IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 31st DAY OF MARCH 2017 BEFORE THE HON’BLE MR. JUSTICE JOHN MICHAEL CUNHA CRIMINAL PETITION NO.1959 OF 2017 BETWEEN:
ABHIJIT KALLIANPUR (SHOWN AS ABHIJIT IN THE FIR), S/O SRI GURUDUTT AGED 44 YEARS, OCCUPATION: PRIVATE SERVICE, RESIDING AT NO.103, KT-29, APARTMENT, 12TH CROSS, MALLESWARAM BENGALURU-560 003 ... PETITIONER (By Sri: PRASANNA KUMAR P, ADVOCATE) AND 1. STATE OF KARNATAKA BY SADASHIVANAGAR POLICE STATION, REPRESENTED BY ITS STATE PUBLIC PROSECUTOR HIGH COURT BUILDING, DR. B.R.AMBEDKARVEEDHI BENGALURU-560 001 2. SH YASHWANTH KUMAR K N S/O NOT KNOWN TO PETITIONER AGED MAJOR, OCCUPATION: POLICE INSPECTOR, W&N SQUAD CITY CRIME BRANCH, COTTONPET MAIN ROAD SULTANPET BAKSHI GARDENS CHICKPET BENGALURU-560 053 … RESPONDENTS (By Sri: VIJAYAKUMAR SPP SD) ---
THIS CRL.P IS FILED U/S.482 CR.P.C PRAYING TO QUASH THE FIR IN CRIME NO.16/2017 ON THE FILE OF VII ADDITIONAL CHIEF METROPOLITAN MAGISTRATE, BENGALURU OF 1ST RESPONDENT/SADASHIVANAGAR POLICE STATION, BENGALURU REGISTERED FOR THE OFFENCE P/U/S 370 OF IPC AND SEC.3,4,5,6 AND 7 OF IMMORAL TRAFFIC PREVENTION ACT, 1956, IN SO FAR AS THE SAME RELATES TO THE PETITIONER/ACCUSED NO.8.
THIS CRIMINAL PETITION HAVING BEEN HEARD AND RESERVED FOR ORDERS ON 17.03.2017 AND COMING ON FOR PRONOUNCMENT THIS DAY, JOHN MICHAEL CUNHA. J, MADE THE FOLLOWING:-
O R D E R This petition is filed under section 482 of Cr.P.C. seeking to quash the FIR in Cr.No.16/2017 on the file of the VII Addl.
C.M.M. Court, Bengaluru registered for the offence punishable under section 370 of Indian Penal Code and sections 3, 4, 5, 6 and 7 of Immoral Traffic Prevention Act, 1956 in so far as the same relates to the petitioner/accused No.8.
2. The facts of the case are as follows:
The second respondent -Police Inspector Women and Narcotic Squad, City Crime Branch, Bengaluru lodged information before the first respondent Sadashivanagar Police Station alleging that on 3.2.2017, at about 7.00 p.m., the informant received credible information about prostitution being carried on at Shivai Thai Spa at 8th Main Road, Sadashivanagar, Bengaluru. The informant along with the decoy and panchas went to the spot and arrested accused Nos.1 to 3 and customers - accused Nos.4 to 8 and produced them before the first respondent along with the panchanama.
3. On the basis of the above information, FIR came to be registered against eight accused persons under sections 3, 4, 5, 6 and 7 of the Immoral Traffic Prevention Act, 1956 (for short “ITP Act, 1956”) and section 370 of Indian Penal Code.
4. The petitioner has raised two fold contentions:-
(i) The case of the prosecution, even if accepted to be true, does not satisfy the ingredients of the offences alleged in the FIR.
(ii) There are no allegations against the petitioner herein in so far as the offence under section 370 of Indian Penal Code. The allegations thereof relate only to accused Nos.1 to 3.
5. In the course of the argument, in addition to the above grounds, it is argued, that the investigation into the alleged incident and the preparation of the panchanama before registration of the FIR is bad in law. In support of the argument, learned counsel has referred to the orders passed by this Court in Crl.P.No.7110/2011, Crl.P.No.7056/2014, Crl.P.No. 9682/2016, Crl.P.No.5808/2016, W.P.No.56504/2015 and also the decision rendered by the Andhra Pradesh High Court in the case of GOENKA SAJAN KUMAR vs. STATE OF ANDHRA PRADESH reported in 2015(3) Crimes 281 (A.P.) on these points.
6. I have perused the FIR and the orders relied on by the learned counsel for the petitioner. The sole ground on which the petitioner herein is arrayed as the accused in the above crime is that he was present at the spot during the raid, indicating that he was a customer who had gone to the spot for massage. The provisions of the ITP Act, 1956 invoked by the first respondent do not get attracted to the facts alleged against the petitioner. Section 3 of the ITP Act, 1956 deal with the punishment for keeping a brothel or allowing premises to be used as a brothel. Section 4 of the ITP Act, 1956 pertains to punishment for living on the earnings of prostitution. Section 5 of the ITP Act, 1956 refers to the procuring, inducing or taking (person) for the sake of prostitution. Section 6 of the ITP Act, 1956 deals about detaining a person in the premises where prostitution is carried out. Section 7 deals with prostitution in or in the vicinity of public places. A person who visits brothel house only as a customer is not covered by any of the above provisions or any other provision of the ITP Act, 1956. In the decisions referred above, in similar fact situation, the proceedings have been quashed solely on that score. Apart from the above legal defect, the registration of the FIR is also seen to have been done after the commencement of the investigation by the second respondent as it is an admitted fact that before registration of the FIR, based on the credible information, he rushed to the spot and arrested the culprits and drew up the panchanama as recorded in the FIR. This procedure adopted by the respondents renders the proceedings vitiated.
7. The allegations made against the petitioner and the material collected against the petitioner do not show the commission of any of the offences alleged against him in the FIR and the proceedings initiated against the petitioner is contrary to the decision in the case of GIRISHCHANDRA VS. STATE BY LOKAYUKTHA POLICE reported in ILR 2013 Karnataka 983, and the law laid down in the case of LALITHA KUMARI vs. GOVERNMENT OF U.P. reported in (2014) 2 SCC 1. For both these reasons, the proceedings are liable to be quashed.
Accordingly, the criminal petition is allowed. The F.I.R. in Cr.No.16/2017 on the file of the VII Addl. C.M.M. Court, Bengaluru is quashed.
I.A.No.1/2017 does not survive for consideration and accordingly, it is rejected.
Bss.
Sd/- JUDGE