Karnataka High Court
Shri. Hasan Bawoor vs The State Of Karnataka on 13 July, 2017
Author: Aravind Kumar
Bench: Aravind Kumar
1
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 13TH DAY OF JULY, 2017
BEFORE
THE HON'BLE MR.JUSTICE ARAVIND KUMAR
CRIMINAL PETITION NO.4253/2017
BETWEEN:
1. SHRI HASAN BAWOOR
S/O. K.I. BAWOOR,
AGED ABOUT 38 YEARS,
OCC: PVT SERVICE,
R/O. H . NO.8, II FLOOR,
II CROSS, CHOLOURPALYA,
PIPELINE ROAD, VIJAYANAGAR,
BENGALURU - 560 023
2. SHRI. SENTHIL KUMAR
S/O. MALAISWAMY,
AGED ABOUT 41 YEARS,
OCC: PVT. SERVICE,
R/O. SH-402, SHRI RAM SPANDANA,
CHALLAGHATTA, BENGALURU
NORTH, BENGALURU-24
...PETITIONERS
(BY SRI. S.S.MAMADAPUR, ADVOCATE)
AND:
THE STATE OF KARNATAKA
BY SADASHIVANAGAR POLICE
STATION, REP. BY STATE PUBLIC
PROSECUTOR, ADVOCATE
GENERAL'S OFFICE,
HIGH COURT BUILDING,
BENGALURU - 01
...RESPONDENT
(BY SRI.K.NAGESHWARAPPA, HCGP)
2
THIS CRIMINAL PETITION IS FILED U/S 482. CR.P.C.
PRAYING TO QUASH THE FIR IN CRIME NO.16/2017
REGISTERED BY THE RESPONDENT POLICE FOR THE
OFFENCE P/U/S 370 OF IPC AND SEC. 3, 4, 5, 6 AND 7 OF
IMMORAL TRAFFIC (PREVENTION) ACT, 1956, IN SO FAR
AS THE SAME RELATES TO THE PETITIONER / ACCUSED
NO.6 AND 7.
THIS CRIMINAL PETITION COMING ON FOR
ADMISSION THIS DAY, THE COURT MADE THE
FOLLOWING:
ORDER
This petition is filed under Section 482 of Cr.P.C. for quashing of FIR No.16/2017 pending on the file of VII Addl. Chief Metropolitan Magistrate, Bengaluru, registered for the offence punishable under Section 370 of IPC and Sections 3, 4, 5, 6 and 7 of the Immoral Traffic (Prevention) Act, 1956 (for short 'ITP' Act), insofar as, same relates to petitioners - accused Nos.6 and 7.
2. Facts in brief which has led to filing of this petition are as follows:
On the basis of a complaint lodged by one Sri.K.Yashwantkumar, Police Inspector, Women & Psychotropic Substance Squad, CCB, Bengaluru, before respondent - Sadashivnagar Police Station alleging that 3 on 03.02.2017, at about 7.00 p.m., he received credible information about prostitution being carried on at Shivai Thai Spa at 8th Main Road, Sadashivanagar, Bengaluru, the informant along with decoy and panchas went to the spot and arrested accused Nos.1 to 3 and accused Nos.4 to 8, 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 eight accused persons under Sections 3, 4, 5, 6 and 7 of Immoral Traffic (Prevention) Act, 1956, and Section 370 of IPC.
3. It is contended by learned counsel appearing for petitioners that even if the case of prosecution is accepted, it does not satisfy the ingredients of the offence urged in FIR against petitioners and there are no allegations against petitioners, insofar as, offence under Section 370 of IPC and they relate to only accused Nos.1 to 3.
4
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.No.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. K. Nageshwarappa, learned HCGP appearing for respondent/State would support the prosecution initiated against petitioners.
6. Having heard the learned counsel appearing for petitioners and on perusal of case papers and orders relied upon by the learned counsel appearing for petitioners, it would disclose that main ground on which 5 petitioners have been arraigned as accused in the above crime is that they were present at the scene of incident during the raid. The contents of the complaint would also disclose that petitioners were customers who had gone for a body massage. Under similar circumstances, in respect of very same crime number and on same set of facts accused No.4 had approached this Court in Crime No.1959/2017 and Coordinate Bench of this Court by order dated 31.03.2017 had allowed the petition and has quashed the proceedings insofar as accused No.4 is concerned. Said finding recorded by Coordinate Bench in Crl.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 6 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. Petitioners herein are similarly placed. The only ground on which they have been arraigned as accused is they were present at the place which alleged prostitution was being raid and they were customers and allegations are similar and identical to allegations made against accused No.4 against whom proceedings have been quashed by Coordinate Bench as noted hereinabove. The allegations made against the 7 petitioners and material collected against petitioners do not show the commission of any of the offences alleged against him in the FIR and proceedings initiated against the petitioners 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, the proceedings are 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 in Crime No.16/2017 registered by Sadashivanagar Police Station for the offence punishable under Sections 3 to 7 of ITP Act and Section 370 of IPC, which is pending on the file of VII Addl. Chief 8 Metropolitan Magistrate, Bengaluru, is hereby quashed only insofar as, petitioners herein (accused Nos.6 and
7) are concerned.
In view of this criminal petition having been disposed of on main, I.A.No.1/2017 filed for stay does not survive for consideration and it is hereby rejected.
Sd/-
JUDGE DR