1. Though this matter is listed for admission, with the consent of the parties, it is taken up for disposal.
2. Heard Miss. Joshna P. Dhanave, appearing on behalf of Sri R.H. Angadi, learned counsel for the petitioners and Sri Praveen Uppar, learned High Court Government Pleader for the respondent-State and perused the records.
3. This petition is filed under Section 482 Cr.PC, with the following prayer:
“Wherefore, for these and amongst other grounds to be urged at the time of hearing, it is most humbly lprayed that, this Hon'ble Court be pleased to quash the Criminal proceedings and order of cognizance dated 17.04.2017 against the present petitioners who are arrayed as Accused Nos.2 & 3 in CC No.103/2017 (Vidyagiri Police Station Crime No.163/2015) for the offence punishable under Section 3, 4 and 6(1) of the Immoral Traffic (Prevention) Act, 1956, pending on the file of the III Addl. Senior Civil Judge & CJM Court, Dharwad, to meet the ends of justice.”
4. Brief facts of the case are as under:
Upon a complaint lodged by Sri Sangamanath Hiremath, Vidyagiri Police Station registered a case in Crime No. 0163/2016 dated 11.06.2016 for the offence punishable under Sections 3, 4 and 6(1) of the Immoral Traffic (Prevention) Act, 1956. The gist of the complaint averments reveal that in a lonely house which is situated in Sangoli Rayanna Nagar, illegally prostitution was being conducted and raid has taken place and the persons involved in the prostitution including the petitioners were arrested. After registering the case, police investigated the matter and filed charge sheet and the matter is now pending before the Jurisdictional Magistrate. In he mean time, the petitioner has approached this court with the aforesaid prayer.
5. In the petition following grounds have been raised:
“That, the police have falsely implicated the present petitioners who are arrayed as Accused No. 1 and 2 on the grudge or some other allegations leveled against the police have arrayed petitioners as accused persons, even though, they have not committed any of the offences much less the alleged offences as stated by the police.
That, the present petitioners are innocent, law abiding citizens of India and have not committed any offense as stated by the police.
That, the Police have not registered FIR prior to conducting raid on the alleged date of incident. In view of law laid down by this Hon 'ble Apex Court in the case reported in 2014 (2) SCC Page. 1 in the case of Lalitha Kumari Vs. State Of Uttar Pradesh. It is held that Registration of FIR is mandatory U/S 154 of CR.PC if the information discloses commission of a cognizable offence. And no preliminary inquiry is permissible in such a situation.
That, in the instant case no search warrant was obtained at the time of conducting the raid. In view of non-obtaining search warrant the raid alleged to be conducted and seizure is vitiated in view of the law laid down by this Hon'ble court in the case of Sanju Vs. State in Cr.Rev.No-2510//2011. That, even if we consider the definition of Section 3 of the Immoral Traffic (Prevention) Act, 1956.
6. Re-iterating the grounds urged, Miss Joshna submits that petitioners being the customers, cannot be proceeded for the aforesaid offences and in that regard, she has placed reliance on the judgment of the co-ordinate bench of this court in Criminal Petition No.100513/2018 and sought for allowing the petition.
7. Per contra, learned High Court Government Pleader opposes the petition.
8. Admittedly, from the material on record, it is seen that petitioners are customers, who had been arrested by the investigating agency on the date of raid. In view of the ruling given by this court in Criminal Petition No.100513/2018 and subsequently in several other petitions, it has been held that the customers cannot be proceeded under the Immoral Traffic Prevention Act, 1956. Accordingly, this court is of the considered opinion that a case is made out by the petitioners to quash the proceedings pending against them. However, quashing of the proceedings against the petitioners shall not come in the way of proceeding against the remaining accused persons in accordance with law. Hence, this court pass the following:
ORDER
The Petition is allowed. Consequently, the Criminal proceedings against the present petitioners who are arrayed as accused Nos.2 & 3 in CC No.103/2017 arising out of Crime No.0163/2016 of Vidyagiri Police, for the offence punishable under Sections 3, 4 and 6(1) of the Immoral Traffic (Prevention) Act, 1956 pending on the file of the III Addl. Senior Civil Judge & CJM, Dharwad, is hereby quashed.
