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2024 Supreme(Online)(Bom) 1776
HIGH COURT OF BOMBAY
M. S. KARNIK, J
MAHESH PANJABRAO ANDHALE – Appellant
Versus
THE STATE OF MAHARASHTRA – Respondent
REVN/35/2021
Adv. A.R. Avachat a/w Adv. Siddhant Deshpande and Adv. Vijay Babar for the Applicant. Adv. Hrishikesh S. Shinde for Respondent No.2. Mr. A.R. Patil, APP for the State.
Ownership of premises does not imply complicity in illegal activities without evidence of knowledge or participation.
Headnote:(A) Indian Penal Code - Sections 188, 376, 344, 366B, 370A(2), 372, 373; Immoral Traffic (Prevention) Act, 1956 - Sections 3, 4, 5, 6; Foreigners Act, 1946 - Section 14; Foreigners Order, 1998 - Additional offences added - Applicant charged for allowing premises to be used as a brothel - No prima facie evidence of knowledge or complicity established against the applicant. (Paras 3, 8, 12)
(B) Criminal Law - Discharge application - The court must assess whether the prosecution has established a prima facie case against the accused. The mere ownership of premises does not suffice to establish complicity in the alleged offences. (Paras 6, 11)
Facts of the case:
The applicant, owner of a flat, was accused of allowing it to be used as a brothel. The flat was occupied by co-accused who allegedly trafficked a minor girl. The applicant claimed ignorance of the activities.
Findings of Court:
The court found no evidence to suggest the applicant had knowledge of the premises being used for illegal activities, thus allowing the discharge application.
Issues: The main issues were whether the applicant had knowledge of the premises being used as a brothel and whether the prosecution established a prima facie case against him.
Ratio Decidendi: The court ruled that ownership alone does not imply complicity; there must be evidence of knowledge or willful participation in the illegal use of the premises.
Result: Application allowed; applicant discharged.
ORAL JUDGMENT:
1. Heard learned counsel for the applicant, learned APP for the state and learned counsel for respondent No.2 who is appointed through legal aid.
2. This Revision Application is filed by the applicant to quash and set aside the order dated 09/02/2021 passed by the trial court rejecting the discharge application preferred by the applicant in Special Case Child Protection No. 82/2019.
3. On 30/11/2018, the First Information Report No. 347 of 2018 came to be lodged against six accused persons with Faraskhana Police Station, Pune, for the offences punishable under sections 188, 376, 344, 366B , 370A(2), 372 , 373 read with 34 of the Indian Penal Code and Sections 3, 4, 5 , 6 of the Immoral Traffic (Prevention) Act, 1956 , (hereafter referred to as “PITA Act”). Later on, offences punishable under Section 14 of the Foreigners Act, 1946 and Sections 3 and 6 of the Foreigners Order, 1998 , came to be added.
4. It is the case of the prosecution that the premises that belong to the applicant was used as a brothel and hence the applicant is charged for the offence punishable under section 3 of the PITA Act along with the other offences. The premises which comprise the flat was let out on leave and license basis by a registered agreement dated 20/06/2018 executed between the applicant and accused Biren. Biren occupied the said premises along with his wife who is accused No.1 and their minor son. It is alleged that the victim girl who was 16 years of age was trafficked by the accused No.1 from Bangladesh. The victim started residing in the said flat along with accused No.1 and Biren. It is alleged that accused No.2- Biren and accused No.1 forced the victim to indulge in acts which constitute offences under the aforesaid sections.
5. The residents of the society where the flat was situated noticed that young male persons were visiting the said flat at regular intervals. From the statement of the applicant, it is seen that the rent was initially paid for three months. However, there was a default on the part of accused No.2- Biren to pay the rent for September 2018 and October 2018. The accused was not responding despite calls made by the applicant. The applicant then was informed by the neighbours about young male persons visiting the said flat at regular intervals. The applicant questioned the accused-Biren and his wife. When they did not give any satisfactory answers the applicant called upon the accused to vacate the flat. Accordingly accused vacated the flat sometime in the second week of November 2018. Factually, the flat was in occupation of the accused No.2 Biren and accused No.1 from the second week of June 2018 upto the second week of November 2018 for 5 months. No doubt the statement of the applicant-accused has no evidentiary value and in any case nothing turns on the statement of the applicant which is recorded during the course of the investigation.
6. Learned APP and learned counsel for respondent No.2 argued in support of the order passed by the trial court. It is submitted that the applicant is the owner of the flat and hence he is complicit with the other accused in the commission of the offence being the owner of the premises which was used as a brothel. It is submitted that the applicant should have exercised caution by exercising due diligence and informing the police about letting out the premises on leave and license basis which he failed to do so and must be presumed to be aware of the activities the co- accused were indulging in.
7. Heard learned counsel. So far as the applicant is concerned, it is relevant to consider Section 3 of the PITA Act which reads thus:-
“Section 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
