases generally:

Provided that no such power shall be conferred on

(a) A retired police officer unless such officer, at the time of his retirement,
was holding a post not below the rank of an inspector;
(b) A retired military officer unless such officer, at the time of his retirement,
was holding a post not below the rank of a commissioned officer.]

374
Subs. For sub-sec (2) by Act 46 of 1978, S.9, w.e.f. 2.10.1979

234
 3. For the efficient discharge of his functions in relation to offences under this
Act

a. The special police officer of an area shall be assisted by such number

of subordinate police officers (including women police officers
wherever practicable) as the State Government may think fit; and
b. The State Government may associate with the special police officer a
non – official advisory body consisting of not more than five leading
social welfare workers of that area (including women social welfare
workers wherever practicable) to advise him on questions of general
importance regarding the working of this Act.

375
(4) The Central Government may, for the purpose of investigating any offence
under this Act or under any other Law for the time being in force dealing
which sexual exploitation of persons and committed in more than one State,
appoint such number of police officers as trafficking police officers and they
shall exercise all the powers and discharge all the functions as are exercisable
by special police officers under this Act with the modification that they shall
exercise such powers and discharge such functions in relations to the whole of
India.

Section 13 provides for the appointment of Special Police Officers and Advisory
Board for each area.

Section 13 (2) now provides that the Special Police Officer shall not be below
the rank of an Inspector of Police. This was done by an Amendment in 1978.
However, in many states, the officers designated as Special Police Officers under the
Act continue to be of the rank of Assistant Commissioner of Police in cities which
have a Commissioner ate and Deputy Superintendent of Police elsewhere. This leads
to practical difficulties in the field, as there are very few officers who are empowered
to investigate and take action in such offences.

375
Ins. By Act 44 of 1986, S. 15, w.e.f. 26.1.1987

235
Object of Section 13:

Section 13 of the Act deals with special police officer and advisory body.376
The Act is a social welfare Legislation to abolish the commercial sex activity carried
on by the brothel keepers by using innocent and illiterate women and also to remove
the social evil for the good of the society.377

By the conjoint operation of Section 2(i) and Section 1391), the special police
officer, in charge of police duties within a specified area for the purposes of the Act,
shall be dealing with offences under the Act in that area. Both these expressions
“police duties” and “dealing with offences” are of the widest amplitude and
necessarily connote all that the police have to do in connection with the offences
under the Act, including detection, prevention and investigation. 378

On a plain reading of Sections 13 of the Act with Section 190 (1) (b) Cr.P.C. it
is clear that any police officer who is entitled to investigate into offences under the
Act can make a report about the investigation done by him to a Magistrate and the
Magistrate can take cognizance of the offences on the basis of these reports and it
cannot be said that none but special police officer appointed under Section 13(1) can
file a charge sheet.379

Perusal of other provisions of the Act for instance Sections 14 and 15, reveal
that wherever the legislature so contemplated, the Act confined the powers of
investigation to the special police officer appointed under Section 13 of the Act made
special provision in respect thereof. If the Legislature intended that the filing of the
charge sheet or making of the report were to be done only by the special officer, the
legislature would have expressly said so.380

Section 14: Offences to be cognizable:

Notwithstanding anything contained in the Code of Criminal Procedure, 1973 (2

of 1974), any offence punishable under this Act shall be deemed to be a cognizable
offence within the meaning of that Code:
376
Delhi Administration v. Ram Singh, AIR 1962 SC 63; State v. Sardar Bahadur, AIR 1969 Cal. 451; Tara v. State, AIR
1959 All. 372.
377
P.N Swamy, Labour Liberation Front, Mahaboobnagar v. S.H.O., Hyderabad, 1998 (1) ALD 755.
378
Superintendent and Remembrancer of Legal Affairs, West Bengal v. Sardar bahadur Singh, AIR 1969 Cal. 451.
379
Harbhajan Kaur v. State, AIR 1969 Born. 285.
380
Ibid.

236
Provided that, notwithstanding anything contained in that Code,

(i) Arrest without warrant may be made only by the special officer or under his
direction or guidance, or subject to his prior approval;

(ii) when the special police officer requires any officer subordinate to him to arrest
without warrant otherwise than in his presence any person for an offence under
this Act, he shall give that subordinate officer an order in writing, specifying the
person to be arrested and the offence for which the arrest is being made; and the
latter officer before arresting the person shall inform him of the substance of the
order and, on being required by such person, show him the order;

(iii) Any police officer not below the rank of Sub-Inspector specially authorised by
the special police officer may, if he has reason to believe that on account of delay
involved in obtaining the order of the special police officer, any valuable
evidence relating to any offence under this Act is likely to be destroyed or
concealed, or the person who has committed or is suspected to have committed
the offence is likely to escape, or if the name and address of such a person is
unknown or there is reason to suspect that a false name or address has been
given, arrest the person concerned without such order, but in such a case he shall
report, as soon as may be, to the special police officer the arrest and the
circumstances in which the arrest was made.

Object of the Section 14: The object of the section 14 is to declare any offence
punishable under this Act shall be deemed to be a cognizable offence within the
meaning of section 2c of the code of Cr.P.C. 1973. The fact that while proviso (ii) to
section 14 of the Act provides for delegation by the Special Police Officer, of his
power to arrest without warrant, to any officer subordinate to him.

Section 14(iii) provides that a sub-inspector in emergency situation can arrest

the person without the order of the special police officer under certain conditions.

Section 15 - Search without warrant:

(1) Notwithstanding anything contained in any other Law for the time being in
force, whenever the special police officer or the trafficking police officer, as

237
 the case may be, has reasonable grounds for believing that an offence
punishable under this Act has been or is being committed in respect of a
person living in any premises, and that search of the premises with warrant
cannot be made without undue delay, such officer may, after recording the
grounds of his belief, enter and search such premises without a warrant.

(2) before making a search under sub – section (1), the special police officer or
the trafficking police officer, as the case may be shall call upon two or more
respectable inhabitants (at least one of whom shall be a woman) of the locality
in which the place to be searched is situate, to attend and witness the search,
and may issue an order writing to them or any of them so to do:
Provided that the requirement as to the respectable inhabitants being from the
locality in which the place to be searched is situate shall not apply to a woman
required to attend and witness the search.
(3) Any person who, without reasonable cause, refuses or neglects, to attend and
witness a search under this section, when called upon to do so by an order in
writing delivered or tendered to him, shall be deemed to have committed an
offence under Section 187 of the Indian Penal Code (45 of 1960).
(4) The special police officer or the trafficking police officer, as the case may be,
entering any premises under sub – section (1) shall be entitled to remove there
from all the persons found therein.
(5) The special police officer or the trafficking police officer, as the case may be,
after removing the person under sub-section (4) shall forthwith produce him
before the appropriate magistrate.
(5A) Any person who is produced before a magistrate under sub-section (5),
shall be examined by a registered medical practitioner for the purposes
of determination of the age of such person, or for the detection of any
injuries as a result of sexual abuse or for the presence of any sexually
transmitted diseases.

Explanation: In this sub-section, “registered medical practitioner” has the

same meaning as in the Indian Medical Council Act, 1956 (102
of 1956).

238
 (6) The special police officer or the trafficking police officer, as the case may be,
and other persons taking part in, or attending, and witnessing a search shall not
be liable to any civil or criminal proceedings against them in respect of
anything Lawfully done in connection with, or for the purpose of the search.

(6A) The special police officer or the trafficking police officer, as the case
may be, making a search under this section shall be accompanied by at
least two women police officers, and where any woman or girl removed
under sub-section (4) is required to be interrogated, it shall be done by a
woman police officer and if no woman police officer is available, the
interrogation shall be done only in the presence of a lady member of a
recognised welfare institution or organisation.

Explanation: For the purpose of this sub-section and Section 17A, “recognized
welfare institution or organisation” means such institution or
organisation as may be recognised in this behalf by the State
Government.

(7) The provisions of the Code of Criminal Procedure, 1973 (2 of 1974) shall
so far as may be, apply to any search under this section as they apply to
any search made under the authority of a warrant issued under Section 94
of the said Code.

Object of Section 15: Section 15 of the Act deals with Search without warrant.

It only confers powers of search without warrant on a Special Police Officer to

be appointed by the State Government under the Act, which he otherwise has not got
as required.

Section 15 (2) provides that before making a search, the Special Police Officer
or the trafficking police officer shall call two or more respectable local people to
witness the search. The requirement of a woman witness from the area is now not
required after the amendment to the ITP ACT in 1978.

Section 15 (5) provides that after removal of the victims under Sub-section 15
(4) they shall be produced before the appropriate magistrate.

239
 Section 15 (6) (a) provides that any woman, removed under Sub-section (4), is
required to be interrogated by woman police officer. If no woman police officer is
available, the interrogation shall be done only in the presence of a lady member of a
recognized welfare organization.

Section 13 (3) (b) provides that the State may associate with the Special Police
Officer a non-official advisory body to advise him, consisting of five leading social
workers.

Section 15 is not self-contained. Sections 15and 16 have to be read along with

Section17.

Section 15 of the Act not mandatory:

In Bai Radha v. State of Gujarat381, the Apex Court held that non-compliance
of Section 15 of the Act is a curable irregularity.

Sub-section (7):

Section 15(7) of the Act says that the provisions of Cr.P.C. 1973 shall so far
as may be, apply to any search under this section as they apply to any search made
under the authority of a warrant issued under Section 94 of the said code. Section 94
Cr.P.C. 1973 deals with search of place suspected to contain stolen property, forged
documents etc. 382

Section 25 of Cr.P.C. provides provision for search without warrant.

The Cr.P.C. has entrusted the police with wide powers through Sections 94
and 165 for search. Section 94 provides that the District Magistrate or Sub Divisional
Magistrate of first class may authorize a police constable to search any place. Section
165 gives power to the police in charge of a police station to search even without the
warrant of a Court in emergency situations. Along the same lines, powers have been
given under Section 15 (4) to the Special Police Officer to conduct raids on brothels
and remove all persons from brothel without warrant. This section gives wide power
to the Special Police Officer or to the trafficking police officer when they have

381
AIR 1970 SC 1396
382
Kishan Rao v. Santha Reddy, 2000 (2) An.LT. (Cri.) 358 (AP).

240
reasonable grounds for believing that an offence under this Act has been or is being
committed in respect of a person living in any premises. The police usually use this
section to raid brothels or premises being used for prostitution.

In practice, existing officers above a certain rank have been designated as

Special Police Officers by the State Government in most States. These officers are
not only dealing with the cases under ITP ACT but this work is an additional duty
bestowed on them. There is no separate or specialized squad for this purpose, which
may be necessary if effective action is to be taken towards rescuing persons.
Secondly, the provision of associating of 5 leading social workers is not being used
effectively. Section 15 (2) requires the presence of one or more respectable local
persons during the raid or search. But the Supreme Court in the case of Bai Radha
V/s State of Gujarat held that the non-inclusion of at least one respectable woman of
the locality in the search party is not mandatory and failure to comply with Section 15
does not vitiate the entire proceedings. In the light of this, this is an area that requires
further debate and discussion.

Section 16: Rescue of person:

(1) Where a magistrate has reason to believe from information received from the
police or from any other person authorized by the State Government in this
behalf or otherwise, that [any person is living, or is carrying on, or is being
made to carry on, prostitution in a brothel,] he may direct a police officer not
below the rank of a sub-inspector to enter such brothel, and to remove there
from such person and produce before him.

(2) The police officer, after removing the person, shall forthwith produce him
before the magistrate issuing the order.

Object of Section 16:

Section 16 of the Act deals with rescue of a person. It provides for the
removal of the person found in a brothel.

Section 16(1) deals with rescue of persons. This section empowers the
magistrate to direct the Special Police Officer to enter a brothel if he has a reason to

241
believe that any person is living or is carrying on or is being made to carry on
prostitution in the said premises. This provision is not mandatory but directory.

Section 16(2) provides that the police officer after removing the person shall
forthwith produce her before the magistrate issuing the order,

Under Section 65 of Criminal Procedure Code, a magistrate can make an

arrest of any person by himself. Under Section 16 of ITP ACT, the magistrate has the
powers to order the rescue of any person from an area, if it comes to his knowledge
about a person being made to forcefully carry on prostitution. Under this section, any
citizen or NGO can give such information to the magistrate for him to take suitable
action under this section. However, this section has hardly been used,

An issue that needs to be noted in the context of Sections 15 and 16 is when

any person is rescued/removed from an area under the above sections, whether she
should be asked by the police or magistrate is she has any complaint to make against
any person in connection with her reaching the brothel or her stay in the premises.

Section 15 and 16 of the ITP ACT 1956 are enabling sections which confer
certain powers upon certain officers. They do not contain the procedure by which an
enquiry will be made or completed. In cases where they are appear that the time taken
in obtaining warrants may be utilized by the girls kept in brothel to escape; the Police
Officer has been given the power to arrest without a warrant. Similarly, avoid the
consequences of the girls being removed from a brothel, before action can be taken, it
was necessary to confirm on the magistrate, the power to issue an order directing the
Police Officer to rescue a girl.383

Section 17: Intermediate custody of persons removed under Section

15 or rescued under Section 16:-
(1) When the special police officer removing a [person] under sub-section (4) of
Section 15 or a police officer rescuing a [person] under sub-section (1) of
Section 16, is for any reason unable to produce [him] before the appropriate
magistrate as required by sub-section (5) of Section 15, or before the
magistrate issuing the order under sub-section (2) of Section 16, he shall

383
Jammo vs. Superintendent, protective home 1962 ALL. L. J. 725.

242
 forthwith produce [him ] before the nearest magistrate of any class, who shall
pass such orders as he deems proper for [his] safe custody until [he] is
produced before the appropriate magistrate, or, as the case may be, the
magistrate issuing the order:

Provided that no [person] shall be

(i) detained in custody under this sub-section for a period exceeding ten days
from the date of the order under this sub-section; or

(ii) restored to or placed in the custody of a person who may exercise a

harmful influence over him.

(2) When the [person] is produced before the appropriate magistrate under sub-
section (5) of Section 15 or the magistrate under sub-section 12) of Section 16,
he shall, after giving [him] an opportunity of being heard, cause an inquiry to
be made as to the correctness of the information received under sub-section (1)
of Section 16, the age, character and antecedents of the '[person] and the
suitability of2[his] parents, guardian or husband for taking charge of [him] and
the nature of the influence which the conditions in [his] home are likely to
have on [him] if [he] is sent home, and, for this purpose, he may direct a
probation officer appointed under the Probation of Offenders Act, 1958 (20 of
1958), to inquire into the above circumstances and into the personality of the
[person] and the prospects of his rehabilitation.

(3) The magistrate may, while an inquiry is made into a case under sub-section
(2), pass such orders as he deems proper for the safe custody of the '[person]:

[Provided that where a person rescued under Section 16 is a child or minor, it

shall be open to the magistrate to place such child or minor in any institution
established or recognized under any Children Act for the time being in force in
any State for the safe custody of children:

Provided further that,] no [person] shall be kept in custody for the purpose for
a period exceeding three weeks from the date of such an order, and no

243
 '[person] shall be kept in the custody of a person likely to have a harmful
influence over [him].

(4) Where the magistrate is satisfied, after making an inquiry as required under
sub-section (2),

(a) that the information received is correct; and

(b) that he is in need of care and protection,

he may, subject to the provisions of sub-section (5), make an order that

such [person] be detained for such period, being not less than one year
and not more than three years, as may be specified in the order, in a
protective home, or in such other custody as he shall, for reasons to be
recorded in writing, consider suitable:

Provided that such custody shall not be that of a person or body of

persons of a religious persuasion different from that of the [person]
and that those entrusted with the custody of the [person] including the
persons in charge of a protective home, may be required to enter into a
bond which may, where necessary and feasible, contain undertakings
based on directions relating to the proper care, guardianship,
education, training and medical and psychiatric treatment of the
[person] as well as supervision by a person appointed by the court,
which will be in force for a period not exceeding three years.

(5) In discharging his functions under sub-section (2), a magistrate may summon
a panel of five respectable persons, three of whom shall, wherever practicable,
be women, to assist him; and may, for this purpose, keep a list of experienced
social welfare workers, particularly women social welfare workers, in the
field of suppression of immoral traffic in [persons].

(6) An appeal against an order made under sub-section (4) shall lie to the Court of
Session whose decision on such appeal shall be final.

244
Object of Section 17:

Section 17 of the Act deals with intermediate custody of persons removed

under Section 15 or rescued under Section 16.

Under the provisions of Section 17(2) of the Act, the Magistrate can pass
either of the two orders i.e. he can either direct the detention of the girl in a protective
home for such period as he considers proper or he may allow her to remain in the
custody of someone else who, in his opinion, is suitable for that purpose.384

In P. N. Swamy Labour Liberation Front, Mahaboobnagar v. Station House

Officer, Hyderabad and others 385, the Division Bench of AP High Court held that
Section 17(4) of the Act is not violative of Act 14 and 21 of the Constitution of India.

Section 17(2) provides that when the person is produced before the
appropriate magistrate under the Section 15(5) or 16(2), he shall after giving
opportunity of being heard, because an enquiry to be made as to the correctness of the
information perceived under Section 16(1), the age. character and antecedents of the
person and the suitability of her parents, guardians or husband for taking charge and
the nature of influence which the condition of her home are likely to have on her if
she is sent home. He may direct the Probation Officer's report to enquire into the
above circumstances and into the personality of the person and the prospect of her
rehabilitation.

Section 17(3) provides that the magistrate may while an enquiry is made into
a case under the above section, pass such orders as he deems proper for the safe
custody of the person. When the person rescued under Section 16 is a child or a
minor, it shall be open to the magistrate to place such child or minor in any institution
established or recognized under any Children's Act for the safe custody of children
provided that no person shall be kept in custody for this purpose for more than 3
weeks and in a custody of a person likely to have a harmful influence over her.

Section 17(4) provides that when the magistrate is satisfied after making an
enquiry required under Section 17(2), a) that the information received is correct and
b) that the person is in need of care and protection, he may, subject to the provision of
384
Kumari Pokh Raj v. Superintendent, Protective Home, Allahabad, 1963 ALJ 434.
385
1998 (1) ALD 755

245
Section 17(5), make an order that such person be detained for such period not less
than one year, but up to three years in a Protective Home or in such other custody, as
he shall, for reasons to be recorded in writing, consider suitable, provided that such
custody should not be with a religious organisation or a religious person different
from the victim's.

Those interested in the custody of the person including the Superintendent of

Protective Home may be required to enter into a bond which may contain an
undertaking, based on directions relating to the proper care, guardianship, education,
training and medical and psychiatric treatment of the person, as well as supervision
by a person appointed by a court.

Section 17(5) provides that in discharging his function under Sub-section (2),
the magistrate may summon a panel of five respectable persons, three of whom shall
be whenever practicable, be women to assist him, The magistrate under this section
passes two possible orders - either a detention in the Protective Home or in the
protective custody of 'fit person'. The ancillary and final powers with respect to
interim or final custody is not confined to her detention only in Protective Homes and
it is quite open to the magistrate to consider other options of protective custody, as
held by Allahabad High Court. A closer look at Section 17(2) shows, that every
function of the magistrate is subject to the provision of Sub-section (5) of Section 17.
The Allahabad High Court observed in Smt. Ramdevi V/s. State (1963) that the word
"may" occurring, in Section 17(3) has been used in the sense of "shall", and while
discharging the functions under Section 17(2). the magistrate has to summon a panel
of social workers.

Section 17A: Conditions to be observed before placing persons

rescued under Section 16 to parents or guardians:
Notwithstanding anything contained in sub-section (2) of Section 17, the
magistrate making an enquiry under Section 17 may, before passing an order for
handing over any person rescued under Section 16 to the parents, guardian or
husband, satisfy himself about the capacity or genuineness of the parents, guardian or
husband to keep such person by causing an investigation to be made by a recognized
welfare institution or organization.

246
 Section 17A provides for conditions to be observed before placing persons
rescued under Section 16 to parents or guardians. The magistrate making an enquiry
under Section 17, may before passing an order for handing over any person to the
parent or guardian or husband, satisfy himself about the capacity or genuineness of
them by causing an investigation to be made by recognized welfare institution or
organization. In this context, if the magistrate operating at Tehsil/Taluka level does
not find any NGO or organization working in his area, he may call the report of or
enquiry to be done by an officer from the Women & Child Department or a Probation
Officer from district.

Section 10(A) and Section 17 are the main sections in the Act which pertain to
the issue of rehabilitation. Section 17 provides intermediate custody even of a minor
and may take into account, the age, and character, antecedents of a person brought
before the Court either under Section 15(4) or Section 16(2). The Court can ask for
the report of a Probation Officer in order to understand the problems of the rescued
person and present a plan of rehabilitation of the person. The Court may detain the
person in a Protective Home for a period a period of one to three years with the
objective of rehabilitation.

This section is being undermined due to the shortage of Probation Officers

attached to Protective Homes, the number of Protective Homes in the State (only two
in Maharashtra) and the lack of a detailed rehabilitation programme in Protective
Homes.

The magistrate may hand over the person in the custody of parents,
guardians/husbands by seeing the suitability of their ability to support her. The
operative word here is what in the opinion of the magistrate constitutes 'safe custody'.
Under this concept an NGO accredited citizen, or the Protective Home can be
included in this definition. The agency has to sign a bond in the Court that they will
take care of her education, training, medical and psychiatric treatment.

Section 17(5) provides the appointment of a panel of five social workers to assist
the magistrate in discharging his functions, specially the role of rehabilitation.
Although the word used in the Act is 'may' appoint a panel, the Division Bench of the

247
Allahabad High Court, in the case of Smt. Ramadevi V/s State, 1963 held that the
word 'May' should be understood as 'Shall'.

Object of Section 17A:

Section 17A of the Act deals with conditions to be observed before placing
persons rescued under Section 16 to parents or guardians.

On a plain reading of Section 13 of the Act with Section 190 (l)(b) Cr.P.C. it is
clear that any police officer who is entitled to investigate into offences under the Act
can make a report about the investigation done by him to a Magistrate and the
Magistrate can take cognizance of the offences on the basis of these reports and it
cannot be said that none but special police officer appointed under Section 13(1) can
file a charge sheet.386

Perusal of other provisions of the Act for instance Sections 14 and 15, reveal
that wherever the legislature so contemplated, the Act confined the powers of
investigation to the special police officer appointed under Section 15 of the Act made
special provision in respect thereof. If the Legislature mended that the filing of the
charge sheet or making of the report, were to be done only by the special officer, the
Legislature would have expressly said so. 387

In Rama Swamy Chettiar vs. the Deputy Superintendent of Police, Salem Town
and another388, it was held that there is no warrant for the submission that only after
resorting to Section 7, Section 18 can be invoked. Sections 7 and 18 of the Act
contemplate different offences Section 18 is purely preventive in nature.

In P.N. Swamy, Labour Liberation Front, Mahaboobnagar vs. Station House

Officer, Hyderabad and others389, the Division Bench of AP High Court held that
Section 17(4) of the Act is not violative of Act 21 of the Constitution of India.

It is obligatory on the part of the State to provide for-protective homes for such
women rescued from brothel houses.

386
Harbhajan Kaur v. State, AIR 1969 Bom. 285.
387
Harbhajan Kaur v. State, AIR 1969 Bom. 285.
388
1976 MLJ (Cri.) 511
389
1998 (1) ALD 755

248
 The Act is a social welfare Legislation to abolish the commercial sex activity
carried on by the brothel keepers by using innocent and illiterate women and also to
remove the social evil for the good of the society.

Section 18: Closure of brothel and eviction of offenders from the

premises:
(1) A magistrate may, on receipt of information from the police or otherwise, that
any house, room, place or any portion thereof within a distance of two hundred
metres of any public place referred to in sub-section (1) of Section 7, is being run or
used as a brothel by any person or is being used by prostitutes for carrying on their
trade, issue notice on the owner, lessor or landlord of such house, room, place or
portion or the agent of the owner, lessor or landlord or on the tenant, lessee, occupier
of, or any other person in charge of such house, room, place, or portion, to show
cause within seven days of the receipt of the notice why the same should not be
attached for improper user thereof; and if, after hearing the person concerned, the
magistrate is satisfied that the house, room, place or portion is being used as a brothel
or for carrying on prostitution, then the magistrate may pass orders

(a) directing eviction of the occupier within seven days of the passing of the
order from the house, room, place or portion;

(b) directing that before letting it out during the period of one year 2[,or in a case
where a child or minor has been found in such house, room, place or portion
during a search under Section 15, during the period of three years,]
immediately after the passing of the order, the owner, lessor or landlord or
the agent of the owner, lessor or landlord shall obtain the previous approval
of the magistrate:

Provided that, if the magistrate finds that the owner, lessor or landlord as well
as the agent of the owner, lessor or landlord, was innocent of the improper user of the
house, room, place or portion, he may cause the same to be restored to the owner,
lessor or landlord, or the agent of the owner, lessor or landlord, with a direction that
the house, room, place or portion shall not be leased out, or otherwise given
possession of, to or for the benefit of the person who was allowing the improper user
therein.

249
 (2) A court convicting a person of any offence under Section 3 or Section 7
may pass order under sub-section (1) without further notice to such person
to show cause as required in that sub-section.

(3) Orders passed by the magistrate or court under sub-section (1) or sub-
section (2) shall not be subject to appeal and shall not be stayed or set aside
by the order of any court, civil or criminal and the said orders shall cease to
have validity after the '[expiry of one year or three years, as the case may
be]:

Provided that where a conviction under Section 3 or Section 7 is set aside

on appeal on the ground that such house, room, place or any portion thereof
is not being run or used as a brothel or is not being used by prostitutes for
carrying on their trade, any order passed by the trial court under sub-section
(1) shall also be set aside.

(4) Notwithstanding anything contained in any other Law for the time being in
force, when a magistrate passes an order under sub-section (1), or a court
passes an order under sub-section (2), any lease or agreement under which
the house, room, place or portion is occupied at the time shall become void
and inoperative.

(5) When an owner, lessor or landlord, or the agent of such owner, lessor or
landlord fails to comply with a direction given under clause (b) of sub-
section (1) he shall be punishable with fine which may extend to five
hundred rupees or when he fails to comply with a direction under the
proviso to that sub-section, he shall be deemed to have committed an
offence under clause (b) of sub-section (2) of Section 3 or clause (c) of sub-
section (2) of Section 7, as the case may be, and punished accordingly.

Section 18 provides for closure of brothel and eviction, of offenders from the
premises. The magistrate may on receipt of information from the police that any
house, room, place or any portion within distance of 200 meters of any public place is
being run or used as a brothel by any person or is being used by a prostitute for
carrying on their trade, issue notice on the owner, leaser, or landlord or agent of these
people or the tenant, lessee, occupier or in charge of such premises, to show cause

250
within seven days, stating why the same should not be attached, as it is allegedly
being put to improper use. After hearing the person concerned, and if the magistrate is
satisfied that the above premises is being used as brothel, he may pass an order (a)
directing eviction of the occupier within seven days and (b) directing that before
letting it out during the period of one year or in a case where a child or minor has
been found during a search under Section 15 a period of three years, they shall obtain
the previous approval of the magistrate.

Section 18(2) provides that a Court convicting a person of any offence under
Section 3 or 7, may pass an order under Section 18(1) without further notice.

Section 18(5) provides that when the above persons fail to comply with a
direction under Clause (B), they shall be punished with fine up to Rs.500/- and shall
be deemed to have committed an offence under Section 3 (2))(b) or Section 7(2)(c).

The Supreme Court in the case of Chitan J. Vaswani V/s. State of West Bengal
(1975), has made the difference between Section 18(1) and (2) as follows:

Section 18(1) is a summary procedure for closing down dens of prostitution

without going through the detailed process of criminal prosecution.

Section 18(2) is operative only when the offenders have been convicted under
Section 3 or 7 and applies to any place. Section 18(1) operates only when the brothel
is situated 200 metres from any public place.

As per Section 18(1)(a), which talks of evicting the offender within seven days
of the passing of the order of eviction, the question here is whether it is possible for
the Courts to do all this in such a short time, given their existing workload. The orders
passed under Section 18(2) are final and cannot be appealed against in a higher court.
The order ceases after the expiry of the specified period.

Object of Section 18:

Section 18 of the Act deals with closure of brothel and eviction of offenders
from the premises.

251
 Special officer need not countersign the search list prepared by police officer
subordinate to special officer under Section 15 of the Act.390

The failure on the part of the Special Police Officer to record the grounds of his
belief that an offence punishable under the Act has been committed or is being
committed, before entering into and search the premises or his failure to call upon at
least one woman of the locality to witness the search, would not render the search
illegal though such infirmities may affect the weight of evidence let in by the
prosecution.

By the conjoint operation of Section 2(1) and Section 13(1), the special police
officer in charge of police duties within a specified area for the purposes of the Act,
shall be dealing with offences under the Act in that area. Both these expressions
"police duties" and "dealing with offences" are of the widest amplitude and
necessarily connote all that the police have to do in connection with the offences
under the Act, including detection, prevention and investigation.

A notification by the State Govt. had appointed all Assistant Commissioners of

Police under the Control of Dy. Commissioner of Police. Detective Department, as
Special Officers for dealing with the offences under the Act in the town of Calcutta
and by another notification authorized the special officers to take the assistance of the
five classes of subordinate police officers in the investigations, investigation of an
offence under the Act by one of such Assistant Commissioners of Police with the
assistance of subordinate police officers, does not render the investigation bad.

The fact that while proviso (ii) to Section 14 of the Act provides for delegation
by the special police officer, of his power to arrest without warrant, to any officer
subordinate to him. Section 13 does not provide for such delegation. That would not
render an investigation by the special officer assisted by subordinate police officers
illegal since Section 13(3) of the Act specifically provides for such assistance.

To make out in offence under Section 5(1 )(d) of the Act, the evidence relating
to earlier connections of accused with prostitute showing that accused had caused or
induced her to carry on prostitution, would be necessary.391

390
Superintendent and Remembrancer of Legal Affairs, West Bengal v. Sardar Bahadur Singh, AIR 1969 Cal. 451.
391
T. Jacob v. State of Kerala, AIR 1971 Ker. 166.

252
 In Harnam Singh v. State in T. Jacob v. State of Kerala, AIR 1971 Ker. 166 it
was held that Section 15 (1) of the Act is mandatory.

Prostitution in itself is no offence except in the manner given under Sections 7

and 8. The word "promiscuous" in Section 7(1) means indiscriminate sexuality which
refers to a commercial vice such as in a brothel and more than one customer of the
prostitute will be necessary to prove it.

Under the provisions of Section 17(2) of the Act the Magistrate can pass either
of the two orders ie he can either direct the detention of the girl in a protective home
for such period as he considers proper or he may allow her to remain in the custody of
someone else who, in his opinion, is suitable for that purpose.392

The witness being a decoy witness and his evidence being in the nature of
accomplice, his evidence should be corroborated in respect of material particulars.393

The failure to observe the procedure laid down in Section 15(1)(2) of the Act
shows that no reliance could be placed on the evidence of the Investigating Officer.

In Moainuddin v. State of AP.394, the learned Judge, of AP High Court held that
Section 4 and 8 of the Act cannot be said to be ultra vires of Act 14 of the
Constitution of India on the ground that the male partner in the evil doing or act is
spared from any attack under the Act.

The word "procure" in Sec. 5 (1) (a) of the Act would mean not only persons
who procure women for others but also persons who procure women for
themselves.395

Under the Act it is not necessary that panchas should be residents of the same
street. Panchas belonging to different parts of the same town, belong to the same
locality.396

In cases falling under the Act, it is not necessary for the Assistant
Superintendent of Police to depose that he had recorded the grounds for his belief

392
Kumari Pokh Raj v. Superintendent, Protective Home, Allahabad, 1963 ALJ 434.
393
State by Public Prosecutor v. Amaldoss, 1988 MLJ (Cri.) 233.
394
1986 Cr.LJ. 1397
395
Cheriyan v. State, 1973 Cr.LJ. 839.
396
Soni Bachu Lakhman v. State of Gujarat, AIR 1960 Guj. 37.

253
when acting under Section 15 of the Act. When an official act is done under Section
114 of the evidence Act, it is presumed to have been properly done.

It is not required that the appointment of special police officer must be by name.

Sections 3 and 7 of the Act and Section 18 of the Act:

Sections 3 and 7 of the Act deal with persons guilty of offences whereas
Section 18 of the Act deals with the premises mentioned therein. The set of facts to
be proved in prosecutions under Section 3 or 7 and in proceedings under Section 18
of the Act are not identical. In the former, has to establish either the intention or
knowledge referred to therein but in the latter they are not necessary ingredients.397

Enquiry under Section 18 of the Act summary in character:

Sections 3 and 7 provide for the punishment of persons guilty of the offences
mentioned therein. Any contravention of the provisions mentioned therein amounts to
a cognizable offence in view of Section 14 whereas a proceeding under Section 18 is
in no sense a prosecution. It is a preventive measure. It is intended to minimize the
chance of a brothel being run or prostitution being carried on in premises near about
public places. The enquiry contemplated by Section 18 is summary in character.

Section 19: Application for being kept in a protective home or

provided care and protection by court:
(1) A person who is carrying on, or is being made to carry on, prostitution, may
make an application, to the magistrate within the local limits of whose
jurisdiction [he] is carrying on, or is being made to carry on prostitution, for an
order that he may be

(a) kept in a protective home, or

(b) provided care and protection by the court in the manner specified in sub-
section (3).

397
A.C. Aggarwal v. Mst. Ram Kali, AIR 1968 SC 1.

254
 (2) The magistrate may, pending inquiry under sub-section (3), direct that the
person be kept in such custody as he may consider proper, having regard to the
circumstances of the case.

(3) If the magistrate, after hearing the applicant and making such inquiry as he
may consider necessary, including an inquiry by a probation officer appointed
under the Probation of Offenders Act, 1958 (20 of 1958), into the personality,
conditions of home and prospects of rehabilitation of the applicant, is satisfied
that an order should be made under this section, he shall, for reasons to be
recorded, make an order that the applicant be kept,

(i) in a protective home, or

(ii) in a corrective institution, or

(iii) under the supervision of a person appointed by the magistrate, for such
period as may be specified in the order.

Object of Section 19:

Section 19 deals with application for being kept in a Protective Home or

provided care and protection by the Court.

Section 19(1) provides that a person who Is carrying on or is being made to

carry on, prostitution, may make an application to the magistrate within the local
limits of whose jurisdiction she is carrying on or is being made to carry on
prostitution, for an order that she may be (a) kept in Protective Home or (b) provided
care and protection by the Court In the manner specified in Sub-section (4).

While the objective behind such a provision may be laudable, the issue here is
how anyone could expect a woman, who has been tortured, caged, and socially and
economically handicapped, to make an application before the court for requesting for
her care. An additional sub-section needs to be introduced whereby it Is possible for
any woman in prostitution or in moral danger to directly seek admission in the
Protective Home or re-admission if required, provided the Court later ratifies it,
suitable amendments need to be made in the State Rules for this purpose.

255
Section 20: Removal of prostitute from any place:

(1) A magistrate on receiving information that any person residing in or

frequenting any place within the local limits of his jurisdiction is a prostitute,
may record the substance of the information received and issue a notice to
such person requiring him to appear before the magistrate and show cause
why he should not be required to remove himself from the place and be
prohibited from re-entering it.

(2) Every notice issued under sub-section (1) shall be accompanied by a copy of
the record aforesaid, and the copy shall be served along with the notice on the
person against whom the notice is issued.

(3) The magistrate shall, after the service of the notice referred to in sub-section
(2), proceed to inquire into the truth of the information- received, and after
giving the person an opportunity of adducing evidence, take such further
evidence as he thinks fit, and if upon such inquiry it appears to him that such
person is a prostitute and that it is necessary in the interests of the general
public that such person should be required to remove himself there from and
be prohibited from re-entering the same, the magistrate shall, by order in
writing communicated to the '[person] in the manner specified therein, require
him after a date (to be specified in the order) which shall not be less than
seven days from the date of the order, to remove himself from the place to
such place whether within or without the local limits of his jurisdiction, by
such route or routes and within such time as may be specified in the order and
also prohibit him from re-entering the place without the permission in writing
of the magistrate having jurisdiction over such place.

4) Whoever

(a) fails to comply with an order issued under this section, within the period
specified therein, or whilst an order prohibiting him from re-entering a
place without permission is in force, re-enters the place without such
permission, or

256
 (b) knowing that any person has, under this section, been required to remove
himself from the place and has not obtained the requisite permission to re-
enter it, harbours or conceals such person in the place,

shall be punishable with fine which may extend to two hundred rupees and in the case
of a continuing offence with an additional fine which may extend to twenty rupees for
every day after the first during which he has persisted in the offence.

Object of Section 20:

Section 20 deals about removal of a prostitute from any place. This section is
akin to exterminate proceedings against offenders under Bombay Police Act. There is
hardly any rehabilitative element in this section and it can be applied to any victim in
a manner which uproots her without providing her an alternative. In such a context,
other rehabilitative Sections such as 10A. 17(2) or 19(3), could be used instead of this
section, which is punitive against the victim. This section may be deleted as it works
against the victim of prostitution.

The procedure prescribed by Section 20 of the Act cannot be equated with a

true Judicial trial by a court of Law. At best it provides for a quasi-Judicial inquiry.398

In Dr. Upendra Baxi v. State of U.P.,399 the Apex Court issued directions to
authorities to improve the conditions of protective Home and to State Government to
constitute Board of visitors and to formulate programme of rehabilitation of inmates.

In Smt Kaushailya v. State400, it was held that a Magistrate is competent to

take action under Section 20 of the Act on the basis of a report by a Sub-Inspector
even though he has not been appointed as a Special Officer under Section 13 of the
Act.

It is obligatory on the part of the State to provide for protective homes for
such women rescued from brothel houses.401

398
Smt. Kaushalya v. State, AIR 1963 All. 71.
399
AIR 1987 SC 191
400
AIR 1963 All. 71
401
P.N. Swamy Labour Liberation Fwrit v. S.H.O. Hyderabad, 1998 (1) ALD 755.

257
 Section 20 of the Act is constitutionally valid and does not offend Art. 14 or Art.
19(l)(d)(e) and (g) of the Constitution of India.

An order under Section 20 of the Act directing petitioner to remove herself from
the local limits of a municipality and not to reenter except with the written permission
of Magistrate cannot be said to be bad in Law since it is open to her to live in any
place except the prohibited area.

In Smt. Kaushailya v. State402, it was held that a Magistrate is competent to take

action under Section 20 of the Act on the basis of a report by a Sub-Inspector even
though he has not been appointed as a Special Officer under Section 13 of the Act.

Section 21. Protective homes:

(1) The State Government may in its discretion establish as many protective homes
and corrective institutions under this Act as it thinks fit and such homes and
institutions, when established, shall be maintained in such manner as may be
prescribed.

(2) No person or no authority other than the State Government shall, after the
commencement of this Act, establish or maintain any protective home or
corrective institution except under and in accordance with the conditions of a
license issued under this section by the State Government.

(3) The State Government may, on application made to it in this behalf by a person
or authority issue to such person or authority a license in the prescribed form
for establishing and maintaining or as the case may be, for maintaining a
protective home or corrective institution and a license so issued may contain
such conditions as the State Government may think fit to impose in
accordance with the rules made under this Act:

Provided that any such condition may require that the management of the
protective home or corrective institution] shall, wherever practicable, be entrusted to
women:

402
AIR 1963 All. 71

258
 Provided further that a person or authority maintaining any protective home at
the commencement of this Act shall be allowed a period of six months from such
commencement to make an application for such license:

Provided also that a person or authority maintaining any corrective institution

at the commencement of the Suppression of Immoral Traffic in Women and Girls
(Amendment) Act, 1978 (46 of 1978), shall be allowed a period of six months from
such commencement to make an application for such license.

(4) Before issuing a license the State Government may require such officer or
authority as it may appoint for this purpose, to make a full and complete
investigation in respect of the application received in this behalf and report to it
the result of such investigation and in making any such investigation the officer
or authority shall follow such procedure as may be prescribed.

(5) A license, unless sooner revoked, shall remain in force for such period as may
be specified in the license and may, on application made in this behalf at least
thirty days before the date of its expiration, be renewed for a like period.

(6) No license issued or renewed under this Act shall be transferable.

(7) Where any person or authority to whom a license has been granted under this
Act or any agent or servant of such person or authority commits a breach of
any of the conditions thereof or any of the provisions of this Act or of any of
the rules made under this Act, or where the State Government is not satisfied
with the condition, management or superintendence of any protective home or
corrective institution], the State Government may,, without prejudice to any
other penalty which may have been incurred under this Act, for reasons to be
recorded, revoke the license by order in writing provided that no such order
shall be made until an opportunity is given to the holder of the license to show
cause why the license shall not be revoked.

(8) Where a license in respect of a protective home or corrective institution has

been revoked under the foregoing sub-section such protective home shall cease
to function from the date of such revocation.

259
(9) Subject to any rules that may be made in this behalf, the State Government may
also vary or amend any license issued or renewed under this Act.

[(9A) The State Government or an authority authorized by it in this behalf may,

subject to any rules that may be made in this behalf, transfer an inmate of a protective
home to another protective home or to a corrective institution or an inmate of a
corrective institution to another corrective institution or to a protective home, where
such transfer is considered desirable having regard to the conduct of the person to be
transferred, the kind of training to be imparted and other circumstances of the case:

Provided that,

(a) no person who is transferred under this sub-section shall be required to stay
in the home or institution to which he is transferred for a period longer than
he was required to stay in the home or institution from which he was
transferred;

(b) reasons shall be recorded for every order of transfer under this sub-section.]

(10) Whoever establishes or maintains a [protective home or corrective institution]

except in accordance with the provisions of this section, shall be punishable in the
case of a first offence with fine which may extend to one thousand rupees and in the
case of second or subsequent offence with imprisonment for a term which may
extend to one year or with fine which may extend to two thousand rupees, or with
both.

Section 21 deals with the establishment of Protective Homes and corrective

institutions. The establishment of such Homes has been left to the discretion of the
State Governments whether or not to set up such structures and how many numbers.
This strikes at the heart of the Act, as without the necessary infrastructure:
rehabilitation is not possible. Half hearted attempts will result in half-hearted results.
While Protective Homes have been set up - one or two in each State, corrective
homes have hardly been set up.

260
 One suggestion which could be discussed is whether the existing State Homes
and Reception Centers could also be used as Protective Homes, since they are more in
number and present in most districts.

Another question we would like to raise is whether rehabilitation programmes

to be carried out in such Homes needs to be specified; at least their basic components
in the State Rules, and rehabilitation should be included in the definition of Protective
Homes.

Section 21A: Production of records:-

Every person or authority who is licensed under sub-section (3) of Section 21

to establish or maintain, or as the case may be, for maintaining, a protective home or
corrective institution shall, whenever required by court, produce the records and other
documents maintained by such home or institution before such court.

Object of Section 21A:

Section 21A deals with production of records whenever required by a court to

produce the records and other documents:

It says that every person or authority who is licensed under sub-section (3) of
Section 21 to establish or maintain or as the case may be, for maintaining, a
protective home or corrective institution shall whenever required by a court produce
the records and other documents maintained by such home or the institution before
such court.

Section 22: Trials:

No court, inferior to that of a Metropolitan Magistrate or a Judicial Magistrate

of the first class shall try any offence under Section 3, Section 4, Section 5, Section 6,
Section 7 or Section 8.

Object of Section 22:

Section 22 of the Act deals with Trials and it specifies that no court, inferior
to that of a Metropolitan Magistrate or a Judicial Magistrate of 1st Class shall try any

261
offence under sections 3, 4, 6, 7 or 8. It is abundantly clear that section 537 of the
Code of Criminal Procedure would be applicable to the proceedings in the present
case. Section 5 (2) of the Code provides that all offences under the Indian Penal Code
shall be investigated, inquired into, tried or otherwise dealt with according to the
provisions of said Code. All offences under any other Law shall be similarly
investigated etc., according to the same provisions but subject to any enactment
regulating the manner or place of investigating, inquiring into, trying or otherwise
dealing with such offences. According to Section 22 no court inferior to that of a
Magistrate as defined in clause (c) of Section 2 shall try any offence under Sections 3
to 8 of the Act.403

Section 22A: Power to establish special courts:

(1) If the State Government is satisfied that it is necessary for the purpose of
providing for speedy trial of offences under this Act in any district or
metropolitan area, it may, by notification in the Official Gazette and after
consultation with the High Court, establish one or more Courts of Judicial
Magistrates of the first class, or as the case may be, Metropolitan Magistrates,
in such district or metropolitan area.

(2) Unless otherwise directed by the High Court, a court established under sub-
section (1) shall exercise jurisdiction only in respect of cases under this Act.

(3) Subject to the provisions of sub-section (2), the jurisdiction and powers of the
presiding officer of a court established under sub-section (1) in any district or
metropolitan area shall extend throughout the district or the metropolitan area,
as the case may be.

(4) Subject to the foregoing provisions of this section a court established under
sub-section (1) in any district or metropolitan area shall be deemed to be a
court established under sub-section (1) of Section II. or as the case may be,
sub-section (1) of Section 16, of the Code of Criminal Procedure, 1973 (2 of
1974), and the provisions of the Code shall apply accordingly in relation to
such courts.

403
Bai Radha v. State of Gujarat, AIR 1970 SC 1396.

262
Explanation: In this section, "High Court" has the same meaning as in clause (e) of
Section 2 of the Code of Criminal Procedure, 1973 (2 of 1974).

Object of Section 22A:

Section 22A specifies the powers of the State Government to set up Special
Courts for speedy trials of cases under the Act and Section 22(A)(a) confers the same
powers to the Central Government. This section has not been used by any State or
Central Government till now. Setting up of such Courts will result in better disposal
of cases, conviction of offenders and assist the rehabilitation process. The Special
Court should be presided by a judicial officer of the rank of District Magistrate. The
Judge should be trained and possess special knowledge about the subject and should
have a panel of social workers attached to the Court, along the lines of the Juvenile
Justice Board under the Juvenile Justice (Care & Protection of Children) Act, 2000.

Section 22AA: Power of Central Government to establish special

courts:
(1) If the Central Government is satisfied that it is necessary for the purpose of
providing for speedy trial of offences under this Act and committed in more
than one State, it may, by notification in the Official Gazette and after
consultation with the High Court concerned, establish one or more courts of
Judicial Magistrates of the first class or Metropolitan Magistrates for the trial
of such offences.

(2) The provisions of Section 22A, shall so far as may be, apply to the courts
established under sub-section (1) as they apply to courts established under that
section.

Object of Section 22AA:

The provision was inserted by Act 44 of 1986 and deals with power of
Central Government to establish special courts.

Section 22B: Power of court to try cases summarily:

Notwithstanding anything contained in the Code of Criminal Procedure, 1973

(2 of 1974), the State Government may, if it considers it necessary so to do, direct that

263
offences under this Act shall be tried in a summary way by a magistrate : including
the presiding officer of a court established under sub-section (1) of Section 22A] and
the provisions of Sections 262 to 265 (both inclusive) of the said Code shall, as far as
may be, apply to such trial:

Provided that in the case of any conviction in a summary trial under this
section it shall be Lawful for the magistrate to pass a sentence of imprisonment for a
term not exceeding one year:

Provided further that when at the commencement of, or in the course of, a
summary trial under this section, it appears to the magistrate that the nature of the
case is such that a sentence of imprisonment for a term exceeding one year may have
to be passed or that it is, for any other reason, undesirable to try the case summarily,
the magistrate shall, after hearing the parties, record an order to that effect and
thereafter recall any witness, who may have been examined and proceed to hear or re-
hear the case in the manner provided by the said Code.

Object of Section 22B:

Section 22B of the Act deals with the power of the court to try cases
summarily.

Chapter XXI i.e. Sections 260 to 265 of the Code of Criminal Procedure deal
with Summary Trials.

Section 23- Power to make rules:

(1) The State Government may, by notification in the Official Gazette, make
rules for carrying out the purposes of this Act.

(2) In particular, and without prejudice to the generality of the foregoing

powers, such rules may provide for

(a) the notification of any place as a public place;

(b) the placing in custody of persons for whose safe custody orders have
been passed under sub-section (1) of Section 17 and their maintenance;

264
 (bb) the discharge of an offender under sub-section (3) of Section
10A from a corrective institution and the form of license to be
granted to such offender;

(c) the detention and keeping in protective homes or, as the case may be,
in corrective institutions of [persons] under this Act and their
maintenance;

(d) the carrying out of the provisions of Section 11 regarding notification

of residence or change of or absence from residence by released
convicts;

(e) the delegation of authority to appoint the special police officer under
sub-section (1) of Section 13;

(f) the carrying into effect of the provisions of Section 18;

(g) (i) the establishment, maintenance, management and superintendence

of protective homes and corrective institutions under Section 21
and the appointment, powers and duties of persons employed in
such homes or institutions;

(ii) the form in which an application for a license may be made and
the particulars to be contained in such application;

(iii) the procedure for the issue or renewal of a license, the time within
which such license shall be issued or renewed and the procedure
to be followed in making a full and complete investigation in
respect of an application for a license;

(iv) the form of a license and the conditions to be specified therein;

(v) the manner in which the accounts of a protective home and a

corrective institution shall be maintained and audited;

(vi) the maintenance of registers and statements by a licensee and the

form of such registers and statements;

265
 (vii) the care, treatment, maintenance, training, instruction, control and
discipline of the inmates of protective homes and corrective
institutions;

(viii) the visits to and communication with such inmates;

(ix) the temporary detention of [persons] sentenced to detention in

protective homes or in corrective institutions until arrangements
are made for sending them to such homes or institutions;

(x) the transfer of an inmate from one protective home to another, or

to a corrective institution; one corrective institution to another or
to a protective home, under sub-section (9A) of Section 21;

(xi) the transfer in pursuance of an order of the court from a protective

home or a corrective institution to a prison of a [person] found to
be incorrigible or exercising bad influence upon other inmates of
the protective home or the corrective institution and the period of
[his] detention in such prison;

(xii) the transfer to a protective home or corrective institution of

[persons] sentenced under Section 7 or Section 8 and the period of
their detention in such home or institution;

(xiii) the discharge of inmates from a protective home or corrective

institution either absolutely or subject to conditions, and their
arrest in the event of breach of such conditions;

(xiv) the grant of permission to inmates to absent themselves for short

periods;

(xv) the inspection of protective homes and corrective institutions and

other institutions in which [persons] may be kept, detained and
maintained;]

(h) any other matter which has to be, or may be, prescribed.

266
 (3) In making any rule under clause (d) or clause (g) of sub-section (2) the State
Government may provide that a breach thereof shall be punishable with fine
which may extend to two hundred and fifty rupees.

(4) All rules made under this Act shall, as soon as may be, after they are made,
be laid before the State Legislature.

Object of Section 23:

Sections 23 of the Act deals with power to make rules by the State
Government by notification in the official gazette for carrying out the purposes of the
Act.

Section 24: Act not to be in derogation of certain other Acts:

Nothing in this Act shall be construed to be in derogation of the provisions of

the Reformatory Schools Act, 1897 (8 of 1897), or any State Act enacted in
modification of the said Act or otherwise, relating to juvenile offenders.

Object of Section 24:

Section 24 of the Act deals with Act not to be in derogation of certain other
Acts Viz, the Reformatory Schools Act 1897 or any State Act enacted in modification
of the said Act or otherwise, relating to juvenile offenders.

Section 25: Repeal and savings:

(1) As from the date of the coming into force in any State of the provisions other
than in Section 1 of this Act, all State Acts relating to suppression of immoral
traffic in '[persons] or to the prevention of prostitution, in force in that State
immediately before such date shall stand repealed.

(2) Notwithstanding the repeal by this Act or any State Act referred to in sub-
section (1), anything done or any action taken (including any direction given,
any register, rule or order made, any restriction imposed) under the provisions
of such State Act shall in so far as such thing or action is not inconsistent with
the provisions of this Act be deemed to have been done or taken under the

267
 provisions of this Act as if the said provisions were in force when such thing
was done or such action was taken and shall continue in force accordingly until
superseded by anything done or any action taken under this Act.

Explanation: In this section the expression "State Act" includes a "Provincial Act".

Object of Section 25:

Section 25 of the Act deals with Repeal and Savings

When the Act came into force in 1956, the corresponding provisions of
Madras Suppression of Immoral Traffic Act, Act 5 of 1930 stood repealed by virtue
of Section 25(1) of the Act.

By virtue of sub-section (2) the conviction of appellant under Section 5(1) of

the Madras Act would be deemed to be conviction under Section 3(1) of the Act, an
Act deemed to be in force at the time the conviction took place.404

Implementation of ITP ACT - Directions laid down by Supreme Court for

eradication of evil of prostitution:

The Apex Court gave the following directions, which if implemented go a

long way in eradicating the evil of prostitution and in rehabilitation of the unfortunate
victims in Vishaljit vs. Union of India.405

1. All the State Governments and the Governments of Union Territories

should direct their concerned Law enforcing authorities to take appropriate
and speedy action under the existing Laws in eradicating child prosecution
without giving room for any complaint of remissness or culpable
indifference.

2. The State Governments and the Governments of Union Territories should

set up a separate Advisory Committee within their respective zones
consisting of the Secretary of the Social Welfare Department or Board, the
Secretary of the Law Department, sociologists, criminologist members of
the women‟s organisations, members of Indian Council of Child Welfare

404
Krishna Murthy v. Public Prosecutor, Madras, AIR 1967 SC 567.
405
AIR 1990 SC 1412

268
 and Indian Council of Social Welfare as well as the members of various
voluntary social organisation and association etc. the main object of the
Advisory Committee being to make suggestions of:

(a) The measures to be taken in eradicating the child prostitution; and

(b) The social welfare programmes to be implemented for the care,

protection, treatment, development and rehabilitation of the young
fallen victims namely the children and girls rescued either from the
brothel houses or from the vices of prostitution.

3. All the State Governments and the Governments of Union Territories

should take steps in providing adequate and rehabilitative homes manned
by well-qualified trained social workers, psychiatrists and doctors.

4. The Union Government should set up a committee of its in the line, Court
have suggested under direction No. (2) the main object of which is to
evolve welfare programmes to be implemented on the national level for
the care, protection, rehabilitation etc., of the young fallen victims namely
the children and girls and to make suggestions of amendments to the
existing Laws or for the prevention of sexual exploitation of children.

5. The Central Government and the Governments of States and Union

Territories should devise a machinery of its own for ensuring the proper
implementation of the suggestions that would be made by the respective
committees.

6. The Advisory Committee can also go deep into Devadasi system and Jogin
tradition and give their valuable advice and suggestions as to what best the
Government could do in that regard.

7. The copies of the affidavits and the list containing the names of 9 girls are
directed to be forwarded to the Commissioner of Police, Delhi for
necessary action.406

406
Vishal Jeet v. Union of India, (1990) 3 SCC 318 at 323-24: AIR 1990 SC 1412.

269
Necessity for appropriate and drastic action to eradicate prostitution:

No denying the fact that prostitution always remains as a running sore in the
body of civilisation and destroys all moral values. The causes and evil effects of
prostitution maligning the society are so notorious and threatening the community at
large slowly but steadily making its way onwards leaving a track marked with broken
hopes. Therefore, the necessity for appropriate and drastic action to eradicate this evil
has become apparent but its successful consummation ultimately rests with the public
at large.

It is highly deplorable and heart rendering to note that many poverty stricken
children and girls in the prime of youth are taken to „flesh market‟ and forcibly
pushed into the „flesh trade‟ which is being carried on in utter violation of all cannons
of morality, decency and dignity of humankind. There cannot be two opinions –
indeed there is none that this obnoxious and abominable crime committed with all
kinds of unthinkable vulgarity should be eradicated at all levels by drastic steps.407

Eradication of prostitution in any form is integral to social weal and glory of

womanhood:

The Convention of the Elimination of All Forms of Discrimination Against

Women, 1979 enjoins by Article 11, Prohibition of discrimination of women. Article
5 enjoins to modify social and patterns of conduct of men and women with a view to
achieving elimination of prejudices and customary and all other practices which are
based on the idea of the inferiority or the superiority of the sexes or on stereotyped
roles for men and women. Article 12 prescribes discrimination against women in the
field of health care in order to ensure on the basis of equality of men and women,
access to health care services, including those related to family planning. Article 13
prescribes discrimination and directs that the State Parties shall eliminate
discrimination against women in other areas of economic and social life in order
particular, the right to family benefits, the right to participate in recreational activities
sports and all aspects of cultural life. Article 16(d) enjoins the State to ensure on the
basis of equality of men and women, the same rights and responsibility as parties,
irrespective of their marital status in matters relating to their children, in all cases the
interests of the children shall be paramount. In Madhu Kishwar v. State Court

407
Vishal Jeet v. Union of India, (1990) 3

270
considered the provisions of the SCC 125: 1996 AIR SCW 2178. Supreme Court
considered the provisions of the Convention on the Elimination of All Forms of
Discrimination, against Women, 1979 (CEDAW) and held the same to be integral
scheme of the Fundamental Rights and the Directive Principles. Article 2 (e) of
CEDAW enjoins the State Parties to breathe life into the dry bones of the
Constitution, International Convention and the Protection of Human Rights Act, to
prevent gender-based discrimination and to effectuate right to life including
empowerment of economic, social and cultural rights, Article 2 (f) read with Articles
3, 14 and 15 of the CEDAW embodies concomitant right to development as an
integral scheme of the Indian Constitution and the Human Rights are derived from the
dignity and worth inherent in the human person. Human rights and fundamental
freedom have been reiterated by the Universal Declaration of Human Rights.
Democracy, development and respect for human rights and fundamental freedoms are
interdependent and have mutual reinforcement. The human rights for women,
including girl child are, therefore, inalienable, integral and indivisible part of
universal human rights. The full development of personality and fundamental
freedoms and equal participation by women in political, social, economic and cultural
life are concomitants for national developments, social and family stability and
growth-cultural, social and economical. All forms of discrimination on ground of
gender is violative of fundamental freedoms and human rights. It would, therefore, be
imperative to take all steps to prohibit prosecution. Eradication of prostitution in any
form is integral to social weal and glory of womanhood. Right of the child to
development hinges upon elimination of prosecution. Success lies upon effective
measures to eradicate root and branch of prostitution.408

In spite of the stringent and rehabilitative provisions of Law under various

Acts, it cannot be said that the desired result has been achieved. It cannot be gain-said
that a remarkable degree of ignorance of callousness or culpable indifference is
manifested in uprooting this cancerous growth despite the fact that eh day has arrived
imperiously demanding an objective multi-dimensional study and a searching
investigation into the matter relating to the causes and effects of this evil and
requiring most rational measures to weed out the vices of illicit trafficking. This

408
Gaurav Jain v. Union of India, AIR 1997 SC 3021 at 3031 : (1997) 8 SCC 114 at 126.

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malady is not only a social but also a socio-economic problem and, therefore, the
measures to be taken in that regard should be more preventive rather than punitive.

Further, this malignity cannot be eradicated either by banishing, branding,

scourging or inflicting severe punishment on these hapless and helpless victims most
of whom are unwilling participants and involuntary victims of compelled
circumstances and who, finding no way to escape, are weeping or wailing throughout.

The devastating malady can be suppressed and eradicated only if the Law
enforcing authorities in that regard take very severe and speedy legal action against all
the erring persons such as pumps, brokers and brothel keepers. The Courts in such
cases have to always take a serious view of this matter and inflict condign punishment
on proof of such offences. Apart from legal action, both the Central and the State
Governments who have got an obligation to safeguard the interest and welfare of the
children and girls of this country have to evaluate various measures and implement
them in the right direction.409

Rehabilitation of prostitutes by socio-economic empowerment and justice is the

constitutional duty of the State:

Society is responsible for a woman‟s becoming victim of circumstances. The

society should make reparation to prevent trafficking in women, rescue them from red
light areas and other areas in which the women are driven or trapped in prostitution.
Their rehabilitation by socio economic empowerment and justice is the constitutional
duty of the State. Their economic empowerment and social justice with dignity of
person, are the fundamental rights and the Court and the Government should
positively endeavour to ensure them. The State in a democratic polity includes its
three constitutional organs-the Legislature, the Executive and the Judiciary.
Legislature has already done its duty. The Executive and the Judiciary are required to
act in union to ensure enforcement of fundamental and human rights of the fallen
women. The Union of India as well as the State Governments are sensitive to the
conscience of their constitutional duty under Article 23 and are desirous to have the
prosecution eradicated from the root with the aid of ITP Act, IPC and other
appropriate legislative or executive actions. Sequential rehabilitation of the fallen
women rescued from the red light areas and other areas requires enforcement. The

409
Vishal Jeet v. Union of India (1990) 3 SCC 318 at 322: AIR 1990 SC

272
observations made in this Order, the constitutional provisions, the human rights and
other International Conventions referred to in the Order and the national policy would
aid the Union of India and the State Governments as foundation and guide them to
discuss the problems in Ministerial and Secretarial level Conferences and as
suggested in this Order to evolve procedures and principles to ensure that the fallen
women also enjoy their fundamental and human rights mentioned in the Order to
evolve procedures and principles to ensure that the fallen women also enjoy their
fundamental and human rights mentioned in the Order410.

There cannot be any scope for dispute that “prostitution and traffic in
human beings for the purposes are incompatible with human dignity and worth of
human persons”. It also cannot be disputed that it adversely affects the society both
morally and physically. Even a most tolerant person would not like his or her family
and children to come in contact with a prostitute. From time to time international
agreements are made from suppression of the traffic in one form or another. The first
was as early as on 18th May, 1904, of 11-10-1933 and the fifth in 1950, a convention
for the suppression of the traffic in women and girls and of the exploitation of the
prosecution of others. This convention was signed by several national including India.

Even before this Act was enacted, there were provisions for similar purposes
and also for preventing prostitution in certain States. Moreover this is not the first
time when the international Convention in this respect was signed by different
countries. The Articles of 1950 are merely as amendments to the Article signed on
May 4, 1910 for the same purpose at Paris. It is with a view to prevent immoral traffic
in women and girls that the present Act was enacted. Though it is directed at
prevention of the immoral traffic in women and children that would not appear to be
its only purpose as the reading of the whole Act discloses. It has not also a further
purpose and that is to prevent such influences as encourage prosecution.411

Supreme Court Advisory Committee to make suggestion for eradicating child

prostitution, etc:

While dealing with the rights of the children of prostitutes the modules to give
protection, care treatment, development and rehabilitation of the young victims, in the

410 Gaurav Jain v. Union of India, AIR 1997 SC 3021 at 3052-53: (1997) 8 SCC 114.
411 Begum d/o Hudsain Saheb Kalawat v. State.AIR 1963 Bom. 17 at 19: 1963 (1) Cri, L.J. 148.

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mainstreams of national life the Apex Court in Gaurav Jain v. Union of India 412
observed.

“Three Cs. Viz. counselling, cajoling and coercion are necessary to effectively
enforce the provisions of ITP Act and Juvenile Justice Act. By order dated May 2,
1990, this Court after hearing the Counsel, passed an order to set up an Advisory
Committee to make suggestions for eradicating child prostitution and point out social
aspects for the care, protection, treatment, development and rehabilitation of the
young victims, children and girls prostitutes from red light area and get-them free
from the abuses of prostitution to amend the existing Law or to enact a new Law, if so
warranted, to prevent sexual exploitation of children and to take various measures for
effective enforcement thereof. It is seen that the Committee constituted by this Court
under the Chairmanship of Shri V.C. Mahajan travelled far and wide to have a look
into the field of operation of the Governmental agencies and has suggested nodal
programme for the eradication of the twin facets of prostitution, viz. protection, care
and rehabilitation of the fallen women and neglected juveniles. The Committee has
opined that the problem of child prostitution does not stand by itself and is a
component of overall phenomenon in the country. It highly concentrates on identified
red light areas as well as on areas which are not so clearly identified. Though the
problem of prostitution is mainly found in large cities, but in the urban areas and some
rural areas, the problem gives frequent recurrence. Among the fallen women the child
prostitutes constitute major bulk of the component. A Child prostitute constitutes 12
to 15% of prostitutes in any area. On account of the social sanctions, women are
exploited by the monstrous customs of Devadasis, jogins and Venkatansis known by
other names in different parts of the country. The unfounded social and religion based
sanctions are only camouflage; their real motive is to exploit the unfortunate women.
Most of them belong either to Scheduled Castes or Backward Classes coming from
socio-economically lower groups. They are prevalent highly in Karnataka,
Maharashtra and Andhra Pradesh. The specific area in major cities is identified as red
right areas as well as some semi-urban but rural areas. The number of red light areas
having increased in recent times brothel based prostitution is on the vane but there is
an increasing trend towards decentralised mode of prostitution. 86% of the fallen
women hail from Andhra Pradesh, Karnataka, Tamil Nadu, West Bengal, Bihar,

412 AIR 1997 SC 3021 at 3033-37 : (1997) 8 SCC 114.

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Maharashtra, Uttar Pradesh, Assam, Gujarat, Goa, Madhya Pradesh, Kerala,
Meghalaya, Orissa, Punjab, Rajasthan and Delhi. Delhi received prostitutes form
about 70 districts in the country; Bombay from 40 district; Bangalore from 70
districts; Calcutta from 11 districts, Hyderabad from 3 districts etc. there is growing
evidence that the minimum number of prostitutes get into flesh trade either voluntarily
or by organised gangster force women and girls by offering rosy future to innocent
fallen women and trap them often with the connivance of the police.

The Committee has also identified ten types of prostitutes like Street walker,
religious prostitute, prostitutes in brothel, singing and dancing girls, bar nude,
massage parlour and some are call-girls. Comprehensive study conducted by another
Committee in six metropolitan cities, viz. Delhi, Bombay, Calcutta, Madras,
Hyderabad and Bangalore, reveals the group of the prostitutes below 20 years of age
are 75%, 21 to 30 years are 40%. 30to 35 years are 18% and above 35 years 12%. At
the time of induction into the prostitution, 9% are below 15 years, 24.9% between 16
the time of entry therefore, 15% of the fallen girls are in the category of neglected
juveniles, and about 25% are minors between the age group of 16 to18 years. The
major reasons for induction of prostitution are poverty and unemployment or lack of
appropriate rehabilitation etc. above all social stigmas 16% due to family tradition and
9% due to illiteracy. 94.6% prostitutes are Indians while 2.6% are Nepalis and 2.7%
are Bangaldeshis, 84.36% are Hindus; 18.8% are Muslims and 3.5% are Christians. In
terms of castes classification, Dalits and Tribes constitute 36%. other Backward
Classes 24% and others 40%. In terms of marital status only 10.6% of the prostitutes
are married, 34.4% are unmarried and 54.2% are divorcee or widows. In terms of
education level; 70% of them are illiterates while 4% only are literates. Only 24% of
the prostitutes are educated at primary and secondary level while 1.4% have higher
qualification. Therefore, prostitution is primarily due to ignorance, illiteracy, coercive
trapping or scare of social stigmas. In India, they enter into the prostitution between
the ages of 16 to 19 years and lose market by the time they became 35 years of age.
Thereafter such persons either manage brothels or develop contact with high lead.
Recent trend is that ladies from higher levels of income are initiated into the
prostitution to sustain sufficient day to day luxurious style of life so as to ensure
continuous economic support for their well-being.

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 The Mahajan Committee report indicates that in two villages in Bihar and
some villages in West Bengal, parents send their girl children to earn in prostitution
and the girls in turn send their earnings for maintenance of their families. It further
indicates that certain social organisations have identified the poverty as the cause for
sending the children for prostitution in expectation of regular remittance of income
from prostitution by the years have already gone into the brothels. It is also an
inevitable consequence that over girls who the fallen women are accustomed to
certain life style and in terms of expenditure they spend certain amount of money for
their upkeep and maintenance when they bear children it becomes additional burden
for them. They are led and get caught in the debt traps. The manager of the brothels is
generally ladies. They do not allow the girls to bear children. In case of birth against
their wishes the unfortunate are subjected to cruelty in diverse forms. In the process of
maintaining the children, again they land themselves in perpetually growing burden of
debt without any scope to get out from the bondage. Thereby, this process lends
perpetuality to slavery to the wile of prostitution. To support their children for
education etc. 44% of them desires to leave the red light traps and 43% of them
express their despondence languishing between hope and despair. Most of those who
want to leave, have given the reasons to save their children from prostitution and
protection of the future of their children fear of contacting the venereal disease, the
fear of their children following the path; some of them expressed dislike for the
profession, social stigma and their yearning is to start new life. Those who want to
remain in prostitution have given absence of alternative source of income, their social
non-acceptability, family customs, poverty, ill-health and their despondence as the
reasons and, thus, they want to continue in the prostitution as the last resort for their
livelihood. They do not like to remain in red light area and the profession but lack of
alternative source of livelihood is the prime cause of their continuation in the
profession.

If alternatives are available and society is inclined to receive them they will
gladly shed off their past and start with a clean slate as a fresh lease of life with
renewed vigorous hope and aspiration to live a normal life, with dignity of person,
respect for the personality, equality of status crave for fraternity and acceptability in
the social mainstream. Therefore, it would be imperative to provide a permanent cure
to the malady. There would be transition from the liberation from the prostitution to

276
start with fresh lease of life. This period should be taken care of by providing
behavioural corrections by constant interaction counselling, cajoling and coercion as
the last resort assurance of social acceptability inculcating faith in them. An avenue to
earn sufficient income for rehabilitation relates their resolves to start with fresh lease
of life without their craving to shed off the past and to start with a new lease of life
would remain instant dream and a futile attempt. Therefore, rubicon has to be bridged
between the past and the hope to make them realise their desire as normal citizenry,
by providing opportunity and facilities. Provision of opportunities and the facilities is
input of the constitutional guarantee to the disadvantaged, deprived and denied
people. The directive principles of the Constitution, in particular Articles 38,39 and
all relevant related Articles enjoin the State to provide them as impregnable inbuilt
right to life guaranteed by Article 21 and equality of opportunities with protective
discrimination guaranteed in Article 14 the genus and its species.

Therefore, it is the duty of the State and all voluntary non-Government

organisations and public spirited persons to come in to their aid to retrieve them from
prostitution, rehabilitate them with a helping hand to lead a life with dignity of person,
self employment through provisions of education financial support, developed
marketing facilities as some of major avenues in this behalf. Marriage is another
object to give them real status in society. Acceptance by the family is also another
important input to rekindle the faith of self respect and self confidence. Housing, legal
aid, free counselling assistance and all other similar aids and services are meaningful
measures to ensure that unfortunate fallen women do not again fall into the trap of red
light area contaminated with foul atmosphere. Law is a social engineer. The Courts
are part of the State steering by way of judicial review. Judicial statesmanship is
required to help regaining social order and stability, interpretation is effective
armoury in its bow to steer clear the social malady, economic reorganisation as
effective instruments, remove disunity, and prevent frustration of the disadvantaged,
deprived and denied social segments in the efficacy of Law pragmatic direction pave
way for social stability, peace and order. This process sustains faith of the people in
rule of Law and the democracy becomes useful means to the common man to realise
his meaningful right to life guaranteed by Article 21.

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 V.C. Mahajan Report states that an organisation by name Prerana, selected
Kamathipura red light area, Bombay, where 14 lanes are in the occupation of the
Managers of the brothels and has located a centre for counselling. Therein, they
organise regular counselling and service centre for the fallen women and do work for
the children. The national plan of action for the girl child in the SAARC Decade of
the Girl Child (1991-2000) was launched as a project for the welfare and development
of the girl children including adolescent girls and street children in particular, an inter-
departmental monitoring committee was also set up under this plan in some of the red
light areas. The provisions of Integrated Child Development Services Scheme were
extended. A number of voluntary agencies have also been involved in the care,
rehabilitation and advocacy to retrieve prostitutes including child prostitutes. The
rehabilitation and welfare organisation is to be initiated.

Women found in the flesh trade, should be viewed more as victims of adverse
socio-economic circumstances rather than as offenders in our society. Prostitution in
five star hotels is a licence given to persons from higher echelons. The commercial
exploitation of sex may be regarded as crime but those trapped in custom oriented
prostitution and gender oriented prostitution should be viewed as victims of gender
oriented vulnerability. That could be arrested by not only Law enforcing agencies but
by constant counselling and interaction by NGOs impressing upon them the need to
shed off the path and to start with a new lease of life. The ground realities should be
tapped with meaningful action imperative apart from the administrative action which
aims at arresting immoral traffic of women under ITP Act through inter-State or
Interpol arrangements and the nodal agency like the CBI is charged to investigate and
prevent such crimes. We are concerned in this case more with the rehabilitation aspect
than with prevention of the crime. Therefore it is emphasised on the review of the
relevant Law in this behalf, effective implementation of the scheme to provide self-
employment, training to weaving, knitting, painting and other meaningful
programmes to provide the fallen women the regular source of income by self-
employment or, after vocational education, the appropriate employment generating
schemes in Governmental, Semi-Governmental or private Organisations.

The customary initiation of women in the practice of Devdasis Jogins and

Venkatasin is prevalent in Andhra Pradesh, Karnataka and Maharashtra areas: in

278
particular the practice of prostitution is notorious. It is an affront to the human
dignitary and self-respect but the pursuit of customary beliefs traps the fair-sex into
this glorified self-sacrifice and ultimately leads to prostitution service in the temples
and charitable institutions etc. which is a crime against humanity, violation or human
right and obnoxious to Constitution and Human rights Act. They are void under
Article 13 (sic 23) of the Constitution of India and punishable under the Law. They
are anti-thetical to the Constitutional scheme. Fundamentalists and proponents of
these practices are constitutional criminals. The unfounded custom cannot have legal
sanction. On the other hand, penal enactments provide for abolition thereof. Instead of
progressive outlook, regressive unfortunate tendency, of late, is raising its ugly head
to glorify these ignominious practices which is leading not only to abatement of
commission of the crime, but also misleading the unfortunate illiterate and weaker
sections of the society, to be taken in seriously by the later by their false promises or
false theories such as God‟s ordain which finds easy acceptance by the prior and
illiterate and is acted upon. Every right thinking person should condemn such
attempts apart from keeping and helping strict implementation of the Law prohibiting
initiation of the nasty practice wherein the eldest girls child in particular families, is
offered as Devdasis or Jogin or Venkatasin, by whatever local name they are called.
They are making the lives of the girls miserable, in the guise of prosperous future and
custom, the girls is detained in prostitution for no fault of her. This is prevalent in
particular in six districts of Karnataka, viz. Raichur, Bijapur, Belgaum, Dharwar,
Bellary and Gulbarga where their number is identified as 21,306. In Andhra Pradesh,
in five districts, namely, Medak, Karimnagar, Nizamabad, Nalgonda and Warangal,
such girls are known as Jogins, Nizamabad District has the largest number of Jogins
as per the survey conducted in 1996, as many as 16,300 Jogins were found in that
State. Similarly, in Maharashtra, they are found in large number, in particular in
Marathawada and Vidarbha regions. The common features of such women are that
predominantly they are from Scheduled Castes, Scheduled Tribes and other Backward
Class. The eldest girl in every family is being offered as Devadasi, Jogin or
Venkatasin. Sometimes, they do redeem the pledge made to the Gods or Goddesses,
etc. original families of these Devadasis, Jogins or Venkatasins were by and large
poor. They are primarily agricultural labourers having no access to credit facilities or
literacy. The eldest girl in each family is driven to prostitution. The system has been
in existence for years as a result of lack of awareness about the exploited segments of
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the Devadasis etc. many families which dedicated their girls, do so due to the pursuit
of customary practices.

Economic rehabilitation is one of the factors that prevent the practice of

dedication of the young girls to the prostitution as Devadasis, Jogins or Venkatasins.
Their economic empowerment and education gives resistance to such exploitation,
however, economic programmes are necessary to rehabilitate such victims of customs
or practices. They are being rehabilitated with the help of vocational training centres
set up in Maharashtra giving preferential admission into educational training
institutes; they are admitted into informal adult education. In Maharashtra,
educational training centres have been opened for Devadasis. In Karnataka, Devadasi
women have been assisted under DWCRA schemes in various districts, in particular
six districts, where an extensive devadasi rehabilitation programme is in full force.
The Karnataka State Women‟s Development Corporation and the Karnataka State
Scheduled Castes and Scheduled Tribe Development Corporation are implementing
this programme in the aforesaid six districts where the phenomenon of devadasi
system is being observed; training is imparted in hand weaving. 50% subsidy is given
in weaving; good work-shed is given to them free of costs; income assistance like
micro-business enterprises, rope and basket making etc. are being provided to
devadasi women for rehabilitating them. Training in production of soap, chaak
making, Khadi and weaving activities being imparted in Andhra Pradesh, Karnataka
State also has taken the lead in forming self helping group of devadasis; a thrift and
saving programme is being implemented in some areas. Social Welfare Departments
should undertake these rehabilitation programmes for the fallen victims of social
practice so that the foul practice is totally eradicated and the fallen women are
redeemed from the plight and are not again trapped in to the proposition. In Andhra
Pradesh, the State Government is providing housing sites or house facilities to
devadasis women; they are getting free treatment in hospitals. Devadasis women aged
about 60 years and above are being given pension. In order to improve literacy, adult
literate programmes are being organised for them. The NGOs in these three States are
playing important role in implementation of various programmes and they are largely
concentrating on generating of various programmes and they are largely concentrating
on generating awareness among these persons and their economic rehabilitation. It
would, therefore, be meaningful if rehabilitation programmes are launched and

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implementation machinery is set not only to eradicate the fertile source of prostitution
but also for successful rehabilitation of the fallen women who are the victims of
circumstances to regain their lost respect to the dignity of person to sustain equality of
status, economic and their social empowerment.”

1. Flesh trade:
In the landmark judgment of Vishal Jeet v, Union of India 413, the Supreme
Court observed, “Many unfortunate teen-aged female-children (hereinafter referred to
as „the children‟) and girls in full bloom are being sold in various parts of the country,
for paltry sum even by their parents finding themselves unable to maintain their
children on account of acute poverty and unbearable miseries and hoping that their
children would be engaged only in house hold duties or manual labour. But those who
are acting as pimps or brokers in the „flesh trade‟ and brothel keepers who hunt for
these teenaged children and young girls to make money either purchase or kidnap
them by deceitful means unjustly and forcibly inveigle them into „flesh trade‟. Once
these unfortunate victims are taken to the dens of prostitutes and sold to brothel
keepers, they are shockingly and brutally treated and confined in complete seclusion
in a tiny claustrophobic rook for several days without food until they succumb to the
vicious desires of the brothel keepers and enter into the unethical and squalid business
of prostitution. These victims though unwilling to lead this obnoxious way of life
have no other way except to surrender themselves retreating into silence and
submitting their bodies to all the dirty customers including even sexagenarians with
plastic smile.”
2. Action is to be taken to rescue, rehabilitate and bring the children of fallen
women into mainstream of society:

While dealing with the rights of the children of fallen women, the modules to
segregate them from their mothers and others so as to give them protection care and
rehabilitation in the mainstream of the national life the Apex Court in Gaurav Jain v.
Union of India414, observed thus: “the three Cs (CCC) are necessary for successful
implementation, to rescue and rehabilitate the children of the fallen women living in
the red-light area. Counselling, cajoling by persuasion and coercion, as the last resort,
are the three Cs for their successful implementation. 65.5% of the fallen women have

413
(1990) 3 SCC 318 at 319: AIR 1990 SC 1412
414
(1997) 8 SCC 114 at 137-139: AIR 1997 SC 3021 at 3039-41

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children and usually they are in the age group of one to ten years. Generally, they
prefer to keep their children away from them while they are in the act of intercourse
except those children who are very young. Out of 71% children of the illiterate fallen
women 39% are literate while 58% of the total have had primary or secondary or
higher education. They show keen interest in educating their children. The children
tend to spend their time at study or leisure; though girls children tend to be engaged in
house hold jobs as is usual among poorer classes. The children face the problems
mainly due to (i) lack of a father figure to provide security, care and guidance; (ii)
increased responsibilities of mother; (iii) economic hardship; (vi) lack of facilities to
meet basic needs; (v) unhealthy social environment; (vi) malnutrition; (vii) coercive
attempts by managers of brothels; (viii) taunting due to dislike by surrounding people;
and (ix) lack of proper counselling and guidance; motivation and opportunity gaps.

Many a prostitute themselves are child prostitutes (for short “the CP”); they
and the children of the prostitutes (for short “the COP”) need to be removed from the
red-light areas. Generally, the police resort to IPC and ITP Act in this behalf but the
forceful rescue of CP or COP in reality is not successful in their rehabilitation. In this
behalf, it is necessary to take aid of the definition of “neglected child” defined in the
JJ Act. It is already seen and is reiterated for continuity that “neglected juvenile”
means one found begging; or found without having any home or settled place of
abode and without any ostensible means of subsistence and is destitute; or has a
parent who is unfit or incapacitated to exercise control over the juvenile; (or lives in a
brothel or with a prostitute or frequently goes to any place used for the purpose of
prostitution or is found to associate with any prostitute or any other person who leads
an immoral, drunken or depraved life; or who is being or is likely to be abused or
exploited for immoral or illegal purposes or unconscionable gain. The JJ Act makes
distinction between “delinquent juvenile” and “neglected juvenile” attributing to a
delinquent juvenile an act or omission punishable by Law to identify his as a
delinquent juvenile. A neglected juvenile is one who is of the age of 16 years in the
case of a boy and 18 years in the case of a girl, or whose parents are one who
frequents or associates with prostitution becomes a neglected juvenile. A child
brought to associated with a or is engaged in prostitution or the profession of
prostitution or another juvenile who leads an immoral or depraved life or one who is
likely to be abused or exploited for immoral or illegal purposes for unconscionable

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gain is also a juvenile. The crime is not attached for identifying him/her as neglected
juvenile; it is so in the case of a delinquent juvenile under the Act. They are to be kept
in the juvenile home as a place of safety.

An institution established or certified by a State Government under Section 9

of the JJ Act is a juvenile home. The object of the Act is not to punish the juvenile but
to rehabilitate him/her, be it a delinquent juvenile or a neglected juvenile. In the latter
case, it is one of obligations of the State to provide for care and concern and to
establish a juvenile home under Section 9 of JJ Act. Section 4 of JJ Act enjoins the
State to constitute, by a notification, for any area specified in the notification, one or
more Juvenile Welfare or imposed, under the JJ Act, on such Board in relation to
neglected juveniles.

The Board shall consist of a Chairman and such other members as the State
Government thinks fit to appoint, of whom not less than one shall be a woman; and
every such member shall be vested with the powers of a Magistrate under the Cr. P.C.
The Board shall function as a Bench of Magistrates and shall have the powers
conferred by the Cr. P.C., as the case may be, on a judicial Magistrate of the First
Class or Metropolitan Magistrate in metropolitan cities. Even, in certain cases, a
delinquent juvenile who commits and offence like begging, being a neglected
juvenile, is covered as a neglected juvenile and should not be treated as delinquent
juvenile since he began begging due to destitution or was forced to beg by organised
gangsters. Therefore, all the types of juvenile defined within the ambit of neglected
juvenile, though attached with certain acts of omission, are punishable under Law,
they still remain to be neglected juvenile and should be dealt with by the Welfare
Board and be brought within the protective umbrella of the juvenile home established
under Section 9. Establishment of juvenile home, thus, is a mandatory duty of the
State to provide teeth to the provisions of the Constitution, the Directive Principles,
the Convention on the Right of the Child read with the principles of the United
Nations Declaration and National Policy of the Government of India referred to
hereinbefore, and are protected by the JJ Act.

Every child who is found to be a neglected juvenile should be death by the

Board and should be brought within the protective umbrella of the juvenile home. The
attribute “neglected children” is not a social stigma; the purpose is to identify the

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children as juvenile to be dealt with under the JJ Act which is more a reformative and
rehabilitated centre rather than for punishing the child as criminal; and to mend their
behaviour and conduct. In an appropriate case, where the treatment of bringing the
neglected juvenile into the national mainstream takes a long time, the definition
coupled with age prescription, should not be strictly interpreted to deny the
ameliorative care, consideration and rehabilitation of the neglected juveniles. The
benefit of reformation, rehabilitation and bringing them into the mainstream after the
passing of the age prescription under the Act, is the goal sought to be achieved. Lest,
it has the effect of throwing the neglected juvenile into the vile practice of prostitution
or exploiting him for organised crimes by the organised gangsters taking advantage of
his immaturity and despondence; that would be between hope and reality in the
operation of the provisions here in before referred to. The definition of “neglected
juvenile”, therefore, should be interpreted broadly which is an important function for
the purpose of identifying the grounds of children who need care and attention and
protection for rehabilitation. Their withdrawal from the protective umbrella of the JJ
Act foils the goals set out; besides all measures to bring the neglected juvenile into the
mainstream of the social status end up in failure and frustration.”

3. Maxim-ex turpi causa non oritur action :

The case of Upfill v. Wright415 is as decision of Darling. J., on the points, that the
plaintiff was not entitled to recover rent because the flat for which rent was sought,
was let for an immoral purpose. The learned Judge there expressly says” that it is
unnecessary for him to go through the authorities because he took the Law as well
settled by Pollock C.B. in Pearce v. Brooks.416 that proceeds on the maxim I have
elsewhere already quoted, viz. Ex. Turpi Causa non oritur action. The English Law on
which that case was decided was different from the Law in our country. There the
case is not a case of void transaction by statute but avoidable one under the common
Law. Two significant and outstanding differences have been ignored in our desire to
follow the English precedents, one is the uncritical application of the equitable
doctrine or equitable rules of procedure where the statute is clear and the other is the
difference between void and voidable transactions. The result has been a confusion
and a disregard of the statute, in this country on this point. Finally the decision of the

415
(1911) 1 KB 506 (p)
416
(1866) 1 Ex. 213 at page 217, 218 (Q)

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English Court of Appeal in Bowmakers Ltd. v. Barnet Instruments Ltd., 417 has been
cited at the Bar on behalf of the respondents. That case decides that no claim founded
on an illegal contract will be enforced by the Court but as a general rule a man‟s right
to possession of his own chattels would be enforced against one who without any
claim of right is detaining them or has converted them to his own use even though it
might appear from the pleadings or in the course of the trial that the chattels in
question came into the defendant‟s possession by reason of an illegal contract
between himself and the plaintiff, provided that the plaintiff does not either seek to
enforce or found his claim on the illegal contract, or to plead his illegality in order to
support his claim. An exception to this general rule arises in cases in which the goods
claimed are of such a kind that it is Unlawful to deal in them at all.”

This case is more important for what it does not say than for what it does say.
It is plain from this decision that the rule laid down in Lord Selborne‟s judgement in
Averest v. Jenkins („A‟), is not an inflexible rule at all and the Court has always tried
to make such inroads upon the rule wherever and wherever proper considerations
demand that course.418

4. Doctrine of pari delicto:

The mythology that was slowly and imperceptibly growing in Indian case-Law
as an unqualified character for denying relief in a Court to an immoral party was first
exploded by Sir S. Subrabmania Ayyar, Acting Chief Justice and Benson, J. in Thasi
Multhukannu v. Shunmugavalu Pillai. 419 wherein it was said that “where the
transaction, though completed, was intended to be for consideration, it can impeached
if the consideration is immoral, and it makes no difference whether the transaction is
executed or executor.”

That great and erudite Judge, Sir Subrahmania Ayyar also drew a significant
distinction for not applying the much misused doctrine of „pari delicto‟ on the ground
of the plaintiff‟s extreme youth and by holding that the young man of 20 in that case
was led into evil ways at the instance of those persons mentioned in the judgment. If
that could exclude a man from the rigours of the doctrine of pari delicto as in fact he
was and he could be exonerated, how very much more it would be in the case which

417
(1945) 1 KB 65
418
Pranballav v, Tulsibala Dassi, AIR 1958 Cal. 713 at 722.
419
ILR 28 Mad 413 at p. 418 (H)

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had nothing to do with the delict such as the present executors and trustees in this
appeal. Sir Subrahmania Ayyar was very clear in indicating at page 418 of the report
of his judgment:

“And Wootton v. Wootton referred to and distinguished by Lord Selborne in

Averst v. Jenkin‟s (A) is decisive instance against the Courts laying down broadly that
relief will never be given to a plaintiff in pari delicto in cases of completed
transactions having for their consideration future illicit cohabitation”.420

5. Use of word “punishable” in prescribing a punishment:

In the instant case Bombay High Court took the view that the word
“punishable” in the aforesaid section instead of “punished” necessarily postulates a
certain discretion on the Court to impose a sentence of imprisonment or a sentence of
fine discretion on the Court to impose a sentence of imprisonment or a sentence of
fine or both. The High Court felt that there was no escape “from this construction in
view of the interpretation put by the Full Bench of that Court as to the meaning to be
adopted in view of the use of the word “punishable” in prescribing a punishment”.
The decision relied upon by the High Court is emperor v. Peter D‟Souza 421. That was
a case under Section 43 (1) of the Bombay Abkari Act, 5 of 1878. The provision
which the Full Bench had to construe was substituted for the original provisions by
Bombay Act 29 of 1947. The original provision was that a person “shall, on
conviction, be punished for each such offence with imprisonment for a term which
may extend to six months, or with fine which may extend to Rs. 1,000, or with both.”
The Amending Act, 1947 substituted for this the following provision:

“shall on conviction, be punishable for the first offence with imprisonment for
a term which may extend to six months and with fine which may extend to Rs. 1,000
provided that in the absence of special reasons to the contrary to be mentioned in the
judgment of the Court, such imprisonment shall not be less than three months and fine
shall not be less than Rs. 500.”

It was contended before the Court that the object of the amended provision
was to make it obligatory upon the Court convicting a person of an offence under that
Act to pass a sentence of imprisonment which shall ordinarily not be less than three
420
Pranballav v. Tulsibala Dassi, AIR 1958 Cal. 713 at 720
421
AIR 1949 Bom 41 (FB)

286
months while it was not obligatory to pass a sentence of imprisonment under the
original provision.

It is significant to notice that the expression used in the original provision is

“punished” and not “punishable”. A bare perusal of the Penal Code would show that
the Legislature has in the penal provisions also used the expression “punished”. This
is so even where discretion has been conferred upon the Court to award a sentence of
fine in lieu of or in addition to a sentence of imprisonment. The mere use of the word
“punished” or the word “punishable” select one or more kinds of sentence prescribed
by it for an offence or to making it obligatory upon it to pass a particular sentence or
sentences so prescribed. One thing follows with certainty from the use of either of
these expressions and that is that upon the conviction of a person for the particular
offence the Court is bound to award punishment. What the nature and extent of the
punishment to be awarded has to be ascertained by a consideration of the entire penal
provision. Court considered Section 43 (1) as it was before its amendment in the year
1946. There the Legislature had said that the convicted persons shall be “punished”.
Then it proceeded to say that the punishment shall be (a) imprisonment for a term
which may extend to six years „ (b) or a fine which may extend to Rs. 1,000; (c) or
imprisonment as well as fine. If the whole provision is construed it is clear that
despite the use of the words “punished with “the nature of the sentence was left to the
discretion of the Court. Even if the word “punishable” had been used instead of
“punished” the result would have been the same because of the use of the word „or‟.
That is to say that the provision would have been open to only one construction and
that is that it was discretionary with the Court to choose the nature of punishment to
be awarded to a convicted person. Since all this was clear there would have been no
point in amending the provision in the year 1947 if the nature of the punishment was
“shall, on conviction, be punishable for the first offence with imprisonment for a term
which may extend to six months and with fine which may extend to rupees one
thousand” would be that the Court convicting a person of an offence under the Act
was bound to award to sentence consisting both of imprisonment and fine. The words
“may extend” preceding “six months” and “rupees one thousand” respectively merely
give discretion to the Court in so far as the extent of imprisonment or fine to be
awarded is concerned and nothing more. It is obvious that the Legislature replaced the
original “or” which gave an option to the Magistrate by “and” to make its intention

287
clear. The Full Bench, however, expressed the view that by using the expression
“punishable” the legislature conferred a discretion on the Court and because of the
used of that expression the Full Bench has construed “and” as meaning “and / or”. It
is non doubt true that the expression “punishable” means “liable to punishment”.
“Liable to punishment” only means that a person who has contravened a penal
provision will have to be punished. Thus it does not mean anything different from
“shall be punished”. Punishment is obligatory in either case. But, as already observed,
what the nature of punishment is to be must be ascertained by a consideration of the
whole of the penal provisions. Their Lordships therefore, were unable to accept the
view of the Full Bench that by merely using the expression “punishable” the
Legislature intended to say that a discretion was left with the Court to determine the
nature of the punishment. If the view of the High Court that the word “punishable”
imports a discretion in the Court were to be accepted an astonishing result would
ensue; it would follow that there is discretion in the Court whether to punish a
convicted person at all or not – State of Maharashtra v. Jagmander Lal422.

Public safety Measures Ordinance was promulgated by the Rajpramukh on 2-

4-1948.

The Ordinance, as stated already, provided principally for preventive detention

and imposition of collective fines; and it was hoped that armed with these
extraordinary powers the State Government would be able to bring the situation under
control. These hopes, however, were belied, and the affidavit gives a long list of
offences in which murder and nose cutting figure conspicuous in addition to looting
and dacoity, which were committed by the dacoits during the year 1948 and 1949 If
special Courts were considered necessary to cope with an abnormal situation it cannot
be said that the vesting of authority in the State Government to select offences for trial
by such Courts is in any way unreasonable. In the light of the principles stated
already, Court was unable to hold that Section 11 of the Ordinance in so far as it
authorities the State Government to direct classes of offences of cases to be tried by
the special Court offends against the provision of the equal protection clause in our
Constitution.

422
AIR 1966 SC 940 at 941-42 : 1966 Cr. L.J. 707: 1966 (2) ALT 140: 1966 MPLJ 525: 1966 Mah L.J. 573 (SC)

288
 The present case is also dissimilar to the case of Kedar Nath Bajooia v. State
of West Bengal,423 where after considering the back ground of the legislation and its
preamble, purpose and the provisions of the Supreme Court came to the view that the
impugned legislation was based on a perfectly intelligible principle of classification
having a clear and reasonable relation to the object sought to be attained.424

8. Tangible and rational basis of classification. – Justice Sahai of Allahabad High

Court discussing the constitutional validity of Act 104 of 1956 observed in Shama
Bai v. State of U.P.425 as under:

“In the present case the provisions of the Act can be no guide to the Magistrate
to decide in which case he should consider it necessary to remove a prostitute. The
preamble only says as follows:

“An Act to provide in pursuance of the International Convention signed at

New York on the 9th day of May, 1950, for the suppression of immoral traffic in
women and girls”.

It has not been mentioned anywhere in the Act as to what are the guiding
principles on which a Magistrate has to make up his mind that it is reasonable to
remove a particular prostitute. There is no classification at all in the Act. The Act
gives a Magistrate discretionary power not to be exercised upon a consideration of the
circumstances of the case but a naked and arbitrary power to remove a prostitute
outside the limits of his jurisdiction and to prohibit her from re-entering it.

An Act which gives uncontrolled authority to discriminate can be hit by

Article 14”. Prima facie therefore, there appears some substance in the petitioner‟s
contention that it is not a reasonable classification but an arbitrary selection where the
selection is left to an absolute and unfettered discretion of the executive Government,
“with nothing to guide or control its action.”

The present case is quite different from the case of Kathi Raning Rawat v.
State of Saurashtra426, where the clear recital of definite objective furnished a tangible
and rational basis of classification to the State Government for the purpose of
423
AIR 1953 SC 404
424
Shama Bai v. State of U.P. AIR 1959 All 57 at 64-65: 1959 Cr. R. 427 (All)
425
AIR 1959 All. 57 at 64-65
426
AIR 1952 SC 123

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applying the provisions of the Ordinance and for choosing only such offences or cases
as affect public safety, maintenance of public order and preservation of peace and
tranquillity. In that case Section 11 of the Ordinance was challenged. That section
reads as follows:

“A Special Judge shall try such offences or class of offences or such cases as
the Government of the United State of Saurasthra may, by general or special order in
writing, direct.”

The majority view was that the section was intra vires of the Constitution of
India. Fazl Ali, J., who was one of the Judges who took that view observed as follows:

“As regards the present Ordinance, we can discover a guiding principle within
its four corners, which cannot but have the effect of limiting the application of the
special procedure to a particular category of offences only and establish such a nexus
(which was missing in the West Bengal Act) between offences of a particular
category and the object with which the Ordinance was promulgated, as should suffice
to repel the charge of discrimination and furnish some justification for the special
treatment of those offences”.

The Ordinance, as already stated, purported to amend other Ordinances, the

object of which was to provide for public safety, maintenance of public order and
preservation of peace and tranquillity in the State. It was not disputed that the
preamble of the original Ordinance would govern the amending Ordinance also and
the object of promulgating the subsequent Ordinance was the same as the object of
promulgating the original Ordinance.

Once this is appreciated, it is easy to say that there is something in the

Ordinance itself to guide the State Government to apply the special procedure not to
any and every case but only to those cases of offences which have a rational relation
to or connection with the main object and purpose of the ordinance and which for that
reasons become a class by themselves requiring to be dealt with on a special footing.

The clear recital of a definite objective furnishes a tangible and rational basis
of classification to the State Government for the purpose of applying the provision of
the Ordinance and for choosing only such offence or cases as affect public safety,

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maintenance of public preservation of peace and tranquillity. Thus under Section 11,
the State Government is expected to select only such offences or class of offences or
class of cases for being tried by the special Court in accordance with the special
procedure as are calculated to affect public safety, maintenance of public order etc.,
and under Section 9, the use of special procedure must necessarily be confined to only
disturbed areas or those areas where adoption of public safety measures is necessary.”

9. Involvement of Non-Government Organisations (NGOs) in the field of

rehabilitating and educating the children of prostitute mothers:

Supreme Court in Gaurav Jain v. Union of India427, observed that even if the
economic capacity of the mother of neglected juvenile in the red light area to educate
and to bring him up would not relieve the child from social trauma; it would always
be adverse to keep the neglected juvenile in the custody of the mother or the manager
of the brothel; thus, the child prostitute is unsafe and insecure. So, they should be
rescued, cared for and rehabilitated. As stated earlier, the three Cs, namely,
counselling, cajoling and coercion of the fallen woman to part with the child or child
prostitute herself from the manager of the brothel is more effective, efficacious and
meaningful method to rescue the child prostitute or the neglected juvenile. The
income criteria, therefore, is not a factor not to rescue the child prostitute or the
neglected juvenile for rehabilitation.

It is of necessity to remember that the arms of the Law are long enough to
mould the Law to operate on an even keel. The coercive power with the Law-
enforcement agency to rescue the child prostitute or the neglected juvenile may not
necessarily end up as a successful means. It would be the last resort when all avenues
fail. On the other hand involvement of the Non-Governmental Organisations in
particular women‟s organisations which are more resourceful for counselling and
cautioning, would be a source of success for their retrieval from prostitution or
sending the neglected juvenile to the juvenile homes for initial treatment.
psychologically and mentally, and all yield place to voluntariness to surrender
guardianship of the child prostitute or neglected juvenile to the Welfare Board or to
the NGOs to take custody of a child prostitute or the neglected juvenile for care,
protection and rehabilitation.

427
(1997) 8 SCC 114 at 139-42: AIR 1997 SC 3021 at 3041-43

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 The V.C. Mahajan Committee Report states that the resort to Sections 14 and
17 of the JJ Act has met with resistance by the mothers and in the case of child
prostitutes, by the managers of the brothels. The coercive method adopted on one
occasion by the Delhi Police pursuant to a complaint under Section 13 of the JJ Act
on 7-3-1990, led to frustration of the entire operation, when on an early morning, the
prostitutes were taken by surprise by a tap on the doors and children were taken into
custody, on the pretext of being examined by the doctors. Total 450 juveniles were
taken into custody but no prior arrangement was made with the doctors for their
examination. The children were not given custody immediately. The children were
taken into custody, 112 children below 16 years were kept in the custody of the
police. Their examination went on up to 23-3-1990 by which time, the agitated
mothers and the managers of the brothels resorted to pressure tactics. Ultimately, it all
ended in a fiasco. All were released by managers of juvenile homes. This would
indicate apathy on the part of the police improper implementation and lack of prior
planning, understanding and concerted action between the Law-enforcement agency,
the NGOs and public-spirited persons and doctors. Instead of doing well, it does
harm. It, therefore, gives a stark lesson that until proper arrangements are made and
connected action taken ad hoc attempt to enforce Law results in defeat of the purpose
of the JJ Act if the NGOs in particular women members of the children or managers
of child prostitutes to give them into custody and if proper care and treatment is given,
rehabilitation is the sure road to successful results; it would be a success, rather than
frustration of the enforcement of the JJ Act. It is, therefore, a clear imperative that
proper planning, constant counselling and persuasion are the appropriate means,
rather than abrupt or ad hoc coercive steps, unless it becomes the last resort, for a
successful enforcement of the scheme.

The question then is what is the proper method required to rehabilitate the
neglected juvenile or child prostitute taken into custody under the JJ Act for enduring
results? It is rather unfortunate that the juvenile homes established and being run by
the Government are not effectively being managed and yielding expected results.
They become an ornament for statistical purposes defeating the constitutional
objectives and international conventions which are part of the municipal Law. This
Court on 2-4-1990 had directed the enforcement agencies to bring the prostitute and
neglected juveniles for rehabilitation in the juvenile homes manned by well-qualified

292
and trained social workers. The child prostitutes rescued from the red-light areas
should be shifted into the juvenile homes. They should ensure their protection in these
homes. The officers in charge of the juvenile homes, the welfare officers and the
probation officers should co-ordinate the operation and enforce it successfully. They
should be made responsible for the protection of the child prostitutes or the neglected
juveniles kept in the juvenile homes for psychological treatment in the first instance
relieving them from the trauma to which they were subjected to while in the brothels
and red-light areas. Special police authorities should be established to co-ordinate
with the social welfare officers of the State Government and public spirited persons,
NGOs locally available, and see that the juvenile homes are entrusted to efficient and
effective management, the child prostitute or neglected juveniles are properly
protected and psychologically treated, education imparted and rehabilitation
succeeded. They should also be provided with proper accommodation maintenance
facilities for education and other rehabilitation facilities.

V.C. Mahajan Committee‟s Report specifies at p. 31 that since its inception till
November 1989, 102 boys and 34 girls were admitted by a responsible institute, a
non-statutory body in Pune run on voluntary basis to impart education to the destitute
children in general and neglected juveniles and child prostitutes in particular, with all
facilities, it is run by Bal Sangopan Centre run by Shreemant Dagausheth Halwai
Ganpat Trust which gets funds from the Ministry of welfare, Government of India
under the scheme for children in need of care and protection. Similar homes are also
being run for 75 children at Kolhapur and Bombay. As a policy, the Trust does not
keep girls above 12 years in the institute. On the other hand, it has tied up with hinges
Stree Sikshan Sansthan at Pune for placement of the girls above 12 years into their
custody but the Trust continues to be the parent institution, paying their fees and
holding the overall responsibility to bring up the girls above 12 years. The report also
states that the mothers are allowed to visit the children once in a month and they are
allowed to take them home for brief spells during festivals and other special
occasions. There is another institution, viz. “Nihar” run by “Vanchit Vikas” institute
at Pune. It is founded on the basis of the felt needs of the neglected juvenile. Social
workers of Pune Corporation co-operate with them. There are special health reforms
available to prostitutes, the workers come into frequent contact with the prostitute
mothers and their children, gradually, they are getting acquainted with the situation

293
and awareness is generated of the disadvantages to keep the children with them while
remaining in the red-light areas. The motivation yielded positive results in helping the
children rescued from the mothers and their placement in the home. The institute is
run through donations. It is being run for the past 15 years. Much progress has been
made in the struggle to rehabilitate the neglected juveniles. Therein they have
established a school for 25 children being used in that “Nihar”. Most of the children
are in the age group of 5 to 10 years. They take only female children with the female
staff to attend to the needs of the children. Their basic requirements of food, clothing
and shelter are taken care of by “Nihar”. Health, education and overall development is
also taken care of. The children are enrolled in Zila Parishad Schools. Residential
staff help them to take them to the schools and bring them home. On Saturdays,
teachers spend their time in “Nihar” teaching music and playing games with the
children. On Sundays, teachers come from Pune and spend time witht eh children and
keep them in their studies. The mothers of the children visit once in a month. The
management does not allow the mothers to take the children except for short duration.
The prostitute mothers themselves have realised the advantage to keep their children
away from vile environment and are happy with the education progress of their
children. Similarly, “Devadasi Niradhar Mukti Kendra, Gandhiganj” is running a
centre by name “Devadasi Chhata Vasti Graja” at Pune from October 1986. It is a
residential institution for the children of Devdasis. 80% of the Devdasi‟s children
while 20% from socio-economic backward classes. Funds for the institution are
granted by the Department of Social Welfare, Government of Maharashtra. It has on
its roll, 75 boys and girls. As on the date of the visit of the Committee on 7-7-1990,
57 boys and 8 girls (total 65) were found in the institute. Similar institutions are being
run elsewhere, the details of which are not material. They have been elaborated in the
Report of the V.C. Mahajan Committee.

The above facts do indicate that the NGOs are actively involved in the field
of rehabilitating and educating the children of the fallen women as neglected
juveniles not brought within the net of JJ Act. The mothers have their legitimate
aspirations to bring their children into the mainstream of the nation. What needs to be
done is proper, efficient and effective co-ordination and management in particular
entrustment to the NGOs which would yield better results than the management
solely by the Governmental agencies. The motivation by the NGOs makes a deeper

294
dent into the mind of the prostitute mothers or child prostitutes to retrieve them from
the flesh trade and rehabilitate the children as useful citizens in the mainstream of the
society.”

Provisions of the ITP ACT which attracts punishments

The following are various penal provisions of the Immoral Traffic (Prevention) Act,
1956, and the punishment provided for each offence:
S.No. Section Offence Punishment
1 3 (1) Keeping or managing or acting or First conviction : Rigorous
assisting in the keeping or imprisonment, for a term of not less than
management of a brothel one year and not more than three years
and also with fine extending to Rs. 2000
second or subsequent conviction :
Rigorous imprisonment For a term of not
less than two years and not more than five
years and also with fine extending to Rs.
2,000
2 3 (2) Using or knowingly allowing the use First Conviction: Imprisonment for a
of premises as a brothel of which the term extending to two years and fine
accused is the tenant, lessee, occupier extending to Rs. 2,000.
or person in charge or Being the Second or subsequent conviction:
owner, landlord, or lessor of any Rigorous imprisonment. For a term
premises or being the agent of such extending to five years and also with fine.
owner, lessor or landlord and letting
the premises or any part thereof with
the knowledge that the same is
intended to be used as a brothel.
3 4 Knowingly living wholly or in part Imprisonment for a term extending to two
on the earnings of prostitution of any years or fine extending to Rs. 1,000 or
person. both.
And where such earnings relate to the Imprisonment for a term of not less than 7
prostitution of a child or a minor years and not more than 10 years.
4 5 Procuring, inducing or taking a Rigorous imprisonment for terms of not
person for the sake of prostitution. less than three years and not more than
seven years and also with fine extending
to Rs. 2,000.
If the offence committed is 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.
If the offence committed against the
child, the punishment shall extend to
rigorous imprisonment for a term of not
less than seven years but may extend to
life.
If the offence committed is against the
minor the punishment shall extend to
rigorous imprisonment for a term of not
less than seven years and not more than
fourteen years.
5 6 Detaining a person in a brothel or in Imprisonment of either description not
premises where prostitution is carried loss than seven years, but may be for life
on. or for a term which may extend to ten

295
 years and also fine.
6 7 (1) Prostitution in or in vicinity of a Imprisonment up to three months
public place.
7 7 (1A) Where the offence committed is in Imprisonment of either description not
respect of a child or a minor. less than seven years, but may be
extended for life or ten years and also
fine. (Read with Section 10-A)
8 7 (2) (a) Being the keeper of a public First conviction: Imprisonment up to
place knowingly permitting three months or fine extending to Rs.
prostitution in that place 2000.
Second or subsequent conviction:
Imprisonment up to six month and also
fine up to Rs. 2000, and if the public
place is a hotel, its licence may be
suspended for three month to one year.
(Read with Section 10-A)
9 7 (2) (b) Being the tenant, lessee, As in Section 7 (2) (a). (Read with
occupier or person incharge Section 10-A)
knowingly permitting
prostitution in the premises
or any part thereof. As in Section 7(2)(a). (Read with Section
(c) Being the owner, lessor or 10-A)
landlord, or agent of such
owner, lessor or landlord of
the premises letting the
same or any part thereof
with the knowledge that the
same may be used for
prostitution.
10 8 Seducing or soliciting in public place First offence: Imprisonment up to six
for the purpose of prostitution months or fine up to Rs. 500 or both.
Second or subsequent conviction :
Imprisonment up to one year and also fine
up to Rs. 500.
(Read with Section 10-A).
11 9 Seducing a person or causing or Imprisonment of either description for a
aiding or abetting her seduction when term of not less than seven years but
she is in the custody, charge or care which may extend to life or up to ten
or in a position of authority over any years and fine.
person.
12 18 (5) Failure to comply with a direction Fine up to Rs. 500.
given under Section 18 (1) (b).
13 20 (4) (a) Failure to comply with an Fine up to Rs. 200 and in the case of a
order for removal of continuing offence with additional fine
prostitute from any place, or which may extend to Rs. 20 per day after
the first day.
Re-entering a place without
permission whilst the order under
Section 20 (3) is in force.
14 20 (4) Knowingly harbouring or concealing Fine up to Rs. 2000 and in the case of a
(b) a person who has disobeyed an order continuing offence with additional fine
issued under Section 20 (3) which may extend to Rs. 20 per day after
the first day.
15 21 (10) Establishing or maintaining a First conviction: Fine up to Rs. 1,000.
protective home or corrective Second or subsequent conviction :
institution without licence Imprisonment up to one year or fine up to
Rs. 2,000 or both
16 23 (3) Contravention of the rules framed Fine up to Rs. 250
under clause (d) or clause (g) of
Section 23 (2)

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4.5 State Rules under the ITP Act:

After going through the ITP Act Rules of some of the States, one gets an
Impression that most of the rules are similar in nature. The major areas pertain to
maintenance of discipline, diet, training, education, arranging marriages, punishments,
powers of the Superintendent, etc. It seems from the rules that rehabilitation consists of
giving some basic educational/literacy inputs, basic vocational skills, handing over to
family and arranging for marriages. There is no rehabilitation scheme with components
such as job-oriented training programmes, loan for self-employment, and housing,
enhanced access to certain types of jobs, etc. The Maharashtra State Rules under ITP
Act have not been framed after the Act was amended from SITA 1956 to ITP Act,
1986. Such rules, which specify the rehabilitation process, have to be immediately
framed.

Some of the rules, which have progressive outlook, are reproduced below (taken
from various State Rules):

1. Bihar - Definition of Medical Officer: Should ordinarily be a lady doctor.

2. A. P. - Inmates of Protective Home may be sent, whenever advisable to other

institutes for similar educational or vocational training with prior approval of
the Chief Inspector.

3. A.P. - Inmates may be taken to places of interest under the supervision of the
Superintendent.

4. Delhi - Suitable inmates may be sent to Aftercare Homes from Protective

Home for their further rehabilitation.

5. Himachal Pradesh - Adequate number of trained teachers and qualified

instructors shall be appointed.

6. Kamataka - Provision for aftercare programmes.

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4.6 Andhra Pradesh Devadasis (Prohibition of Dedication) Act 1988
[Act No. 10 of 1988]:

The obnoxious practice of exploitation of women commonly known as

Devadasi, Bason, Jogini, Parvathi etc., is still prevalent in parts of Andhra Pradesh
State. This is a system of exploitation of women, resulting in dehumanization of the
women who became objects of indignity and exploitation during their whole life.
Most of them are turned into prostitutes living at the mercy of village people and
looked down upon by the society. The women so dedicated often belong to socially
and economically weaker sections of the society.

Objects of the Act:

The Act is enacted with a view to achieve the following objectives

1. To eradicate the evil system of Devadasi, Bason, Jogini, Parvathi etc., by

enacting suitable legislation, declaring such practices as illegal, providing
for deterrent punishment to those who perform promote, take part in or
abet the performance of any ceremony for dedicating a woman as
Devadasi or any ceremony connected therewith.

2. To prohibit the dedication of woman as Devadasi in the State of Andhra

Pradesh to Hindu deities, Idols, objects of worship, temples and other
religious institutions or places of worship exists in certain parts of the State
of Andhra Pradesh; and such practice, however ancient and pure in its
origin, leads many of the women so dedicated to degradation and to evils
like prostitution; and

3. To put an end to the practice.

Short title, extent and commencement :- (1) This Act may be called the Andhra
Pradesh Devadasis (Prohibition of Dedication) Act, 1988. This Act came into force on
31.3.1988. It extends to the whole of the State of Andhra Pradesh.

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Section 2: Definitions:

In this Act, unless the context otherwise requires,

(a) “dedication” means the performance of any act or ceremony by whatever

name called, by which a woman is dedicated to the service of a Hindu diety,
Idol, object of worship, temple or other religious institution or place of
worship and includes tying “tali with jakini” to a woman or tying a woman by
a garland to a Garuda Khambham, dhaarana and deeksha;

(b) “Devadasi” means any woman so dedicated by whatever name called and
includes Basavi, Jogini, Parvathi, Mathamma and Thyamma;

(c) “Government” means the state Government;

(d) “notification” means a notification published in the Andhra Pradesh Gazette

and the word „notified” shall be construed accordingly;

(e) “Woman” means female of any age.

Section 3: Dedication as Devadasi to be Unlawful:

(1) The dedication of a woman as Devadasi, whether before or after the

commencement of this Act and whether she has consented to such dedication or
not, is hereby declared Unlawful and void; and any woman so dedicated shall
not thereby be deemed to have become incapable of entering into a valid
marriage.
(2) Any custom or usage, prevailing in any Hindu community such as the Begum,
Kalavanthula, Sani, Nagavasulu, Devadasi, Kurmapulu, Basavi, Jogini and
Parvathi and the like, that a woman of that community who gives or takes part in
any melam (nautch), dancing or music performance in the course of any
procession or otherwise is thereby regarded as having adopted a life of
prostitution and becomes incapable of entering into a valid marriage, and the
performance of any ceremony or act in accordance with any such custom or
usage, whether before or after the commencement of this Act and whether the
woman concerned has consented to such performance or not, are hereby
declared Unlawful and void.

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Section 4: Marriage of Devadasis:

No marriage contracted by a woman in accordance with any Law, custom or

usage shall be invalid and no child of such marriage shall be considered as illegitimate
by reason only of such woman being a „Devadasi”

Section 5: Penalties:

Any person who performs, promotes, takes part in or abets the performance of
any ceremony or act for dedicating a woman as Devadasi or any ceremony or act
connected therewith shall on conviction be punishable with imprisonment of either
description for a term which may extend to three years but which shall not be less
than two years and with fine which may extend to rupees three thousand but which
shall not be less than rupees two thousand:

Provided that where the person referred to in this section is a parent or

guardian or relative of a woman so dedicated, he shall on conviction be punishable
with imprisonment of either description for a term which may extend to five years but
which shall not be less than two years and with fine which may extend to rupees five
thousand but which shall not be less than rupees three thousand provided further that
the woman who is dedicated in such ceremony or act or in respect of whom such
ceremony or act is performed shall not be punishable.

Section 6: Punishment for propagation:

whoever propagates the practice of dedication of woman as Devadasi shall on

conviction be punishable with imprisonment of either description for a term which
may extend to three years but which shall not be less than one year and with fine
which may extend to rupees five thousand but which shall not be less than rupees two
thousand.

Section 7: Powers to be conferred on Collector:

The Government may confer such powers and impose such duties, on the
Collector or any other officer of the Revenue Department not below the rank of
Mandal Revenue Officer, as may be necessary to ensure that the provisions of this

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Act, are properly carried out and may specify the local limits within which such
powers or duties shall be carried out by such officers.

Section 8: Duties of Collector and other officers:

It shall be the duty of every Collector and other officers specified under
Section 7 to inquire whether after the commencement of this Act, the system of
Devadasi is being practiced and if as a result of such enquiry, any such practice is
found to exist, he shall forthwith take such action as may be necessary to put an end to
such practice.

Section 9: Offences to be tried by Executive Magistrates:

The Government may confer, on an Executive Magistrate, the powers of a

Judicial Magistrate of First Class or of the Second Class for the trial of offences under
this Act; and on such conferment of powers, the Executive Magistrate, on whom the
powers are so conferred, shall be deemed for the purposes of the Code of Criminal
Procedure, 1973 to be a Judicial Magistrate of the First Class, or of the Second Class,
as the case may be.

Section 10: Offences under the Act to be cognizable and non-bail able:

Every offence under this Act shall be cognizable and non-bail able.

Section 11: Power to make rules:

(1) The Government may, by notification, make rules for carrying out all or any
of the purposes of this Act.

(2) Every rule made under this Act shall immediately after it is made, be laid
before the Legislative Assembly of the State if it is in session, and if it is not
in session, in the session immediately following for a total period of fourteen
days which may be comprised in one session in which agrees in making any
modification in the rule or in the annulment of the rule, the rule shall, from
the date on which the modification or annulment is notified, have effect only
in such modified form or shall stand annulled, as the case may be; so however

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 that any such modification or annulment shall be without prejudice to the
validity of anything previously done under that rule

Section 12: Repeal and Saving Act XXXI of 1947:

(1) The Andhra Pradesh (Andhra Area) Devadasis (Prevention of Dedication) Act,
1947 is hereby repealed.

(2) On such repeal the provisions of Sections 8 and 18 of the Andhra Pradesh
General Clauses Act, 1891, shall apply.

4.7 Section 145 - Indian Railways Act, 1989:

Section 145 provides for punishment for the acts of drunkenness or nuisance - if
any person in any railway carriage or upon any part of the railways is in a state of
intoxication: or commits any nuisance or act of indecency or uses abusive or obscene
language; would be punishable with a fine of up to Rs. 100/- (now Rs. 500/-) on
conviction and on second or subsequent conviction, imprisonment of one month and a
fine.

It has been found that in practice, this section is being used regularly by the GRP
against street prostitutes found soliciting in railway premises. Using such section
against women victims of prostitution does not serve any purpose beyond penalizing
an already victimized group. If action is to be taken by the GRP, they may use
sections of ITP Act for this purpose.

Section 145 provides for punishment for the acts of drunkenness or nuisance - if
any person in any railway carriage or upon any part of the railways

a) is in a state of intoxication: or

b) commits any nuisance or act of indecency or uses abusive or obscene

language; would be punishable with a fine of up to Rs- 100/- (now Rs. 500/-)
on conviction and on second or subsequent conviction, imprisonment of one
month and a fine.

It has been found that in practice, this section is being used regularly by the
GRP against street prostitutes found soliciting in railway premises. Using such
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section against women victims of prostitution does not serve any purpose beyond
penalizing an already victimized group. If action is to be taken by the GRP, they may
use sections of ITP ACT for this purpose.

4.8 Sections 110 - Bombay Police Act:

This section provides for punishment for behaving indecently in public places
or indecently exposing persons in any street, of fine up to Rs.1200/- or imprisonment
in lieu of it.

This is a widely used section by the police against a wide variety of persons
who are taken charge of in Law and order situations, including for picking up victims
of prostitution. In fact, the usage of this section is far wider than the usage of the ITP
ACT. The impact of this section on the victims does not go beyond temporarily
driving them away, and in fact, add to their financial burdens. The use of this section
against women found soliciting in public places should be stopped and Section 7 and
8 of ITP ACT may be used, if necessary.

In the case of A.G. Narvel V/s B.I. Nhinglavha and others (1999), the Mumbai
High Court observed that conviction under Section 110 of the BP Act, ipso facto does
not mean that a person arrested is a prostitute. For the control of prostitution, the
High Court suggested the use of ITP Act.

4.9. Juvenile Justice Act, 2000:

2(D) - Child in need of care and protection

Minor girls rescued from red-light areas, beer bars, massage parlours, hotels,
lodges or such other places are being produced before the legally constituted (under
the said Act) Child Welfare Committees, as children in need of care and protection.

The issue of the age verification process assumes significance here. Whether a
rescued person will be dealt with under this Act entirely depends on the findings of
the age verification process ordered by the CWC. Often, allegations are made about
how this process gets vitiated through exchange of money at the police / Government
hospital. Also the issue of the accuracy of a process where a person's age is calculated
on the basis of X-Rays of bones and teeth count comes into question. There is also
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the question of whether such tests should be carried out without the consent of the
persons concerned i.e. the alleged minors in question.

Section 49 makes it clear that age verification does not only rest on medical
examination, as is currently being interpreted. It states that the CWC shall collect
whatever information or evidence they deem fit to arrive at a finding on this issue and
that their decision on this matter would be final. This implies that other processes
such as getting the birth certificates, any other documents, photographs, home visit,
etc, could be taken recourse to by the CWC.

4.10 The Child Labour (Prohibition & Regulation) Act, 1986:

The Child Labour (Prohibition & Regulation) Act 1986 aims to prohibit the
engagement of children in certain employment and to regulate the conditions of work
of children in certain other engagements. This Act intends to prohibit the employment
of children who are under the age of 14 years, in certain occupations and processes. It
also intends to regulate the conditions of work of children in employment in which
they are not prohibited from working. This Act does not abolish child labour. Its
object seems to be mostly regulatory in nature than prohibitory. This Act does not
seem to be in consonance with the spirit of the Constitution of India. Article 24 of the
Constitution prohibits employment of children below the age of 14 years in any
factory, or mine or any other hazardous employment. This Act only provides a list of
hazardous occupations.

4.11 The Information Technology Act 2000:

The information technology Act analyses publications are transmission in the

electronic form of any material which is lascivious or appeals to prurient interest or if
it effect is such to tend to deprive and correct persons to read, see or near the matter
contained or embodied there in the Law has relevant to address the problem of
pornography. India also adopted a code of conduct for Internet Service providers with
the objective to enunciate and maintain high standard of ethical and professionals
practices in the field of Internet and related services.

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4.12 The Protection of Children from Sexual offences Act 2012:

The Protection of Children from Sexual Offences Act, 2012 has been drafted
to strengthen the legal provisions for the protection of children from sexual abuse and
exploitation. For the first time, a special law has been passed to address the issue of
sexual offences against children.

Sexual offences are currently covered under different sections of IPC. The IPC
does not provide for all types of sexual offences against children and, more
importantly, does not distinguish between adult and child victims.

The Protection of Children from Sexual Offences Act, 2012 defines a child as
any person below the age of 18 years and provides protection to all children under the
age of 18 years from the offences of sexual assault, sexual harassment and
pornography. These offences have been clearly defined for the first time in law. The
Act provides for stringent punishments, which have been graded as per the gravity of
the offence. The punishments range from simple to rigorous imprisonment of varying
periods. There is also provision for fine, which is to be decided by the Court.

An offence is treated as “aggravated” when committed by a person in a

position of trust or authority of child such as a member of security forces, police
officer, public servant, etc.

Punishments for Offences covered in the Act are:

 Penetrative Sexual Assault (Section 3) – Not less than seven years which
may extend to imprisonment for life, and fine (Section 4)
 Aggravated Penetrative Sexual Assault (Section 5) – Not less than ten
years which may extend to imprisonment for life, and fine (Section 6)
 Sexual Assault (Section 7) – Not less than three years which may extend to
five years, and fine (Section 8)
 Aggravated Sexual Assault (Section 9) –Not less than five years which
may extend to seven years, and fine (Section 10)
 Sexual Harassment of the Child (Section 11) – Three years and fine
(Section 12)

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  Use of Child for Pornographic Purposes (Section 13) – Five years and fine
and in the event of subsequent conviction, seven years and fine (Section 14
(1))

The Act provides for the establishment of Special Courts for trial of offences
under the Act, keeping the best interest of the child as of paramount importance at
every stage of the judicial process. The Act incorporates child friendly
procedures for reporting, recording of evidence, investigation and trial of offences.
These include:

 Recording the statement of the child at the residence of the child or at the
place of his choice, preferably by a woman police officer not below the rank
of sub-inspector
 No child to be detained in the police station in the night for any reason.
 Police officer to not be in uniform while recording the statement of the child
 The statement of the child to be recorded as spoken by the child
 Assistance of an interpreter or translator or an expert as per the need of the
child
 Assistance of special educator or any person familiar with the manner of
communication of the child in case child is disabled
 Medical examination of the child to be conducted in the presence of the
parent of the child or any other person in whom the child has trust or
confidence.
 In case the victim is a girl child, the medical examination shall be conducted
by a woman doctor.
 Frequent breaks for the child during trial
 Child not to be called repeatedly to testify
 No aggressive questioning or character assassination of the child
 In-camera trial of cases

The Act recognizes that the intent to commit an offence, even when
unsuccessful for whatever reason, needs to be penalized. The attempt to commit an
offence under the Act has been made liable for punishment for up to half the
punishment prescribed for the commission of the offence.

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 The Act also provides for punishment for abetment of the offence, which is the
same as for the commission of the offence. This would cover trafficking of children
for sexual purposes.

For the more heinous offences of Penetrative Sexual Assault, Aggravated

Penetrative Sexual Assault, Sexual Assault and Aggravated Sexual Assault,
the burden of proof is shifted on the accused. This provision has been made keeping
in view the greater vulnerability and innocence of children. At the same time, to
prevent misuse of the law, punishment has been provided for making false complaint
or proving false information with malicious intent. Such punishment has been kept
relatively light (six months) to encourage reporting. If false complaint is made against
a child, punishment is higher (one year).

The media has been barred from disclosing the identity of the child without the
permission of the Special Court. The punishment for breaching this provision by
media may be from six months to one year.

For speedy trial, the Act provides for the evidence of the child to be recorded
within a period of 30 days. Also, the Special Court is to complete the trial within a
period of one year, as far as possible.

To provide for relief and rehabilitation of the child, as soon as the complaint
is made to the Special Juvenile Police Unit (SJPU) or local police, these will make
immediate arrangements to give the child, care and protection such as admitting the
child into shelter home or to the nearest hospital within twenty-four hours of the
report. The SJPU or the local police are also required to report the matter to the Child
Welfare Committee within 24 hours of recording the complaint, for long term
rehabilitation of the child.

The Act casts a duty on the Central and State Governments to spread
awareness through media including the television, radio and the print media at regular
intervals to make the general public, children as well as their parents and guardians
aware of the provisions of this Act.

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 The National Commission for the Protection of Child Rights (NCPCR) and
State Commissions for the Protection of Child Rights (SCPCRs) have been made the
designated authority to monitor the implementation of the Act

4.13 Action Plan implemented in The State of Andhra Pradesh, India

by the Women Development Child Welfare and disabled
Welfare Department.
A comprehensive Policy and action plan covering various accepts such as
prevention of trafficking, rescue, repatriation, economic empowerment, health care,
education, housing, legal reforms and creation of corpus fund is necessary for
addressing the problem of trafficking. There is also need for planning and co-
ordination both at the district level and state level for addressing the deep rooted and
underlying causes of trafficking and also taking adequate measures for psychological
support, economic empowerment and re-integration so that the victims do not get
drawn in to the trade against on account of non availability of other options for lively
hood. As most of the components of action plan have to be implemented at the district
level, Government has decided to constitute district level committees for taking of
activities for prevention, rescue and rehabilitation of victims under G.O.M.S No-1,
dated: 03-01-20003. Accordingly the Government has constituted district level
committees in Andhra Pradesh, India with the following composition.
District Collector : Chairman
Superintendent of Police : Member
District Education officer : Member
PD, District Medical and Health officer : Member
PD, District Rural Development Authority
: Member
Authority
Representative of the SC/ST/BC Women Finance
: Member
corporations
NGOs/prominent social workers working in related : To be nominated by
areas district collector
Project Director Women Development & Child
: Member-Convener
welfare Agency

Government has also decided that the following activities shall be taken up by
the district level committees.

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Prevention:

Prevention of trafficking in women and children can be achieved only by the

addressing the root causes. Poverty and illiteracy have been identified as two primary
causes of trafficking. It is, therefore, necessary to ensure that the various schemes for
eradication of poverty are focused at benefiting families in which women and children
are vulnerable or are at high risk of being trafficked for sexual exploitation and
commercial purposes.

The district committee shall, therefore among other measures=, take the
following preventive action.

 Create a reliable and relevant data base with the help with of NGOs on the
high supply areas, routes, destinations, causes of trafficking, exploitation and
magnitude of the problem.
 Create public awareness and motivate public resistance to trafficking through
programs in educational institutions, Self help groups (SIGs), Women groups,
youth groups using print and visual media extensively.
 Adopt a campaign approach/mode to combat the evils of trafficking and
sexual exploitation with the help of local bodies, educational institutions,
NGOs, etc.
 Organize social boycott of the persons indulging in trafficking.
 Prepare Panchayath level and Mandal level action plans by establishing
similar committees at the Mandal and panchayath levels.
 Set up community vigilant Groups in every Panchayath especially in high-risk
areas to monitor, report and take action if necessary against persons involved
in trafficking.
 Establish and run care homes in all high supply areas for high risk groups like
street children, neglects children, etc. so as to prevent exploitation of their
vulnerability.
 Create a proper convergence of various benefit schemes for women and girl
children to empower high-risk-groups.

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Trafficking Measures:

The district committees shall set up an Anti-Trafficking squad in every

District headed by an officer not below the rank of Deputy Superintendent of Police.
The Anti-Trafficking squad shall be supported by the Project Director of Women
Development & Child welfare, probation officers, Social workers and other NGOs
who are specially sensitized and trained for rescue and rehabilitation.

The Anti Trafficking Squad shall:

 Be vigilant at all entry and transit points its control area and act quickly on
any report from the community vigilant groups or from any concerned
citizens on cases of trafficking.
 Establish contact centers at major transit point like bus stops/Railway stations
to monitor migration of women and children.
 Establish help lines, help-booths and support centers under the jurisdiction of
each Police station and assist the victims in getting immediate help.
 Conduct rescues with sensitivity, confidentially and care of victims.
 Enforce strictly the law against pornography including possession,
production, sale and exhibition of any kind of pornographic material.

Rescue:

The District Committee shall:

 Immediately arrange for shelter facility for rescued victims.

 Submit proposals for establishment of Transit homes with facilities for trauma
counseling, victim care, vocational guidance, re-integration which will be co-
managed with credible NGOs, under centrally sponsored scheme SWADHAR.

Economic Empowerment:

The District committee shall:

 Formulate special schemes, which will converge with existing schemes to

economically empower a victim.

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  Provide guidance and assistance through self-Help groups (SHGs) of victims
for micro credit facility and income generating facilities.
 Provide special assistance schemes under Women‟s SC/ST/BC finance
corporation for training and employment or self-employment on priority basis.
 Establish livelihood training programmes and training-cum-production centers
for victims with collaboration and support of private institutions.
 Establish adequate marketing tie-ups.
 Make it mandatory for NGOs supported by the Government to employ victims
who will form 50% of the total staff strength.

Health Care Services:

The District committee shall:

 Provide Health cards to women and child victims ensuring free medical
treatment, adequate drugs and medication in all Government Hospitals.
 Provide care and support for HIV +ve victims of trafficking so as ensure
holistic and non-discriminatory unbiased access to health services.
 Establish homes or support reputed NGOs to establish Homes wherever
required for terminally sick victims by utilizing existing infrastructure under
various departments/Agencies.
 Start mental Health intervention centers or counseling for victims for effective
reintegration back to the mainstream society.

Education and Child care:

The District committee shall:

 Establish residential transit schools with proper counseling facilities in all

Mandals so as to prevent second generation trafficking.
 Make it mandatory to admit all child victims and children of victims of
trafficking in main stream schooling.
 Admit child victims or children of victim of trafficking in residential schools
over and above the sanctioned strength.

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  Provide free and compulsory education with support services like
scholarships, Supplementary Nutrition and tuition so as to prevent Dropouts.
 Establish Vocational Training centers with adequate marketing links so as to
provide livelihood skills for mainstream reintegration.
 Declare the children of trafficked women as Orphans and provide benefits in
SC/ST/BC residential institutions/Hostel/Homes.

Housing and Civic amenities:

The district Committee shall:

 Arrange to provide victims of trafficking with electoral photo identity cards, if

they are registered electros of the relevant consultancy.
 Provide while ration cards as a separate eligible category as a special case
adopting existing income criteria.
 Provide allocation of house sites to rescued persons of priority.

Legal Reforms:

Government has also decided that necessary legal reforms shall be introduced
for ensuring effective and speedy justice by:

 Working on amendments of criminal procedures to ensure gender and child

sensitive application of judicial process and efficient, tight and stringent
prosecution of traffickers including summary disposal of such cases ensuring
proper and quick justice.
 Making provisions in the law for confiscation of assets of exploiters and for
compensation to the victims.
 Setting up night courts so as to prevent holding of victims in police custody at
night.
 Enacting a Law for imposing fine on the traffickers and crediting the amounts
to the rehabilitation fund for the victims of trafficking.

Rehabilitation and Relief Fund:

The Government has also decided to utilize the existing the rehabilitation and
relief fund for providing relief to victims of trafficking. The fund shall be utilized for:

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  Facilities to the repatriated victims rescued from brothels and other places
of trafficking to their homes.
 Providing immediate and timely relief to the victims of trafficking.
 Meeting Expenditure towards travel, clothing, other immediate
necessaries, urgent medical care and other contingencies for victims of
trafficking and their children.
 Supporting and networking with NGOs who are engaged in rescue and
rehabilitation.

State Level Co-ordination Committee:

For reviewing the activities of the district committees and achieving the
required inter departmental / multi sectoral co-ordination a state level co-ordination
committee under the Chairmanship of the Chief Secretary to Government is setup
with the following composition.

Chief Secretary to Government : Chairman

Principal Secretary to Government, Home department : Member
Principal Secretary to Government, Medical,
Health & family welfare department : Member
Principal Secretary to Government, Social
Welfare Department : Member
Secretary Government, School education department : Member
Secretary Government, Law Department : Member
Commissioners, Juvenile welfare, Correctional service
& welfare of street children department : Member
Project Coordinator, AP State Aids control society : Member
Director, Women Development & Child welfare
Department : Member
Two Non Government organization (NGOs)/
Social Workers to the nominated by the Government : Member
Principal Secretary Government, Women Development,
Child welfare & Disabled Welfare department : Member- Convener.

The state level co-ordination committee will meet once in three months to
review the situation relating to trafficking and the implementation of messenger for
rescue, rehabilitation and mainstreaming of the victims of trafficking.

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 All the concerned departments are requested to take further action and issue
detailed guide lines for the proper implementation of the policy. The collectors and
District Magistrates are also requested to constitute the District level committees and
to take up Vigorous campaigns against trafficking as well as implementation of the
various measures envisaged for the rehabilitation of the victims of trafficking.

Relief and Rehabilitation Fund:

A relief and rehabilitation fund was setup for providing relief to women who
become unfortunate victims of atrocities, like Rape, Molestation, Kidnapping,
Abduction of women and girls, Dowry deaths, etc., Under G.O.No-47 WDCW &DW
Dept. dt:12-07-1999. Government has issued orders on the policy for combating
trafficking of women and children for commercial sexual exploitation for providing
relief to victims of trafficking. The Government have ordered that an amount of Rs.
20,000/- are actual, whichever is lower be paid either by director, women
development and child welfare or the district collectors to the children or women were
rescued from trafficking as immediate relief for the purpose of travel, clothing,
medicine and other immediate necessities, without budget control.

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