Karnataka High Court
Shri. Rajath S/O Rasabihari Halder vs The State Of Karnataka on 16 February, 2022
Author: M.Nagaprasanna
Bench: M.Nagaprasanna
IN THE HIGH COURT OF KARNATAKA
DHARWAD BENCH
DATED THIS THE 16TH DAY OF FEBRUARY 2022
BEFORE
THE HON'BLE MR. JUSTICE M.NAGAPRASANNA
CRL.P NO 101975 OF 2021
BETWEEN
SHRI. RAJATH S/O RASABIHARI HALDER
AGE 31 YEARS,OCC. BUSINESS,
R/O. POST. GHATESHWAR,
DIST. PARAAGANAS (SOUTH)
STATE WEST BENGALI,NOW AT SHIVAGANGA APARTMENT,
PLOT NO. 002, RAMAKRISHNA NAGAR GOKUL ROAD,
HUBBALLI.
...PETITIONER
(BY SRI. SAJID AHMED GOODWALA, ADV.,)
AND
THE STATE OF KARNATAKA
THROUGH GOKUL ROADN POLICE STATION,
NOW REPRESENTED BY STATE PUBLIC PROSECUTOR,
HIGH COURT OF KARNATKA DHARWAD
BENCH ATDHARWAD
...RESPONDENT
(BY SRI.RAMESH CHIGARI, HCGP FOR RESPONDENT)
THIS CRIMINAL PETITION IS FILED U/S 482 OF CR.P.C.,
SEEKING TO QUASH THE FIR CRIME NO.56/2019 DATED 30.08.2019
REGISTERED BY GOKUL ROAD P.S. FOR THE OFFENCES PUNISHABLE
U/S 370 R/W 34 OF IPC AND SECTION 3(1), 4(1), (2), 5(1A) ITP ACT
1956, AND SECTION 353 OF KMC ACT 1976, WITH RESPECT TO THE
PETITIONER/ACCUSED NO.2
THIS PETITION COMING ON FOR THIS DAY, THE COURT MADE
THE FOLLOWING:
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ORDER
The petitioner is before this Court calling in question the proceedings in Sessions Case No.5003/2021 registered for offences punishable under Sections 370 and 34 of the IPC and Sections 3(1), 4(1), 2, 5(1)(a) of the Immoral Traffic (Prevention) Act, 1956 ('Act' for short) and Section 353 of the Karnataka Municipal Corporations Act, 1976.
2. Heard Sri. Sajid Ahmed Goodwala, learned counsel for the petitioner and the learned HCGP for the respondent- State
3. Brief facts leading to the filing of the present petition, as borne out from the pleadings, are as follows:
The petitioner is alleged to be a Manager in a shop -
family spa in the name and style of "Thai - The Family Spa and Saloon". It is the case of the prosecution that the Assistant Sub-Inspector of police of Gokul road police station on 30.08.2019 registered a complaint alleging that while he was on patrolling duty was in receipt of information from an 3 informant that accused No.3 had taken a shop in the first floor of Urban Oasis Mall and was running the said spa. The petitioner is projected as its Manager to manage the conduct of body massage.
4. It is alleged that the petitioner was trafficking women from various places and had appointed them for doing massage work and in the garb of doing massage, activities which were in violation of the Act were carried on in the said spa.
5. Based on the aforesaid complaint a crime came to be registered against the accused in Crime No.56/2019 for the aforesaid offences. Petitioner is arrayed as accused No.2 in the said crime. It is these proceedings that are called in question by the petitioner.
6. The learned counsel appearing for the petitioner would contend that the very registration of the complaint is contrary to the provisions of the Act and that the offence under Section 370 of the IPC is not attracted in the case at hand.
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7. On the other hand, the learned High Court Government Pleader would submit that the evidence clearly reveals the fact that the petitioner was in the business of trafficking women and it is for the petitioner to come out clean in the trial.
8. I have given my anxious consideration to the submissions made by the learned counsel for the parties and perused the material on record.
9. Before embarking upon the journey of consideration of the matter on its merits, I deem it appropriate to consider the legal submission made by the petitioner with regard to the registration of the complaint being without jurisdiction and for such consideration, provisions of the Act are germane to be noticed. Section 3(1), 4(1)(2), 5(1)(a) of the Act reads 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 5 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.
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 a woman or girl 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 her prostitution; or
(c) to be acting as a tout or pimp on behalf of a prostitute, 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).6
5. Procuring, inducing or taking woman or girl for the sake of prostitution.
(1) any person who
(a) procures or attempts to procure a person, whether with or without her consent, for the purpose of prostitution; or"
Section 14 of the Act reads as follows:
"Notwithstanding anything contained in the Code of Criminal Procedure, 1973 (2 of 1974), any offence punishable under this Act shall be deemed to be a cognizable offence within the meaning of that Code: Provided that, notwithstanding anything contained in that Code,--
(i) arrest without warrant may be made only by the special police officer or under his direction or guidance, or subject to his prior approval;
(ii) when the special police officer requires any officer subordinate to him to arrest without warrant otherwise than in his presence any person for an offence under this Act, he shall give that subordinate officer an order in writing, specifying the person to be arrested and the offence for which the arrest is being made; and the latter officer, before arresting the person, shall inform him of the substance of the order and, on being required by such person, show him the order;
(iii) any police officer not below the rank of 49 sub-inspector specially authorised by the special police officer may, if he has reason to believe that on account of delay involved in obtaining the order of the special police 7 officer, any valuable evidence relating to any offence under this Act is likely to be destroyed or concealed, or the person who has committed or is suspected to have committed the offence is likely to escape, or if the name and address of such a person is unknown or there is reason to suspect that a false name or address has been given, arrest the person concerned without such order, but in such a case he shall report, as soon as may be, to the special police officer the arrest and the circumstances in which the arrest was made."
Section 14 mandates certain offences to be cognizable and empowers any Special Police Officer to take up such proceedings for such seizure and registration of the crime. Special Police Officer is defined in terms of Section 2(i) of the Act which means, a Police Officer appointed by or on behalf of the State Government to be in-charge of the police duties within the specified area.
10. A conjoint reading of the afore-quoted provisions would lead to an unmistakable conclusion that a Court can taken cognizance of the offence only upon a complaint in proceedings initiated by a Special Police Officer and a Special Police Officer is the one who is appointed by or on behalf of the State Government.
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11. The present proceeding is instituted pursuant to a complaint registered by the Assistant Sub-Inspector to the Police Inspector of Gokul Road Police Station. It is an undisputed fact that the informant/complainant is not the Special Police Officer in terms of the afore-quoted statute. Thus, the very proceeding that is initiated against the petitioner is based upon a complaint, complainant of which had no jurisdiction. Therefore, the proceedings would stand vitiated on account of it being in violation of the afore-quoted mandate of the statute.
12. The other offence alleged against the petitioner is the one punishable under Section 370 of IPC. Section 370 of the IPC reads as follows:
"370. Trafficking of person: (1) Whoever, for the purpose of exploitation, (a) recruits, (b) transports, (c) harbours, (d) transfers, or (e) receives, a person or persons, by--
First.--using threats, or Secondly.--using force, or any other form of coercion, or Thirdly.--by abduction, or Fourthly.--by practising fraud, or deception, or 9 Fifthly.--by abuse of power, or Sixthly.--by inducement, including the giving or receiving of payments or benefits, in order to achieve the consent of any person having control over the person recruited, transported, harboured, transferred or received, commits the offence of trafficking. Explanation 1.--The expression "exploitation" shall include any act of physical exploitation or any form of sexual exploitation, slavery or practices similar to slavery, servitude, or the forced removal of organs. Explanation 2.--The consent of the victim is immaterial in determination of the offence of trafficking.
(2) Whoever commits the offence of trafficking shall be punished with rigorous imprisonment for a term which shall not be less than seven years, but which may extend to ten years, and shall also be liable to fine.
(3) Where the offence involves the trafficking of more than one person, it shall be punishable with rigorous imprisonment for a term which shall not be less than ten years but which may extend to imprisonment for life, and shall also be liable to fine. (4) Where the offence involves the trafficking of a minor, it shall be punishable with rigorous imprisonment for a term which shall not be less than ten years, but which may extend to imprisonment for life, and shall also be liable to fine. (5) Where the offence involves the trafficking of more than one minor, it shall be punishable with rigorous imprisonment for a term which shall not be less than fourteen years, but which may extend to imprisonment for life, and shall also be liable to fine. (6) If a person is convicted of the offence of trafficking of minor on more than one occasion, then such person shall be punished with imprisonment for life, which 10 shall mean imprisonment for the remainder of that person's natural life, and shall also be liable to fine. (7) When a public servant or a police officer is involved in the trafficking of any person then, such public servant or police officer shall be punished with imprisonment for life, which shall mean imprisonment for the remainder of that person's natural life, and shall also be liable to fine."
Section 370 of the IPC deals with offences punishable for buying or disposing any person as a slave which is not the allegation and the incident would not link the petitioner to the said offences. Therefore, on both these counts the proceedings are rendered unsustainable. However, it would not preclude the State from initiating such action in accordance with law. For the aforesaid reasons, the following:
ORDER
(i) Criminal Petition is allowed.
(ii) The impugned proceedings pending in Sessions Case No.5003/2021 stand quashed qua the petitioner.11
(iii) It is made clear that the observations made in the course of the order would not be applicable to any of the other accused in the crime.
SD JUDGE Vb/-