Karnataka High Court
Smt. Kavya vs State Of Karnataka on 22 January, 2020
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 22ND DAY OF JANUARY, 2020
BEFORE
THE HON'BLE MR.JUSTICE B.A. PATIL
CRIMINAL PETITION NO. 8827/2019
BETWEEN:
Smt.Kavya,
W/o. Sri.Ravi.H.,
Present address,
Age about 32 years,
Residing at No.32,
Muddanna Garden
Harsha Layout, Kengeri,
Bengaluru-560 060
Old address, Ambedkar Colony,
5th Cross, Kyathasandra,
Tumkur, Karnataka.
...Petitioner
(By Sri.Srinivas A.R., Advocate)
AND:
State of Karnataka by
Girinagar police
Bengaluru-560 085
Represented by State Public Prosecutor
High Court of Karnataka
At Bangalore-560 001.
...Respondent
(By Sri.Vijayakumar Majjage, Addl.SPP)
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This Criminal Petition is filed under Section 482 of
the Code of the Criminal Procedure Code praying to
quash the proceedings against the petitioner in
Cr.No.271/2014 now in S.C.No.738/2016 which is
pending before the XLV Additional City Civil and
Sessions Judge (CCH-46) at Bengaluru for the offence
p/u/s 3, 4, 5 and 7 of ITP Act and Sec. 370(3) and 370-
A(2) r/w Sec. 34 of IPC as per Annexure-C and
Annexure-D.
This Criminal Petition coming on for Orders, this
day, the Court made the following:
ORDER
This petition is filed by the petitioner/accused under Section 482 of Cr.P.C to quash the proceedings in SC.No.738/2016 pending on the file of XLV Additional City Civil and Sessions Judge, Bengaluru, for the offence punishable under Sections 3, 4, 5 and 7 of the Immoral Traffic (Prevention) Act, 1956 (hereinafter referred as 'ITP' Act) and Sections 370(3) and 370-A(2) read with Section 34 of IPC.
2. The factual matrix of the case on hand is that on 26.12.2014 at about 1 pm, the Police Inspector of Women and Narcotic drugs, received credible -3- information that the prostitution is running at house No.4(4/84) of Dwaraka Nagar, Banashankari 3rd Stage, Bengaluru. Immediately, he communicated the said information to higher officials and on their instructions, he along with his staff went to the said spot and at about 3 PM, he arranged for local Decoy and sent him along with Police constable attached to CCB to the said house. Further, the complainant secured the Panchas and went inside the house and found three girls in the said house. On enquiry they came to know that petitioner along with accused No.2 took the premises for rent and use to come in contact with the customers and use to secure their presence to the said house and was running prostitution. They also seized mobile phones, condoms and an amount of Rs.2,000/- before the Panchas. Thereafter, a case has been registered in Crime No.271/2014.
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3. It is the contention of the learned counsel for the petitioner/accused that, the complaint filed by the complainant is not maintainable in law. It is filed in violation of provisions of Section 154 of Cr.P.C. It is his further submission that immediately after coming to know about the information, which is a cognizable offence, the police officials have not registered the case as contemplated under Section 154 of Cr.P.C and mandate of the Apex Court as laid down in the case of Lalita Kumari V/s. Government of Uttar Pradesh and others reported in 2014 2 SCC 1. It is his further submission that not following the said procedure, amounts to violation of law. Hence, entire proceedings are vitiated. It is his further submission that the Investigating Officer has not followed the provisions of Section 15(2) of The ITP Act. As per the said provisions, the Special Police Officer has to secure respectable inhabitant, at least one of whom shall be a woman. But in the present case, no woman has been secured from -5- locality, at the time of drawing up of Mahazar. Further it is submitted that as per Section 13(2) of ITP Act, 'Special Police Officer' cannot be below the rank of Inspector of Police. But in the instant case, investigation has been done by PSI, as such there is clear violation of the said provision. It is his further submission that if the entire case is looked into, there is clear violation of law. In order to substantiate his contention he also relied upon the decisions of Co-ordinate Bench of this Court in the case of Subramanya V/s State of Karnataka in Crl.P.No.9680/2016 decided on 30.06.2017 and Sajeeth Shekara V/s. State of Karnataka in Crl.P.No.8435/2019 decided on 07.01.2020. He also relied upon the decisions in the case of Shankare Gowda @ Shankara V/s. State by Madanayakanahalli Police, Bengaluru and Another reported in ILR 2016 KAR 3067. On these grounds, he prays to allow the petition and quash the proceedings. -6-
4. Per contra, learned Addl.S.P.P vehemently contended that there is prima-facie material as against the petitioner/accused for having involved in the said case. It is his further submission that as per proviso of Section 15 of ITP Act which indicates that the Special Police Officer shall call upon two or more respectable inhabitants and at least one of whom shall be a woman, is in consideration with the place of search. Therefore, the presence of woman is not applicable. By taking into consideration the situation and circumstances, proviso exempts the provisions of Section 15(2) of ITP Act. It is further submitted that the decision in the case of Shankare Gowda, quoted supra was taken before the Hon'ble Apex Court and the Apex Court had come to conclusion that the quashing of the proceedings merely on the ground that investigation is not valid, is held as unjustified and has over ruled the said judgment in the case of R.A.H. Siguran V. Shankare Gowda reported in AIR 2017 SC 5141. As such the contention of -7- learned counsel for the petitioner is not applicable to the present facts of the case.
5. It is further submitted that the information received, has been intimated to the higher officials and thereafter, the case has been investigated and registered. No malafide has been attributed to the Investigating Officer. In that light, submission of the learned counsel for the petitioner is not acceptable. On these grounds, he prays to dismiss the petition.
6. I have carefully and cautiously gone through the submissions made by the learned counsel appearing for both the parties and perused the records.
7. First and foremost contention of the learned counsel for the petitioner/accused is that the Investigation Officer has not followed the provisions of Section 154 of Cr.P.C and without registering the case which is cognizable in nature, he has proceeded to the -8- place. After investigation and drawing up of mahazar, a case has been registered, as such, it is violation of mandate of Hon'ble Apex Court laid down in the case of Lalita Kumari, quoted supra.
8. I have carefully gone through the decision laid down in the case of Lalita kumari and it has been observed that if a Police officer can arrest a person even before the commission of a cognizable offence, in order to prevent the commission of that offence, if it cannot be prevented otherwise. Such preventive arrests can be valid for 24 hours. But in the instant case, no such situation is existing. At paragraph-119 and at 120.6 of Lalitha Kumari's case, stated supra, has been observed as under;
119. Therefore, in view of various counter claims regarding registration or non-registration, what is necessary is only that the information given to the police must disclose the commission of a cognizable offence. In such a situation, registration of an FIR is mandatory. However, if -9- no cognizable offence is made out in the information given, then the FIR need not be registered immediately and perhaps the police can conduct a sort of preliminary verification or inquiry for the limited purpose of ascertaining as to whether a cognizable offence has been committed. But, if the information given clearly mentions the commission of a cognizable offence, there is no other option but to register an FIR forthwith. Other considerations are not relevant at the stage of registration of FIR, such as, whether the information is falsely given, whether the information is genuine, whether the information is credible etc. These are the issues that have to be verified during the investigation of the FIR. At the stage of registration of FIR, what is to be seen is merely whether the information given ex facie discloses the commission of a cognizable offence. If, after investigation, the information given is found to be false, there is always an option to prosecute the complainant for filing a false FIR. 120.6. As to what type and in which cases preliminary inquiry is to be conducted will depend on the facts and circumstances of each case. The
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category of cases in which preliminary inquiry may be made are as under:
a) Matrimonial disputes/ family disputes
b) Commercial offences
c) Medical negligence cases
d) Corruption cases
e) Cases where there is abnormal delay/laches in initiating criminal prosecution, for example, over 3 months delay in reporting the matter without satisfactorily explaining the reasons for delay.
The aforesaid are only illustrations and not exhaustive of all conditions which may warrant preliminary inquiry.
9. On perusal of said paragraphs, what has to be looked into is whether the information given to the police, has disclosed the fact that, it is a cognizable offences or not? If it is a cognizable offence, registration of FIR is mandatory. If the case is not registered, under such circumstances, proceedings can be quashed by holding that the provisions of Section 154 of Cr.P.C have not been followed. However, it has been observed that the issues has to be verified during the
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investigation of FIR and at the stage of registration of FIR. What is to be seen is that the information given ex- facie discloses the commission of cognizable offence or not? If, after investigation, the information given is found to be false, there is always an option to prosecute the complainant for filing a false FIR. At paragraph 120(6) of Lalita Kumari's case, it has been observed as to what type and in which cases preliminary enquiry is to be conducted and it is depend upon the facts and circumstances of each case. The category of cases, in which preliminary inquiry has to be made has been clarified. The aforesaid cases are only illustrations and not exhaustive of all conditions which may warrant preliminary enquiry. By taking into consideration the present facts of the case, the allegations made against petitioner/accused is that she has taken the house and started running prostitution, under such circumstances, when Police Officers are intending to raid the house, which has been taken on rent, the
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preliminary enquiry is necessary. Even they have arranged Decoy and came to know about the fact. In that context, if the Investigating Officer visits to the spot, where alleged incident took place and found that offence has been committed and mahazar has been drawn and thereafter, the case has been registered, then, under such circumstances, non-following of the provisions of Section 154 of Cr.P.C is not going to vitiate the entire proceedings. Be that as it may be. The case of the Lalitha Kumari, has been already referred to a larger Bench and the issue is in liss. Under these circumstances, the ratio laid down in the said decision insofar as facts of this case is concerned, is not applicable.
10. In so far as second contention of the learned counsel for the petitioner is that the investigation has been conducted by the Sub-Inspector of Police and there is violation of Section 13(2) of ITP Act. On plain reading
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of said Section, it mandates that the investigation has to be conducted by the Inspector of Police. But however, the similar issue came before the Hon'ble Apex Court in the case of R.A.H. Siguran V. Shankare Gowda reported in AIR 2017 SC 5141, it has been observed, merely on the ground that investigating officer has not followed the procedure, is not a ground to quash the proceedings. Keeping in view the ratio laid down in above decision, quoted supra, I am of the considered view that the contention of the learned counsel for the petitioner/accused in this behalf is not acceptable and the same liable to be rejected.
11. The third contention of learned counsel for the petitioner is that, while drawing up of mahazar, the Investigation Officer has not followed the provisions of Section 15(2) of ITP Act. For the purpose of gravity I quote Section 15(2) and proviso of ITP Act as under:
15. Search without warrant.--
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(1) Notwithstanding anything contained in any other law for the time being in force, whenever the special police officer 49 [or the trafficking police officer, as the case may be,] has reasonable grounds for believing that an offence punishable under this Act has been or is being committed in respect of a 50 [person] living in any premises, and that search of the premises with warrant cannot be made without undue delay, such officer may, after recording the grounds of his belief, enter and search such premises without a warrant. (2) Before making a search under sub-section (1), the special police officer 51 [or the trafficking police officer, as the case may be] shall call upon two or more respectable inhabitants (at least one of whom shall be a woman) of the locality in which the place to be searched is situate, to attend and witness the search, and may issue an order in writing to them or any of them so to do: 52 [Provided that the requirement as to the respectable inhabitants being from the locality in which the place to be searched is situate shall not apply to a woman required to attend and witness the search.
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12. On close reading of the Sub clause (2) of Section 15 of ITP Act, it has to be understood with reference to the place, where search has been conducted by the investigating officer. Under such circumstances, the presence of women required to be attended as witness to the search has to be looked into. By going through the records and mahazar it has been drawn, at the time when the investigating team has gone to the house, wherein the prosecution was going on and the girls were also found. They also seized the mobile phones and condoms from the said house. Keeping in view the above facts and circumstances, I am of the opinion that the said submission covered under proviso of Section 15 of ITP Act. and in that light, the said contention of learned counsel for the petitioner is not acceptable.
13. Looking from any angle, I am of the considered opinion that the petitioner has not made out
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any good grounds so as to quash the proceedings. The petition is devoid of merits, same is liable to dismissed and accordingly it is dismissed.
However, the petitioner is at liberty to file discharge application, if he is advised to do so. In the event, if such an application is filed, the observation made in this petition will not come in the way.
In view of disposal of main petition, IA.No.1/2019 does not survive for consideration.
Sd/-
JUDGE SB/-