Karnataka High Court
Corenco Enterprise Pvt Ltd vs The State Of Karnataka on 17 October, 2022
Bench: M.Nagaprasanna
1
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 17TH DAY OF OCTOBER, 2022
BEFORE
THE HON'BLE MR. JUSTICE M. NAGAPRASANNA
CRIMINAL PETITION No.7920 OF 2022
BETWEEN:
1. CORENCO ENTERPRISE PVT. LTD.,
A COMPANY INCORPORATED UNDER
THE COMPANIES ACT 1956
HAVING ITS REGISTERED OFFICE AT
4TH FLOOR, 295-296, 100 FEET ROAD
FIRST STAGE, INDIRANAGAR
BENGALURU - 560 038
REPRESENTED BY ITS DIRECTOR
MR.ADITYA KAURA.
2. ADITYA KAURA
S/O MR.R.N.KAURA
AGED 46 YEARS
AUTHORIZED SIGNATORY AND DIRECTOR
M/S CORENCO ENTERPRISE PVT. LTD.,
RESIDING AT FLAT NO.100
OORVE APARTMENTS
NO.60, MUNI MARAPPA ROAD
OFF NANDIDURGA ROAD
BENGALURU - 560 046.
... PETITIONERS
(BY SMT.JAYNA KOTHARI, SR.ADVOCATE A/W
SRI ROHAN KOTHARI, ADVOCATE)
2
AND:
1. THE STATE OF KARNATAKA
THROUGH INDIRANAGAR POLICE STATION
REPRESENTED BY
THE LD. PUBLIC PROSECUTOR
HIGH COURT BUILDING
BENGALURU - 560 001.
2. SRI GOVINDARAJU B.,
POLICE INSPECTOR
CCB, WOMEN PROTECTION WING
N.T.PETE
BENGALURU - 560 026.
... RESPONDENTS
(BY SMT.K.P.YASHODHA, HCGP)
THIS CRIMINAL PETITION IS FILED UNDER SECTION 482 OF
CR.P.C., PRAYING TO QUASH THE COMPLAINT DATED 08.07.2022
(PRODUCED HEREIN AS ANNEXURE-A) AND FIR BEARING
CR.NO.137/2022 REGISTERED AT INDIRANAGAR POLICE STATION,
BENGALURU (ANNEXED AS ANNEXURE-B) U/S 3, 4, 5 OF I.T.P. ACT
AND SECTION 370 OF IPC AND ALL PROCEEDINGS ARISING
THEREFROM PENDING ON THE FILE OF X ADDL.C.M.M., MAYO
HALL, BENGALURU IN SO FAR AS THE PETITIONERS HEREIN ARE
CONCERNED.
THIS CRIMINAL PETITION HAVING BEEN HEARD AND
RESERVED FOR ORDERS ON 28.09.2022, COMING ON FOR
PRONOUNCEMENT THIS DAY, THE COURT MADE THE FOLLOWING:-
3
ORDER
The petitioners are before this Court calling in question
registration of crime in Crime No.137 of 2022 for offences
punishable under Sections 3, 4 and 5 of the Immoral Traffic
(Prevention) Act, 1956 ('the Act' for short) and Section 370 of the
IPC.
2. Heard Smt. Jayna Kothari, learned senior counsel
appearing for petitioners and Smt. K.P.Yashodha, learned High
Court Government Pleader appearing for the respondents.
3. Facts adumbrated are as follows:-
The 1st petitioner/Corenco Enterprise Private Limited ('the
Company' for short) is a company incorporated under the
Companies Act, 1956 and is engaged in property development and
other commercial activity. The 2nd petitioner is the Director of the
1st petitioner/Company. The Company claims to be owning about 4
commercial units in the property at No.296, Binnamangala 1st
Stage, Indiranagar, Bangalore. An agreement comes to be entered
into on 15-04-2016, pursuant to which, the Company agreed to
develop the property and would keep four units of the property to
itself. Thereafter, the Bruhat Bengaluru Mahanagara Palike ('BBMP'
for short) appears to have issued khata to reflect the units in the
basement as BF-2, ground floor as GF-1, first floor as FF-1 and
second floor as SF-2, all of which stand in the name of the
Company.
4. In the year 2021 accused No.1 represents to the Company
being interested to take the unit for lease in the basement i.e., BF-
2 to open and run a Spa in the name and style of "Aira Spa and
Salon". Based upon the representation so made by accused No.1,
basement unit was leased out to the said Spa in terms of a lease
deed dated 14-10-2021.
5. It appears that on 08-07-2022 the CCB, Women Protection
Wing conducted surprise raid on the Company's property and the
Spa. The owner of the Spa and the receptionist were arraigned as
accused Nos. 1 and 2 and based upon the complaint, a FIR comes
to be registered against all the accused including the Company as
accused No.3 for offences punishable under the aforesaid
provisions. The registration of crime in crime No.137 of 2022 is
what drives the petitioners to this Court in the subject petition.
6. The learned senior counsel Smt. Jayna Kothari would
contend that none of the provisions can be invoked against the
Company, as the Company has neither the knowledge nor involved
in any activity after leasing out the said premises. She would
submit that the entire proceedings initiated against the petitioners,
if permitted to continue, would become an abuse of the process of
law.
7. On the other hand, the learned High Court Government
Pleader would contend that the matter is still at the stage of
investigation, search was conducted only on 08-07-2022 and,
therefore, would submit that the Court should not quash the
proceedings at this stage.
8. I have given my anxious consideration to the submissions
made by the respective learned counsel and perused the material
on record.
9. The afore-narrated facts that led to registration of crime
are not in dispute and, therefore, not reiterated. The allegations
against the Company are for offences punishable under Section 3, 4
and 5 of the Act. Sections 3, 4 and 5 of the Act 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 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 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;]
... ...
(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."
(Emphasis supplied)
Section 3 directs punishment to a person for keeping a brothel or
allowing the premises to be used as a brothel. Clause (a) of sub-
section (2) of Section 3 mandates that any person being a 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, becomes open for punishment under Section 3
of the Act. Clause (b) of sub-section (2) of Section 3 also mandates
that whoever being the owner, lessor or landlord of any premises or
any part thereof lets the same with the knowledge that the same 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 become open
for punishment. Therefore, the lessor can be punished if he has
knowingly allowed the premises to be used as a brothel.
10. The company can be punished, if with knowledge it has
permitted the use of premises as a brothel and is a party to such
usage. Section 4 deals with punishment for living on the earnings
of prostitution. Section 5 deals with procuring, inducing or taking a
person for the sake of prostitution. Sections 4 and 5 cannot be laid
against the petitioners as they are neither living on the earnings of
prostitution or they are procuring or inducing or taking any person
for the sake of prostitution. What is now sought to be laid against
the Company is Section 3. Section 3 of the Act mandates
knowledge on the part of the Company of such activity being
carried out in the premises that it owns.
11. The Company has placed on record the agreement
entered into between accused Nos.1 and 2 and the Company on 14-
10-2021. Usage of the premises was for lawful purpose. Having
given the area to be run as a Spa by the owner of Spa being
accused No.1 and its receptionist, accused No.2, it cannot now be
contended by the prosecution that the petitioners, who have leased
out the premises for a particular purpose viz., Spa, are running the
brothel. It is accused Nos.1 and 2 who will have to answer the
issue and not the petitioners herein who on 14-10-2021 have
leased out the said premises. The petitioners are neither the
owners of Spa nor partners of Spa. The owner of Spa uses the
premises for the purpose which would become offence under the
Act. The Company, owner of the premises, cannot be said to be
having knowledge of what is happening in the Spa. Therefore, it is
for accused Nos.1 and 2 to answer the allegation and permitting
further proceedings against the petitioners/owners of the building
would become an abuse of the process of law.
12. This Court in an identical scenario in terms of its order
dated 08-03-2022 passed in Criminal Petition No.415 of 2022
considering the very provisions of the Act qua the owner has held
as follows:
".... .... ....
7. The afore-narrated facts are not being in dispute are
not reiterated. Search was conducted on the premises that the
petitioner owned and rented out to accused No.1 on 25.01.2020
and case is registered for the offences punishable under
Sections 3, 4, 5 and 6 of the said Act. It is germane to notice
Section 3 of the Act for consideration of the case of the
petitioner, which reads as under:
"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
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 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 supplied)
Section 3(2)(b) of the Act directs that the
owner, lessor or landlord of any premises having
knowledge of what is happening in the premises,
would be brought within the ambit of the offences
punishable under Section 3 of the Act. Pursuant to the
said search, a notice is issued to the petitioner on
29.01.2020 alleging the aforesaid offences against the
petitioner, to which, the petitioner gives his reply
clearly narrating that he is not aware of what is
happening in the premises that he had rented it out
and stayed far away. The police also while filing the
charge sheet indicates the same.
8. In the light of Section 3(2)(b) of the Act and
the police themselves acknowledging that petitioner
was not aware as to what was happening in the
premises, permitting further proceedings to continue
against the petitioner would degenerate into
harassment and become an abuse of the process of
law."
The only difference in the judgment afore-quoted was that the
Police had after investigation filed a charge sheet. Notwithstanding
the fact that the case at hand is at the stage of investigation,
permitting further proceedings against the petitioners would
become an abuse of the process of law, as the documents produced
along with the petition are undoubtedly unimpeachable, which
would lead to an order in favour of the petitioners failing which, it
would result in miscarriage of justice.
13. For the aforesaid reasons, I pass the following:
ORDER
(i) Criminal Petition is allowed and the FIR in Crime No.137
of 2022 registered before the Indiranagar Police Station
pursuant to complaint dated 08.07.2022 and pending
before the X Additional Chief Metropolitan Magistrate,
Bengaluru City stands quashed.
(ii) It is made clear that the case at hand is considering the
case of the petitioners in a petition under Section 482 of
the CrPC. The observations made in the course of the
order will not come in the way of investigation or any
proceeding pending against any other accused in the
said crime.
Sd/-
JUDGE
bkp
