Judgment:
R IN THE HIGH COURT OF KARNATAKA DHARWAD BENCH DATED THIS THE18H DAY OF FEBRUARY2021BEFORE THE HON’BLE MR. JUSTICE P. KRISHNA BHAT CRL.P. NO.101325 OF2018C/W CRL.P.NO.101324 OF2018IN CRL.P. NO.101325/2018 BETWEEN: M/S. G.C.D MOTORS NO.17, DEVARAJA CAMP, BELAGAVI REP. BY ITS MANAGING DIRCTOR, SRI. ROHIT S/O RAJABHAU DESHPANDE AGED55YEARS, OCC:BUSINESS, MANGESH MOTORS, NO.17, DEVARAJA CAMP, BELAGAVI. …PETITIONER (BY SRI.MRUTYUNJAYA TATA BANGI, ADV.) AND: THE STATE OF KARNATAKA BY ITS STATION HOUSE OFFICER ISD POLICE STATION, BENGALURU, REP. BY THE ADDL. STATE PUBLIC PROSECUTOR, HIGH COURT OF KARNATAKA, DHARWAD BENCH, DHARWAD. …RESPONDENT (BY SRI.PRAVEEN K UPPAR, HCGP) 2 THIS PETITION IS FILED UNDER SECTION482OF CR.P.C. PRAYING TO QUASH THE PROCEEDINGS ON5H ADDL. CIVIL JUDGE AND JMFC, BELAGAVI IN FIR INITIATED UNDER SECTION20OF THE PRIVATE SECURITY AGENCY (REGULATION) ACT, 2005 IN CRIME NO.8 OF2018BEFORE THE ISD POLICE STATION BENGALURU AS ABUSE OF PROCESS OF LAW IN THE INTEREST OF JUSTICE AND EQUITY. IN CRL.P.NO.101324/2018 BETWEEN: M/S. MANGESH MOTORS NO.17, DEVARAJA CAMP, BELAGAVI REP. BY ITS PARTNER SRI. ROHIT S/O RAJABHAU DESHPANDE, AGED55YEARS, OCC:BUSINESS, MANGESH MOTORS, NO.17, DEVARAJA CAMP, BELAGAVI. …PETITIONER (BY SRI. MRUTYUNJAYA TATA BANGI, ADV.) AND THE STATE OF KARNATAKA BY ITS STATION HOUSE OFFICER, ISD POLICE STATION, BENGALURU, REP. BY THE ADDL. STATE PUBLIC PROSECUTOR, HIGH COURT OF KARNATAKA, DHARWAD BENCH, DHARWAD. …RESPONDENT (BY SRI. PRAVEEN K UPPAR, HCGP) THIS PETITION IS FILED UNDER SECTION482OF CR.P.C. PRAYING THIS HON’BLE COURT TO QUASH THE PROCEEDINGS ON5H ADDL. CIVIL JUDGE AND JMFC COURT, BELAGAVI IN FIR INITIATED UNDER SECTION20OF THE PRIVATE SECURITY REGULATION ACT, 2005 IN CRIME NO.8 OF2018BEFORE THE ISD POLICE STATION BENGALURU AS ABUSE OF PROCESS OF LAW. THESE PETITIONS COMING ON FOR ADMISSION THIS DAY, THE COURT MADE THE FOLLOWING:
3. ORDER
In these two petitions filed under Section 482 of Cr.P.C., the petitioner is praying for quashing of registration of case in Crime No.8/2018 by ISD Police Station, Bengaluru for offence punishable under Section 20 of the Private Security Agencies (Regulation) Act, 2005 (for short, ‘the Act’).
2. ISD Police, Bengaluru have registered the case in Crime No.8/2018 against the petitioner-Rohit R Deshpande on the allegation that he is running two showrooms in Belagavi and he had appointed security guards without taking license/permit under the provisions of the Private Security Agencies (Regulation) Act, 2005. Before registering the said case on 20.1.2018, the Police Inspector, ISD, Belagavi had issued notice dated 13.10.2017 calling upon the petitioner to submit some particulars in a form. The information sought under the said notice dated 13.10.2017 pertained to name of the Chief Security Officer, his address, phone number and 4 details of the uniform, cadre, security staff engaged by the petitioner and details of the security agency from which the said security personnel were drawn by him. He submitted his reply dated 31.10.2017 to the Police Inspector, ISD, Belagavi furnishing certain particulars. Apparently, the Police Inspector ISD Police Station was not satisfied with the same and proceeded to register the case against the petitioner for offence punishable under Section 20 of the Act.
3. Sri. Mrutyunjaya Tata Bangi, learned counsel for the petitioner submits that the petitioner is running two showrooms in Belagavi and he has employed his own staff and among such staff employed by him, some of them were assigned exclusively to perform security duty and he has provided certain uniforms to them. He submits that this is not a case where the petitioner himself is running the business of security agency and therefore, the provisions under the Act is not at all applicable to his business and FIR registered against the petitioner is wholly unfounded. He further submits that in the reply 5 submitted by the petitioner on 31.10.2017, it is clearly stated by the petitioner that he had appointed six persons named in the complaint and the petitioner was paying PF and ESI etc. on their accounts and he was paying salary to those six persons himself. Therefore, he submits that the complaint itself is misconceived besides, illegal and same is liable to be set-aside.
4. I have also heard the learned HCGP.
5. The allegation in the complaint and FIR is that the petitioner has violated the provisions under Section 20 of the Act and therefore, he has committed the offence. It is alleged in the complaint that in the establishment of the petitioner, the following six persons were working as Security Guards: a) Prasad Dasharath Sannakki, Aged 39 years, Occ: Honda Security Guard, R/o 22, Telugu Colony Camp, Belagavi. b) Kiran Maruti Talawar, aged 35 years, Occ: Honda Security Guard, R/o Patil Galli, Khasbag, Belagavi. 6 c) Mahabaleshwara Bhimappa Sunkad, aged 52 years, Occ: Honda Security Guard, R/o Sambra, Belagavi. d) Srikanthaiah Basaiah Hiremath, 52 years, Occ: Honda Security Guard, R/o Kakati, Bleagavi. e) Abdul Razak Saifalasab Kanchi, aged 43 years, Occ: Honda Security Guard, R/o Kakati, Belagavi. f) Rama Naraya Bedawadkar, aged 51 years, Occ: Honda Security Guard, R/o Gondawad, Dist: Belagavi.
6. It is further alleged in the complaint that the Police Inspector, ISD had enquired with them and on such enquiry, six persons named in the complaint disclosed to him that they were employees of the petitioner and the petitioner himself had given them uniforms with embroidered logo on it. It is further revealed to the Police Inspector that the said persons were not given any training to do security work. The Police Inspector had stated in the complaint that the petitioner had not 7 secured any permission or license from the Internal Security Division, Bengaluru.
7. Section 4 of the Act reads as follows: “4. Persons or Private Security Agency not to engage or provide private security guard without licence.- No person shall carry on or commence the business of private security agency, unless he holds a license issued under this Act: Provided that the person carrying on the business of private security agency, immediately before the commencement of this Act, may continue to do so for a period of one year from the date of such commencement and if he has made an application for such license within the said period of one year, till the disposal of such application: Provided that no private security agency shall provide private security abroad without obtaining permission of the Controlling Authority, which shall consult the Central Government before according such permission.
8. A plain reading of the above provision unmistakably shows that the requirement of taking license 8 under the Act arises only when a person or agency is running a business of private security agency.
9. The other sections which are relevant for the purpose of this case are Sections 9, 10, and 12 and they read as under: “9. Conditions for commencement of operation and engagement of supervisors.—(1) Every private security agency shall, within six months of obtaining the licence, commence its activities. (2) Every private security agency shall ensure imparting of such training and skills to its private security guards and supervisors as may be prescribed: Provided that the person carrying on the business of private security agency, before the commencement of this Act, shall ensure the required training to its security guards and supervisors within a period of one year from the date of such commencement. (3) Every private security agency shall, within sixty days from the date of issue of the licence, employ such number of supervisors, as may be prescribed. (4) A private security agency shall not employ or engage a person as a supervisor unless he fulfils the conditions specified in sub-section (1) of section 10. 9 (5) While engaging a supervisor of private security guards, every private security agency shall give preference to a person who has experience of serving in the Army, Navy, Air Force or any other Armed forces of the Union or State Police including armed constabularies and Home Guards for a period of not less than three years.” “10. Eligibility to be a private security guard.—(1) A private security agency shall not employ or engage any person as a private security guard unless he— (a) is a citizen of India or a citizen of such other country as the Central Government may, by notification in the Official Gazette, specify; (b) has completed eighteen years of age but has not attained the age of sixty-five years; (c) satisfies the agency about his character and antecedents in such manner as may be prescribed; (d) has completed the prescribed security training successfully; (e) fulfils such physical standards as may be prescribed; and (f) satisfies such other conditions as may be prescribed. (2) No person who has been convicted by a competent court or who has been dismissed or removed on grounds of misconduct or moral turpitude while serving in any of the armed forces of the Union, State 10 Police Organisations, Central or State Governments or in any private security agency shall be employed or engaged as a private security guard or a supervisor. (3) Every private security agency may, while employing a person as a private security guard, give preference to a person who has served as a member in one or more of the following, namely:— (i) Army; (ii) Navy; (iii) Air Force; (iv) any other armed forces of the Union; (v) Police, including armed constabularies of States; and (vi) Home Guards.” “12. Licence to be exhibited.- Every private security agency shall exhibit its licence or copy thereof in a conspicuous place of its business.
10. The above provisions very clearly indicate that the conditions of operation and engagement of supervisors, eligibility criteria fixed to be a private security guard and requirement to exhibit license are enjoined upon the private security agency within the meaning of the Private Security Agencies (Regulation) Act, 2005 only and not upon others. 11
11. As already noticed, in regard to the notice dated 13.10.2017 issued by the Police Inspector, ISD, Belagavi, the petitioner had issued a detailed reply. The relevant part of the reply reads as under: “We are not a security service provider. We do not take service from any private security agency for securing our showroom. Therefore, the said Act i.e. “The Private Security Agencies (Regulation) Act, 2005 is not at all applicable to our establishment. It is pertinent to note that we don’t require private security service from any agency as we are self-sufficient in running our Honda Car showroom. Since our showroom is big we have our own staff in dealing different departments such as sales, service, spares, accounts and HR. Likewise, we also have our own staff to take care of vehicles belonging to our esteemed customers and keep records. Each and every movement is recorded for our verification and customer satisfaction. The entire staff are working exclusively for our establishment alone and are appointed after accepting their respective applications and due verification of their antecedents. They are appointed, strictly 12 by following rules and regulations. We also have a dress code to our staff and the same are not at all resembling those of Police, Army, Navy, Air Force, etc. None of our employees carry any kind of weapons either in legal or illegal manner, as it is not required for our establishment. Please find a photograph attached herewith of out staff from various departments. Sales Activities-White Stripes shirt with Dark Grey Trousers Sales Front office Activities- Blue shirt with Black Trousers Service Mechanic Activities- Dark and Grey shirt with Navy Blue Trousers Security Activities-Blue shirt with Black Trousers Kindly note that these different uniforms help the customers in identifying the staff from different departments and ensure smooth running of our business. We hereby state that we are not carrying any business of private security agency nor are interested in commencing such service in future also. Therefore, the said act is not all applicable to our establishment. We have replied to the letter dated 6.10.2017 by 13 furnishing the details as required by your office. Hence, you are hereby requested to pass necessary orders by considering the above stated reasons. Please find enclosed herewith the details of staff members who carry out the functions akin to security guards along with their salary paid details for last 3 months.” Sl. Name of Date of PF ESI July Aug Sept No.Employee Joining Salary Salary Salary 1 Hasham 1-Apr-16 GBHBL1 585868 9514 10705 9911 khan 1573850 2093 Moulaali 0000000 Jamadar 58 2 Kiran 1-Jun-17 GBHBL1 503857 11508 9056 9402 Maruti 1573850 1065 Talwar 0000101 02 3 Basavaraj 1-Jan-17 GBHBL1 585880 9056 9056 9779 Shankrappa 1573850 1166 Sannaveera 0000100 ppannavar 78 4 Zameer 1-Jan-17 GBHBL1 585880 9590 9402 9779 Ahmed MS157380 1168 Beppari 0000100 74 5 Mahabalesh 1-Feb-17 GBHBL1 585851 8293 9056 9779 war 1573850 3518 Bhimappa 0000100 Sunkad 85 6 Sanjay 1-Apr-17 GBHBL1 585880 9056 9402 10157 Kallappa 1573850 0577 Durgayi 0000101 00 12. The petitioner has taken a very clear stand in the reply that, firstly, the Act is not applicable to his 14 establishment, and secondly, six persons named in the FIR are his regular employees and in order to demonstrate the same, he has mentioned their PF and ESI account numbers under which he was making contributions as part of the employer’s contribution to their accounts. The above extract very clearly shows that six persons named in the complaint are direct employees of the petitioner himself and he was paying salaries to them and they were engaged in the task of maintaining security in the two showrooms owned by him, but they were not hired from any private security agency. This also shows that the personnel doing the security work are direct employees of the petitioner himself. It is also evident that the uniforms provided by him are not under the requirement of wearing uniforms as stipulated under the Act and the petitioner has allotted various kinds of uniforms to persons who are discharging various separate duties. In view of the above, the Act itself is not applicable to the present petitioner and therefore, it cannot be said that he has violated Section 20 of the Act and that being the case, no 15 case could have been registered against him for having committed the offence under Section 20 of the Act. Accordingly, the whole case registered by the Police Inspector, ISD, Bengaluru in Crime No.8/2018 for offence punishable under Section 20 of the Act is misconceived and the same has no sanction under the law and therefore, it is liable to be quashed. Hence, the following: ORDER
a) The above petitions are allowed. b) The proceedings initiated against the petitioner in both petitions in Crime No.8/2018 by ISD Police Station, Bengaluru is quashed. Sd/- JUDGE JTR