Crl. Misc. No. M-1852 of 2010 -1- IN THE PUNJAB AND HARYANA HIGH COURT AT CHANDIGARH Crl. Misc. No M-1852 of 2010 (O&M) Date of Decision : 27.9.2011 Sachin Virmani .......... Petitioner Versus State of Haryana ...... Respondent CORAM : HON'BLE MR. JUSTICE AUGUSTINE GEORGE MASIH Present : Mr. Abhishek Sethi, Advocate for the petitioner. Mr. Shekhar Mudgal, AAG, Haryana. **** AUGUSTINE GEORGE MASIH, J. Prayer in this petition is for quashing of FIR No. 399 dated 12.12.2009 registered under Sections 3, 5, 6 of the Immoral Traffic (Prevention) Act, 1956 (hereinafter referred to as 'the Act'), Police Station Farakpur, District Yamuna Nagar. It is the contention of the counsel for the petitioner that the present FIR has been registered against the petitioner with a mala fide intention as the petitioner is a small time businessman, who deals in wholesale of shoes. In December, 2009 few policemen from Police Station Farakpur visited the shop of the petitioner in connection with buying Police shoes and after selection of shoes of their choice, started insisting for making the payment after a few months, to which the petitioner did not agree leading to an altercation. The police officials left the shop without buying the shoes and threatened the petitioner that he would face the consequences. The threat came true when on 12.12.2009 the petitioner was passing through I.T.I. chowk, Yamuna Nagar, in connection with his business where some of the same police personnel were on duty. They Crl. Misc. No. M-1852 of 2010 -2- stopped him and started harassing him. On which an altercation took place and he was picked up and taken to Police Station Farakpur, where a criminal case was foisted on him. In the case it was mentioned that the petitioner had been caught in the house where brothel was running in the bed room with two girls and he was indulging in prostitution. He contends that the offence against the petitioner is not made out as it has not been shown if any money was paid by the petitioner to the girls or the brothel owner namely Shobha Bhatia, for indulging in sex with two ladies. Mere recovery of two condoms from his custody would not bring him within the ambit of Sections 3, 5 & 6 of the Act. He contends that the FIR registered against the petitioner was because of a mala fide intention, the same cannot be sustained qua the petitioner. Reliance has been placed on a judgment of the Hon'ble Orissa High Court in the case of Sushanta Kumar Patra alias Hemanta Kumar Das vs. State of Orissa 2000(4) R.C.R. (Criminal) 592 and a judgment of this Court in the case of Renu Bansal vs. U.T. Chandigarh 2009(3) R.C.R.(Criminal) 217. It has further been pleaded by the counsel for the petitioner that in the memo of personal search and entrustment of currency notes, FIR number has been mentioned, which clearly shows that it was not prepared at the spot, but was done at the police station, whereas the requirement is that it should have been prepared at the spot. On the other hand, counsel for the respondent has submitted that the petitioner was apprehended from the spot where apart from two girls and the petitioner, Shobha Bhatia and her son Ashu Bhatia were arrested, who were running brothel. The FIR was based on the secret information where one of the police officials acted as a decoy customer. The money i.e. two 100/- rupee notes were handed over to Shobha Bhatia, which were marked and when the raid was conducted those were Crl. Misc. No. M-1852 of 2010 -3- recovered from her. The petitioner had been arrested at the spot and was indulging in immoral traffic, the offence was clearly made out. As regards the allegation of registration of FIR against the petitioner with an mala fide intention to harass him for not giving credit to the police officials, who wanted to buy shoes from his shop, is a question of evidence to be led before the trial Court. Similar is the contention with regard to the memo of personal search and entrustment of currency notes, which again is a question of evidence, to be proved before the trial Court. I have heard counsel for the parties and have gone through the records of the case. A bare reading of the FIR discloses commission of offence by the petitioner and, therefore, the FIR cannot be quashed. The judgments relied upon by the counsel for the petitioner in the case of Sushanta Kumar Patra alias Hemanta Kumar Das vs. State of Orissa (supra) is a case where charge had already been framed and in the case of Renu Bansal vs. U.T. Chandigarh (supra) even the appeal preferred by the petitioner stood dismissed. The Court was, therefore, having evidence on record and on consideration thereof had proceeded to record its findings and on the basis on those findings proceeded to decide the case. In the present case, admittedly charge had not been framed as yet although challan had been presented but the prayer in the present petition is for quashing of the FIR and the bare reading of the FIR discloses prima facie commission of an offence by the petitioner and to evaluate the report under Section 173 Cr.P.C. submitted by the police at this stage would not be possible as the same is not on record. As regards the mala fide intention with which the present FIR has been registered against the petitioner and the question of mentioning of FIR number in the memo of personal search and entrustment of currency notes are it is sufficient to say that these are Crl. Misc. No. M-1852 of 2010 -4- the questions of fact which would depend upon the evidence to be led by the parties before the trial Court. In view of the above, finding no merit in the present petition the same stands dismissed. 27.09.2011 (AUGUSTINE GEORGE MASIH) 'sp' JUDGE