Chandrahasa vs State Of Karnataka on 9 August, 2024

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Karnataka High Court

Chandrahasa vs State Of Karnataka on 9 August, 2024

R-2 SERVED, UNREPRESENTED) THIS CRIMINAL PETITION IS FILED UNDER SECTION 482 OF CR.P.C., PRAYING TO QUASH THE FIR IN CR.NO.26/2023 REGISTERED BY THE KOLAR WOMEN POLICE STATION ON PENDING FILE OF THE COURT OF III ADDITIONAL CIVIL JUDGE AND JMFC, KOLAR AGAINST THE PETITIONERS FOR THE OFFENCE P/U/S.370, 373(3), 370A(2) OF IPC 1860 AND SEC.3, 4, 5, 6 OF IMMORAL TRAFFIC PREVENTION ACT, 1956 PRODUCED HEREWITH AS DOCUMENT NO.1 AND ALLOW THIS CRIMINAL PETITION WITH COSTS THROUGHOUT AND ETC., THIS CRIMINAL PETITION HAVING BEEN HEARD AND RESERVED FOR ORDERS ON 03.07.2024, COMING ON FOR PRONOUNCEMENT THIS DAY, THE COURT MADE THE FOLLOWING:-

CORAM: THE HON'BLE MR JUSTICE M.NAGAPRASANNA CAV ORDER The petitioners are before this Court calling in question proceedings in C.C.No.1539 of 2023 pending before the III Additional Civil Judge and JMFC, Kolar, arising out of Crime No.26 of 2023 registered for offences punishable under Sections 370(2), 370(3), 370-A(2) of IPC and Sections 3, 4, 5 and 6 of the Immoral Traffic Prevention Act, 1956 ('the Act' for short).

2. Heard Sri Pavana Chandra Shetty, learned counsel appearing for the petitioners and Sri P Thejesh, learned High Court Government Pleader appearing for respondent No.1.

3. Facts, in brief, germane are as follows:-

The 1st petitioner/accused No.1 is said to be the owner of a bar and restaurant or a resort in the name and style of Rock Vally Bar and Restaurant ('the Restaurant' for short). Accused No.3/petitioner No.2 is said to be the Manager of the said Restaurant. Accused No.5/petitioner No.3 is said to be a supplier in 4 the said restaurant. It is the case of the prosecution that on 25-06-2023, at about 7.30 p.m., the jurisdictional police received a credible information that immoral trafficking is allegedly happening at the restaurant. The restaurant is situated at Byapanahalli village, Byrapura Hobli, Mulbagal Taluk bordering Karnataka and Andhra Pradesh. On the said credible information, a search is conducted and about 6 women from Andhra Pradesh are said to have been brought in forcibly to engage them in prostitution. They were said to have been rescued and others were drawn into the web of crime in Crime No.26 of 2023. The registration of crime has led these petitioners to this Court in the subject petition. No interim order was granted. The learned counsel for the petitioners filed an application seeking amendment of the petition. The same is allowed and an amended petition is filed calling in question the charge sheet also filed in the crime.

4. The learned counsel appearing for the petitioners would vehemently contend that the restaurant does not have any rooms.

The people come from both the States of Karnataka and Andhra Pradesh. The owner would not know who are they. They would 5 come and take rooms and indulge in activities which would not be known to these petitioners. The resort is booked for a group. In the group what happens, the petitioners would not be aware.

Therefore, without any rhyme or reason, these petitioners are suspected to have indulged such activity which would become the offence alleged. The learned counsel would further contend that there has been gross violation of Section 15 of the Act and, therefore, seeks quashment of entire proceedings.

5. Per contra, the learned High Court Government Pleader would vehemently refute the submissions contending that the Police after investigation have filed a charge sheet. The charge sheet is filed after recording statements of various persons that this particular resort or restaurant as they would call, was indulging in acts of prostitution. It is, therefore, the information received to anti-women trafficking unit was taken forward and panchanama is drawn where all these activities were brought out. He would submit that if the resort did not indulge in any such activities how several boxes of condoms were found in the resort during the search. If there was nothing, why would these things would be present in a 6 bar and restaurant. He would submit that this is a matter of trial for the petitioners to come out clean.

6. I have given my anxious consideration to the submissions made by the respective learned counsel and have perused the material on record.

7. The afore-narrated facts are not in dispute. Accused Nos. 1 to 5 are said to be the co-players in the restaurant and accused 6 and 7 are said to be the customers who are not before this Court.

Before this Court there are three petitioners who are accused Nos.

1, 3 and 5. Accused Nos. 2, 4, 6 and 7 are not before this Court.

8. It is the case of the prosecution that a credible information was received on the evening of 25-06-2023 that the restaurant is indulging in human trafficking. The said credible information is received by the Anti-Women Trafficking Unit. It immediately conducts a search. The search led to several ingredients of offences alleged, as the search revealed plethora of factors which are all captured in the panchanama. A crime then comes to be registered 7 in Crime No.26 of 2023 for the afore-quoted offences. Pendency of this petition did not stop investigation as no interdictory order was passed. Investigation continued and charge sheet is laid against the accused including the petitioners. The role of each of the petitioners is narrated in the charge sheet. Column No.17 of the charge sheet reads as follows:

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DgÉÆÃ¦-5: PÀ®A 370(2) L¦¹ EªÀgÀÄ ªÉÃ±ÁåªÁnPÉUÉ ªÀÄ»¼ÉAiÀÄgÀ£ÀÄß PÀgÉ¬Ä¸À®Ä DgÉÆÃ¦-3 gÀªÀgÀ ªÀÄÄSÉÃ£À ºÀtzÀ ªÀåªÀ¸ÉÜ ªÀiÁr, PÁ£ÀÆ£ÀÄ ¨Á»gÀªÁV ªÀÄ»¼ÉAiÀÄgÀÀ£ÀÄß PÀgÉ¬Ä¹ CPÀæªÀÄ ªÉÃ±ÁåªÁnPÉUÉ £ÀqÉ¸À®Ä DgÉÆÃ¦-1, 3, 4 gÀªÀjUÉ ¸ÀºÀPÀj¸ÀÄªÀÅzÀÄ vÀ¤SÁ PÁ®zÀ°è ¸ÀAUÀæ»¹zÀ J¯Áè ¸ÁPÁëzÁs gÀUÀ½AzÀ zÀÈqsÀ¥ÀnÖzÀÄÝ, ªÉÄÃ®ÌAqÀ PÀ®A jÃvÁå DgÉÆÃ¥À ¸Á©ÃvÁVgÀÄvÉÛ.

DzÀÝjAzÀ ªÉÄÃ®ÌAqÀ PÀ®AUÀ¼À jÃvÁå F zÉÆÃµÁgÉÆÃ¥ÀuÉ ¥ÀnÖ."

A detailed search panchanama becomes the foundation of investigation and investigation leading to filing of the charge sheet.

The submission of the learned counsel for the petitioners that it is not a bar and restaurant and it does not have any rooms in it, runs completely counter to what is found in the seizure panchanama or 9 the statements recorded by the Investigating Officer during investigation. Even the statements of all the women who had been found during the search would also clearly reveal that they were asked to travel with accused No.5 into the restaurant from Andhra Pradesh. The seizure panchanama, the statements of the alleged victims and the summary of the charge sheet clearly point out at the offences that are individually found against each of the accused.

There is no warrant of interference, in the case at hand, in exercise of jurisdiction under Section 482 of the Cr.P.C. The contention of the learned counsel for the petitioners is that there are no rooms in the restaurant. It is belied by the statements and the summary of the charge sheet and, therefore, it becomes a matter of trial.

9. The other submission is that people come and go but the owners of the resort/restaurant would not know in what activities they would indulge in. In the first blush such submission would sometimes merit acceptance. But, the case has travelled a little further. Plethora of materials against the petitioners would belie what is now contended. Therefore, it becomes a matter of trial. The submission is that there is statutory violation inasmuch as Section 10 15 of the Act is not followed. Even this would not enure to the benefit of the petitioners, as the Apex Court interpreted this very Act in the case of R.A.H. SIGURAN v. SANKARE GOWDA1. The Apex Court holds that violation of the provisions of the Act with particular reference to Sections 13, 14 and 15 cannot be a ground to annul the proceedings unless prejudice is shown. The Apex Court has held as follows:

".... .... ....

8. However, this conclusion was not enough for the High Court to quash the proceedings. It is well-settled law that even if investigation is not conducted by authorised officer, the trial is not vitiated unless a prejudice is shown.

9. In H.N. Rishbud v. State (UT of Delhi) [H.N. Rishbud v. State (UT of Delhi), AIR 1955 SC 196: (1955) 1 SCR 1150: 1955 Cri LJ 526] the question considered by this Court was whether after the court takes cognizance, trial can be held to be vitiated merely on the ground that investigation was invalid. Answering in the negative, this Court held that if the plea of invalidity of investigation is raised at sufficiently early stage, the court, instead of taking cognizance, direct reinvestigation by competent investigating officer. But, after cognizance is taken, the trial cannot be quashed for invalidity of investigation.

10. The observations in the said judgment are: (H.N. Rishbud case [H.N. Rishbud v. State (UT of Delhi), AIR 1955 SC 196: (1955) 1 SCR 1150: 1955 Cri LJ 526], AIR pp. 203-05, paras 9-10) "9. The question then requires to be considered whether and to what extent the trial which follows such 1 (2017) 16 SCC 126 11 investigation is vitiated. Now, trial follows cognizance and cognizance is preceded by investigation. This is undoubtedly the basic scheme of the Code in respect of cognizable cases. But it does not necessarily follow that an invalid investigation nullifies the cognizance or trial based thereon. Here we are not concerned with the effect of the breach of a mandatory provision regulating the competence or procedure of the Court as regards cognizance or trial. It is only with reference to such a breach that the question as to whether it constitutes an illegality vitiating the proceedings or a mere irregularity arises. A defect or illegality in investigation, however serious, has no direct bearing on the competence or the procedure relating to cognizance or trial. No doubt a police report which results from an investigation is provided in Section 190 of the Code of Criminal Procedure as the material on which cognizance is taken. But it cannot be maintained that a valid and legal police report is the foundation of the jurisdiction of the Court to take cognizance. Section 190 of the Code of Criminal Procedure is one out of a group of sections under the heading "Conditions requisite for initiation of proceedings". The language of this section is in marked contrast with that of the other sections of the group under the same heading i.e. Sections 193 and 195 to 199. These latter sections regulate the competence of the Court and bar its jurisdiction in certain cases excepting in compliance therewith. But Section 190 does not. While no doubt, in one sense, clauses (a), (b) and (c) of Section 190(1) are conditions requisite for taking of cognizance, it is not possible to say that cognizance on an invalid police report is prohibited and is therefore a nullity. Such an invalid report may still fall either under clause (a) or (b) of Section 190(1), (whether it is the one or the other we need not pause to consider) and in any case cognizance so taken is only in the nature of error in a proceeding antecedent to the trial. To such a situation Section 537 of the Code of Criminal Procedure which is in the following terms is attracted:

'Subject to the provisions hereinbefore contained, no finding, sentence or order passed by a court of competent jurisdiction shall be reversed or altered on appeal or revision on account of any error, omission or irregularity in the complaint, summons, warrant, charge, proclamation, order, judgment or other proceedings before or during trial or in any enquiry or other proceedings under this Code, unless such error, omission or irregularity, has in fact occasioned a failure of justice.' 12 If, therefore, cognizance is in fact taken, on a police report vitiated by the breach of a mandatory provision relating to investigation, there can be no doubt that the result of the trial which follows it cannot be set aside unless the illegality in the investigation can be shown to have brought about a miscarriage of justice. That an illegality committed in the course of investigation does not affect the competence and the jurisdiction of the court for trial is well settled as appears from the cases in Parbhu v. King Emperor [Parbhu v. King Emperor, 1944 SCC OnLine PC 1 :

AIR 1944 PC 73] and Lumbhardar Zutshi v. R. [Lumbhardar Zutshi v. R., 1949 SCC OnLine PC 64 : AIR 1950 PC 26] These no doubt relate to the illegality of arrest in the course of investigation while we are concerned in the present cases with the illegality with reference to the machinery for the collection of the evidence. This distinction may have a bearing on the question of prejudice or miscarriage of justice, but both the cases clearly show that invalidity of the investigation has no relation to the competence of the Court. We are, therefore, clearly, also, of the opinion that where the cognizance of the case has in fact been taken and the case has proceeded to termination, the invalidity of the precedent investigation does not vitiate the result, unless miscarriage of justice has been caused thereby.

10. It does not follow, however, that the invalidity of the investigation is to be completely ignored by the Court during trial. When the breach of such a mandatory provision is brought to the knowledge of the Court at a sufficiently early stage, the Court, while not declining cognizance, will have to take the necessary steps to get the illegality cured and the defect rectified, by ordering such reinvestigation as the circumstances of an individual case may call for. Such a course is not altogether outside the contemplation of the scheme of the Code as appears from Section 202 under which a Magistrate taking cognizance on a complaint can order investigation by the police. Nor can it be said that the adoption of such a course is outside the scope of the inherent powers of the Special Judge, who for purposes of procedure at the trial is virtually in the position of a Magistrate trying a warrant case. When the attention of the Court is called to such an illegality at a very early stage it would not be fair to the accused not to obviate the prejudice that may have been caused thereby, by appropriate orders, at that stage but to leave him to the ultimate remedy of waiting till the conclusion of the trial and of discharging the 13 somewhat difficult burden under Section 537 of the Code of Criminal Procedure of making out that such an error has in fact occasioned a failure of justice. It is relevant in this context to observe that even if the trial had proceeded to conclusion and the accused had to make out that there was in fact a failure of justice as the result of such an error, Explanation to Section 537 of the Code of Criminal Procedure indicates that the fact of the objection having been raised at an early stage of the proceeding is a pertinent factor. To ignore the breach in such a situation when brought to the notice of the Court would be virtually to make a dead letter of the peremptory provision which has been enacted on grounds of public policy for the benefit of such an accused. It is true that the peremptory provision itself allows an officer of a lower rank to make the investigation if permitted by the Magistrate. But this is not any indication by the legislature that an investigation by an officer of a lower rank without such permission cannot be said to cause prejudice. When a Magistrate is approached for granting such permission he is expected to satisfy himself that there are good and sufficient reasons for authorising an officer of a lower rank to conduct the investigation. The granting of such permission is not to be treated by a Magistrate as a mere matter of routine but it is an exercise of his judicial discretion having regard to the policy underlying it. In our opinion, therefore, when such a breach is brought to the notice of the Court at an early stage of the trial the Court will have to consider the nature and extent of the violation and pass appropriate orders for such reinvestigation as may be called for, wholly or partly, and by such officer as it considers appropriate with reference to the requirements of Section 5-A of the Act. It is in the light of the above considerations that the validity or otherwise of the objection as to the violation of Section 5(4) of the Act has to be decided and the course to be adopted in these proceedings, determined."

(emphasis supplied)

11. The above view has been repeatedly followed in subsequent decisions of this Court. In Union of India v. T. Nathamuni [Union of India v. T. Nathamuni, (2014) 16 SCC 285 : (2015) 3 SCC (Cri) 411] , the position was discussed as follows : (SCC pp. 289-92, paras 12-17) "12. It is clear that in the case of investigation under the Delhi Special Police Establishment Act, an officer below 14 the rank of Inspector cannot investigate without the order of a competent Magistrate. In the present case, order of the Special Judge was obtained by filing an application. That order dated 24-9-2009 shows that it was passed on request and in the interest of justice, investigation pursuant to such order did not suffer from want of jurisdiction and hence, in the facts of the case, the High Court erred in law in interfering with such investigation more so when it was already completed.

13. The question raised by the respondent is well answered by this Court in a number of decisions rendered in a different perspective. The matter of investigation by an officer not authorised by law has been held to be irregular. Indisputably, by the order of the Magistrate investigation was conducted by the Sub-Inspector, CBI who, after completion of investigation, submitted the charge-sheet. It was only during the trial, objection was raised by the respondent that the order passed by the Magistrate permitting the Sub-Inspector, CBI to investigate is without jurisdiction. Consequently, the investigation conducted by the officer is vitiated in law. Curiously enough the respondent has not made out a case that by reason of investigation conducted by the Sub-Inspector a serious prejudice and miscarriage of justice has been caused. It is well settled that invalidity of the investigation does not vitiate the result unless a miscarriage of justice has been caused thereby.

14. In M.C. Sulkunte v. State of Mysore [M.C. Sulkunte v. State of Mysore, (1970) 3 SCC 513 : 1971 SCC (Cri) 119] , the main question raised by the appellant in an appeal against the order of conviction was that the sanction to investigate the offence given by the Magistrate was not proper inasmuch as he had not recorded any reason as to why he had given permission to the Inspector of Police to investigate the offence of criminal misconduct of obtaining illegal gratification. Considering Section 5-A of the Act, their Lordships observed : (SCC p. 517, para 15) '15. Although laying the trap was part of the investigation and it had been done by a police officer below the rank of a Deputy Superintendent of Police, it cannot on that ground be held that the sanction was invalid or that the conviction ought not to be maintained on that ground. It has been emphasised in a number of decisions of this Court that to set aside a conviction it must be shown that there has been 15 miscarriage of justice as a result of an irregular investigation. The observations in State of M.P. v. Mubarak Ali [State of M.P. v. Mubarak Ali, 1959 Supp (2) SCR 201 : AIR 1959 SC 707 : 1959 Cri LJ 920] , SCR at pp. 210-11 to the effect that when the Magistrate without applying his mind only mechanically issues the order giving permission the investigation is tainted cannot help the appellant before us.'

15. In Muni Lal v. State (UT of Delhi) [Muni Lal v. State (UT of Delhi), (1971) 2 SCC 48 : 1971 SCC (Cri) 407] , this Court was considering the question with regard to the irregularity in investigation for the offence under the Prevention of Corruption Act. Following earlier decisions, this Court held : (SCC p. 52, para 14) '14. From the above proposition it follows that where cognizance of the case has in fact been taken and the case has proceeded to termination, the invalidity of the preceding investigation will not vitiate the result unless miscarriage of justice has been caused thereby and the accused has been prejudiced. Assuming in favour of the appellant, that there was an irregularity in the investigation and that Section 5-A of the Act, was not complied with in substance, the trial by the Special Judge cannot be held to be illegal unless it is shown that miscarriage of justice has been caused on account of illegal investigation. The learned counsel for the appellant has been unable to show us how there has been any miscarriage of justice in this case and how the accused has been prejudiced by any irregular investigation.'

16. In State of Haryana v. Bhajan Lal [State of Haryana v. Bhajan Lal, 1992 Supp (1) SCC 335 : 1992 SCC (Cri) 426] , this Court while considering Section 5-A of the Act, held as under : (SCC pp. 384-85, para 119) '119. It has been ruled by this Court in several decisions that Section 5-A of the Act is mandatory and not directory and the investigation conducted in violation thereof bears the stamp of illegality but that illegality committed in the course of an investigation does not affect the competence and the jurisdiction of the court for trial and where the cognizance of the case has in fact been taken and the case is proceeded to termination, the invalidity of the preceding investigation does not vitiate the result 16 unless miscarriage of justice has been caused thereby. See (1) H.N. Rishbud v. State (UT of Delhi) [H.N. Rishbud v. State (UT of Delhi), AIR 1955 SC 196 : (1955) 1 SCR 1150 : 1955 Cri LJ 526] , (2) E.G. Barsay v. State of Bombay [E.G. Barsay v. State of Bombay, AIR 1961 SC 1762 :

(1961) 2 Cri LJ 828] , (3) Munnalal v. State of U.P. [Munnalal v. State of U.P., AIR 1964 SC 28 :

(1964) 1 Cri LJ 11] , (4) Sailendranath Bose v. State of Bihar [Sailendranath Bose v. State of Bihar, AIR 1968 SC 1292 : 1968 Cri LJ 1484] , (5) Muni Lal v. State (UT of Delhi) [Muni Lal v. State (UT of Delhi), (1971) 2 SCC 48 : 1971 SCC (Cri) 407] and (6) Khandu Sonu Dhobi v. State of Maharashtra [Khandu Sonu Dhobi v. State of Maharashtra, (1972) 3 SCC 786 : 1972 SCC (Cri) 854] . However, in Rishbud case [H.N. Rishbud v. State (UT of Delhi), AIR 1955 SC 196 : (1955) 1 SCR 1150 :

1955 Cri LJ 526] and Muni Lal case [Muni Lal v. State (UT of Delhi), (1971) 2 SCC 48 :

1971 SCC (Cri) 407] , it has been ruled that if any breach of the said mandatory proviso relating to investigation is brought to the notice of the court at an early stage of the trial, the court will have to consider the nature and extent of the violation and pass appropriate orders as may be called for to rectify the illegality and cure the defects in the investigation.'

17. In A.C. Sharma v. State (UT of Delhi) [A.C. Sharma v. State (UT of Delhi), (1973) 1 SCC 726 : 1973 SCC (Cri) 608] , provisions of Section 5-A were again considered by this Court and held as under : (SCC p. 735, para 15) '15. As the foregoing discussion shows the investigation in the present case by the Deputy Superintendent of Police cannot be considered to be in any way unauthorised or contrary to law. In this connection it may not be out of place also to point out that the function of investigation is merely to collect evidence and any irregularity or even illegality in the course of collection of evidence can scarcely be considered by itself to affect the legality of the trial by an otherwise competent court of the offence so investigated.

In H.N. Rishbud v. State (UT of Delhi) [H.N. Rishbud v. State (UT of Delhi), AIR 1955 SC 196 : (1955) 1 SCR 1150 : 1955 Cri LJ 526] , it was held that an illegality committed in the course of investigation does not affect the competence and jurisdiction of the court for trial and where cognizance of the case has in fact been taken and the case has proceeded to termination, the invalidity of the preceding investigation does not vitiate the result unless miscarriage of justice has been caused thereby. When any breach of the mandatory provisions relating to investigation is brought to the notice of the court at an early stage of the trial the Court will have to consider the nature and extent of the violation and pass appropriate orders for such reinvestigation as may be called for, wholly or partly, and by such officer as it considers appropriate with reference to the requirements of Section 5-A of the Prevention of Corruption Act, 1947. This decision was followed in Munnalal v. State of U.P. [Munnalal v. State of U.P., AIR 1964 SC 28 :

(1964) 1 Cri LJ 11] where the decision in State of M.P. v. Mubarak Ali [State of M.P. v. Mubarak Ali, 1959 Supp (2) SCR 201 : AIR 1959 SC 707 :

1959 Cri LJ 920] , was distinguished. The same view was taken in State of A.P. v. N. Venugopal [State of A.P. v. N. Venugopal, AIR 1964 SC 33 : (1964) 1 Cri LJ 16] and more recently in Khandu Sonu Dhobi v. State of Maharashtra [Khandu Sonu Dhobi v. State of Maharashtra, (1972) 3 SCC 786 : 1972 SCC (Cri) 854] . The decisions [Ed. : The reference is to Abdul Halim v. State of W.B., 1960 SCC OnLine Cal 93 : AIR 1961 Cal 257; Om Prakash v. State, 1964 SCC OnLine P&H 63 : AIR 1964 P&H 407 and Labhshanker Keshavji v. State, 1954 SCC OnLine Guj 36 : AIR 1955 Sau 42] of the Calcutta, Punjab and Saurashtra High Courts relied upon by Mr Anthony deal with different points : in any event to the extent they contain any observations against the view expressed by this Court in the decisions just cited those observations cannot be considered good law.'"

12. In view of the above, we are satisfied that the High Court was not justified in quashing the proceedings merely on the ground that the investigation was not valid. It is not necessary for this Court to go into the question raised by the learned counsel for the appellants that there was no infirmity in the investigation.

13. Accordingly, we allow this appeal, set aside the impugned order [Shankare Gowda v. State, 2016 SCC OnLine Kar 375 : ILR 2016 KAR 3067] and direct the trial court to proceed with the matter in accordance with law. The parties are directed to appear before the trial court for further proceedings on 22-9-2017."

In the light of the judgment of the Apex Court in R.A.H. SIGURAN supra, it becomes a matter of trial for the petitioners to come out clean, as the petitioners in the case at hand, are not the victims of prostitution for annulment of proceedings. They are not customers found at the time of search to enure quashment. They are the perpetrators. The perpetrators have individual role in the offences under the Act.

10. What is laid as offence is under Sections 3, 4 and 5 of the Act against these petitioners. Sections 3, 4 and 5 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 19 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 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 20 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, 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;]

2) *** (3) An offence under this section shall be triable--

(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."

Section 3 makes it an offence if any person is keeping a brothel or allowing the premises to be used as a brothel. Sub-section (2) of Section 3 mandates that if the particular owner of the premises 22 with all knowledge has permitted the premises to be used for the purpose of prostitution he would attracted for punishment as narrated therein. Therefore, accused No.1 is required to answer the charge against him, as he is the owners of the premises. The other petitioners are said to be perpetrators and they are also required to answer the charge.

11. The other offences alleged are the ones punishable under Sections 370(2), 370(3) and 37A(2) of the IPC. They read 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 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 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.

370-A. Exploitation of a trafficked person.--(1) Whoever, knowingly or having reason to believe that a minor has been trafficked, engages such minor for sexual exploitation in any manner, shall be punished with rigorous imprisonment for 24 a term which shall not be less than five years, but which may extend to seven years, and shall also be liable to fine.

(2) Whoever, knowingly by or having reason to believe that a person has been trafficked, engages such person for sexual exploitation in any manner, shall be punished with rigorous imprisonment for a term which shall not be less than three years, but which may extend to five years, and shall also be liable to fine."

Section 370 deals with trafficking of a person. Whoever, for the purpose of exploitation recruits, transports, harbours is said to be involving in the said offence of trafficking. The facts in the case at hand clearly meet the ingredients of the provision. The other offence is Section 370A(2). It deals with exploitation of a trafficked person. The victims have given their statements as to how they were ferried and brought to the restaurant. The purpose is also indicated in the statements. The statements have been given before the Investigating Officer and not before the learned Magistrate under Section 164 of the Cr.P.C. But, nonetheless they are required to be demolished in the trial by the accused, if they are innocent.

12. For the aforesaid reasons, finding no merit in the petition, the petition stands rejected.

However, it is made clear that observations made in the course of the order are only for the purpose of consideration of the case of the petitioners under Section 482 of the Cr.P.C., and the same shall not bind or influence the proceedings pending against them before the learned Magistrate.

Consequently, I.A.No.1 of 2023 also stands disposed.

Sd/-

(M. NAGAPRASANNA) JUDGE bkp CT:MJ

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