Karnataka High Court

Rahul Muralidhar vs State Of Karnataka on 30 May, 2022

Bench: M.Nagaprasanna

                               1



      IN THE HIGH COURT OF KARNATAKA AT BENGALURU

          DATED THIS THE 30TH DAY OF MAY, 2022

                              BEFORE

        THE HON'BLE MR. JUSTICE M. NAGAPRASANNA

             CRIMINAL PETITION No.3558/2022

BETWEEN

RAHUL MURALIDHAR,
S/O MURALIDHAR,
AGED 34 YEARS,
R/AT NO.3, RIVER BANK,
LONDON N 21, 2 A A,
UNITED KINGDOM.
ALSO AT:
NO.2869, 1ST MAIN,
KODIHALLI, HAL II STAGE,
BENGALURU - 560 008.
                                              ... PETITIONER

[BY SRI.ADITYA D., ADVOCATE]


AND

STATE OF KARNATAKA,
BY COMMERCIAL STREET POLICE STATION,
REPRESENTED BY
STATE PUBLIC PROSECUTOR,
HIGH COURT OF KARNATAKA,
BANGALORE - 560 001.
                                         ... RESPONDENT

[BY SRI.K.S.ABHIJITH, HCGP]
                                 2



     THIS CRIMINAL PETITION IS FILED UNDER SECTION 482 OF
CR.P.C. PRAYING TO QUASH THE ENTIRE PROCEEDINGS IN
C.C.NO.1307/2012 FOR THE OFFENCE P/U/S 3, 4, 5 AND 7 OF
THE IMMORAL TRAFFIC (PREVENTION) ACT, 1956 PENDING
BEFORE THE HONBLE COURT OF METROPOLITAN MAGISTRATE
(TRAFFIC COURT - 1) MAYO HALL BENGALURU AGAINST THE
PETITIONERS.

     THIS CRIMINAL PETITION COMING ON FOR ADMISSION, THIS
DAY, THE COURT MADE THE FOLLOWING:

                              ORDER

The petitioner is before this Court calling in question

proceedings in C.C.No.1307 of 2017 registered for offences

punishable under Sections 3, 4, 5 and 7 of the Immoral Traffic

(Prevention) Act, 1956 ('the Act' for short).

2. Heard Sri. Aditya D., learned counsel appearing for

the petitioner, Sri. K.S. Abhijith, learned HCGP appearing for the

respondent and have perused the material on record.

3. Brief facts as projected by the prosecution are as

follows:

Petitioner/accused No.1 in Crime No.123 of 2012 is alleged

to have come in contact with accused No.2 and is further alleged

to have taken her to Athithi residency within the limits of

Shivajinagar Police Station and the respondent/Police on receipt

of credible information with regards to activities in the said Hotel

which was in violation of the provisions of the Act, conduct a

raid at which point in time the petitioner being a customer in the

Hotel was caught along with accused No.2, the victim, accused

Nos. 3 and 4, employees and accused No.5, the Manager of the

Hotel. The Police after investigation file a charge sheet against

all the accused for offences punishable under the aforesaid

provisions of the Act. During the pendency of proceedings,

accused No.5, the Manager who was allegedly managing the

Hotel stood abated due to his demise. Accused No.2 files a

discharge application under Section 239 of the Cr.P.C.

contending that she was a victim and cannot be prosecuted.

The learned Magistrate discharges accused No.2 on the ground

that she was a victim. Accused Nos.3 and 4 did not appear

before the Court for trial and no steps were taken by the

prosecution to secure their attendance. The trial Court split up

the charge against accused Nos.3 and 4 in terms of its order

dated 19.08.2014. Now who is left is the petitioner, who is

admittedly the customer at the Hotel. This fact is not in dispute

as the complainant's witnesses themselves depose that the

petitioner was only a customer. If the fact that the petitioner is

a customer is accepted as it becomes acceptable in the facts of

the case, no proceedings can be continued under the provisions

of the Act against a customer even if found in a brothel is the

consistent view taken all along by this Court in plethora of

judgments rendered from time to time. Following the said

judgments, this Court in the case of BARATH S.P. v. STATE OF

KARNATAKA in Crl.P.No.1757/2022 disposed on 24.03.2022,

has held as follows:

"7. The afore-narrated facts are not in dispute. The proceedings against the accused are pending consideration in the aforesaid C.C.No.109 of 2018 where the petitioner is accused No.4. The petitioner is arrayed as accused for the reason that he was caught as a customer in the brothel when the search or raid took place on 24-09-2015 and the proceedings are instituted for offences punishable under Sections 3 to 6 of the Act and Section 370(3) of the IPC. It is germane to notice Sections 3 to 6 of the Act and they 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

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 willfully 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 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.

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 her prostitution; or

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; or

(c) takes or 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;

(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.

6. Detaining a person in premises where prostitution is carried on.--(1) Any person who detains any other person, whether with or without his consent,--

(a) in any brothel, or

(b) in or upon any premises with intent that such person may have sexual intercourse with a person who is not the spouse of such person,

shall be punishable on conviction, with imprisonment of either description for a term which shall not be less than seven years but which may be for life or for a term which may extend to ten years and shall also be liable to fine:

Provided that the court may, for adequate and special reasons to be mentioned in the judgment, impose a sentence of imprisonment for a term of less than seven years.

(2) Where any person is found with a child in a brothel, it shall be presumed, unless the contrary is proved, that he has committed an offence under sub- section (1).

(2A) Where a child or minor found in a brothel, is, on medical examination, detected to have been sexually abused, it shall be presumed, unless the contrary is proved, that the child or minor has been detained for purposes of prostitution or, as the case may be, has been sexually exploited for commercial purposes.

(3) A person shall be presumed to detain a woman or girl in a brothel or in or upon any premises for the purpose of sexual intercourse with a man other than her lawful husband, if such person, with intent to compel or induce her to remain there,--

(a) withholds from her any jewellery, wearing apparel, money or other property belonging to her, or

(b) threatens her with legal proceedings if she takes away with her any jewellery, wearing apparel, money or other property lent or supplied to her by or by the direction of such person.

(4) Notwithstanding any law to the contrary, no suit, prosecution or other legal proceeding shall lie against such woman or girl at the instance of the person by whom she has been detained, for the recovery of any jewellery, wearing apparel or other property alleged to have been lent or supplied to or for such woman or girl or to have been pledged by such woman or girl or for the recovery of any money alleged to be payable by such woman or girl."

None of the provisions get attracted against a customer as he neither keeps a brothel or allows the premises to be used as brothel as obtaining under Section 3 of the Act; he does not live on the earnings

of the prostitution as obtaining under Section 4 of the Act; he cannot be alleged of procuring, inducing or taking a person for the sake of prostitution; he cannot also be alleged of detaining a person in the premises where prostitution is carried on. The allegation against the petitioner is the ones punishable under the aforesaid provisions, which are on the face of it, is inapplicable to the case at hand.

9. For the aforesaid reasons, the following:

ORDER

(i) Criminal Petition is allowed.

(ii) The proceedings in C.C.No.109 of 2018 pending before the JMFC (II Court), Mysuru, stand quashed."

4. In the light of the undisputed facts obtaining in the

case at hand and settled position in law that a customer cannot

be prosecuted, I deem it appropriate to obliterate the

proceedings against the petitioner.

5. For the aforesaid reasons, the following:

ORDER

(i) Criminal Petition is allowed.

(ii) The proceedings in C.C.No.1307/2012 pending