IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 24th DAY OF JANUARY, 2019 BEFORE THE HON’BLE MR.JUSTICE ARAVIND KUMAR CRIMINAL PETITION NO.8163/2018 BETWEEN:
JAYAPRAKASH @ PRAKASH S/O BASAVARAJAPPA AGED ABOUT 27 YEARS R/AT DYAMENAHALLI VILLAGE DAVANAGERE TALUK DAVANAGERE DISTRICT 577514 ... PETITIONER (BY SRI. CHETAN A.C., ADVOCATE) AND:
THE STATE OF KARNATAKA REP BY WOMEN POLICE STATION DAVANAGERE REP. BY ITS SPP HIGH COURT BUILDING BENGALURU 560 001 ... RESPONDENT (BY SRI RACHAIAH, HCGP) THIS CRIMINAL PETITION IS FILED UNDER SECTION 482 CR.P.C. PRAYING TO QUASH THE ENTIRE PROCEEDINGS INCLUDING COMPLAINT AND FIR IN CRIME NO.103/2018 OF WOMEN POLICE STATION, DAVANAGERE FOR THE OFFENCES PUNISHABLE UNDER SECTIONS 3,4 AND 5 OF THE I.T.P.ACT AND SECTION 370 OF IPC PENDING ON THE FILE OF III JMFC, DAVANAGERE INSOFAR AS THE PETITIONER IS CONCERNED.
THIS CRIMINAL PETITION COMING ON FOR ADMISSION THIS DAY, THE COURT MADE THE FOLLOWING:
O R D E R This petition is filed under section 482 of Cr.P.C. for quashing of entire proceedings in Cr.No.103/2018 pending on the file of III JMFC, Davanagere, for the offences punishable under Section 370 IPC and Sections 3, 4 and 5 of Immoral Traffic Prevention Act, 1956 against petitioner - accused No.6..
2. Facts of the case are as under:
On 14.7.2018, at about 3.30 p.m. one Sri. S.K. Shankar- Sub Inspector of Police, D.C.I.B. Section, Davanagere, received a credible information that prostitution was carried on in the premises bearing House No.1372/17, 4thMain, in front of UBDT Girls Hostel, Nutan College Road, Davanagere. On the basis of said information, respondent-police conducted a raid on the said premises at 4.00 p.m. and arrested the customers viz., petitioner - accused No.6 along with other accused persons and seized 5 mobiles, cash of Rs.2,300/- and other material.
3. On the basis of above information, FIR came to be registered against three accused persons for the offences punishable under Section 370 of IPC and Sections 3, 4 and 5 of Immoral Traffic Prevention Act, 1956 (for short “ITP Act, 1956”).
4. The petitioner has raised two contentions:-
(i) Case of the prosecution, even if accepted to be true, it 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 and 2 and 7 and 8.
5. In the course of arguments, in addition to the above grounds, it is urged by learned counsel that investigation into the alleged incident and the preparation of the panchanama before registration of the FIR is bad in law. In support of said argument, learned counsel has referred to the orders passed by this Court in W.P.No.54250/2017 wherein this Court while dealing with similar situation has referred to the decisions 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, Crl.P.No.1959/2017 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 orders relied on by the learned counsel appearing for petitioner. The sole ground on which petitioner herein has been arraigned as an accused in the Crime No.103/2018 is on the ground that he was present at the spot during the raid, indicating that he was a customer who had visited the brothel. The provisions of the ITP Act, 1956 invoked by the 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 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 respondent- Police as it is an admitted fact that before registration of the FIR, he rushed to the spot and arrested the culprits and drew up the panchanama as recorded in the FIR.
This procedure adopted by the respondent 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 are 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.
Hence, I proceed to pass the following :
ORDER (i) Criminal petition is hereby allowed.
(ii) Proceedings in Cr.No.103/2018 on the file of the III JMFC., Court, Davanagere for the offences punishable under Section 370 IPC and Sections 3, 4 and 5 of Immoral Traffic Prevention Act, 1956 against petitioner - accused No.6. are hereby quashed..
SD/- JUDGE *sp