Karnataka High Court
Hanmanth And Ors vs The State Of Karnataka on 10 April, 2024
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NC: 2024:KHC-K:2959
CRL.P No. 201645 of 2023
IN THE HIGH COURT OF KARNATAKA,
KALABURAGI BENCH
DATED THIS THE 10TH DAY OF APRIL, 2024
BEFORE
THE HON'BLE MR. JUSTICE C M JOSHI
CRIMINAL PETITION NO.201645 OF 2023 (482)
BETWEEN:
1. HANMANTH S/O BHARAT SIRSAGAR,
AGE: 37 YEARS, OCC: PRIVATE SERVICE,
R/O SHIVALLI VILLAGE, TQ. AUSA,
DIST. LATUR (MAHARASHTRA)-413512.
2. RAMADAS S/O MARUTHI PARIHAR,
AGE: 40 YEARS, OCC: PRIVATE SERVICE,
R/O KOTGIYAL VILLAGE, TQ. KAMAL NAGAR,
DIST. BIDAR-585401.
3. SRIRANG S/O MARUTHI PARIHAR,
AGE: 46 YEARS, OCC: PRIVATE SERVICE,
Digitally signed by
KHAJAAMEEN L R/O KOTGIYAL VILLAGE, TQ. KAMAL NAGAR,
MALAGHAN DIST. BIDAR-585401.
Location: HIGH
COURT OF ...PETITIONERS
KARNATAKA
(BY SRI RAJESH DODDAMANI, ADVOCATE)
AND:
THE STATE OF KARNATAKA THROUGH
KAMALANAGAR POLICE STATION,
KAMALANAGAR (BIDAR DISTRICT),
NOW REPRESENTED BY
THE ADDL. SPP,
HIGH COURT OF KARNATAKA,
KALABURAGI BENCH-585103.
...RESPONDENT
(BY SMT. ANITA M. REDDY, HCGP)
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NC: 2024:KHC-K:2959
CRL.P No. 201645 of 2023
THIS CRIMINAL PETITION FILED IS UNDER SECTION 482
OF CR.P.C. PRAYING TO ALLOW THIS PETITION AND QUASH
THE IMPUGNED FIRST INFORMATION REPORT IN CRIME
NO.85/2023 DATED 05.09.2023 REGISTERED BY THE
KAMALANAGAR POLICE STATION BIDAR FOR THE OFFENCES
U/S 3,4,5,6 OF IMMORAL TRAFFIC (PREVENTION) ACT 1956,
NOW PENDING ON THE FILE OF THE HON'BLE SENIOR CIVIL
JUDGE AND JMFC AT AURAD IN CRIME NO.85/2023.
THIS PETITION, COMING ON FOR ADMISSION, THIS DAY,
THE COURT MADE THE FOLLOWING:
ORDER
The petitioners, who are accused No.1, 2 and 3 in Crime No.85/2023 of Kamalanagar Police Station, Bidar for the offences punishable under Section 3, 4, 5, 6 of Immoral Traffic (Prevention) Act, 1956 are before this Court seeking quashing of the proceedings.
2. The case of the prosecution is that the complainant, who is a Circle Inspector of Police of Kamalanagar Circle had received a credible information that prostitution is being carried out in Ajanta Lodge at Kamalanagar and therefore after obtaining prior permission of Dy.S.P, he raided the said lodge along with the panchas and his staff. It was found that prostitution was practiced in the said lodge and therefore, the spot -3- NC: 2024:KHC-K:2959 CRL.P No. 201645 of 2023 mahazar was conducted in the presence of one Santosh and Govind. Along with the accused Nos.1 and 2 and the seized articles, he returned to the police station and lodged his complaint, which came to be registered by the SHO i.e., PSI of Kamalanagar Police Station for the above said offences at about 4.00 p.m. on 05.09.2023.
3. Now the learned counsel for the petitioners, who are accused Nos.1 to 3 submit that the PSI of Kamalanagar Police Station or of Circle Inspector of Police who conducted the raid were not having any authority since there is no such designation of these police officers as a Special Police Officer as required under Section 13 of the ITP Act. It is contended that, the mandatory provisions of Section 15 of the ITP Act are also not followed by the investigating officer and therefore, on both these grounds to the proceedings are not sustainable in law.
4. Per contra, the learned High Court Government Pleader would submit that there is no such notification by the Government which empowers the Circle Inspector of -4- NC: 2024:KHC-K:2959 CRL.P No. 201645 of 2023 Police to be a Special Police Officer as required under Section 2(i) and 13 of the ITP Act. However, she submits that the irregularity in registering the case cannot be a ground to quash the entire proceedings. It is submitted that the reason as to why the investigating officer could not take women as required under Section 15 of the Act can only be ascertained at the time of the trial and therefore it cannot be a ground to quash the proceedings.
5. Learned counsel appearing for the petitioners has placed reliance on the case of Dharmanna V/s The State of Karnataka in Criminal Petition No.200915/2023, dated 18.07.2023, Shri. Rajath V/s State of Karnataka in Criminal Petition No.101975/2021 dated 16.02.2022, Mr. Praveen Kumar M.S. V/s State of Karnataka in Criminal Petition No.1398/2017 dated 28.03.2022, to contend that the provisions of Section 15(2) of the ITP Act are mandatory in nature and that in the absence of any notification to show that the investigating officer was a -5- NC: 2024:KHC-K:2959 CRL.P No. 201645 of 2023 special police officer within the definition of 2(i) of the ITP Act, the investigating is not sustainable in law.
6. In the case of Dharmanna V/s The State of Karnataka, the Coordinate Bench of this Court in para 6 and 7 as stated as below:
"6. Section 13 of the Act specifies that, there shall be for each area to be specified by the State Government in this behalf a special police officer appointed by or on behalf of that Government, for dealing with offences under this Act in that area.
7. Clause (2) of Section 13 of the Act specifies that, the special police officer shall not be below the rank of an Inspector of Police. In the instant case, though the raid was conducted by the Police Inspector, however, he has not been designated as special police officer to deal with the offence under this Act in that area by the State Government. Hence, conducting of the raid, and registration of the FIR by the Police Inspector is one without authority of law."
7. In the case of Shri.Rajath V/s The State of Karnataka, after going through the provisions of Section -6- NC: 2024:KHC-K:2959 CRL.P No. 201645 of 2023 14, Section 2 and various other provisions of law, in para 11 it was observed as below:
"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."
8. In the case of Mr. Praveen Kumar M.S. V/s State of Karnataka, this Court has observed that the provisions of Section 15(2) of the ITP Act are mandatory in nature and the reading party shall accompanied by a women and another pancha shall be a person from the locality. In para 7 and 8 of the order, it was observed as below:
"7. Section 15(2) of the ITP Act reveals that atleast one of the witness shall be a respectable women from the said locality at the time of search seizure, but, that was not done by the police officer. Thereby, there -7- NC: 2024:KHC-K:2959 CRL.P No. 201645 of 2023 is a gross violation of Section 15(2) of the ITP Act. That apart, the learned counsel produces notification of the Government of Karnataka dated 02.08.2008 wherein it states that who will be the officer for investigation under the ITP Act, Section 13 of the Act states that where not below the rank of Inspector of police is permitted to investigate the matter.
8. Here in this case, the Police Inspector who registered the complaint and handed over the same to the Sub-Inspector of Police for investigating is also violation of provisions of Section 13 of the Act which is also abuse of the process of the law. Such being the case, allowing the police to investigate the matter is nothing but the abuse of the process of the law. Hence, the FIR is liable to be quashed."
9. It is evident that the provisions of Section 2(i) of ITP Act lay down that only a special police officer is empowered to investigate the matter. It appears that there is no such notification issued by the Government wherein a Police Officer of the rank of the Circle Inspector of Police/Police Inspector or Dy.S.P. of the Police Stations are the Special Police Officers within the meaning of 2(i) of the ITP Act. In the absence of any such powers conferred -8- NC: 2024:KHC-K:2959 CRL.P No. 201645 of 2023 upon the Police Officers, it cannot be said that the Police Inspectors of all the Police Stations are the Special Police Officers within the meaning of Section 2(i) of the ITP Act.
10. So also, it is evident that in the case on hand the investigating officer had not taken a woman along with the raiding party for the purpose of raid. Section 12(2) of the Act is mandatory in nature. There cannot be any doubt that in the absence of any averments in the mahazar that no woman was available or no person of the locality was available, such a raid cannot be permitted to the basis of any prosecution. Hence, it is evident that continuation of the present proceedings would be nothing but abuse of process of law. Therefore, the petition deserves to be allowed.
11. It is seen from the record that many number of cases alleging the offences under the provisions of ITP Act are not properly investigated and certain mandatory provisions are not followed by the investigating officers. Therefore, it would be proper to direct the learned High -9- NC: 2024:KHC-K:2959 CRL.P No. 201645 of 2023 Court Government Pleader to bring the same to the notice of Prl. Secretary, Home Department and to take necessary corrective measures in the matter. Hence, the following:
ORDER The petition is allowed.
The proceedings in Crime No.85/2023 of Kamalanagar Police Station, Bidar District is hereby quashed.
The learned High Court Government Pleader is directed to bring the observations of this Court to the notice of the Prl Secretary, Home department for necessary corrective measures.
Sd/-
JUDGE SMP List No.: 1 Sl No.: 31 CT:PK