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Judgment
Heard the learned counsel for the petitioner and the learned Government Pleader who was directed to take notice.
The petition coming on for admission, is considered for final disposal at the stage of admission, in the following background:
It is alleged that the present petitioners who are amongst several accused, were all found at a Bar and Restaurant in the name and style of "M/s. Bangalore Shakers" situated at K.H. Road, Bangalore, and it was alleged that on credible information that immoral activity was going on in the Bar and Restaurant, the police are said to have conducted a raid and search and seizure, at which point of time they had videographed the entire exercise. It was seen that the present petitioners were being treated with food and drink. There were skimpily clad females who were not only serving them with food and drink but also dancing for their entertainment and obviously, to entice them into sex and therefore, were characterized as ''prostitutes'' and the present petitioners who were present were alleged to be ''customers'' who were being solicited and therefore exploiting the women concerned and it is on these allegations that the petitioners were all arrested and seizures were made of alleged incriminating material such as the music systems and cash which was being thrown by the ''customers'' at the dancing women. It is thereafter that the case has been registered for offences punishable under Sections 188, sub-section (3) of Section 370, 370-A, 294 read with Section 109 IPC. It is noticed that the present petition is filed in the above background.
It is contended that except Sections 188, 370 and 370A IPC, the other offences alleged are non-cognizable, in which event, the police were precluded from conducting a raid or a search and seizure and thereafter registering an F.I.R. Section 294 read with Section 109 are cognizable in nature and therefore, the procedure adopted was lopsided. Insofar as the offences alleged under Section 188 IPC is concerned, it is pointed out that there is a bar under Section 195 of the Code of Criminal Procedure, 1973 in the present procedure having been followed. As far as sub-section (3) of Section 370 IPC is concerned, it pertains to trafficking of a person. It is not the allegation of the prosecution that the petitioners were involved or indulging in trafficking of any person or persons. Section 370-A pertains to exploitation of a trafficked person which indicates that, whoever knowingly or having reason to believe that a minor has been trafficked or engages such minor for sexual exploitation in any manner, shall be punished with rigorous imprisonment for a term which shall not be less than five years, but which may extend to seven years, and shall also be liable to fine and however, knowingly by or having reason to believe that a person has been trafficked, engages such person for sexual exploitation in any manner, shall be punished with rigorous imprisonment for a term which shall not be less than three years, but which may extend to five years, and shall also be liable to fine.
Therefore, in the present case on hand, there is no allegation that there were any minors involved. Consequently, the proceedings are misplaced and are instituted against the petitioners who were merely enjoying their food and drink at a Bar and Restaurant and incidentally if there were women dancing around, it was not at the instance of the present petitioners and therefore, there is no indication of each of these petitioners indulging or seeking to exploit any particular woman and hence, the entire proceedings are misconceived and require to be quashed.
It is to be noticed at the outset that the accused are a large number as evident from the ranks assigned to each of these petitioners. Petitioner No.5 is named as Accused No.106. Therefore, it is evident that there were more than a 100 people at the Bar and Restaurant and it is not the case of the prosecution that each of them was trying to befriend a particular woman or trying to exploit a particular woman. Therefore, it becomes vague and unclear as to who was trying to exploit whom and the further assertion of the police that there were prostitutes in the premises, is a presumption which is unfair to the women involved. If the women were willfully employed as waitresses and were indeed present on the premises to serve food and drink, it is unfair to characterize them as prostitutes and hence, the entire proceedings against the petitioners are misconceived.
Consequently, the petition is allowed and the proceedings in C.C.No.28501/2015 on the file of the I Additional Chief Metropolitan Magistrate, Bangalore, are quashed.
The incriminating materials seized shall be returned to the respective persons.