IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 13TH DAY OF AUGUST, 2019 BEFORE THE HON’BLE MR.JUSTICE K. N. PHANEENDRA CRL.P. NO. 3437/2019 BETWEEN SMT CYNTHIA AGED 42 YEARS W/O PRAVEEN R/AT “SHEEBA SUHANI” KOTTARA CROSS 1ST STREET, BEJAI POST MANGALURU D.K. DISTRICT – 575 004 ... PETITIONER (BY SMT. H. GAYATHRI BHAT, ADVOCATE FOR SRI. P .P HEGDE., ADVOCATE) AND THE STATE OF KARNATAKA THROUGH THE SUB INSPECTOR OF POLICE, BARKE POLICE STATION MANGALURU, D.K. DISTRICT (REP. BY THE STATE PUBLIC PROSECUTOR, HIGH COURT OF KARNATAKA, BENGALURU) ... RESPONDENT (BY SRI. K. P. YOGANNA, HCGP) THIS CRIMINAL PETITION IS FILED UNDER SECTION 438 CR.P.C PRAYING TO ENLARGE THE PETITIONER ON BAIL IN THE EVENT OF HER ARREST IN CR. NO. 162/2018 OF BARKE POLICE STATION, MANGALURU CITY FOR THE OFFENCE PUNISHABLE UNDER SECTIONS 3(1), 4, 5 OF IMMORAL TRAFFIC PREVENTION ACT.
THIS CRIMINAL PETITION COMING ON FOR ORDERS THIS DAY, THE COURT MADE THE FOLLOWING:
ORDER Heard the learned counsel for the petitioner and the learned HCGP for the Respondent–State. Perused the records.
2. The petitioner is the sole accused in Crime No. 162/2018 of the respondent-Barke Police Station, for the offences punishable under Sections 4, 5, 3(1) of Immoral Traffic Prevention Act, 1956, (for short, ‘ITP Act’), which is pending on the file of JMFC (III Court), Mangaluru.
3. The allegations made against the petitioner in brief are that, the petitioner was running an Ayurvedic Massage Parlour in the name and style of Nisarga Ayurvedic Therapy Centre at M.G. Tower, 1st Floor, M.B. Road, Ballal Bagh, Mangaluru. The respondent-Barke Police on receiving a credible information that, the petitioner-Smt. Cynthia being the owner of the said premises, leased out the said premises for the purpose of conducting prostitution, on 02.11.2018, went to the spot and found that some people were indulged in prostitution. Since the petitioner was the owner of the said premises, she was made an accused in this case. There is no dispute that, she is the owner of the said Ayurvedic Center. But, in the suo-muto complaint lodged by the Police Inspector of Barke Police Station, it is categorically stated that, at that particular point of time, this lady was not present in the said premises. Though there is a presumption under Section 3(2)(2A) of ITP Act that the knowledge can be imputable to the petitioner considering the offence punishable under sub-section (1) of Section 3 of the Act with the sentence of minimum one year, which is extended to more than three years also. The proviso to Section 437 of Cr.PC., discloses that even in the case where the offences are punishable either with death or imprisonment for life, if the court is satisfied with regard to the assistance of the accused to the Court and also the antecedents of the accused, then the court can exercise powers for the purpose of granting remedy to the accused.
4. In this particular case also, the petitioner was not present at the time of the incident. Actually knowledge cannot be imputed. The presumption can be rebutted during the course of evidence. The petitioner being a lady and she was not in the alleged premises at the time of raid, in my opinion, she is entitled to be enlarged on bail subject to certain conditions. Hence, the following order:
ORDER The petition is allowed. Consequently, the petitioner/Accused-Smt.Cynthia shall be released on bail in the event of her arrest in connection with Crime No.162/2018 registered against her by Respondent- Barke Police Station, Mangaluru, for the offence punishable under Sections 3(1), 4 & 5 of Immoral Traffic Prevention Act, 1956, subject to the following conditions:-
(i) The petitioner shall surrender herself before the Investigating Officer within Ten days from the date of receipt of a certified copy of this order and she shall execute a personal bond for a sum of Rs.1,00,000/- (Rupees One Lakh only) with one surety for the like- sum to the satisfaction of the concerned Investigating Officer.
ii) The petitioner shall not indulge in hampering the investigation or tampering the prosecution witnesses.
iii) The petitioner shall co-operate with the Investigating Officer to complete the investigation, and she shall appear before the Investigating Officer as and when called for.
iv) The petitioner shall not leave the jurisdiction of Mangaluru District without prior permission of the Court, till the charge sheet is filed or for a period of three months, whichever is earlier.
Sd/-
JUDGE KGR*