Mohammed Bismillah Khan vs The State Of Telangana
2022 Latest Caselaw 1910 Tel

           HON'BLE SRI JUSTICE K. LAKSHMAN

           CRIMINAL PETITION No.3485 OF 2022

ORDER:

Heard Mr. Junaid Ahmed Khan, learned counsel for the

petitioner and learned Assistant Public Prosecutor appearing on

behalf of the respondents.

2. This Criminal Petition is filed under Section - 482 of the

Code of Criminal Procedure, 1973 (for short 'the Code') to quash

the proceedings in P.R.C. No.480 of 2021 on the file of II

Additional Chief Metropolitan Magistrate, Nampally, Hyderabad.

3. The petitioner herein is arraigned as accused No.2 in the

said PRC. The offences alleged against him are under Section -

370 (2) of the Indian Penal Code, 1860 (for short 'IPC') and

Sections - 3, 4, 5, 6 and 7 of the Prevention of Immoral Traffic Act,

1956 (for short 'PITA').

4. As per the charge sheet, the allegations against the

petitioner herein are that he studied up to B.Com., and worked in

Munsif Urdu Daily Newspaper from 2012 to 2018. Since one and

a half years, he is running Dera Guest House, 7th Floor of Khan

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Lateef Khan Building, Fathe Maidan Road, Hyderabad, by taking

the same on lease. He is charging Rs.1200/- per room per day. On

21.08.2021, Mr. Arnab (Accused No.1) made call from Cell

No.9821208727, booked room Nos.711 and 717. The petitioner

knew Mr. Arnab (Accused No.1) since the day of running of the

Guest House. Accused No.1 used to book 10 to 12 rooms in a

month and he is doing the prostitution business. Accused No.1

used to book the rooms and keep the woman sex worker for which

he is giving Rs.1000/- per customer to accused No.2 for supporting

him in running the prostitution business in the Guest House. The

petitioner used to facilitate the customers sent by accused No.1 by

seeing the WhatsApp messages of accused No.1 and take the

customers to the rooms where the women were kept for

prostitution work. The customers used to pay the amount fixed by

accused No.1 and enjoy sexually with the women sex worker. The

petitioner used to earn Rs.40,000/- to Rs.50,000/- per month from

accused No.1 for supporting him in prostitution business. Accused

No.1 and customers, referred by him, used to visit the Guest House

of the petitioner herein and collect the amount from the sex

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workers. Thus, prima facie, there are specific allegations against

the petitioner herein.

5. Referring to the I.D. Card, learned counsel for the

petitioner would submit that the petitioner herein is working as

Front Office in Dera Leasing and Construction Company and he is

nothing to do with the said Guest House. The petitioner has to take

the said defence during trial before the trial Court. The said

defence cannot be considered in a petition filed under Section -

482 of the Cr.P.C. In Kamal Shivaji Pokarnekar v. The State of

Maharashtra1 the Apex Court has categorically held that quashing

criminal proceedings was called for only in a case where complaint

did not disclose any offence, or was frivolous, vexatious, or

oppressive. If allegations set out in complaint did not constitute

offence of which cognizance had been taken by Magistrate, it was

open to the High Court to quash the same. It was not necessary

that, a meticulous analysis of case should be done before trial to

find out whether the case would end in conviction or acquittal. If it

appeared on a reading of the complaint and consideration of

. AIR 2019 SC 847

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allegations therein, in light of the statement made on oath that the

ingredients of the offence are disclosed, there would be no

justification for the High Court to interfere. The defences that

might be available, or facts/aspects which when established during

trial, might lead to acquittal, were not grounds for quashing a

complaint at the threshold. At that stage, the only relevant question

was whether averments in the complaint spell out ingredients of a

criminal offence or not. The Court has to consider whether

complaint discloses any prima facie offences that were alleged

against the respondents. Correctness or otherwise of the said

allegations has to be decided only during trial. At the initial stage

of issuance of process, it was not open to Courts to stifle

proceedings by entering into merits of the contentions made on

behalf of the accused. Criminal complaints could not be quashed

only on the ground that, allegations made therein appear to be of a

civil nature. If ingredients of offence alleged against Accused were

prima facie made out in complaint, criminal proceeding shall not

be interdicted.

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6. In Skoda Auto Volkswagen India Private Limited v.

The State of Uttar Pradesh2, the Apex Court referring to the

earlier judgments rendered by it has categorically held that the

High Courts in exercise of its inherent powers under Section - 482

of Cr.P.C has to quash the proceedings in criminal cases in rarest

of rare cases with extreme caution.

7. As stated above, prima facie, there are specific

allegations against the petitioner herein. He is doing prostitution

business by taking Dera Guest House in 7th Floor of Khan Lateef

Khan Building, Fathe Maidan Road, Nampally, Hyderabad, on

release. He is earning money from the said business. Thus, prima

facie, the petitioner herein is an organizer. Therefore, the contents

of the charge sheet lack the ingredients of Sections - 3, 4, 5, 6 and

7 of the PITA. There is no allegation against the petitioner herein

that he has recruited, transported, harboured, transferred or

received a person for the purpose of exploitation. In Mohammad

Riyaz v. The State Of Telangana3, the High Court for the States

of Telangana and the Andhra Pradesh referring to the principle laid

. AIR 2021 SC 931

. Criminal Petition No.5803 of 2018, decided on 27.06.2018

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down in Naveen Kumar v. The State of Telangana4 and Vinod

@ Vijay Bhagubhai Patel v. State of Gujarat5 quashed the

proceedings against the customer for the offences punishable under

Section - 370 of the IPC and Sections - 3 to 5 of the PITA,

however, permitted the Magistrate concerned to proceed further for

the offence under Section - 370A (2) of the IPC. Therefore, this

Court is of the considered opinion that the contents of the charge

sheet lack the ingredients of Section Sections - 3, 4, 5, 6 and 7 of

the PITA, however, trial may go on for the offence under Section -

370 (2) of the IPC.

8. It is relevant to note that in S. Naveen Kumar4 referring

to the provisions of PITA, IPC and also the amendment to the IPC,

held that this Court in exercise of its inherent power under Section

- 482 of the Cr.P.C. to secure the ends of justice, can give a

direction when the material placed by the prosecution i.e., charge

sheet discloses the commission of offence under Section 370A of

the IPC. In view of the same, the trial Court shall proceed with the

. 2015 (2) ALD (Crl.) 156 (AP)

. 2017 (4) GLR 2804

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trial for the offence under Section - 370 (2) of the IPC against the

petitioner herein.

9. In view of the above discussion, the proceedings in

P.R.C. No.480 of 2021 on the file of II Additional Chief

Metropolitan Magistrate, Nampally, Hyderabad are hereby quashed

against the petitioner herein - accused No.2 for the offences under

Sections - 3, 4, 5, 6 and 7 of the PITA. However, the learned

Sessions Judge is directed to consider the entire material on record

including the allegations made against the petitioner herein and

take cognizance for the offence under Section - 370 (2) of the IPC

against the petitioner herein - accused No.2.

10. The present Criminal Petition is accordingly allowed in

part.

As a sequel thereto, Miscellaneous Petitions, if any, pending

in the Criminal Petition stand closed.

____________________ K. LAKSHMAN, J th 18 April, 2022 Mgr