IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 10TH DAY OF APRIL, 2019 BEFORE THE HON’BLE MR. JUSTICE ARAVIND KUMAR CRIMINAL PETITION NO. 6529 OF 2018 BETWEEN:
RAGHUTEJA @ RAGHU, S/O SHIVANANJAPPA, AGED ABOUT 37 YEARS, R/AT #471, ‘ N.S.NILAYA’ 2ND PHASE, CHANNANAYAKANAPALYA, M S LAYOUT, NAGASANDRA POST, BENGALURU NORTH, BENGALURU – 560 073.
…PETITIONER (BY SRI. S RAJESH, ADVOCATE FOR SRI. SATHISH R GIRJI, ADVOCATE) AND:
1. STATE OF KARNATAKA BY PUTTENAHALLI POLICE STATION, SUBRAMANYAPURA SUB-DIVISION, BENGALURU CITY – 560 078.
(REPRESENTED BY STATE PUBLIC PROSECUTOR HIGH COURT OF KARNATAKA, BENGALURU – 560 001) 2. KUMARI BINDU, D/O PRAKASH, AGED ABOUT 17 YEARS, R/O C/O CWC-2, M H MARIGOWDA ROAD, DAIRY CIRCLE, BENGALURU – 560 029.
…RESPONDENTS (BY SRI. S RACHAIAH, HCGP FOR R1;
V.C.O DATED 10.04.2019 NOTICE TO R2) THIS CRIMINAL PETITION IS FILED UNDER SECTION 482 OF CR.P.C. PRAYING THAT THIS HON’BLE COURT MAY BE PLEASED TO QUASH THE ENTIRE CRIMINAL PROCEEDINGS AGAINST THE PETITIONER/ACCUSED NO.IN SPL.C.NO.500/2018, PENDING ON THE FILE OF THE LIII ADDITIONAL CITY CIVIL AND SESSIONS JUDGE, BANGALORE CITY (CRIME NO.126/2018 OF PUTTENAHALLI POLICE STATION, CHARGE SHEETED FOR THE OFFENCES P/U/S 366A,370,372,373,376,323,120B R/W 34 OF IPC, SECTION 75,79 OF JJ ACT, SECTION 3,4,5,6,7 OF ITP ACT AND SECTION 4 AND 6 OF POCSO ACT.
THIS CRIMINAL PETITION IS COMING ON FOR ORDERS, THIS DAY, THE COURT MADE THE FOLLOWING:
ORDER Petitioner who has been arraigned as Accused No.8 in Spl.C.No.500/2018 registered for the offences punishable u/s.366A, 370, 372, 373, 376, 323, 120B r/w Sec.34 of I.P.C., Sections 4 & 6 of POCSO Act as well as Sec.75 & 79 of Juvenile Justice (Care & Protection of Children) Act, 2015 and Sections 3 to 7 of ITP Act is before this Court for quashing of said proceedings.
2. For the reasons that is indicated in the course of this order, notice to respondent no.2 is dispensed with.
3. Based on a complaint lodged by the victim girl Kumari Bindu before respondent no.1 alleging that she is aged 17 years 5 months and when she was between the age of 11 to 13 years she was pushed into prostitution proceedings came to be initiated by jurisdictional Police by registering FIR Cr.No.126/2018. She had further alleged in her complaint that she was residing with her mother till November 2010 and after her mother’s death she has been staying with her maternal uncle Accused No.1 and maternal aunty Smt.Mary. She has further alleged that she was taken to the house of Accused No.4 as maid servant and it is Accused No.4 who pushed her to prostitution and she attempted to escape from the house of Jesika (Accused No.4), but her driver caught hold of her and pushed her back to prostitution. She has further alleged she has been taken to houses and hotels for the said act. She has further stated that she wanted to escape from the acts of prostitution and as such she traveled to Villupuram (Tamil Nadu) and she was caught by Accused No.6 and was beaten up in public place ie., bus stand and at that time the beat police made enquiry and she informed them about the alleged act of accused persons and as such she was sent to remand home. On these lines, she lodged a complaint before the Puttenahalli Police Station who registered the F.I.R. in Crime No.126/2018 and after completion of investigation, charge sheet has been filed against petitioner for the alleged offences aforestated. Hence the petitioner is before this Court seeking for quashing of the proceedings.
4. I have heard the arguments of Sri Rajesh, learned counsel appearing on behalf of Sri Satish R.Girji, learned counsel for petitioner. I have also heard Sri Rachaiah, learned HCGP for the respondent No.1. Perused the records.
5. It is the contention of Sri Rajesh, learned counsel appearing for petitioner that except stating in the complaint by mentioning the name of the petitioner as a customer, there is no whisper in the entire complaint as to what role petitioner had played either by pushing the victim girl to prostitution or that at any point of time petitioner had solicited sexual favours from the victim girl. He would also contend that a reading of entire charge sheet material does not disclose any act on the part of the petitioner and it is only on the basis of statement of Accused No.4 petitioner has been implicated and as such he prays for allowing the petition contending that the petitioner cannot be convicted of any of the offences alleged against him, even if charge sheet material is not rebutted. Hence, he prays for allowing the petition.
6. Per contra, learned HCGP would support the case of prosecution and prays for dismissal of the petition.
7. It is well settled law that Magistrate at the stage of taking cognizance of the offence and issuing process, is required to apply judicial mind only with a view to find out whether prima facie case is made out for issuing process to summon the accused persons. Quashing of criminal proceedings is called for only in a case where complaint does not disclose any offence or is frivolous, vexatious or oppressive. If the allegations made in the complaint do not constitute the offence of which cognizance has been taken by the Magistrate, it is open for this Court to quash the said proceedings. The probable defence which may be available to the accused when established during the trial may lead to acquittal is also not a ground for quashing and the complaint at the threshold. If the allegations made in the complaint is vexatious, frivolous and would not disclose any offence, would also be a ground to quash the proceedings. Likewise, allegations made in the complaint if it were to remain uncontroverted would not lead to conviction of the accused but would also be a ground on which proceedings can be quashed. Keeping these principles in mind when the charge sheet material is perused, it would clearly disclose that there is no specific allegation made by the complainant in her complaint dated 06.04.2018 against the petitioner. However in para 1, she has mentioned the name of the petitioner as a customer. When Sections 3, 4 and 7 of ITP Act is perused which has been pressed into service by the prosecution, it has to be necessarily held that the said provisions would in no way be attracted in so far as providing any punishment to a customer who was present at the venue where the alleged brothel was being run or conducted. In the absence of any such penal provision customer/s though are in a way contributing to encourage prostitution and which leads to exploitation of women, particularly those women who are in penury, such persons namely the customer/s cannot be held as liable for want of penal provision. Though Section 370 of I.P.C. is invoked against the petitioner along with other accused, it cannot be gain said by the prosecution that the said penal provision would be attracted in so far as petitioner (Accused No.8) is concerned since it is not the case of the complainant or the prosecution that petitioner had indulged in trafficking the victim girl. On this ground also prosecution cannot be proceeded against petitioner and continuation of proceedings against petitioner would definitely be abuse of process of law.
8. Hence, I proceed to pass the following:
ORDER (i) Criminal petition is allowed.
(ii) Proceedings pending in Spl.C.C. No.500/2018 on the file of LIII Addl. City Civil & Sessions Judge, Bengaluru City registered against petitioner for the offences punishable u/s.366A, 370, 372, 373, 376, 323, 120B r/w Sec.34 of I.P.C., Sections 4 & 6 of POCSO Act as well as Sec.75 & 79 of Juvenile Justice (Care & Protection of Children) Act, 2015 and Sections 3 to 7 of ITP Act are quashed and petitioner is acquitted of aforesaid offences.
(iii) However, it is made clear that any opinion expressed in this order is confined to the petitioner (Accused No.8) only and learned Trial Judge while adjudicating Spl.C.C. No.500/2018 shall not be influenced in any manner whatsoever while considering or examining the case of prosecution against other accused persons.
I.A.I/2019 for stay does not survive for consideration and it stands rejected.
SD/- JUDGE Snb/