Karnataka High Court
Sajeeth Shekara vs The State Of Karnataka on 7 January, 2020
Equivalent citations: AIRONLINE 2020 KAR 24
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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 B.A.PATIL
CRIMINAL PETITION NO.8435/2019
BETWEEN :
Sajeeth Shekara
S/o Shekar Poojari
Aged about 31 years
R/at Yashoda Nilaya
Near Petrol Bunk, Mudarangadi,
Udupi Taluk, Udupi District-577 573.
... Petitioner
(By Sri B.Lethif, Advocate)
AND :
The State of Karnataka
by Kavooru Police Station, Bengaluru City
Represented by State Public Prosecutor
High Court Building, Bengaluru-560 001.
... Respondent
(By Sri Vijayakumar Majage, Addl. SPP)
This Criminal Petition is filed under Section 482 of
Cr.P.C praying to quash the entire proceedings against
the petitioner in C.C.No.6287/2018 (CR.No.172/2018) of
Kavooru Police Station, Mangaluru for the offences
punishable under Sections 3, 4, and 5 of I.T.P Act
pending on the file of the JMFC III Court at Mangaluru
which is produced at Annexure-A, for the reasons stated
therein.
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This Criminal Petition coming on for Admission this
day, the Court made the following:-
ORDER
This petition is filed by accused No.2 under Section 482 of Cr.P.C. praying to quash the proceeding in CC.No.6287/2018 (Crime No.172/2018 of Kavooru Police Station, Mangaluru), pending on the file of JMFC III Court, Mangaluru, for the offences punishable under Sections 3, 4 and 5 of Immoral Traffic (Prevention) Act, 1956 ('ITP' Act for short).
2. I have heard the learned counsel for the petitioner-accused No.2 and the learned Additional SPP for the respondent-State.
3. The factual matrix of the case of the prosecution is that on 12.7.2018, the complainant got information from CCB Unit Police alleging that prostitution was carried on in a house near Jalligudde. Immediately, the complainant informed the higher officer and at about -3- 2.35 p.m. along with panch witnesses he went to the spot and he found some women and men were inside the house. In one room he also found a men and a woman who were seen nude and were in compromising position. After they were dressed they were enquired and in the presence of the panch witnesses, the proceedings were initiated and a panchanama was drawn. After coming back to the police Station, a case has been registered in Crime No.172/2018.
4. It is the submission of the learned counsel for the petitioner-accused No.2 that the complaint filed by the Investigating Officer is without any authority. Even without making any entry in diary, the complainant went to the spot and the seizure mahazar was drawn and thereafter he got registered the case. It is his further submission that the said act of the complainant is contrary to the principle laid down in the case of Lalita Kumari Vs. State of U.P., reported in (2014) 2 SCC 1. It is his further submission that the raid has been -4- conducted in violation of the provisions of Section 15 of the ITP Act. As per Section 15(2) of the ITP Act, the police Officer before making a search should be in the presence of two or more respectable inhabitants and at least one of whom shall be a woman of the locality in which the place to be searched is situate. But in the case on hand, the two panch witnesses are men and no reasons have been assigned as to why one woman has not been called as a witness. Under such circumstances, it amounts to nothing but violation of mandate of law. It is his further submission that the Investigating Officer himself has filed the complaint, investigated the case and filed the charge sheet, in violation of the law laid down by the Hon'ble Apex Court in the case of Jasbir Singh @ Javri @ Jabbar Singh Vs. State of Haryana, reported in (2015)5 SCC 762. It is his further submission that there are so many contradictions in the complaint and other material. The registration of the case, investigation conducted by the same person and filing of the charge -5- sheet is nothing but it is abuse of process of law. On these grounds, he prayed to allow the petition by quashing the proceedings.
5. Per contra, the learned Additional SPP has vehemently argued and submitted that though the complainant is the Investigating Officer in the present case, there are no allegations made as against the Investigating Officer about the personal interest which would prejudice the case of the accused. Under such circumstances, the principle laid down in Jasbir Singh's Case (cited supra) is not applicable to the present case. It is his further submission that one WPSI and one WPC have also accompanied the Investigating Officer and in their presence raid was made and hence if that aspect is taken into consideration, there is no violation of Section 15(2) of the ITP Act. It is his further submission that the petitioner-accused No.2 is a habitual offender and there are no good grounds made out by the petitioner to quash -6- the proceedings. On these grounds, he prayed to dismiss the petition.
6. I have carefully and cautiously gone through the submissions made by the learned counsel for the parties and perused the records.
7. It is not in dispute that the information was received from CCB Police Unit and the complainant along with panch witnesses and his staff went to the place of incident, made a raid, drawn the mahazar and seized some of the articles. Though during the course of arguments, the learned Additional SPP submitted that as there were no other witnesses present including a woman and under such circumstances, the Investigating Officer has secured two witnesses and has drawn the mahazar, the complaint and other material clearly go to show that on receipt of information the Investigating Officer has secured the witnesses and thereafter along with his staff went to the place and made a raid. Not even a word has -7- been whispered either in the panchanama or in the statement of the panch witnesses that the Investigating Officer has made all the efforts to comply with the provisions of Section 15(2) of the ITP Act. Under such circumstances, the contention taken up by the learned Additional SPP is not acceptable.
8. Even as could be seen from the records, it would indicate that the complainant himself is the Investigating Officer who has fully investigated the case and filed the charge sheet. It is well settled proposition of law that when the complainant is the Investigating Officer, definitely it is going to prejudice the case of the accused. Under such facts and circumstances and as held in Jasbir Singh's Case (cited supra), it is going to the root of the case of the accused. Though it is contended by the learned Additional SPP that two women were present and during the course of investigation no such witnesses come forward to be witnesses, in that light no women witness signed the mahazar. But on perusal of the record -8- no material is placed to substantiate the said contention. On going through the aforesaid decision of the Hon'ble Apex Court, the main purpose for which the complainant himself cannot be the Investigating Officer is that if he himself investigates, there would not be any fair and proper investigation. In order to avoid the said aspect and not to prejudice the case of the accused, the said ratio has been laid down by the Hon'ble Apex Court. In that light, the submission of the learned Additional SPP is also not acceptable.
9. Even as could be seen from the records, no material is produced to show that any entries were made in the station house diary immediately after receipt of the information and registration of the case. Under the said facts and circumstances of the case, I am of the considered opinion that the registration of the case and investigation conducted by the Investigating Officer is nothing but abuse of process of law. In that light, the petitioner-accused No.2 has made out a case so as to -9- quash the proceedings. Accordingly, the following order is made:-
Petition is allowed. The proceedings initiated as against the petitioner-accused No.2 CC.No.6287/2018 (Crime No.172/2018 of Kavooru Police Station, Mangaluru), pending on the file of JMFC III Court, Mangaluru for the offences punishable under Sections 3, 4 and 5 of Immoral Traffic (Prevention) Act, 1956, stand quashed.
Consequently, I.A.No.1/2019 is disposed of, as it does not survive for consideration.
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JUDGE *ck/-