IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 07TH DAY OF FEBRUARY 2019 BEFORE THE HON'BLE MR. JUSTICE ARAVIND KUMAR CRIMINAL PETITION NO.285/2019 BETWEEN:
SRI. ANANTH CHETURVEDI S/O. MRUTHUL KUMAR CHETURVEDI AGED ABOUT 27 YEARS R/AT NO.59, 7TH MAIN 1ST STAGE, BTM LAYOUT BANGALORE – 560 068. ... PETITIONER (BY SRI. ISMAIL M MUSBA, ADVOCATE) AND:
STATE OF KARNATAKA REPRESENTED BY THE MICO LAYOUT POLICE STATION THROUGH THE PUBLIC PROSECUTOR HIGH COURT BUILDING BANGALORE – 560 001. ... RESPONDENT (BY SRI. S. RACHAIAH, HCGP) THIS CRIMINAL PETITION IS FILED UNDER SECTION 482 OF CR.P.C. PRAYING THAT THIS HON’BLE COURT MAY BE PLEASED TO QUASH THE ORDER DATED 22.08.2015 IN C.C.NO.21987/2015 PENDING ON THE FILE OF VI ADDITIONAL CHIEF METROPOLITAN MAGISTRATE BENGALURU.
THIS CRIMINAL PETITION COMING 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 order dated 22.08.2015 passed in C.C.No.21987/2015 pending on the file of VI Additional Chief Metropolitan Magistrate, Bengaluru, registered for the offences punishable under Section sections 3, 4, 5 , 6 and 7 of the Immoral Traffic (Prevention) Act, 1956 (for short ‘ITP’ Act) and Section 370 of IPC, insofar as, same relates to petitioner – accused No.6.
2. Facts in brief which has let to filing of this petition are as follows:
On the basis of a complaint lodged by one Sri. M. Neelakantan, Police Sub Inspector, Mico Layout Police Station, Bengaluru, before respondent – Mico Layout Police Station alleging that on 24.05.2015, at about 4.30 p.m., he received credible information about prostitution being carried on at House No.13, 11th Main, 14th Cross, BTM 2nd Stage, Bengaluru, the informant along with decoy and panchas went to the spot and arrested accused Nos.2 and 3 and accused Nos.1 and 4 to 7, who were customers and produced them before the respondent – police along with the panchanama. On the basis of said information, FIR came to be registered against seven accused persons under Sections 3, 4, 5, 6 and 7 of Immoral Traffic (Prevention) Act, 1956, and Sections 370(3), 370(A)(2) of IPC.
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 urged in FIR against petitioner and there are no allegations against petitioner, insofar as, offence under Sections 370(3), 370(A)(2) of IPC and they relate to only accused Nos.2 and 3.
4. In the course of argument, in addition to above grounds, it is also contended that investigation into the alleged incident and preparation of panchanama before registration of FIR is bad in law, since 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.Nos.7110/2011, 7056/2014, 9682/2016, 5808/2016 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. Rachaiah, learned HCGP appearing for respondent/State would support the prosecution initiated against petitioner.
6. Having heard the learned counsel appearing for petitioner and on perusal of case papers and orders relied upon by the learned counsel appearing for petitioner, it would disclose that main ground on which petitioner has been arraigned as accused in the above crime is that they were present at the scene of incident during the raid. The contents of the complaint would also disclose that petitioner was a customer who has gone for a body massage. Under similar circumstances and on similar set of facts accused No.8 in Crime No.16/2017 had approached this Court in Crl.P.No.1959/2017 and Coordinate Bench of this Court by order dated 31.03.2017 had allowed the petition and has quashed the proceedings insofar as accused No.6 is concerned. Said finding recorded by Coordinate Bench in Crl.P.No.1959/2017 reads as under:
“6. I have perused the FIR and the orders relief 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 placed. The only ground on which he has been arraigned as accused is he was present at the place where alleged prostitution was being conducted and he was a customer. Allegations are similar and identical to the allegations made against accused No.8 against whom proceedings have already been quashed by Coordinate Bench as noted hereinabove. The allegations made against the petitioner and material collected against petitioner do not show commission of any of the offences alleged against him in the FIR and proceedings initiated against the petitioner is contrary to the decision in the case of GIRISHCHANDRA VS. STATE OF 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 (ii) Criminal Petition is hereby allowed.
(iii) Proceedings in Crime No.480/2015 registered by Mico Layout Police Station for the offence punishable under Sections 3 to 7 of ITP Act and Section 370 of IPC, which is pending on the file of VI Additional Chief Metropolitan Magistrate, Bengaluru is hereby quashed only insofar as, petitioner herein (accused Nos.6) is concerned.
In view of this criminal petition having been disposed of on main, I.A.No.1/2019 filed for stay does not survive for consideration and it is hereby rejected.
SD/- JUDGE KA/-