IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 31ST DAY OF JANUARY, 2019 BEFORE THE HON’BLE MR.JUSTICE ARAVIND KUMAR CRIMINAL PETITION NO. 9519/2018 BETWEEN:
MOHAN KUMAR S/O. SIDDAPAJI AGED ABOUT 29 YEARS, R/O. ARALALU VILLAGE, T.BEKUPPE POST, KANAKAPURA TALUK, RAMANAGARA DISTRICT, PIN 562117 ... PETITIONER (BY SRI.S.G.RAJENDRA REDDY, ADVOCATE) AND:
STATE BY POLICE INSPECTOR (W & N) SQUAD, CENTRAL CRIME BRANCH, N.T.PET, BENGALURU AND POLICE INSPECTOR, KENGERI POLICE STATION, BENGALURU-560002 REP. BY S.P.P., HIGH COURT BUILDING, BANGALORE-560001 ... RESPONDENT (BY SRI.S.CHANDRASHEKHARAIAH, HCGP) THIS PETITION IS FILED UNDER 482 CR.P.C. PRAYING TO QUASH THE CHARGE SHEET AND FURTHER PROCEEDINGS IN CRIME NO.136/2017 OF KENGERI POLICE STATION REGISTERED FOR THE OFFENCES PUNISHABLE U/S 3, 4, 5 AND 6 IMMORAL TRAFFIC PREVENTION ACT AND U/S 370 OF IPC, PENDING ON THE FILE OF THE PRINCIPAL CITY CIVIL AND SESSIONS JUDGE, BENGALURU CITY IN S.C.NO.2027/2018.
THIS 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 S.C.No.2027/2018 pending on the file of Principal City Civil and Sessions Judge, Bengaluru City, registered for the offence punishable under Sections 3, 4, 5 and 6 of Immoral Traffic (Prevention) Act, 1956 and under Section 370 of IPC, insofar as same relates to petitioner/accused No.4.
2. Facts in brief which has led to filing of this petition are as follows:
A complaint came to be lodged by one Sri.B.M.Srinivas, Police Inspector, Women and Narcotic Squad, Central Crime Branch, Bengaluru, before the Kengeri Police Station alleging that on 01.04.2017 at about 5.30 p.m. he had received a credible information about prostitution being carried on at No.71, 1st Floor, 5th Cross, Gandhinagara, Kengeri Upanagara, Bengaluru, and as such he along with decoy and panchas went to the spot and arrested accused Nos.1 to 4, who were customers. On the basis of said information, charge sheet (in FIR No.136/2017) came to be filed against accused persons under Sections 3, 4, 5 and 6 of Immoral Traffic (Prevention) Act, 1956 and under Section 370 of IPC after investigation whereunder it is alleged that accused No.1 had been running prostitution by monetarily inducing and keeping CW’s 5 to 7 and earning illegally. It is also stated that accused Nos.2 to 4 are the customers.
3. It is contended by learned counsel appearing for petitioner that even if the case of prosecution is accepted, it does not satisfy the ingredients of the offence alleged in FIR against petitioner and there are no allegations against petitioner, insofar as, offence under Section 370 of IPC.
4. It is also contended that investigation into the alleged incident and preparation of panchanama before registration of FIR is bad in law and it is carried out by a person not competent to do so. In support of his arguments, learned counsel has referred to the orders passed by this Court in Crl.P.No.7110/2011, 7056/2014, 9682/2016, 5808/2018 and 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.).
5. Per contra, Sri.S.Chandrashekharaiah, learned HCGP appearing for the respondent-State would support the prosecution initiated against petitioner.
6. Having heard the learned counsel appearing for petitioners and on perusal of case papers and orders relied upon by the learned counsel appearing for petitioner, charge material would disclose that petitioner has been arraigned as accused in the above crime is on the ground that he was present at the scene of incident during the raid and was a customer in the brothel house. The contents of the complaint would also disclose that petitioner was customer and was present at said place. Under similar circumstances this Court in Crl.P.No.1959/2017 disposed of by order dated 31.03.2017 had quashed the proceedings insofar as accused therein is concerned, who was also arraigned as such on the ground that he was a customer at the brothel house. Finding recorded by the Coordinate Bench reads as under:
“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. Petitioner herein is similarly and identically placed. Even according to the charge sheet material petitioner was present at the place where the alleged prostitution was being conducted and was apprehended by the jurisdictional police when the raid came to be conducted. The entire allegation made by the prosecution would disclose that petitioner was the customer. Allegations against petitioner and material collected against him does not indicate the commission of any offence much less the offence under Section 370 of IPC. Thus, it is to be necessarily held that 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.
8. In the light of aforestated facts, I proceed to pass the following:
ORDER (i) Criminal petition is hereby allowed.
(ii) Proceedings against petitioner in S.C.No.2027/2018 registered by Kengeri Police Station for the offences punishable under Sections 3, 4, 5 and 6 of Immoral Traffic (Prevention) Act, 1956 and Section 370 of IPC, pending on the file of Principal City Civil and Sessions Judge, Bengaluru, is hereby quashed only insofar as, petitioner herein (Accused No.4) is concerned.
In view of petition having been disposed of on main, I.A.No.1/2018 for stay does not survive for consideration and same is hereby rejected.
SD/-
JUDGE DR