Bombay High Court
Mahesh Panjabrao Andhale vs The State Of Maharashtra on 17 January, 2024
Author: M. S. Karnik
Bench: M. S. Karnik
2024:BHC-AS:2660
Darshan Patil 28-revn-35-21.docx
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION
REVISION APPLICATION NO. 35 OF 2021
MAHESH PANJABRAO ANDHALE ..APPLICANT
VS.
1] THE STATE OF MAHARASHTRA
2] XYZ ..RESPONDENTS
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Adv. A.R. Avachat a/w Adv. Siddhant Deshpande and Adv.
Vijay Babar for the Applicant.
Adv. Hrishikesh S. Shinde for Respondent No.2.
Mr. A.R. Patil, APP for the State.
PSI Rakesh N., Faraskhana Police Station, Pune City.
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CORAM : M. S. KARNIK, J.
DATE : JANUARY 17, 2024
ORAL JUDGMENT:
1. Heard learned counsel for the applicant, learned APP
for the state and learned counsel for respondent No.2 who
is appointed through legal aid.
2. This Revision Application is filed by the applicant to
quash and set aside the order dated 09/02/2021 passed by
the trial court rejecting the discharge application preferred
by the applicant in Special Case Child Protection No.
82/2019.
3. On 30/11/2018, the First Information Report No. 347
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of 2018 came to be lodged against six accused persons with
Faraskhana Police Station, Pune, for the offences punishable
under sections 188, 376, 344, 366B, 370A(2), 372, 373
read with 34 of the Indian Penal Code and Sections 3, 4, 5,
6 of the Immoral Traffic (Prevention) Act, 1956, (hereafter
referred to as "PITA Act"). Later on, offences punishable
under Section 14 of the Foreigners Act, 1946 and Sections 3
and 6 of the Foreigners Order, 1998, came to be added.
4. It is the case of the prosecution that the premises that
belong to the applicant was used as a brothel and hence the
applicant is charged for the offence punishable under
section 3 of the PITA Act along with the other offences. The
premises which comprise the flat was let out on leave and
license basis by a registered agreement dated 20/06/2018
executed between the applicant and accused Biren. Biren
occupied the said premises along with his wife who is
accused No.1 and their minor son. It is alleged that the
victim girl who was 16 years of age was trafficked by the
accused No.1 from Bangladesh. The victim started residing
in the said flat along with accused No.1 and Biren. It is
Darshan Patil 28-revn-35-21.docx
alleged that accused No.2- Biren and accused No.1 forced
the victim to indulge in acts which constitute offences under
the aforesaid sections.
5. The residents of the society where the flat was
situated noticed that young male persons were visiting the
said flat at regular intervals. From the statement of the
applicant, it is seen that the rent was initially paid for three
months. However, there was a default on the part of
accused No.2- Biren to pay the rent for September 2018
and October 2018. The accused was not responding despite
calls made by the applicant. The applicant then was
informed by the neighbours about young male persons
visiting the said flat at regular intervals. The applicant
questioned the accused-Biren and his wife. When they did
not give any satisfactory answers the applicant called upon
the accused to vacate the flat. Accordingly accused vacated
the flat sometime in the second week of November 2018.
Factually, the flat was in occupation of the accused No.2
Biren and accused No.1 from the second week of June 2018
upto the second week of November 2018 for 5 months. No
Darshan Patil 28-revn-35-21.docx
doubt the statement of the applicant-accused has no
evidentiary value and in any case nothing turns on the
statement of the applicant which is recorded during the
course of the investigation.
6. Learned APP and learned counsel for respondent No.2
argued in support of the order passed by the trial court. It
is submitted that the applicant is the owner of the flat and
hence he is complicit with the other accused in the
commission of the offence being the owner of the premises
which was used as a brothel. It is submitted that the
applicant should have exercised caution by exercising due
diligence and informing the police about letting out the
premises on leave and license basis which he failed to do so
and must be presumed to be aware of the activities the co-
accused were indulging in.
7. Heard learned counsel. So far as the applicant is
concerned, it is relevant to consider Section 3 of the PITA
Act which reads thus:-
"Section 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
Darshan Patil 28-revn-35-21.docx
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.
(2A) 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
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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 mine)
8. In the context of Section 3, it needs to be noted that
the statement of the estate agent was recorded by the
investigating agency whom the applicant had requested to
find a suitable tenant for the premises. The said estate
agent had introduced accused No.2- Biren with the present
applicant. There is nothing on record to indicate that the
applicant had knowledge that the premises was intended to
be used as a brothel. Further, there is no material on record
to show that the applicant is willfully a party to the use of
such premises or any part thereof as a brothel. Merely
because the applicant's premises was in occupation of the
co-accused who were indulging in the activities which
constitute the aforesaid offence will not be sufficient to
proceed against the applicant unless the requirements of
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Section 3 of the PITA Act necessary to constitute an offence
qua the applicant- are satisfied.
9. Let me consider whether there is any material to
prima facie demonstrate that the conditions spelt out in
clauses (a) and (b) of sub-section 2A of Section 3 of the
PITA Act are satisfied. There is no report published in the
newspaper in terms of sub-section 2A(a) of Section 3 and
therefore clause (a) or clause (b) of sub-section 2A of
Section 3 of the PITA Act is not attracted. Thus, there is no
prima facie material to show the complicity of the applicant
in terms of what is laid down by Section 3(2)(b) or sub-
section 2A(a) or (b) of Section 3 of the PITA Act.
10. Though the leave and license agreement was of 11
months for the premises, the same was vacated by the
accused No.2- Biren sometime in the second week of
November 2018, that is within a period of five months from
its execution. The neighbours have only stated that they
noticed young male persons visiting the premises at
frequent intervals. The statement of the victim recorded
under Section 161 or under Section 164 of the Code of
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Criminal Procedure does not incriminate the applicant or
indicates his involvement in the offence.
11. There is nothing on record to indicate that the
applicant was knowing the co-accused prior to the execution
of the leave and license agreement. The applicant was
introduced to the co-accused by the estate agent. There is
thus absolutely no material to indicate that the applicant
had any connection with the co-accused to show his
complicity in the aforesaid offence. The mere fact that the
appellant is the owner of the premises in question having
executed a registered leave and license agreement with the
co-accused by itself will not constitute sufficient material to
proceed against the applicant in the absence of prima facie
satisfying the other requirements of Section 3 qua the
landlord. Merely because the applicant failed to inform the
local police about the execution of the registered leave and
license agreement will not take the prosecution case any
further as this does not constitute an offence under the
PITA Act.
12. As indicated earlier, there is no material on record to
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indicate that the applicant has let the premises or any part
thereof with the knowledge that the same or any part
thereof were 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. From the materials, as they stand and allegations
even if taken at face value, it cannot be said that the
ingredients necessary to constitute the alleged offence
under section 3 of the PITA Act are made out qua the
applicant who is the landlord. None of the conditions
enumerated in clauses (a) and (b) mentioned in sub-section
2A of Section 3 are satisfied to attract the presumption that
the applicant had knowledge about the premises or any part
thereof was being used as a brothel.
13. The application, therefore, deserves to be allowed and
is accordingly allowed in terms of prayer clauses (a) and (b)
which read thus:-
"(a) that this Hon'ble Court may be pleased to
quash and set aside the Impugned Order dated
09/02/2021 rejecting the discharge application of
the Applicant in Special Case Child Protection No.
82/2019 pending in the Court of the Ld. Special
Darshan Patil 28-revn-35-21.docx
Judge, Pune, qua the Applicant."
"(b) that this Hon'ble Court may be pleased to
direct that the Applicant be discharged from
Special Case Child Protection No. 82/2019
pending in the Court of the Ld. Special Judge,
Pune."
14. Consequently, the applicant stands discharged in the
aforesaid Special Case. The application is disposed of in the
above terms.
15. I appreciate the valuable assistance rendered by
Advocate Hrishikesh S. Shinde, who appeared on behalf of
respondent No.2 in this proceeding.
(M. S. KARNIK, J.)
Signed by: Darshan Patil
Designation: PA To Honourable Judge
Date: 19/01/2024 19:06:43
