Karnataka High Court
Hidhaytulla vs The State By Indiranagara P.S on 22 June, 2018
Author: K.N.Phaneendra
Bench: K.N.Phaneendra
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IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 22ND DAY OF JUNE 2018
BEFORE
THE HON'BLE MR. JUSTICE K.N.PHANEENDRA
CRIMINAL PETITION NO.971 OF 2018
BETWEEN:
Hidhaytulla, S/o Abdul Basheed,
Aged about 39 years,
R/at No.17, Pillanna Garden,
2nd Stage. K.G.Halli,
J.P.Nagar, Bengaluru-560045.
...Petitioner
(By Sri.Chandrahasa Rai.B, Advocate)
AND:
1. The State by Indiranagara P.S,
Bengaluru, Rept by State Public
Prosecutor, High Court Building,
Bengaluru-560001.
2. S.Ayesha, Inspector of Police,
Women and Narcotic Drugs squad C.C.B,
N.T.Pet, Bengaluru-560002.
...Respondents
(By Sri.Chethan Desai, HCGP)
This Criminal Petition filed under Section 482 of
Cr.P.C. praying to quash the entire proceedings on the file
of the X ACMM at Mayo Hall, Bangalore City in Crime
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No.301/2016 dated 10.08.2016 for the offence P/U/S 3,
4, 5, 6, 7 of ITP ACT and 370(3) and 370A(2) of IPC,
registered by the Indiranagara Police Station, by calling
the entire records pending in C.C.No.59546/2017, on the
file of the X A.C.M.M. at Mayo Hall, Bangalore City.
This Criminal Petition coming on for Admission this
day, the Court made the following:
ORDER
Petitioner is arraigned as accused No.3 in Crime No.301/2016 but later culminated in C.C.No.59546/2017 on the file of X ACMM, Mayo Hall, Bangalore City for the offences p/u/s 3, 4, 5, 6 and 7 of IPC and Sections 370(3) and 370-A(2) of IPC.
2. The brief allegations of the case are that on receipt of credible information, respondent-Police have visited Sri Krishna Temple Road, near Nilagiri Shop, Bengaluru in the second floor, a business Center called as 'Aroma SPA and Saloon' wherein, it is alleged that some people were indulged in committing offences under I.T.P. Act.
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3. Police have raided the said place and found that some people i.e. accused persons and others involved in committing offence under I.T.P act and also under Section 370-A(2) of IPC. It is specifically alleged that the accused persons have committed the offences under Sections 3, 4, 5, 6 and 7 of IPT Act and Section 370 of IPC.
4. It is seen from the chargesheet papers and Mahazar drawn on the spot, the petitioner herein was present in the said massage parlor as a customer.
5. Learned counsel for the petitioner drew my attention to the various decisions of this Court and Andra Pradesh High Court in the following cases;
i) 2015(3) Crimes 281 (AP) ( Goenka Sajan Kumar Vs. State of A.P. Rep by P.P. high Court of A.P.]
ii) Crl.P. No.7056/2014 [ Mohammed Rafi Vs. State of Karnataka] 4
iii) Crl. P. No. 7110/2011 [ Suraj Vs. State of Karnataka]
iv) Crl. P. 5808/2016 [ Pravesh Chatri Vs. State of Karnataka]
v) W.P. No.56504/2015 [Mahesh Hebbar @ Mahesh Vs. The Station House Officer, Banaswadi Police Station]
vi) Crl.P. No.9682/2016 [ Aswath @ Naveen Vs. State of Karnataka]
vii) Crl.P. 8055/2016 [ Raghavendra @ Raghu Vs. State of Karnataka]
viii) Crl. P. No.200782/2016 [ Shivaraj Vs. State of Karnataka] In the above said decisions, this Court has specifically observed that under Sections 3, 4, 5, 6 and 7 of ITP Act and Section 370 of IPC are not attracted, so far as the customers are concerned in a brothel house or massage parlor. In fact, this Court has consistently come to the conclusion after analyzing the above said provisions 5 in the above said cases, that the constitution of the offence are not made out sofaras the customers are concerned.
6. This is also evident from the reading of the above said provisions that,-
Section-3 of the Act is a section which provides punishment for keeping a brothel or allowing premises to be used as brothel.
Section-4 provides for punishment of living on the earnings of the prostitution. Section-5 provides procuring, inducing or taking person for the sake of prostitution.
Section-7 applies to prostitution and in or in
the vicinity of public place.
(Emphasis Supplied)
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 6 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.
Sd/-
JUDGE SB