Karnataka High Court
Ashok S/O Yogendragouda, vs The State Of Karnataka on 8 July, 2016
Author: A.N.Venugopala Gowda
Bench: A.N.Venugopala Gowda
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®
IN THE HIGH COURT OF KARNATAKA
DHARWAD BENCH
DATED THIS THE 8 T H DAY OF JULY, 2016
BEFORE
THE HON'BLE MR.JUSTICE A.N.VENUGOPALA GOWDA
CRIMINAL PETITION NO.100584/2016
BETWEEN:
1. ASHOK S/O YOGENDRAGOUDA,
AGE: 34 YEARS, OCC: BUSINESS,
R/O: HEGALATTI,
TQ: THIRATAHALLI,
DIST: SHIVAMOGA,
NOW AT: LAXMI LODGE,
NEAR MAHENDRAKAR CIRCLE,
GADAG, TQ: & DIST: GADAG.
2. NAVEEN S/O VISHNU NAIK,
AGE: 28 YEARS, OCC: BUSINESS,
R/O: NEAR HOSUR VILLAGE,
SIDDAPUR, TQ: SIDDAPUR,
DIST: KARWAR,
NOW AT: LAXMI LODGE,
NEAR MAHENDRAKAR CIRCLE,
GADAG, TQ: & DIST: GADAG.
... PETITIONERS
(BY SRI ANJANEYA M. ADV.)
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AND
THE STATE OF KARNATAKA
BY GADAG TOWN POLICE HUBLI,
REPRESENTED BY THE
STATE PUBLIC PROSECUTOR,
HIGH COURT OF KARNATAKA,
DHARWAD.
... RESPONDENT
(BY SRI PRAVEEN K. UPPAR, HCGP)
THIS CRIMINAL PETITION IS FILED U/S 438 OF
CR.P.C SEEKING TO ENLARGE THE PETITIONER ON BAIL
IN THE EVENT OF ARREST IN CR. NO. 94/2016
REGISTERED BEFORE THE TOWN POLICE STATION GADAG
FOR THE OFFENCES PUNISHABLE UNDER SECTIONS 3 & 5
OF IMMORAL TRAFFICE PREVENTION ACT, 1956.
THIS CRIMINAL PETITION COMING ON FOR
ORDERS, THIS DAY, THE COURT MADE THE
FOLLOWING: -
O R D E R
The Addl. Dist. and Sessions Judge at Gadag, by an Order dated 27.05.2016 passed in Crl. Misc. No.89/2016, having dismissed the anticipatory bail petition filed, this petition was filed to enlarge the petitioners on anticipatory bail.
2. The facts and circumstances giving rise to this petition are, that the Gadag Town Police have registered a :3: case in Crime No.94/2016 against the petitioners, for the offences punishable under Ss. 3 and 5 of Immoral Traffic Prevention Act, 1956 (for short, 'the Act'), on the basis of a complaint lodged on 28.04.2016 by Mr.Nagaraj M. Madalli, CPI and Spl. Officer under the Act. It was stated in the complaint, that on 28.04.2016, at 4.00 p.m., when the complainant was in the Office, he received information about the immoral trafficking in Lakshmi Lodge, Gadag, wherein 3 to 4 women having been kept for doing immoral trafficking in customers in the lodge. The complainant, accompanied by his staff, having secured panchas, rushed to the Lodge and watched the activities of the Lodge by standing at a distance and on seeing the police, two members of the lodge having ran away from the spot and an attempt made to catch them having gone in vain, the police searched the lodge and found four women at that place, and on enquiry, the women told that they were brought to Lodge for prostitution purpose etc.; that the police seized the articles found therein, under a panchanama and thereafter, complaint was lodged against the petitioners, who are the Owner and the Manager :4: respectively of Lakshmi Lodge. Apprehending arrest, Sessions Judge was approached for grant of anticipatory bail. The petition having been opposed on the ground that the offences alleged against the accused is not only against individual person(s) but also against the society and the Lodge being situated in central part of Gadag City, the bail if granted would nothing but be encouragement given and it would affect the surrounding environment, the bail was refused.
3. Sri Anjaneya M., learned advocate, firstly contended that the petitioners have not committed the alleged offences and the petitioners being law abiding citizens, their reputation is at stake, as the petitioners' names have been shown in FIR with an intention to humiliate, embarrass and defame them in the eyes of public. Secondly, there is false implication of petitioners and the allegations made is totally baseless. Thirdly, the alleged offences being not punishable with death or life imprisonment and the petitioners not having any criminal background, if apprehended by the police, would cause :5: untold misery to them and hardship to their families. Learned counsel submitted that the petitioners are ready and willing to cooperate with the Investigation Officer and undertake to scrupulously abide by the terms and conditions as may be imposed by the Court for enlarging them on bail.
4. Sri Praveen K. Uppar, learned HCGP, on the other hand, submitted that criminal case having been registered against the petitioners, Investigation Officer has recorded the statements of four women, who were found in the Lodge and their statements categorically show that they were brought by the petitioners for the purpose of prostitution and if the petitioners are released on bail, there is every chance of the petitioners committing similar heinous offences. Learned counsel submitted that the offences made out against the petitioners are punishable with imprisonment up to 7 years and since the investigation being still pending, if the petitioners, required for custodial interrogation, are released on bail, they may tamper the witnesses by threatening them and hamper the :6: prosecution agency and may also abscond from the clutches of law.
5. Considered the submissions made by the learned advocates and perused the record.
6. S.438 Cr.P.C. provides guidelines in the matter of consideration of anticipatory bail application. The Court has to consider (i) nature and gravity of accusation (ii) the antecedents of the applicant including the fact as to whether he has previously undergone imprisonment on conviction by any Court in respect of any cognizable offence (iii) the possibility of the applicant to flee from justice; and (iv) where the accusation has been made with the object of injuring or humiliating the applicant by having him so arrested.
7. The complainant and the police having searched Lakshmi Lodge, Gadag City, have found four condom pockets and two condom covers were torn and the same was seized, while drawing the panchanama. Even earlier also, there were complaints of similar nature in :7: respect of the Management of Lakshmi Lodge. In respect of the incident dated 25.10.2009, petitioner No.2 herein, was an accused. The said cases pertain to the offences under 'the Act'. Even though the charge-sheets filed in respect of the two raids conducted has ended in acquittal, the police have registered repeated complaints for similar offences against the Management of the Lodge.
8. The Act was enacted for prevention of immoral trafficking. The victims of immoral trafficking, most of whom are minors or youngsters, are let off on bail. It has come to light, that they again, in most of the cases, are forced to go back to the brothels from where they were rescued and are subjected to prostitution, again at the instance of the same offenders.
9. S.3 of the Act provides for punishment of three years rigorous imprisonment for keeping a brothel or for allowing the premises to be used as a brothel. S.4 provides for punishment of 2 years' imprisonment in case of any person living on the earnings of prostitution of another person; and in case of a person living on the :8: earning of prostitution of a child or a minor, said offence is punishable with imprisonment of not less than 7 years and not more than 10 years. S.5 is with regard to the offences of procuring, inducing or taking person for the sake of prostitution, which is punishable with rigorous imprisonment for a term of not less than 3 years and not more than 7 years and if any offence under S.5(1)(d) is committed against the will of any person, the punishment is imprisonment for a term of 7 years extendable to imprisonment for a term of 14 years. S.7(1A) provides for imprisonment which may extend to ten years in case of any person carrying on prostitution in respect of a child or a minor.
10. In SIDDHARAM SATLINGAPPA MHETRE Vs. STATE OF MAHARASHTRA, (2011) 1 SCC 694, after consideration of the earlier Judgments, Apex Court has laid down certain factors and parameters to be taken in to consideration while dealing with the application for grant of anticipatory bail. The same read as follows:
" 112. The following factors and parameters can be taken into consideration while dealing with the anticipatory bail::9:
i. The nature and gravity of the accusation and the exact role of the accused must be properly comprehended before arrest is made;
ii. The antecedents of the applicant including the fact as to whether the accused has previously undergone imprisonment on conviction by a court in respect of any cognizable offence; iii. The possibility of the applicant to flee from justice; iv. The possibility of the accused's likelihood to repeat similar or other offences;
v. Where the accusations have been made only with the object of injuring or humiliating the applicant by arresting him or her; vi. Impact of grant of anticipatory bail particularly in cases of large magnitude affecting a very large number of people; vii. The courts must evaluate the entire available material against the accused very carefully. The court must also clearly comprehend the exact role of the accused in the case. The cases in which the accused is implicated with the help of sections 34 and 149 of the Penal Code, 1860 the court should consider with even greater care and caution because overimplication in the cases is a matter of common knowledge and concern;
viii. While considering the prayer for grant of anticipatory bail, a balance has to be struck between two factors namely, no prejudice should be caused to the free, fair and full investigation and there should be prevention of harassment, humiliation and unjustified detention of the accused;
ix. The court to consider reasonable apprehension of tampering of the witness or apprehension of threat to the complainant; x. Frivolity in prosecution should always be considered and it is only the element of genuineness that shall have to be considered in : 10 : the matter of grant of bail and in the event of there being some doubt as to the genuineness of the prosecution, in the normal course of events, the accused is entitled to an order of bail."
11. The offences alleged against the petitioners being heinous and also against the society, anticipatory bail cannot be granted, as prima facie, the petitioners have not falsely been enrobed in the crime and are likely to misuse their liberty. There cannot be any undeserving and unwarranted sympathy towards the accused.
12. Having regard to the fact that there were cases registered against the Management of the Lakshmi Lodge, Gadag for the offences falling under the provisions of 'the Act', and there being no end and the police having effected certain seizure, while drawing the panchanama and have also recorded the statements of the victims, which point out the alleged involvement of the petitioners and the alleged offences being against the society and there being no material based on which it can be inferred that the accusation was made by the police with the object of injuring or humiliating the petitioners by arresting them and as there is apprehension of tampering of witnesses : 11 : and interfering with the prosecution materials, in my view, the petitioners have not made out the case for grant of anticipatory bail. Consequently, the petition is rejected.
However, it is made clear that, if the petitioners apply for regular bail, the same shall be considered in accordance with law.
Sd/-
JUDGE sac*