IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 20TH DAY OF MARCH, 2019 BEFORE THE HON’BLE MR.JUSTICE ARAVIND KUMAR CRIMINAL PETITION NO.1015/2019 BETWEEN:
V. SURAJ PRUTHVI AGED ABOUT 24 YEARS S/O VENKATACHALAPATHI HOUSING BOARD BEHIND GOVT. SCHOOL T. NARASIPURA, MYSOORU TALUK & DIST. … PETITIONER (BY SRI VINAYA KEERTHY.M, ADV.) AND:
STATE OF KARNATAKA BY UDAYAGIRI POLICE STATION MYSOORU, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT BENGALOORU … RESPONDENT (BY SRI S. RACHAIAH, HCGP.) THIS CRIMINAL PETITION IS FILED UNDER SECTION 482 CR.P.C PRAYING TO SET ASIDE THE IMPUGNED ORDER DATED 11.01.2019 PASSED BY THE LEARNED VI ADDITIONAL DISTRICT AND SPECIAL JUDGE, MYSORE IN S.C. NO.37/2017 AND DISCHARGE THE PETITIONER FOR THE OFFENCES P/U/S 3,4,5,6,7 OF IMMORAL TRAFFIC ACT R/W 370 AND 370A OF IPC, SECTION 4 AND 17 OF POCSO ACT AND SECTION 75 OF JUVENILE JUSTICE ACT IN S.C. NO.37/2017 REGISTERED BY THE RESPONDENT UDAYAGIRI POLICE, MYSORE.
THIS CRIMINAL PETITION COMING ON FOR ‘ORDERS’ THIS DAY, THE COURT MADE THE FOLLOWING:
ORDER Reply given to office objections is accepted.
Hence, office objections are over-ruled.
Heard Sri. Vinaya Keerthy M., learned counsel appearing for petitioner and the learned High Court Govt. Pleader for respondent.
2. Perused the records. Petitioner is arraigned as Accused No.2 in Crime No.175/2016 in SC No.37/2017 registered for the offence punishable under Section 3, 4, 5, 6 and 7 of Immoral Traffic Prevention Act, 1956. On completion of investigation, charge sheet has been filed for the aforesaid offences and also for the offence punishable under Section 370, 370(A) of Indian Penal Code (for short ‘IPC’) and Section 4 and 17 of Protection of Child from Sexual Offences Act, 2012 (for short ‘POCSO Act’) and Section 75 of Juvenile Justice Act, 2015.
3. On careful perusal of the contents of the FIR it would disclose that specific allegations are made against the petitioner that he was found at the place where brothel was being run and was a customer at the brothel house.
4. Learned counsel appearing for the petitioner has relied upon the following judgment/orders passed by this Court in support of his prayer for quashing the present proceedings by filing a memo and enclosing copies of the said orders.
i. Crl.P. No. 1728/2017 (Mahadeva C. and Anr.
Vs. State of Karnataka) ii. Crl.P. No. 5808/2016 (Parvesh Chatri Vs. State of Karnataka) iii. Crl.P. No. 9682/2016 (Aswath @ Naveen Vs.
State of Karnataka) iv. Crl.P. No. 7056/2014 (Mohammed Rafi Vs.
State of Karnataka) v. Crl.P. No. 2208/2017 (Sendil Kumar Vs. State of Karnataka) In the above referred decisions relied upon by the learned counsel appearing for the petitioner, it came to be held that Sections 3, 4 and 5 of ITP Act would not be attracted insofar as petitioners therein are concerned, since, they were said to be customers or who were soliciting.
5. In fact, Coordinate Bench of this Court after examining and analyzing Sections 3, 4 and 5 of the ITP Act, 1956 has held that prosecution had failed to make out case against the accused persons therein for the offence punishable under Sections 3, 4 and 5 of the ITP Act since they were customers.
6. A bare reading of the Sections 3, 4 and 5 of the ITP Act would clearly indicate that they are in no way attracted insofar as providing any punishment to the customers who were present at the venue where alleged brothel was being run. In the absence of any penal provisions, customers though are in a way contributing to encourage prostitution and which leads to exploitation of women who are in penury, such persons (customers) cannot be held as liable for want of penal provision.
7. A perusal of the FIR in the instant case would also disclose that Section 370(3) of IPC has been invoked by the prosecution and it cannot be gain said by the prosecution that said penal provision would be attracted insofar as the petitioners are concerned since it is not alleged that petitioner herein had indulged in trafficking of minor girls. On this ground also, prosecution cannot proceed against petitioner and continuation of proceedings against petitioner would be abuse of process of law.
8. Though in the instant case Section 4 & 17 of POCSO Act has been invoked against the petitioner, the statement of the alleged minor victim recorded by the jurisdictional police during the course of investigation which is part of the charge sheet would disclose that she is aged about 19 years. However, at this stage no opinion is expressed on this issue. It is made clear that as and when such situation were to arise it would be examined by this court. Hence, without expressing any opinion in that regard and in the instant case the only allegation against the petitioner is he was a customer at the brothel house and provisions of Section 3 to 7 of Immoral Traffic Prevention Act or Section 370 (A) of IPC cannot be invoked against petitioner. Continuation of proceedings against petitioner would be onerous and it would not sub-serve the ends of justice.
9. In the light of aforestated facts, I do not find any good ground to differ from the view expressed by Coordinate Bench of this Court and as such, present petition deserves to be allowed.
Hence, the following;
O R D E R I. Criminal Petition is allowed.
II. Proceeding pending in SC No.37/2017 registered by the Udayagiri Police Station, Mysuru against petitioner (Accused No.2) for the offences punishable under Sections 3, 4, 5, 6 and 7 of Immoral Traffic Prevention Act, 1956, Sections 370, 370(A) of Indian Penal Code, Section 4 and 17 of Protection of Child from Sexual Offences Act and Section 75 of Juvenile Justice Act is hereby quashed in so far as it relates to petitioner (Accused No.2) only and he is acquitted of above said offences.
III. Since, petition having been disposed of on merits, I.A. No. 1/2019 for stay does not survive for consideration. Accordingly, it stands rejected.
SD/- JUDGE Chs*