Section 372 of Indian Penal Code, 1860 – Explained!
There are two explanations attached to the section. The first says that when a woman under the age of eighteen years is sold, let for hire, or otherwise disposed of to either a prostitute or to any person who keeps or manages a brothel, the person so disposing of such woman shall be presumed to have done so with the intention that she shall be used for prostitution, unless contrary is proved to the satisfaction of the court. The second explanation says that the expression ‘illicit intercourse’ under this section means sexual intercourse between persons who are not married to each other, or they are not united by any union or tie which, though does not amount to marriage, is recognised by the personal law or custom of the community to which they belong or, where they belong to different communities, of both such communities, as constituting a quasi-marital relationship between the two.
The section penalises selling or letting to hire or otherwise disposal of a person under eighteen years of age. The intention of the offender must be to employ or use the victim at any age for prostitution or illicit intercourse or for any unlawful and immoral purpose, or there must be knowledge on the part of the offender that it is likely that the victim will be employed or used for such purpose at any age.
The first explanation creates a presumption of intention which is rebuttable while the second defines the expression ‘illicit intercourse.’ The use of the words ‘at any age’ show that the victim may be employed or used for such a purpose even after completing the age of eighteen years. It is no defence for the offender to say that the victim was not destined to be a prostitute but would be required to have one single act of sexual intercourse.
The use of the word ‘and’ between the words ‘unlawful’ and ‘immoral’ shows that the purpose must be both unlawful and immoral. Selling a girl with the intention of making her a concubine or mistress of another man is punishable under this section. Dedication of a girl under eighteen years of age as a devdasi with the requisite intention or knowledge would amount to an offence under this section.
In State of Madhya Pradesh v. P.K. Jain the Madhya Pradesh High Court observed that doctors in nursing homes who, contrary to all norms of professional ethics, sell a recently born child without ascertaining satisfactorily the purpose for which the child is being purchased and without taking proper precautions to ensure that the child may not fall in undesirable hands must, prima facie, be imputed with the knowledge that the child, at some stage, is likely to be employed or used for any unlawful or immoral purpose within the meaning of section 372 of the Indian Penal Code.
It has to be taken notice of that the word ‘likely’ in the section denotes ‘probability’ and not ‘certainty’. Thus this offence is clearly made out against doctors, nurse and cashier in the hospital who were caught red-handed while selling a newly born child of an unwed mother in the hospital.
The offence under this section is cognizable, non-bailable and non-compoundable, and is triable by court of session.