058-NLR-NLR-V-25-SAIBO-v.-CHELLAM-et-al.pdf
( 251 )
Present: Jayewardene A.J.SAIBO v. CHELLAM et at.
413—P. G. Jaffna, 22,591.
Prostitution—Women earning a living by prostitution—OrdinanceNo. 4 of 1841, as amended by Ordinance No. 21 of 1919, s. 9 (J) (o).
Prostitution is not an offence per se under our law.
Section 9, sub-section 1 (a), of Ordinance No. 4 of 1841, as amendedby Ordinance No. 21 of 1919, does not penalize prostitutes livingon their own earnings.
'JpHE facts are set out in the judgment.
Arulanandam, for the appellants.—The accused was chargedunder section 9 of Ordinance No. 4 of 1841 as amended by OrdinanceNo. 21 of 1919. The facts show that she was leading the life ofa prostitute. That is not an offence under the Ordinance. SeePolice Sergeant, TangaUa, v. PoHhenis} Appuhamy v. Emanis.2
July 27,1923. Jayewardene A.J.—
In this case two women who are said to be prostitutes have beenconvicted under section 9, sub-section (1) (a), of Ordinance No. 4 of1841, as amended by Ordinance No. 21 of 1919, of having knowinglylived on the earnings of prostitution and sentenced to pay a fineof Rs. 50 each. They appeal on the ground that the section underwhich they have been convicted does not apply to them, as it doesnot penalize prostitutes living on their own earnings.
Section 9, sub-section (1) (a), runs as follows :—
“ The following persons, that is to say—
Any person who knowingly lives wholly or in part on the
earnings of prostitution;
… .
shall be deemed to be incorrigible rogues within the true intentand meaning of the Ordinance and shall be liable, &c …
This section has been borrowed from the English Vagrancy Act,1898 (61 and 62 Viet., ch. 39), as amended by the Criminal LawAmendment Act, 1912 (2 and 3 Geo. V., ch. 20), with a slight butimportant alteration. The English Act enacts that—
“ Every male person who knowingly lives wholly or in part onthe earnings of prostitution …. is to be deemedto be a rogue or vagabond within the meaning of theVagrancy Act, 1824, and may be dealt with accordingly.”
1 (1920) 22 N. L. R. 163.** (1921) 23 N. L. R. 160.
1923.
1928.
Jayewab-DfiNU A.J.
Saibu v.Chellam
( 252 )
The important alteration is that while the English Act. refersonly to male persons, the local Ordinance refers to “ any persons,”which would include “ female ” as well as “ male persons ” (seesection 23 of the principal Ordinance, No. 4 of 1841). Thisalteration has made the present conviction possible. But the*question still remains, whether, even where the term “ any person ”includes female persons, prostitutes come within the meaning ofthe sub-section of our Ordinance, The sections of the amendingOrdinance, No. 21 of 1919, have been explained by Bertram C.J.in his judgment in Coore v. James Appu1:—
“ Speaking generally,” said the learned Chief Justice, “ the Ordi*nance and the Ordinances which it amends do not penalizeillicit sexual intercourse, except where the act takesplace under circumstances which are a public scandal,or on outrageous offence to individual rights, or where ittakes place with a girl under the prescribed age; Similarly,the procurement of women for an act of sexual intercourseis not punishable, except in the case of a woman undertwenty years of age (see section 6), But what theOrdinance does penalize is the making a living out of thecorruption and degradation of others. It does this in threeways:—
It enhances the penalties for brothel-keeping (section 4);
(ib) It punishes persons who live on the earnings of prostitution(section 9 (1) (a) ); and
(c) It further punishes persons who systematically procurepersons of whatever age for the purpose of illicit inter-course.
With regard to (6), the person here aimed at is the type of characterknown in Europe as the bully, that is to say, a personwho has a woman under his control, and who by theuse of his influence or authority compels or induces herto offer herself for prostitution, and lives wholly or inpart on earnings so realized.”
But owing to the omission of the word “ male ” from our section,not only “ male bullies ” but also “ female bullies ” would comewithin the operation of the sub-section. Later in the same judgmenthe says :—
“ If a person is charged with living on the earnings of prostitu-tion, it is not right to give general evidence that he doesthis ; the name of the alleged person on whose earnings heis said to live must be specified.”
1 (1920) 22 N. L. B. 206 (2U).
( 253 )
Prostitution is not an offence per ae under our law, and if thelearned Magistrate’s conclusion is right, the Ordinance would havethe effect of making a very important alteration in our law, andprostitution would stand penalized. But, as Bertram C.J. pointsout in his judgment, what the sub-section penalizes is “ the makingof a living out of the corruption and degradation of others.” Thewords of the sub-section themselves make this clear. I refer inparticular to the word “ knowingly;” * If the sub-section wasintended to refer to prostitutes, the use of the word “ knowingly ”is highly inappropriate; for if a prostitute earns money and liveson such earnings, there can be no mistake as to what her earningsare, and there can be no question of her doing so “ knowingly.”There could be no possibility of her doing so “ unknowingly ” undera misapprehension, or mistake. The use of the word “ knowingly ”throws on the prosecution the burden of proving that the accusedhad the requisite knowledge, and the accused may prove that suchknowledge was absent. This would apply in a case when anotherperson is charged with the living on the earnings of a prostitute,but in the case of the prostitute herself it would be meaningless.Both according to the intention of the Ordinance and the wordsof the sub-section itself, the latter has no application to prostituteswho live on their own earnings or prostitution. The words of the"English Act too support this construction. There is also, in myopinion, in this case a joinder of accused persons which is notpermitted by law and which is fatal to the convictions. Personscould only be charged together if they are accused of jointlycommitting the same offence or of different offences committed inthe same transaction (section 184 of the Criminal Procedure Code).The accused no doubt occupied the same house, but each was 'living on her own earnings.
I therefore set aside the convictions and acquit the accused.
Set aside.
1923.
JAYEWAB-
DENE A. J.
Saibu v.Chellam
♦