Dismissed

Girisha v. State of Karnataka by

Karnataka HC15 Jul 2021CRL.P/7207/2018

Case brief

AI extract

What is this about?

Criminal petition filed to quash proceedings under the Immoral Traffic (Prevention) Act on grounds of incompetent investigation, violation of Cr.P.C. warrant provisions, and lack of FIR. High Court rejected technical objections, noting special enactments override general Cr.P.C. rules and invalidity does not vitiate unless miscarriage of justice occurs.

What did the court decide?

Petition dismissed as there were no grounds to quash the proceedings.

Girisha Vs State of Karnataka by — Criminal Trial and Appeal | Karnataka HC (2021)

¶1

Crl.P.No.7207/2018

¶2

¶3

IN THE HIGH COURT OF KARNATAKA AT BENGALURU

¶4

DATED THIS THE 15^TH DAY OF JULY 2021

¶5

BEFORE

¶6

THE HON’BLE MRS. JUSTICE K.S.MUDAGAL

¶7

CRIMINAL PETITION No.7207/2018

¶8

BETWEEN :

¶9

GIRISHA S/O LATE KALAIAH AGED ABOUT 40 YEARS NO.243/2, NEAR ASHWATHKATTE K.N.PURA, KYATHAMARANAHALLI MYSURU-13

¶10

BHAGYA K D/O. LATE KALAIAH AGED ABOUT 30 YEARS NO.36, 1^ST PHASE, 2^ND STAGE GAYATRIPURAM, MYSURU-10 … PETITIONERS

¶11

(BY SRI.P.MAHADEVA SWAMY, ADVOCATE)

¶12

AND :

¶13

STATE OF KARNATAKA BY NARASIMHARAJA POLICE STATION REP. BY STATE PUBLIC PROSECUTOR ATTACHED HIGH COURT BUILDING AMBEDKAR VEEDI BANGALORE-01

¶14

SMT. SHOBHA S. KATAVKAR DY.SP AHT UNIT, COD BENGALURU-01 … RESPONDENTS

¶15

(BY SMT. NAMITHA MAHESH B.G., HCGP)

¶16

THIS CRIMINAL PETITION IS FILED UNDER SECTION 482 OF CR.P.C. PRAYING TO QUASH THE ENTIRE PROCEEDINGS IN C.C.NO.1485/2016 (CRIME NO.129/2015) ON THE FILE OF THE III ADDITIONAL I CIVIL JUDGE (JR.DN.) AND J.M.F.C., MYSORE FOR THE OFFENCES PUNISHABLE

¶17

Crl.P.No.7207/2018

¶18

¶19

UNDER SECTIONS 3, 4, 5, 6 OF IMMORAL TRAFFIC PREVENTION ACT, 1956.

¶20

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

¶21

O R D E R

¶22

“Whether the proceedings against the petitioners in C.C.No.1485/2016 on the file of the III Additional I Civil Judge (Jr. Dn.) and J.M.F.C., Mysuru amount to abuse of the process of the Court?” is the question involved in this case.

¶23

The petitioners are facing trial in C.C.No.1485/2016 before the Trial Court for the offences punishable under Sections 3, 4, 5 and 6 of the Immoral Traffic (Prevention) Act, 1956 (for short ‘ITP Act’) on the basis of the charge sheet filed by Narasimharaja police in Crime No.129/2015 of their police station.

¶24

Respondent No.1 police registered Crime No.129/2015 against petitioner No.1 Girisha and one Sachin for the aforesaid offences on the basis of the

¶25

Crl.P.No.7207/2018

¶26

¶27

complaint filed by respondent No.2 namely Dy.SP., AHT Unit, COD, Bengaluru City.

¶28

The case of the prosecution in brief is as follows:

¶29

On 27.05.2015 at 8:00 p.m., on the basis of the credible information of the accused indulging in immoral trafficking of women in V Care Beauty Zone parlour situated in Mysuru a raid was conducted. It was found that petitioner No.2 Bhagya in collusion with petitioner No.1 exploiting CWs.4 and 5 was indulging in immoral trafficking. In the said premises the incriminating materials were seized under the Mahazar.

¶30

On filing the charge sheet, learned Magistrate took cognizance of the offences, registered the case in C.C.No.1485/2016 and summoned the petitioners to face the trial.

¶31

The petitioners seek quashing of the said proceedings on the following grounds:

¶32

i) The police officer who conducted the investigation was not competent to conduct the

¶33

Crl.P.No.7207/2018

¶34

¶35

investigation as required under Section 13 of ITP Act;

¶36

ii) The search and seizure was contrary to Sections 91 to 94 and 102 of Cr.P.C., as the same was conducted without the order of the learned Magistrate;

¶37

iii) The search and seizure was conducted without registering the first information report. Therefore, Section 154 of Cr.P.C. was violated.

¶38

Reiterating the grounds of the petition, Sri.P.Mahadeva Swamy, learned counsel for the petitioners relies upon the following judgments:

¶39

i) Shankare Gowda @ Shankara vs. State by Madanayakanahalli Police Station, Bengaluru and another¹

¶40

ii) Lalita Kumari vs. Government of U.P. and Others²

¶41

Smt.Namitha Mahesh B.G., learned HCGP

¶42

opposes the petition on the following grounds:

¶43

i) The search and seizure was conducted to

¶44

1 ILR 2016 KAR 3067

¶45

2 2014 (2) KCCR 1305 (SC)

¶46

Crl.P.No.7207/2018

¶47

¶48

verify the information received by the complainant and her team;

¶49

ii) Section 15 of ITP Act empowers the police officer to conduct the search without warrant and excludes the operation of Sections 91 to 94 of Cr.P.C. The judgment in Lalita Kumari’s case is not applicable;

¶50

iii) The judgment in Shankare Gowda’s case relied upon by the petitioners’ counsel was reversed by the Hon’ble Supreme Court in R.A.H.Siguran vs. Shankare Gowda alias Shankara and another³ ;

¶51

It is settled proposition of law that the High Court shall exercise the powers under Section 482 of Cr.P.C., sparingly and in rarest of rare cases. It is also settled principle of law that the Court cannot scuttle the investigation or trial at the inception unless manifest abuse of the process of the Court or the failure of ends of justice to the petitioners is made out. In the case on hand, petitioners seek quashing of the proceedings on the aforesaid technical grounds.

3 (2017) 16 SCC 126

Crl.P.No.7207/2018

Reg. violation of Section 154 of Cr.P.C.:

¶56

It was contended that the search and

¶57

seizure was prior to the registration of the first information report in cognizable offence. Therefore, they are violative of Section 154 of Cr.P.C., and the judgment of the Hon’ble Supreme Court in Lalita Kumari’s case.

¶58

The ITC Act is a special enactment. It overrides the other general provisions. Even in Lalita Kumari’s judgment relied upon by the learned counsel for the petitioners it was held that when there is credible information of commission of cognizable offence preliminary inquiry is not permissible.

¶59

In which classes of cases preliminary inquiry

¶60

shall be conducted was laid down in para 120.6 of the said judgment which reads as follows:

¶61

“ 120.6. As to what type and in which cases preliminary inquiry is to be conducted will depend on the facts and circumstances of each case. The category of cases in which preliminary inquiry may be made are as under:

¶62

Crl.P.No.7207/2018

¶63

¶64

(a) Matrimonial disputes/family disputes

¶65

(b) Commercial offences

¶66

¶67

(d) Corruption cases

¶68

(e) Cases where there is abnormal delay/laches in initiating criminal prosecution, for example, over 3 months’ delay in reporting the matter without satisfactorily explaining the reasons for delay.

¶69

The aforesaid are only illustrations and not exhaustive of all conditions which may warrant preliminary inquiry.”

¶70

This case is not covered under any of the categories of cases mentioned in para ‘a’ to ‘e’ of the said judgment. As per the charge sheet records and the first information report, the raid was conducted to verify the information received by the complainant party. Therefore, the judgment in Lalita Kumari’s case is not applicable.

¶71

Reg. the competence of the officer conducting investigation:

¶72

Relying on Sections 13(1) and 13(2) of the Act, learned counsel for the petitioners contended that

¶73

Crl.P.No.7207/2018

¶74

¶75

the investigation was conducted by the police inspector who was below the rank of the officer mentioned in Section 13 in notification. The notification issued by the Government exercising powers under Section 13 is extracted in para 4 of the judgment of this Court in Shankare Gowda’s case relied upon by the learned counsel for the petitioners.

¶76

In that notification, entries at Sl.Nos.1 to 4 relate to the places outside Bengaluru and entry Nos.5 to 9 relate to the places covered in Bengaluru City. Entry at Sl.No.10 relates to COD police. As per entry at Sl.No.4, the lowest rank officer entitled to conduct the investigation is Circle Police Inspector. Considering that in Shankare Gowda’s case, this Court quashed the proceedings.

¶77

That judgment was challenged before the Hon’ble Supreme Court in R.A.H. Siguran’s case referred to supra. The Hon’ble Supreme Court reversed the judgment of this Court quashing the proceedings. In para 13 of the judgment, it was held that it is well

¶78

Crl.P.No.7207/2018

¶79

¶80

settled law that invalidity of the investigation does not vitiate the result unless a miscarriage of justice has been caused thereby. It was further held that on such ground the proceedings cannot be quashed invoking power under Section 482 of Cr.P.C.

¶81

In the case on hand, the raid was led by the officer notified under the notification. However, part of the investigation was conducted by the Officer of the rank of police inspector. In what way such part of the investigation has caused miscarriage of justice to the petitioners has to be demonstrated in the Trial. At this stage, this Court does not find any manifest miscarriage of justice. Therefore, that ground is also not sustainable.

¶82

Reg. search and seizure:

¶83

It was contended that the search and seizure were conducted without obtaining the warrant from the learned Magistrate contrary to Sections 91 to 94 and 102 of Cr.P.C. Those provisions are the general provisions. The Act is a special enactment which

¶84

Crl.P.No.7207/2018

¶85

¶86

overrides the general provisions. Section 15 of the Act enables the Special Police Officer to conduct search and seizure without warrant notwithstanding anything contained in any other law. Therefore, there is no merit in the contention that the search and seizure was bad in law for want of search warrant from the learned Magistrate.

¶87

Reg. material constituting the offence:

¶88

It is contended that as per the charge sheet records themselves at the time of the raid petitioner No.2 was not present at the scene of the offence, therefore, there is no material to proceed against her. It was contended that petitioner No.1 was neither the tenant of the premises nor running the said Beauty Parlor or Spa. Therefore, there is no material to proceed against him also.

¶89

As per the charge sheet records, petitioner No.1 was present at the scene of offence. He is the brother of petitioner No.2 who was running the said beauty Parlor/massage Spa and she was the tenant of

¶90

Crl.P.No.7207/2018

¶91

¶92

the said premises. The victims CWs.4 and 5 have implicated petitioner No.1 as the pimp and they have also said that petitioner No.2 was running a spa where such unlawful activities were taking place.

¶93

Section 3(2A) coupled with Section 3(2) of the Act confers a statutory presumption of knowledge of the owner or occupier or the person incharge of the premises of the knowledge of immoral trafficking and the intention. Whether petitioner No.2 is innocent or was not at the scene offence are matters of trial and may constitute a defence to her in the trial. On that ground the proceedings cannot be quashed.

¶94

This Court does not find any grounds to quash the proceedings. Therefore, the petition is dismissed.

¶95

Sd/JUDGE

¶96

KG

Girisha v. State of Karnataka by

Case brief

What is this about?

What did the court decide?

Girisha v. State of Karnataka by

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Cases cited

Statutes considered

Parties & counsel

Coram

Case details

Similar cases

State of Karnataka Vs Ramanna @ Bar Ramanna

Sri Sathish Vs State by Girinagar Ps

R Gopal Krishna Pillai Vs Smt. Vini R Panicker

Sri. Ishwara Reddy Vs the State of Karnataka

Sri Shaik Aslam Pasha @ Babu Vs the State of Karnataka

Mr. Mushtaq Ahmed Vs the State of Karnataka