Karnataka High Court
Corenco Enterprise Pvt Ltd vs The State Of Karnataka on 17 October, 2022
Author: M. Nagaprasanna
Bench: M. Nagaprasanna
1
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 17TH DAY OF OCTOBER, 2022
BEFORE
THE HON'BLE MR. JUSTICE M. NAGAPRASANNA
CRIMINAL PETITION No.7920 OF 2022
BETWEEN:
1. CORENCO ENTERPRISE PVT. LTD.,
A COMPANY INCORPORATED UNDER
THE COMPANIES ACT 1956
HAVING ITS REGISTERED OFFICE AT
4TH FLOOR, 295-296, 100 FEET ROAD
FIRST STAGE, INDIRANAGAR
BENGALURU - 560 038
REPRESENTED BY ITS DIRECTOR
MR.ADITYA KAURA.
2. ADITYA KAURA
S/O MR.R.N.KAURA
AGED 46 YEARS
AUTHORIZED SIGNATORY AND DIRECTOR
M/S CORENCO ENTERPRISE PVT. LTD.,
RESIDING AT FLAT NO.100
OORVE APARTMENTS
NO.60, MUNI MARAPPA ROAD
OFF NANDIDURGA ROAD
BENGALURU - 560 046.
... PETITIONERS
(BY SMT.JAYNA KOTHARI, SR.ADVOCATE A/W
SRI ROHAN KOTHARI, ADVOCATE)
2
AND:
1. THE STATE OF KARNATAKA
THROUGH INDIRANAGAR POLICE STATION
REPRESENTED BY
THE LD. PUBLIC PROSECUTOR
HIGH COURT BUILDING
BENGALURU - 560 001.
2. SRI GOVINDARAJU B.,
POLICE INSPECTOR
CCB, WOMEN PROTECTION WING
N.T.PETE
BENGALURU - 560 026.
... RESPONDENTS
(BY SMT.K.P.YASHODHA, HCGP)
THIS CRIMINAL PETITION IS FILED UNDER SECTION 482 OF
CR.P.C., PRAYING TO QUASH THE COMPLAINT DATED 08.07.2022
(PRODUCED HEREIN AS ANNEXURE-A) AND FIR BEARING
CR.NO.137/2022 REGISTERED AT INDIRANAGAR POLICE STATION,
BENGALURU (ANNEXED AS ANNEXURE-B) U/S 3, 4, 5 OF I.T.P. ACT
AND SECTION 370 OF IPC AND ALL PROCEEDINGS ARISING
THEREFROM PENDING ON THE FILE OF X ADDL.C.M.M., MAYO
HALL, BENGALURU IN SO FAR AS THE PETITIONERS HEREIN ARE
CONCERNED.
THIS CRIMINAL PETITION HAVING BEEN HEARD AND
RESERVED FOR ORDERS ON 28.09.2022, COMING ON FOR
PRONOUNCEMENT THIS DAY, THE COURT MADE THE FOLLOWING:-
3
ORDER
The petitioners are before this Court calling in question registration of crime in Crime No.137 of 2022 for offences punishable under Sections 3, 4 and 5 of the Immoral Traffic (Prevention) Act, 1956 ('the Act' for short) and Section 370 of the IPC.
2. Heard Smt. Jayna Kothari, learned senior counsel appearing for petitioners and Smt. K.P.Yashodha, learned High Court Government Pleader appearing for the respondents.
3. Facts adumbrated are as follows:-
The 1st petitioner/Corenco Enterprise Private Limited ('the Company' for short) is a company incorporated under the Companies Act, 1956 and is engaged in property development and other commercial activity. The 2nd petitioner is the Director of the 1st petitioner/Company. The Company claims to be owning about 4 commercial units in the property at No.296, Binnamangala 1st Stage, Indiranagar, Bangalore. An agreement comes to be entered into on 15-04-2016, pursuant to which, the Company agreed to 4 develop the property and would keep four units of the property to itself. Thereafter, the Bruhat Bengaluru Mahanagara Palike ('BBMP' for short) appears to have issued khata to reflect the units in the basement as BF-2, ground floor as GF-1, first floor as FF-1 and second floor as SF-2, all of which stand in the name of the Company.
4. In the year 2021 accused No.1 represents to the Company being interested to take the unit for lease in the basement i.e., BF- 2 to open and run a Spa in the name and style of "Aira Spa and Salon". Based upon the representation so made by accused No.1, basement unit was leased out to the said Spa in terms of a lease deed dated 14-10-2021.
5. It appears that on 08-07-2022 the CCB, Women Protection Wing conducted surprise raid on the Company's property and the Spa. The owner of the Spa and the receptionist were arraigned as accused Nos. 1 and 2 and based upon the complaint, a FIR comes to be registered against all the accused including the Company as accused No.3 for offences punishable under the aforesaid 5 provisions. The registration of crime in crime No.137 of 2022 is what drives the petitioners to this Court in the subject petition.
6. The learned senior counsel Smt. Jayna Kothari would contend that none of the provisions can be invoked against the Company, as the Company has neither the knowledge nor involved in any activity after leasing out the said premises. She would submit that the entire proceedings initiated against the petitioners, if permitted to continue, would become an abuse of the process of law.
7. On the other hand, the learned High Court Government Pleader would contend that the matter is still at the stage of investigation, search was conducted only on 08-07-2022 and, therefore, would submit that the Court should not quash the proceedings at this stage.
8. I have given my anxious consideration to the submissions made by the respective learned counsel and perused the material on record.
6
9. The afore-narrated facts that led to registration of crime are not in dispute and, therefore, not reiterated. The allegations against the Company are for offences punishable under Section 3, 4 and 5 of the Act. Sections 3, 4 and 5 of the Act read 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 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.
(2-A) 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 a brothel or, as the 7 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 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 his prostitution; or
(c) to be acting as a tout or pimp on behalf of a prostitute, 8 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;
(c) takes attempts to take a person or causes a person to be taken, from one place to 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-- 9
(a) in the place from which a person is procured, induced to go, taken or caused to be taken or 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."
(Emphasis supplied) Section 3 directs punishment to a person for keeping a brothel or allowing the premises to be used as a brothel. Clause (a) of sub- section (2) of Section 3 mandates that any person being a 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, becomes open for punishment under Section 3 of the Act. Clause (b) of sub-section (2) of Section 3 also mandates that whoever being the owner, lessor or landlord of any premises or any part thereof lets the same with the knowledge that the same is intended to be used as a brothel or is willfully a party to the use of such premises or any part thereof as a brothel shall become open for punishment. Therefore, the lessor can be punished if he has knowingly allowed the premises to be used as a brothel. 10
10. The company can be punished, if with knowledge it has permitted the use of premises as a brothel and is a party to such usage. Section 4 deals with punishment for living on the earnings of prostitution. Section 5 deals with procuring, inducing or taking a person for the sake of prostitution. Sections 4 and 5 cannot be laid against the petitioners as they are neither living on the earnings of prostitution or they are procuring or inducing or taking any person for the sake of prostitution. What is now sought to be laid against the Company is Section 3. Section 3 of the Act mandates knowledge on the part of the Company of such activity being carried out in the premises that it owns.
11. The Company has placed on record the agreement entered into between accused Nos.1 and 2 and the Company on 14- 10-2021. Usage of the premises was for lawful purpose. Having given the area to be run as a Spa by the owner of Spa being accused No.1 and its receptionist, accused No.2, it cannot now be contended by the prosecution that the petitioners, who have leased out the premises for a particular purpose viz., Spa, are running the brothel. It is accused Nos.1 and 2 who will have to answer the 11 issue and not the petitioners herein who on 14-10-2021 have leased out the said premises. The petitioners are neither the owners of Spa nor partners of Spa. The owner of Spa uses the premises for the purpose which would become offence under the Act. The Company, owner of the premises, cannot be said to be having knowledge of what is happening in the Spa. Therefore, it is for accused Nos.1 and 2 to answer the allegation and permitting further proceedings against the petitioners/owners of the building would become an abuse of the process of law.
12. This Court in an identical scenario in terms of its order dated 08-03-2022 passed in Criminal Petition No.415 of 2022 considering the very provisions of the Act qua the owner has held as follows:
".... .... ....
7. The afore-narrated facts are not being in dispute are not reiterated. Search was conducted on the premises that the petitioner owned and rented out to accused No.1 on 25.01.2020 and case is registered for the offences punishable under Sections 3, 4, 5 and 6 of the said Act. It is germane to notice Section 3 of the Act for consideration of the case of the petitioner, which reads as under:
"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 12 in the keeping or management of, a brothel, shall be punishable on first conviction with rigorous imprisonment for a term of not 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.23
[(2-A) 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 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 13 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."
(Emphasis supplied) Section 3(2)(b) of the Act directs that the owner, lessor or landlord of any premises having knowledge of what is happening in the premises, would be brought within the ambit of the offences punishable under Section 3 of the Act. Pursuant to the said search, a notice is issued to the petitioner on 29.01.2020 alleging the aforesaid offences against the petitioner, to which, the petitioner gives his reply clearly narrating that he is not aware of what is happening in the premises that he had rented it out and stayed far away. The police also while filing the charge sheet indicates the same.
8. In the light of Section 3(2)(b) of the Act and the police themselves acknowledging that petitioner was not aware as to what was happening in the premises, permitting further proceedings to continue against the petitioner would degenerate into harassment and become an abuse of the process of law."
14The only difference in the judgment afore-quoted was that the Police had after investigation filed a charge sheet. Notwithstanding the fact that the case at hand is at the stage of investigation, permitting further proceedings against the petitioners would become an abuse of the process of law, as the documents produced along with the petition are undoubtedly unimpeachable, which would lead to an order in favour of the petitioners failing which, it would result in miscarriage of justice.
13. For the aforesaid reasons, I pass the following:
ORDER
(i) Criminal Petition is allowed and the FIR in Crime No.137 of 2022 registered before the Indiranagar Police Station pursuant to complaint dated 08.07.2022 and pending before the X Additional Chief Metropolitan Magistrate, Bengaluru City stands quashed.
(ii) It is made clear that the case at hand is considering the case of the petitioners in a petition under Section 482 of the CrPC. The observations made in the course of the order will not come in the way of investigation or any proceeding pending against any other accused in the said crime.
Sd/-
JUDGE bkp