Karnataka High Court

Sadashiv S/O Mallappa Hukkeri vs The State Of Karnataka on 8 August, 2023

Bench: M.Nagaprasannapresided Bymnpj

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                                                         NC: 2023:KHC-D:8488
                                                         CRL.P No. 101399 of 2023




                           IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH

                                DATED THIS THE 8TH DAY OF AUGUST 2023

                                                BEFORE

                              THE HON'BLE MR JUSTICE M.NAGAPRASANNA

                                CRIMINAL PETITION NO. 101399 OF 2023


                      BETWEEN:

                      1.   SADASHIV S/O MALLAPPA HUKKERI,
                           AGE. 34 YEARS, OCC. AGRICULTURE,
                           R/O. MANAGULI, TQ. BASAVAN BAGEWADI,
                           DIST. VIJAYAPUR-586 122.

                      2.   SUBHAS S/O RANAVVA KESARGOPPA,
                           AGE. 60 YEARS, OCC. AGRICULTURE,
                           R/O. BASAVANAGAR PLOT, MAHALINGAPUR,
                           TQ. MUDHOL, DIST. BAGALKOT-587 312.
                                                                    ... PETITIONERS
                      (BY MRS. SHOBA .H. FOR
                      SRI. GIRISH .A. YADAWAD, ADVOCATEs)


                      AND:
VISHAL
NINGAPPA              THE STATE OF KARNATAKA,
                      R/BY ITS PUBLIC PROSECUTOR,
PATTIHAL              HIGH COURT BUILDING DHARWAD,
Digitally signed by   THROUGH PSI,
VISHAL NINGAPPA       MUDHOL POLICE STATION,
PATTIHAL              DIST. BAGALKOT-587 313.
Date: 2023.08.10                                                    ... RESPONDENT
11:36:08 +0530        (BY SRI. V.S. KALASURMATH, HCGP)

                            THIS CRIMINAL PETITION IS FILED U/SEC. 482 OF CR.P.C.
                      SEEKING TO QUASH THE ENTIRE CRIMINAL PROCEEDINGS IN SC
                      NO.5005/2023 REGISTERED AGAINST THE PETITIONERS (ACCUSED
                      NOS. 3 AND 4) FOR THE OFFENCES P/U/SEC. 3 AND 5 OF IMMORAL
                      TRAFFIC (PREVENTION) ACT, 1956 AND 370A(2) OF IPC, PENDING
                      ON THE FILE OF THE ADDL. DISTRICT AND SESSIONS JUDGE,
                      BAGALKOT, SITTING AT JAMAKHANDI        IN SO FAR AS THE
                      PETITIONERS (ACCUSED NO.3 AND 4) ARE CONCERNED.
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                                        NC: 2023:KHC-D:8488
                                        CRL.P No. 101399 of 2023




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


                                ORDER

The petitioners have called in question the proceedings

in S.C. No.5005/2023 registered for the offences punishable

under Section 370A(2) of the Indian Penal Code and Sections

3 and 5 of the Immoral Traffic Prevention Act, 1956.

2. Heard the learned counsel for the petitioners and

the learned High Court Government Pleader for the

respondent/State.

3. This Court in Criminal Petition No.1757/2022

disposed on 24.03.2022 considering an identical issue, has

held as follows:

" 3. Brief facts leading to the filing of the present petition, as borne out from the pleadings, are as follows:-

The Police on 24-09-2015 conduct a search on premises No.630, 'C' Block, Mahadevapura coming under the jurisdiction of Vidyaranyapuram Police, Mysore where brothel business was being run. During the search, the petitioner was also apprehended and a criminal case against the petitioner and other accused is registered in Crime No.93 of 2015 for offences punishable under Section 370(3) of the IPC and

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Sections 3 to 6 of the Act. Police, after investigation, have filed a charge sheet in the matter and the case is now numbered as C.C.No.109 of 2018 for the aforesaid offences on the learned Magistrate taking cognizance of the offences against the petitioner and others on 30-

01-2018. Challenging the said proceedings, the petitioner is before this Court in the subject petition.

4.The learned counsel appearing for the petitioner submits that accused 1, 2 and 3 were alleged to be running a brothel and making profits. The petitioner is only a customer who had visited the brothel at the time when the search was conducted. Therefore, continuance of proceedings against the petitioner would be contrary to law and consequently abuse of the process of law.

5.On the other hand, the learned High Court Government Pleader would vehemently refute the submission that the petitioner has visited the brothel house as a customer and contends that he is involved in the business of skin trade and, therefore, he should not be let off from facing trial.

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

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

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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

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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.

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(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

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her 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; 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

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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,--

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(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

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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

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provisions, which are on the face of it, is inapplicable to the case at hand.

8. The other offence alleged against the petitioner is the one punishable under Section 370 of the IPC. Section 370 of the IPC reads 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.

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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

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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."

Section 370 of the IPC deals with offences punishable for buying or disposing any person as a slave, which is not the allegation and the incident would not link the petitioner to the said offences. Therefore, on both these counts the proceedings are rendered unsustainable.

4. The petitioners in the case at hand are also

customers found at the time of search.

5. In the light of the issue standing covered by the

judgment rendered by this Court supra, the petition deserves

to succeed.

6. For the aforesaid reasons, the following

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ORDER

(i) The Criminal Petition is allowed.

(ii) The proceedings in S.C.5005/2023 pending on the

file of the learned Additional District and Sessions