Karnataka High Court
State Of Karnataka vs Samuel Tamburaj on 7 January, 2020
Equivalent citations: AIRONLINE 2020 KAR 219
Author: K.Natarajan
Bench: K. Natarajan
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IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 7TH DAY OF JANUARY, 2020
BEFORE
THE HON'BLE MR. JUSTICE K. NATARAJAN
CRIMINAL REVISION PETITION NO.1107/2015
BETWEEN:
STATE OF KARNATAKA
BY ASHOK NAGAR POLICE STATION,
BENGALURU-560 050.
... PETITIONER
(BY SRI MAHESH SHETTY, H.C.G.P.)
AND:
SAMUEL TAMBURAJ
SON OF TAMBURAJ,
AGED ABOUT 46 YEARS,
NO.1492, 2ND CROSS,
AECS LAYOUT,
KUNDALHALLY, BROOK FIELD,
BENGALURU-560 037.
... RESPONDENT
(BY SRI STANLY SAM, ADV.)
THIS CRIMINAL REVISION PETITION IS FILED UNDER
SECTION 397 READ WITH 401 OF THE CODE OF CRIMINAL
PROCEDURE, PRAYING SET ASIDE THE IMPUGNED ORDER
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DATED 30.03.2015 PASSED BY THE PRESIDING OFFICER
AND ADDITIONAL SESSIONS JUDGE, FTC-III, BANGALORE,
ALLOWING CR.R.P.NO.25045/2015 BY CONFIRMING THE
ORDER PASSED IN C.C.NO.1182/2014 BY THE MMTC-I,
BANGALORE.
THIS CRIMINAL REVISION PETITION IS COMING ON
FOR ADMISSION, THIS DAY, THE COURT MADE THE
FOLLOWING:
ORDER
This criminal revision petition is filed by the State being aggrieved by the order of discharge passed by the Presiding Officer and Addl. Sessions Judge, Fast Track Court-III, Bangalore, (hereinafter referred to as the 'first Appellate Court' for short) in Crl.R.P.No.25045/2015 for discharging the respondent vide order dated 30.03.2015.
2. Heard the learned HCGP for the petitioner- State as well as learned counsel for the respondent.
3. The case of the petitioner is that the Ashoknagar police filed a charge sheet against the petitioner and others for the offences punishable under 3 Sections 3, 4, 5 and 7 of the Immoral Traffic (Prevention) Act, 1956 (hereinafter referred to as the 'ITP Act' for short). After appearance before the Court, the respondent being accused No.4 filed an application under Section 227 of Code of Criminal Procedure seeking discharge from the charges. As per the FIR and complaint, the respondent is said to be the customer who was raided by the police during the raid conducted by the police for brothel and caught hold of this respondent and the respondent was shown as a customer. As per the provisions of ITP Act, the customers are not punishable under the ITP Act. The trial Court after considering the application dismissed the same vide order dated 07.02.2015. Being aggrieved by the dismissal of discharge application, accused No.4-Samuel Tamburaj preferred Crl.RP.No.25045/2015 before the first Appellate Court which came to be allowed. The first Appellate Court discharged the respondent/accused No.4 4 from the charges. The same is challenged by the State before this Court by way of revision petition.
4. The learned HCGP for the petitioner/State has contended that the respondent is accused No.4. He was running a brothel in the premises of C.W.7 who is the owner of the premises. Therefore, the court below committed error in holding that the respondent was a customer and discharging him from the charges is not correct. Hence, prayed for setting aside the same by allowing the revision petition.
5. Per contra, learned counsel for the respondent has contended that as per the FIR and complaint, the respondent is shown as a customer and as per the provisions of Sections 3, 4, 5 and 7 of the ITP Act, the customers are not liable for punishment under the Act. Even this Court in various judgments has held that the 5 customers are not punishable under the Act. The charges are quashed by this Court. In support of his arguments, he has relied upon the unreported judgments of this Court in the case of Hidhaytulla Vs. The State by Indiranagara P.S., Bengaluru and Another in Crl.P.No.971/2018 decided on 22.06.2018 and another latest judgment in the case of Sri Neelesh Kumar and Another Vs. State of Karnataka in Crl.P.No.8817/2018 decided on 27.03.2019. Hence, prayed for dismissal of the revision petition.
6. Upon hearing the arguments of learned HCGP for the petitioner-State and learned counsel for the respondent and on perusal of the record, the provisions of Sections 3, 4, 5 and 7 of the ITP Act reads as follows:
"3. Punishment for keeping a brothel or allowing premises to be used as a brothel.--(1) Any person who keeps or manages, or acts or assists in the keeping or management of, a brothel shall be punishable on first conviction with rigorous imprisonment for a term of not 6 less than one year and not more than three years and also with fine which may extend to two thousand rupees and in the event of a second or subsequent conviction, with rigorous imprisonment for a term of not less than two years and not more than five years and also with fine which may extend to two thousand rupees.
(2) Any person who-
(a) being the tenant, lessee, occupier or person in charge of any premises, uses, or knowingly allows any other person to use, such premises or any part thereof as a brothel, or
(b) being the owner, lessor or landlord of any premises or the agent of such owner, lessor or landlord, lets the same or any part thereof with the knowledge that the same or any part thereof is intended to be used as a brothel, or is wilfully a party to the use of such premises or any part thereof as a brothel, shall be punishable on first conviction with imprisonment for a term which may extend to two years and with fine which may extend to two thousand rupees and in the event of a second or subsequent conviction, with rigorous imprisonment for a term which may extend to five years and also with fine.
[(2A) For the purposes of sub-section (2), it shall be presumed, until the contrary is proved, that any person referred to in clause (a) or clause
(b) of that sub-section, is knowingly allowing the premises or any part thereof to be used as 7 a brothel or, as the case may be, has knowledge that the premises or any part thereof are being used as a brothel, if,--
(a) a report is published in a newspaper having circulation in the area in which such person resides to the effect that the premises or any part thereof have been found to be used for prostitution as a result of a search made under this Act; or
(b) a copy of the list of all things found during the search referred to in clause (a) is given to such person.] (3) Notwithstanding anything contained in any other law for the time being in force, on conviction of any person referred to in clause
(a) or clause (b) of sub-section (2) of any offence under that sub-section in respect of any premises or any part thereof, any lease or agreement under which such premises have been leased out or are held or occupied at the time of the commission of the offence, shall become void and inoperative with effect from the date of the said conviction.
4. Punishment for living on the earnings of prostitution.--(1) Any person over the age of eighteen years who knowingly lives, wholly or in part, on the earnings of the prostitution of [any other person] shall be punishable with imprisonment for a term which may extend to two years, or with fine which may extend to one thousand rupees, or with both [and where such earnings relate to the prostitution of a child or a minor, shall be punishable with 8 imprisonment for a term of not less than seven years and not more than ten years]. [(2) Where any person over the age of eighteen years is proved--
(a) to be living with, or to be habitually in the company of, a prostitute; or
(b) to have exercised control, direction or influence over the movements of a prostitute in such a manner as to show that such person is aiding, abetting or compelling her prostitution; or
(c) to be acting as a tout or pimp on behalf of a prostitute, it shall be presumed, until the contrary is proved, that such person is knowingly living on the earnings of prostitution of another person within the meaning of sub-section (1).]
5. Procuring, inducing or taking [person] for the sake of prostitution.--(1) any person who--
(a) procures or attempts to procure a [person], whether with or without [his] consent, for the purpose of prostitution; or
(b) induces a [person] to go from any place, with the intent that [he] may for the purpose of prostitution become the inmate of, or frequent, a brothel; or
(c) takes or attempts to take a [person], or causes a [person] to be taken, from one place to 9 another with a view to [his] carrying on, or being brought up to carry on prostitution; or
(d) causes or induces a [person] to carry on prostitution;
[shall be punishable on conviction with rigorous imprisonment for a term of not less than three years and not more than seven years and also with fine which may extend to two thousand rupees, and if any offence under this sub-section is committed against the will of any person, the punishment of imprisonment for a term of seven years shall extend to imprisonment for a term of fourteen years:
Provided that if the person in respect of whom an offence committed under this sub-section,--
(i) is a child, the punishment provided under this sub-section shall extend to rigorous imprisonment for a term of not less than seven years but may extend to life; and
(ii) is a minor, the punishment provided under this sub-section shall extend to rigorous imprisonment for a term of not less than seven years and not more than fourteen years;] (3) An offence under this section shall be triable--
(a) in the place from which a [person] is procured, induced to go, taken or caused to be taken or 10 from which an attempt to procure or take such [person] is made; or
(b) in the place to which he may have gone as a result of the inducement or to which he is taken or caused to be taken or an attempt to take him is made.
7. Prostitution in or in the vicinity of public places.--[(1) Any [person], who carries on prostitution and the person with whom such prostitution is carried on, in any premises,--
(a) which are within the area or areas, notified under sub-section (3), or
(b) which are within a distance of two hundred metres of any place of public religious worship, educational institution, hostel, hospital, nursing home or such other public place of any kind as may be notified in this behalf by the Commissioner of Police or magistrate in the manner prescribed, shall be punishable with imprisonment for a term which may extend to three months.] [(1A) Where an offence committed under sub-
section (1) is in respect of a child or minor, the person committing the offence shall be punishable with imprisonment of either description for a term which shall not be less than seven years but which may be for life or for a term which may extend to ten years and shall also be liable to fine:
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Provided that the court may, for adequate and special reasons to be mentioned in the judgment, impose a sentence of imprisonment for a term of less than seven years.] (2) Any person who--
(a) being the keeper of any public place knowingly permits prostitutes for purposes of their trade to resort to or remain in such place;
or
(b) being the tenant, lessee, occupier or person in charge of any premises referred to in sub- section (1) knowingly permits the same or any part thereof to be used for prostitution; or
(c) being the owner, lessor or landlord, of any premises referred to in sub-section (1), or the agent of such owner, lessor or landlord, lets the same or any part thereof with the knowledge that the same or any part thereof may be used for prostitution, or is wilfully a party to such use, shall be punishable on first conviction with imprisonment for a term which may extend to three months, or with fine which may extend to two hundred rupees, or with both, and in the event of a second or subsequent conviction with imprisonment for a term which may extend to six months and also with fine [which may extend to two hundred rupees, and if the public place or premises happen to be a hotel, the licence for carrying on the business of such hotel under any law for the time being in force shall also be liable 12 to be suspended for a period of not less than three months but which may extend to one year:
Provided that if an offence committed under this sub-section is in respect of a child or minor in a hotel, such licence shall also be liable to be cancelled.
Explanation.--For the purposes of this sub- section, "hotel" shall have the meaning an in clause (6) of section 2 of the Hotel-Receipts Tax Act, 1980 (54 of 1980).] [(3) The State Government may, having regard to the kinds of persons frequenting any area or areas in the State, the nature and the density of population therein and other relevant considerations, by notification in the Official Gazette, direct that prostitution shall not be carried on in such area or areas as may be specified in the notification.
(4) Where a notification is issued under sub-
section (3) in respect of any area or areas, the State Government shall define the limits of such area or areas in the notification with reasonable certainty.
(5) No such notification shall be issued so as to have effect from a date earlier than the expiry of a period of ninety days after the date on which it is issued.]"
7. On bare reading of the Act no where it is mentioned that the customers are punishable and 13 chargeable. Relying upon the provisions of the Act, this Court in Hidhaytulla's case (supra) has quashed the proceedings against the customers at paragraph No.7, which reads as follows:
"7. Therefore, none of the above said provisions are attracted so far as the customers are concerned. Though it is felt by this Court on various occasions that the customer virtually encourages prostitution, 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.
Hence, the following;
ORDER
i) Criminal petition is allowed;
ii) The entire proceedings in
CC.No.59546/2017 on the file of X
A.C.M.M., Mayo Hall, Bangalore City in Crime No.301/2016 registered by respondent-Police for the offences punishable under Sections 3, 4, 5, 6, 7 of ITP ACT and 370(3) and 370A(2) of IPC and all further proceedings therein, sofaras petitioner-accused No.3 is concerned are hereby quashed."14
8. Also in the latest judgment in Sri Neelesh Kumar's case, this Court at paragraph Nos.5, 6 and 7 held as follows:
"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.
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 of IPC has been invoked by the prosecution and it cannot be gain said 15 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 petitioners and continuation of proceedings against them would be abuse of process of law."
9. On perusal of FIR especially the complaint filed by the Investigation Officer, he has categorically stated that the name of the respondent is shown as accused No.4 and he was a customer and by filing the charge sheet also, his name is shown as accused No.4 in column No.4 of the charge sheet and shown accused No.2 one Rashmi as owner who was running a parlor by obtaining premises from C.W.7. Therefore, the contention of the prosecution that the respondent was running a brothel cannot be acceptable. The respondent being the customer, there is no provision for filing the charge sheet and punishable under the Act. Such being the case, the order passed by 16 the first Appellate Court discharging the respondent/accused does not call for interference as there is no illegality or error committed by the first Appellate Court. Therefore, the criminal revision petition is liable to be dismissed.
Accordingly, criminal revision petition is dismissed. Office is directed to send the LCR to the trial Court to proceed in accordance with law.
Sd/-
JUDGE PB