Jas Raj Chopra, J.
1. This revision petition has been filed against the appellate judgment of learned Additional Sessions Judge No. 1, Jodhpur Camp Jaisalmer, dated 17-11-1978 whereby the learned lower court has upheld the conviction of accused petitioner Mst. Soni under Sections 3(1) and 7(1) of the Suppression of Immoral Traffic in Women and Girls Act, 1956 (hereinafter referred to as the Act of 1956) and has sentenced her to one year's R.I. together with fine of Rs. 200/- under Section 3(1) and to one month's R.I. for the offence under Section 7(i) of the Act of 1956. Her conviction under Section 4(1)(Kg) of the Rajasthan Prohibition Act has also been maintained and she has been sentenced to 3 month's R.I. together with a fine of Rs. 200/-. in default of payment of each amount of fine she had been ordered to undergo 15 day's R.I. The learned Sessions Judge has also maintained the conviction of accused Champalal under Section 7(1) of the Act of as also the order of the learned trial court about his furnishing a personal bond and surety bond of Rs. 1000/- to keep peace and be of good behaviour. Aggrieved against this judgment of the learned Sessions Judge both these accused petitioners have preferred this revision.
2. The facts necessary to be noticed for the disposal of this appeal briefly stated are that on the night intervening between 24th & 25th January, 1975 complainant Mohanlal who happens to be the real brother of accused Mst. Soni approached the Dy. Superintendent of Police, Jaisalmer and told him that he lives in Mohalla Jagripada of Jaisalmer. Just adjacent to his house there is the house of his real sister Mst. Soni. It has been alleged by him that Mst. Soni has been indulging in prostitution and is carrying a brothel in her house. She has been offering herself along with Mst. Kamla and daughter of the complainant Suraj and other ladies for prostitution. He has also alleged that his wife Mst. Mumal also indulges in the prostitution with Mst. Soni. The premises occupied by Mst. Soni is used as a brothel and there all these ladies along with others offer their bodies for prostitution for commercial gain. It is alleged that his nephew Dalip and his two sons Shyam and Amrit along with Champalal brahmin who is driver in Police, help these ladies, to run this brothel. According to him Kamlesh and Ganga Shanker are known to him and they are on visiting terms with his sister and they are also helping Mst. Soni in running this brothel. These person themselves participate in prostitution and help these ladies to earn money out of the prostitution. The house of Mst. Soni is situated within 200 yards of a school and a public temple. He has also alleged that today night Kamlesh Gangashanker and Champalal have paid Rs. 20/-each to Mst. Soni, Suraj and Kamla and he knows that these persons will indulge in prostitution with these ladies. As the window of his house opened in the house of Mst. Soni he has witnessed all these things. On the basis of this information Shri Pukhraj along with SHO Jaisalmer with some other police officials accompanied by informant raided the house of Mst. Soni. In this raid when they peeped into the rooms from the openings in the doors they found accused Champalal committing sexual inter course with Mst. Soni and in the other two rooms they found Kamla alongwith Gangashanker and Suraj along with Kamlesh naked in their respective rooms which were bolted from inside. Suraj and Kamlesh were found sleeping naked and Gangashanker and Kamla were found naked. As soon as they saw that the police has come they came out naked where they were asked to wear their dresses. All the accused were sent for medical examination. Medical reports were obtained and on the basis of this investigation a challan was filed in the court of learned Chief Judicial Magistrate Jaisalmer. The learned Chief Judicial Magistrate convicted accused appellant Mst. Soni and Champalal as aforesaid. It has also held Kamla, Suraj Ganga Shanker Kamlesh and Champalal guilty for the offence under Section 7(1) of the Act of 1956 but has released them on probation. The learned CJM held accused Soni, Amrit, Shyam, Dalip and Mutual guilty of the offence under Section 3(1) of the Act of 1956 and they were sentenced by him to one year's R.I. with a fine of Rs. 200/- each. On appeal the learned District Judge has maintained the conviction of Mst. Soni, Champalal, Kamla Suraj, Kamlesh and Gangashanker. However the learned Sessions Judge acquitted Shyam, Dalip, Amritlal and Mumal from the offence under Section 3(1) of the Act of 1956. Mst. Kamla, Suraj, Kamlesh and Gangashanker have not preferred any revision. Only these two accused petitioners, i.e. Soni and Champalal have come up in revision.
3. Learned Counsel for the accused petitioners does not challenge the conviction of the accused petitioner under Section 7(1) of the Act of 1956. He also does not challenge the conviction Mst. Soni under Section 4(1)(g) of the Rajasthan Prohibition Act because on her examination she was found drunk by the doctor soon after the occurrence. He has however, challenged the conviction of accused petitioner Mst. Soni Under Sectionection 3(1) of the Act of 1956. He has submitted that although the learned Chief Judicial Magistrate and the learned Sessions Judge have relied on the testimony of PW 10 Mohanlal who has stated that Mst. Soni indulges herself in prostitution but indulging in prostitution alone is not sufficient ingredient to bold any accused person guilty of an offence under Section 3(1) of the Act of 1956. A brothel has been defined in Section 2(a) of the Act of 1956 to include any house, room or place or any portion of any house, room, conveyance 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. In this respect he placed reliance on a decision of this Court Mst. Pyari v. State reported in 1962 RLW 598 where in it has been held by Hon'ble Bhargava, J. as he then was, that there is no evidence that the premises were being used for purposes of prostitution for the gain of some other person or for the mutual benefit of two or more prostitutes and so the premises used by the petitioner cannot, therefore, be called a brothel and the charge of keeping or managing a brothel against the petitioner must fail. He also placed reliance on a decision of the Madras High Court in Re John and others reported in AIR 1966 Mad. 167 where in it has been held that a brothel implies that the premises must be used for the gain of another person or for the mutual gain of two or more persons. My attention was also drawn to a decision in P.K. Unni Kumar v. State of Madras reported in 1974 Cr. LJ 377. K. Mudaliyar, J. held that a single instance of prostitution is not 'purposes' and hence that place will not be 'brothel'. Evidence or activity around that place viz, girls being brought in and sent out with others will be too general and a vague allegation incapable of bringing the place within Section 2(a) and thus Section 3(1) will not be attracted to such a case.
4. He has submitted that in this case there is not an iota of evidence that prostitution was carried on in this house for the gain of any other person. There is also not an iota of evidence that the prostitution was carried on in this house for the benefit of two or more persons. Not a single witness has stated that even for the commission of this offence any money was paid. Only an inference has been drawn by the learned trial court that when three ladies are simultaneously offering their bodies for the satisfaction of the sexual lust of different persons of different communities it must be a brothel. It has also taken support from the statement of Mohan Lal that Mst. Soni was indulging in the acts of prostitution in this house. That alone is not enough to treat the premises as a brothel because the prosecution has to prove that the premises are used for prostitution for the gain of another person or for the mutual benefit of two or more prostitutes and that burden has to be discharged according to Mr. Arora by the prosecution and prosecution alone and it can not be shifted on the accused persons and drawing of inference in such matters is not permissible. In this respect he drew strength from certain observations made in Bhula Mia v. State reported in : AIR1969Cal416 where in a Division Bench of the Calcutta High Court has observed that 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 two or more prostitutes, in other words, prosecution has to prove that in the premises a female indulges in the act of offering her body for promiscuous sexual intercourse for hire, whether in money or in kind. 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. He has, therefore, submitted that it was essential for the prosecution to have proved that the prostitution that is being carried on in the house of Mst. Soni is for the gain of any other person on for the mutual benefit of Mst. Soni, Kamla and Suraj. He has submitted that it has been held by this court in Mst. Pyari's case (supra) that prostitution by itself has not been made punishable unless it is in any way covered by the provisions of Sections 7 and 8 of the Act of 1956. A woman who prostitutes herself for her own livelihood save in the manner given in Sections 7 and 8 of the Act does not commit any criminal offence under this law which aims at the suppression of Immoral Traffic in Women and Girls for the purpose of prostitution; Similar view has been expressed in Re Ratnamala and another reported in : AIR1962Mad31 . Anantnarayanan, J. observed in this authority that though distinct from the word 'management' occurring there in has to be read ejusdem generis with the latter word and so the scheme of the Act is not such as to render a prostitute herself criminally liable for the mere act of prostitution except under Sections 7 arid 8. Thus, the mere act of prostitution itself has not been made punishable unless it is covered by the provisions of Sections 7 and 8 of the Act of 1956. It was therefore, the duty of the prosecution to prove that Mst. Soni was indulging in the act of prostitution along with other girls either for the benefit of somebody else or for the mutual benefit of herself along with Suraj and Kamla. Mst. Mumal and three other accused who were sleeping outside have been acquitted of the charge. No body has said that any money Was accepted by any of these three women either for the mutual benefit of themselves or for the gain of any body else. It is true that apparently this house is being used as a 'brothel'. It may be true that these ladies were including in prostitution and they have all been held guilty under Section 3(1) of the Act along with three persons but: to prove a charge under Section 3(1) of the Act it has to be proved that the prostitution was being carried on for the gain of any person or for the mutual benefit of the ladies. Unless that ingredient has been proved the charge under Section 3(1) of the Act cannot be held as proved against Mst. Soni.
5. One more argument in support of this contention of the petitioner has been advanced by Mr. Arora where in he has said that the provisions of Section 15(2) of the Act have not been complied with. He has admitted that even if a search or raid is made or conducted without recording the reasons by the police officer when he does so without obtaining a warrant from the Magistrate it is a mere irregularity but the compliance of Section 15(2) is mandatory and in this respect he has placed reliance on a decision of the Kerala High Court in T. Jacob v. State reported in 1971 Cr. LJ 952 where in it has been held that provisions under Section 15(2) are mandatory. It has been held by the Punjab & Haryana High Court in 1967 Punjab Law Reporter 965 that provisions as to women witnesses is mandatory. None compliance of the provision makes the search illegal and fatal to the prosecution. The Madras High Court has also held in 1972 Madras Law Weekly that two or more persons should be called to witness the search.
6. Mr. B.C. Bhansali appearing for the State has drawn my attention to a decision of their Lordships of the Supreme Court in Bai Radha v. State Gujarat : 1970CriLJ1279 where in it has been held that a search made in non-compliance of Sub-section (1) and(2) of Section 15 of the Act of 1956 does not vitiate the trial unless it is shown that prejudice is caused. In this case two male 'motbir' witnesses were taken by the Special Officer, one of whom was not a women, Mr. Arora has submitted that in this case not a single witness was called. It has not been said that no witnesses were available. Simply because it was an hour of midnight it does not mean that attendance of motbirs cannot be procured. Even no lady constable has accompanied the police party. However, there is some substance in the argument of Mr. Bhansali that even if a search is made in absence of the witnesses it should be shown that some prejudice has been caused. Here all the witnesses who have been examined are police witnesses. Mohanlal complainant has turned hostile. The examination of two witnesses one of whom should have been a lady, would have thrown light on the fact whether the proceedings, alleged to have been taken by the police party, were really fair and impartial. Of course it has not been stated that police persons are interested in conviction of the accused but the law requires that the presence of two witnesses should be procured and when no reason is given for not procuring such witnesses it can safely be said that some prejudice is caused to the accused persons because independent witnesses could have thrown some light about the liability of the police witnesses. Be that as it may, it is not material for the decision of this appeal. What is material is that the prosecution has failed to prove that the residence of Mst. Soni was used as a 'brothel' for the gain of any other person or for the mutual benefit of the prostitutes, in these case i.e. Mst. Soni, Kamla and Suraj. In the light of the above discussion I am inclined to hold that the prosecution has failed to prove a charge under Section 3(1) of the Act of 1966 against Mst. Soni and therefore, she deserves the benefit of doubt and consequent acquittal from the above said charge. So far as offence under Section 7( 1) of the Act 1956 is concerned it has not been challenged by the learned Counsel for the appellant. He has only made a submission that Mst. Soni should not be treated differently from the other accused persons. He has further submitted that the Rajasthan Prohibition Act has already been abolished, a lenient view may be taken after 14 years of the occurrence. The occurrence took place in 1973. After 14 years it will not be proper to send a lady of 60 years to prison. When she was examined she was 47 years of age and now after 14 years she is of 60, therefore, the benefit of probation is extended to her regarding this offence also. Mr. Bhansali however, opposes this submission but in the facts and circumstances of the case it will not be proper to sentence Mst. Soni to custody and I, therefore, propose to take a lenient view.
7. In the result the revision petition is partly allowed. The conviction & sentence of Mst. Soni under Section 3(1) of the Act is set aside and she is acquitted of the above said offence. However her conviction under Section 7(1) of the Act along with Section 4(1)(g) of the Rajasthan Prohibition Act is maintained. However she is extended the benefit of Probation of Offenders Act and it is hereby ordered that if she furnishes a personal bond of Rs. 1,000/-together with a surety of the like amount to the satisfaction of the Chief Judicial Magistrate, Jaisalmer that she will keep peace and be of good behaviour and will not indulge herself in such offence for a period of three years and submit her self to receive sentence when ever called upon to do so during this period. She may be released on furnishing the above said bonds. So far as accused appellant Champa Lal is concerned, his conviction has not been challenged and he has already been extended probation and, therefore, the judgment of the first appellate court as regards him is affirmed.
8. The revision petition is disposed of accordingly.