IN THE HIGH COURT OF KARNATAKA AT BENGALURU Dated this the 7th day of December, 2017 BEFORE THE HON’BLE MR JUSTICE K N PHANEENDRA Writ Petition No 54250 of 2017 (GM-RES) BETWEEN:
SRI SANAULLA S/O UBEDULLA R/O NO 48, KUSHAL NAGAR K G HALLI, BENGALURU-560045 … PETITIONER [By Sri Bharath Kumar V, Advocate] AND:
1. STATE OF KARNATAKA THROUGH STATION HOUSE OFFICER SADASHIVANAGAR POLICE STATION SADASHIVANAGAR, BENGALURU-560080 2. ASSISTANT COMMISSIONER OF POLICE SHESHADRIPURAM SUB-DIVISION SHESHADRIPURAM BENGALURU-560020 ... RESPONDENTS [By Sri S Rachaiah, HCGP] THIS WRIT PETITION IS FILED UNDER ARTICLES 226 AND 227 OF THE CONSTITUTION OF INDIA, PRAYING TO QUASH THE FIR BEARING CRIME NO 59/2016, DATED 10.3.2016 REGISTERED BY THE R-1 POLICE, ALONG WITH THE WRITTEN INFORMATION DATED 10.3.2016 MADE BY THE R-2, WHEREIN THE PETITIONER HEREIN IS INDICATED AS ACCUSED NO 2 FOR ALLEGED OFFENCES UNDER SECTION 3, 4, 5 AND 6 OF THE IMMORAL TRAFFIC (PREVENTION) ACT, VIDE ANNEXURE-A AND A1, AND ETC.
THIS PETITION IS COMING ON FOR PRELIMINARY HEARING, THIS DAY, THE COURT MADE THE FOLLOWING:.
O R D E R The first respondent-police have lodged a charge sheet against the petitioner herein and another person for the offences punishable under Sections 3, 4, 5 and 6 of the Immoral Traffic (Prevention) Act, 1956 [for short, ITP Act] read with Section 370 IPC, in CC No 25007 of 2016 and after committal of the case, the same has been registered in SC No 1042 of 2017, on the file of XLV Additional City Civil & Sessions Judge, Bengaluru.
2. The charge sheet averments disclose that on 10-3-2016, after receiving credible information, the first respondent-police had been to Ashwathanagar, Bengaluru and raided house No 3, 1st Main, I Block therein and found that the petitioner and a lady were indulged in sexual activity with each other. The police have collected materials and seized articles and thereafter filed the charge sheet.
3. As could be seen from the allegations made, the petitioner herein is a ‘customer’ and except that nothing has been alleged against him. In this context, it is worth to mention here that none of the offences alleged against the petitioner herein is attributed in so far as a ‘customer’ is concerned. This court, following the decision of the Andhrapradesh High Court in the case of GOENKA SAJAN KUMAR vs STATE OF ANDHRA PRADESH, REPRESENTED BY PUBLIC PROSECUTOR,. HIGH COURT OF ANDHRA PRADESH [2015 (3) CRIMES 281 (AP)], had occasion to deal with such aspects in various decisions, viz., i) Criminal Petition No 7056 of 2014 [Mohammed Rafi vs State of Karnataka];
ii) Criminal Petition No 7110 of 2011 [Suraj vs State of Karnataka];
iii) Criminal Petition No 5808 of 2016 [Pravesh Chatri vs State of Karnataka];
iv) Writ Petition No 56504 of 2015 [Mahesh Hebbar @ Mahesh vs The Station House Officer, Banaswadi Police Station];
v) Criminal Petition No 9682 of 2016 [Aswath @ Naveen vs State of Karnataka];
vi) Criminal Petition No 8055 of 2016 [Raghavendra @ Raghu vs State of Karnataka]; and vii) Criminal Petition No 200782 of 2016 [Shivaraj Vs. State of Karnataka] 4. In all the above decisions, this court has consistently taken the view that the said offences are not attracted in so far as a ‘customer’ is concerned. Even otherwise, it is evident from the reading of the said provisions, it is seen that Section 3 of the ITP Act is a section which provides punishment for keeping a brothel or allowing premises to be used as brothel. Section 4 provides for punishment of living on the earnings of the prostitution. Section 5 provides procuring, inducing or taking person for the sake of prostitution. Section 7 applies to prostitution and in or in the vicinity of public place.
5. Therefore, considering the above said provisions, this court has consistently taken the view that the said provisions, including Section 370 IPC, are not attracted in so far as a ‘customer’ is concerned, though this court felt that the ‘customer’ virtually encourages prostitution and exploit the victim for money, but in the absence of any specific penal provision, it cannot be said that he is liable for any prosecution for the above said offences.
6. In the above said circumstances, it is just and necessary to quash the proceedings in so far as the petitioner herein is concerned. Hence, the following:
ORDER The petition is allowed. The entire proceedings in SC No 1042 of 2017, on the file of XLV Additional City Civil & Sessions Judge, Bengaluru, for the offences punishable under Sections 3, 4, 5 and 6 of the Immoral Traffic (Prevention) Act, 1956 read with Section 370 IPC, is hereby quashed.
Sd/- JUDGE *pjk