IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 5TH DAY OF FEBRUARY, 2019 BEFORE THE HON’BLE MR.JUSTICE ARAVIND KUMAR CRIMINAL PETITION NO.8985/2018 BETWEEN:
SRI. TASLEEM S/O C.M. MOHAMMED AGED ABOUT 48 YEARS R/A T NO 50 KALASHIPALYA MAIN ROAD BANGALORE – 02.
(BY SRI. JAIRAJ G, ADVOCATE) AND:
STATE OF KARNATAKA BY PULAKESHINAGAR POLICE STATION BENGALURU - 05.
REPRESENTED BY STATE PUBLIC PROSECUTOR OF HIGH COURT .
(BY SRI. S. RACHAIAH, HCGP) ... PETITIONER ... RESPONDENT THIS CRIMINAL PETITION IS FILED U/S.482 CR.P.C PRAYING TO QUASH THE ENTIRE PROCEEDINGS AGAINST THE PETITIONER IN C.C.NO.137/2014 PENDING ON THE FILE OF THE I- M.M.T.C., MAYO HALL UNIT, BANGALORE FOR THE OFFENCE P/U/S 3,4,5,6 OF I.T.P ACT.
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 proceedings C.C.No.137/2014 pending on the file of Metropolitan Magistrate Traffic Court-I, Mayohall Unit, Bengaluru registered for the offences punishable under Sections 3, 4, 5 and 6 of the Immoral Traffic (Prevention) Act, 1956 (for short ‘ITP Act’), insofar as it relates to petitioner – accused No.2.
2. Facts in brief which has led to filing of this petition are as follows:
On the basis of information received that prostitution activities is being carried on in House No.27, 6th Cross, Huchins Road, Bengaluru on 05.10.2013, at about 7.30 p.m., Sri.Mohammad Rafi– Police Inspector, Pulakeshinagar Police Station along with decoy, panchas and staff members went to the spot and arrested petitioner/accused and other accused persons, 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 three accused persons under Sections 3, 4, 5 and 6 of Immoral Traffic (Prevention) Act, 1956.
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 offences urged in FIR against petitioner.
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 Cr.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 he was present at the scene of incident during the raid. The contents of complaint would also disclose that petitioner was alleged to be a customer. Under similar circumstances, this Court in Crl.P.No.1959/2017 had allowed the petition and had quashed the proceedings insofar as accused therein was concerned on the ground that accused therein was a customer. Finding recorded by the Coordinate Bench in Crl.P.No.1959/2017 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 also similarly placed.
The only ground on which petitioner herein has been arraigned as an accused in C.C.No.137/2014 is that he was present as a customer at the place where alleged prostitution was being carried on at the time raid came to be conducted. Thus, allegations against petitioner are similar and identical to the allegations made against accused in Crl.P.No.1959/2017, against whom proceedings had been quashed by the Coordinate Bench as noted hereinabove. The allegations made against the petitioner and material collected against petitioner do not show the 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 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, proceedings initiated against petitioner is liable to be quashed.
8. In the light of aforestated facts, I proceed to pass the following order.
ORDER (i) Criminal Petition is hereby allowed.
(ii) Proceedings pending in C.C.No.137/2014 registered by Pulakeshinagar Police Station for the offence punishable under Sections 3, 4, 5 and 6 of ITP Act on the file of Metropolitan Magistrate Traffic Court-I is hereby quashed insofar as petitioner herein is concerned and he is acquitted of the said offence.
SD/-
JUDGE *sp