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2012 DIGILAW 34 (BOM)

Greig Miranda v. State of Maharashtra

2012-01-06

R.V.MORE

body2012
JUDGMENT: 1. Rule. 2. Rule made returnable forthwith. Heard by consent of the parties. Learned APP waives service of the Application on behalf of Respondent-State. 3. The above Application is filed for quashing proceedings of C.R.No.3 of 2011 registered on 7th March,2011 by Gorai Police Station, Mumbai under sections 3,4 and 5 of the Immoral Traffic (Prevention) Act,1956 (hereinafter referred to as said Act) and further proceedings namely C.C.No 5400794/PW/2011 pending in the Court of the Additional Chief Metropolitan Magistrate,54th Court, Mazgaon, Mumbai to the extent of the Applicant herein. 4. The Applicant as well as his wife are gainfully employed. The applicant and his wife thus, decided to invest their money in some business so as to secure the future of their children. Meanwhile, they learnt that some property is for sale at Gorai beach, Borivili together with one cottage and thus decided to purchase the property since many people come to Gorai beach for enjoying holidays. Therefore, they purchased the property namely Miranda cottage by taking loans and contributing money from their savings. Since the Applicant and his wife were gainfully employed they were not in a position to shift to the said premises and therefore they appointed one Shyam Kamlakant Devnath as their caretaker to manage the property. The said Devnath was expected to give the said cottage to tourists coming to the Gorai beach and maintain accounts for the same. 5. On 7th March, 2011 the Gorai police on the basis of some information carried out raid on the said premises and found that the same was being used for the purpose of prostitution. Accordingly, an FIR came to be filed by one S.I.Dilip Maruti Nirmal of Gorai police station against the Caretaker/Manager by name Sham Kamlakant Devnath. After investigation, charge sheet came to be filed against three persons namely accused Sham Kamlakant Devnath being the caretaker and Manager, one Zubedda Din Mohammed Shaikh and the present Applicant. The present Application is filed by Accused no.3 who is the owner of the said premises. Allegations against the present Applicant is that as an owner he permitted the said premises to be used for the purpose of prostitution and earning money for his livelihood. The Applicant accordingly was charged for the offences under sections 3 and 4 of the said Act. Allegations against the present Applicant is that as an owner he permitted the said premises to be used for the purpose of prostitution and earning money for his livelihood. The Applicant accordingly was charged for the offences under sections 3 and 4 of the said Act. After due investigation was completed, the police filed charge sheet before Additional Metropolitan Magistrate,54th Court, Mazgaon Mumbai. Entire copy of the charge sheet is annexed to this Application at Exhibit B. The prosecution has relied upon copy of FIR, copy of spot panchanama dated 7th March,2011 and statement of following witnesses: 1. PSI Dilip Maruti Nirmal Gorai police station 2. Dilip Kanodiya Decoy customer 3. Ruksana Mohd Gaus Shaikh 4. Nazia Farooq Khan 5. Muryakandil Krishna Sunder 6. Section 3 of the said Act deals with Punishment for keeping or a brothel or allowing premises to be used as a brothel while section 4 deals with Punishment for living on the earnings of prostitution. For ready reference herein the said sections are quoted as under: “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 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. (2-A) 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.) 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 subsection 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 be become void and inoperative with effect from the date of the said conviction.” “4. Punishment for living on the earnings of prostitution. 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 (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 his 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).” 7. Under section 3 (1), any person who keeps or manages or assists in keeping or management of brothel is made liable for punishment. Under clause 2 (a) any person being the tenant, lessee, occupier or person in charge of any premises uses, or knowingly allows any other person to use such premises as a brothel is liable for punishment. Under sub clause (b) of sub-section 2 a person being the owner, lessee or landlord of any premises or the agent of such owner, lessor or landlord lets the same, with the knowledge that the same, is intended to be used as a brothel or is willfully a party to the use of such premises as a brothel is made liable to be punished. Clause (a) of sub-section 2 is not applicable in the present case. 8. Section 2 (A) is inserted by Amending Act No.44 of 1986 with effect from 26.1.1987. Clause (a) of sub-section 2 is not applicable in the present case. 8. Section 2 (A) is inserted by Amending Act No.44 of 1986 with effect from 26.1.1987. Under the said section it will be presumed unless contrary is proved, that a person referred in clause (a) or clause (b) of sub-section 2 is knowingly allowing the premises to be used as a brothel or has knowledge that the premises is being used as a brothel, if report is published in newspaper having circulation in the in the area in which such person resides to the effect that any premises or any part thereof have been found to be used for prostitution as a result of search made under said Act or copy of the list of all things found during the search referred above is given to such person. 9. Mr. Adsule, learned APP on instructions of the Officer of Gorai police station who is present in the Court fairly stated that in the present case there is no report as contemplated under sub-section 2 (A) (a) of Section 3. He also submitted that no list as contemplated under sub-section 2 (A) (b) is given to the Applicant. In these circumstances, knowledge on the part of the present Applicant that the said premises or any other part is intended or being used as a brothel; cannot be presumed. 10. The prosecution therefore, to bring home the guilt of the present Applicant must established independently that he either keeps or manages the said premises as a brothel or he has knowledge that the said premises 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. It is not the case of the prosecution that the Applicant personally keeps or manages the said premises as a brothel. The prosecution case shows that Accused no.1 caretaker of the said premises has used the said premises for brothel. The charge against the Applicant is that he had the knowledge that the said premises is intended to be used as a brothel and the Applicant is earning livelihood through the income of the prostitution carried in the said premises. 11. The prosecution case shows that Accused no.1 caretaker of the said premises has used the said premises for brothel. The charge against the Applicant is that he had the knowledge that the said premises is intended to be used as a brothel and the Applicant is earning livelihood through the income of the prostitution carried in the said premises. 11. A perusal of the charge sheet makes it abundantly clear that the prosecution could not produce any material worth the name to prove the Applicant's knowledge about the activities which is allegedly being carried out in the said premises. From the charge sheet it appears that the Applicant's Manager/Caretaker Shyam Kamlakant Devnath allowed using of the said premises for the purpose of prostitution. In this regard, it may be relevant to mention that the Applicant has purchased the said premises on 11th October,2010 and the raid was carried out on 7th March, 2011. In the absence of any material showing that the Applicant had the knowledge of the activities going on in the said premises the Applicant cannot be charge sheeted under Section 3 of the said Act. So far as the allegations under Section 4 of the said Act are concerned there is no dispute that the Applicant and his wife are beneficially employed. The said premises was purchased for a consideration of Rs.25,00,000/-. The Applicant and his wife had taken loans from banks to pay the consideration amount of the said premises to the earlier owner. This fact shows that the Applicant has an independent source of income. There is absolutely no material adduced by the prosecution showing that the Applicant is earning his livelihood out of this prostitution. 12. In the above said facts and circumstances of the matter, I am satisfied that there is no material worth the name against the Applicant to prosecute him under Sections 3 and 4 of the said Act. In my view, no purpose would be served in continuing the prosecution arising out of C.R.No.3 of 2011 registered at Gorai police station against the Applicant. Thus, in continuing the above proceedings against the Applicants will amount to abuse of the process of law. Proceedings accordingly, deserves to be quashed and same is accordingly quashed and set aside. 13. Rule is made absolute in terms of prayer clause (a) qua to the applicant only. Thus, in continuing the above proceedings against the Applicants will amount to abuse of the process of law. Proceedings accordingly, deserves to be quashed and same is accordingly quashed and set aside. 13. Rule is made absolute in terms of prayer clause (a) qua to the applicant only. This order is passed in the peculiar facts and circumstances of the present case only and the same should not be treated as a precedent.