Bangalore District Court
Pw.2 In Spite Of Densely Populated Area ... vs Before The Court. He Handed Further ... on 2 February, 2023
KABC010118042021
IN THE COURT OF XLV ADDL. CITY CIVIL & SESSIONS
JUDGE, BENGALURU CITY (CCH-46)
DATED THIS THE 2ND DAY OF FEBURARY, 2023
PRESENT:
Sri Manjunatha, B. A., LL.B.,
XLV Addl. City Civil & Sessions Judge, Bengaluru.
SC No.650/2021
BETWEEN
State by HSR Layout P.S.,
Bangalore. .. COMPLAINANT
(By the learned Public Prosecutor)
AND
Ram Babu
S/o Babu, a/a 29 Yrs.,
R/a No.4/1, Iyyanna Garden,
Near Garden City College,
TC Palya, KR Puram,
Bengaluru City . ..ACCUSED
(By Sri NRS, Advocate)
******
Date of offence & time 10.06.2017 at4.30 p.m.
Date of report of offence 10.06.2017 at 23.00 hours
Date of arrest of the 11.06.2017
accused
Date of release on bail 23.06.2017
Total period of custody 12 days
2
SC No.650/2021
Name of the complainant Sri K. Narayana Gowda
Date of commencement 23.09.2022
of recording of evidence
Date of closing of 6.11.2022
evidence
Offences complained of U/s.3, 4, 5, 6 and 7 of ITP Act and
Sec.370 of IPC
Opinion of the Judge Accused found not guilty
JUDGMENT
The Police Inspector, HSR Layout P.S., Bangalore, has filed charge sheet against accused for the offences punishable U/s.3, 4, 5, 6 and 7 of Immoral Traffic (Prevention) Act, 1956 and Sec.370 of IPC in their Crime No.324/2017.
2. The factual matrix of the case is that :-
The accused was running prostitution business under the name and style as Refresh Unisex Saloon and Spa bearing No.5/4/1, 24th Main Road, Parangipalya, 2nd Sector, HSR Layout, within the limits of HSR Layout P.S., Bangalore, by trafficking CW.4 to CW.6 with the assurance of getting job and money, induced and indulged them in prostitution business in the public vicinity and was leading his life from the amount of illegal gain from the said business. On 10.06.2017 at 4.30 p.m. on credible information the complainant along with panchas CW.2 and CW.3 and his subordinate staffs CW.7 to CW/9 conducted raid over the said Saloon and Spa after confirming information and apprehended accused, who was involved in the prostitution business, rescued CW.4 to CW.6 and at that time seized the articles from the spot through panchanama. Thereby the accused is alleged with the offences punishable U/ 3 SC No.650/2021 s.370 of IPC and Sec.3, 4, 5, 6 and 7 of Immoral Traffic (Prevention) Act, 1956.
3. The concerned police have submitted charge sheet against accused for the offences punishable U/s.370 of IPC and U/s.3, 4, 5, 6 and 7 of Immoral Traffic (Prevention) Act, 1956, before the jurisdictional VI Addl.,CMM., Bangalore. The learned Magistrate has committed the case to the Sessions Court by complying Sec.207 of Cr.P.C. after furnishing charge sheet copies to the accused.
4.The charge was framed against the accused on 21.07.2022 for the offences punishable U/s.3, 4, 5, 6 and 7 of ITP Act and Sec.370 of IPC. The accused pleaded not guilty and claims to be tried.
5.The prosecution has examined in all four witnesses as PW.1 to PW.4 and got marked documents at Ex.P.1 to P.6, and identified Mos1 to 4. The learned public prosecutor has given up witnesses CW.8 to CW.10 and CW.12, in view of available evidence of other witnesses. In spite of sufficient opportunities provided to the prosecution by issuing summons, warrant and proclamation for securing CW.3, CW.4, CW.5 and CW.7, but the concerned police failed to secure the said witnesses and in view of the same the evidence of CW.3, CW.4, CW.5 and CW.7 taken as nil by rejecting the prayer of the prosecution. Further the prosecution has not taken any steps to secure the witnesses, CW.3, CW.4, CW.5 and CW.7 in view of the same dropping of evidence of CW.3, CW.4, CW.5 and CW.7 remained intact.
4SC No.650/2021
6.After closure of the evidence of prosecution, the case was posted for recording statement of accused as provided U/s.313 of Cr.P.C. on 19.12.2022, and the same was duly recorded. The accused did not claim for defense evidence nor produce any documents to support their case.
7.Heard the arguments on both sides and perused the materials on record.
8.The following points that arises for consideration of this court:
1. Whether the prosecution proves beyond all reasonable that on 10.06.2017 at 4.30 p.m. the accused at house bearing No.5/4/1 by running Refresh Unisex Saloon and Spta, situated at 24th Main Road, Parangipalay, 2nd Sector, HSR Layout, within the limits of HSR Layout P.S., Bangalore, by trafficking CW.4 to CW.6 with the assurance of getting job and money induced and indulged them in prostitution business in the public vicinity and was leading his life from the amount of illegal gain from the said business and thereby the accused has committed offences punishable U/s.3, 4, 5, 6 and 7 of ITP Act?
2. Whether the prosecution proves beyond reasonable doubt that on 10.06.2017 at 4.30 p.m. at the place above mentioned with an intention run prostitution business by trafficking CW.4 to CW.6 forcibly induced them to indulge 5 SC No.650/2021 in prostitution business for wrongful gain, and thereby the accused has committed offence punishable U/s.370 of IPC?
3. What Order?
9.This Court has answered the above points are as hereunder:
Point No.1: In the Negative Point No.2: In the Negative Point No.3: As per final order for the following:-
REASONS
10. Points No.1 and 2: Both the points are taken up together for discussion as they are related to each other and to avoid repetition in the discussion.
11.It is the specific allegation that the accused was running prostitution business under the name and style as Refresh Unisex Saloon and Spa bearing No.5/4/1, 24th Main Road, Parangipalya, 2nd Sector, HSR Layout, within the limits of HSR Layout P.S., Bangalore, by trafficking CW.4 to CW.6 with the assurance of getting job and money, induced and indulged them in prostitution business in the public vicinity and was leading his life from the amount of illegal gain from the said business. On 10.06.2017 at 4.30 p.m. on credible information the complainant along with panchas CW.2 and CW.3 and his subordinate staffs CW.7 to CW/9 conducted raid over the said Saloon and Spa after confirming information and apprehended accused, who was involved in the prostitution business, 6 SC No.650/2021 rescued CW.4 to CW.6 and at that time seized the articles from the spot through panchanama. Thereby the accused is alleged with the offences punishable U/s.370 of IPC and Sec.3, 4, 5, 6 and 7 of Immoral Traffic (Prevention) Act, 1956.
12.In order to prove the said allegation the prosecution has examined the complainant PW.2, who deposed that on 10.06.2017 at 4.30p.m. after obtaining credible information regarding prostitution carried out at Refresh Unisex Saloon and Spa bearing No.5/4/1, 24th Main Road, Parangipalya, 2nd Sector, HSR Layout, within the limits of HSR Layout P.S., Bangalore, by trafficking girls, and after obtaining credible information, by securing panchas CW.2 and Cw3 and decoy Cw.7 by issuing notice Ex.P2, and prepared Ex.P3 record of reasons, deputed CW.7 as decoy, and after confirmation he conducted raid over the house at 6.30 p.m. along with his staff and panchas, apprehended the accused and rescued CW.4 to 6, who were made to indulge in prostitution business by the accused. It is also the case of the PW.2 that he has drawn mahazar Ex.P4 regarding seizure of material objects No.1 to 4. It is pertinent to note that in the cross-examination PW.2 has admitted that the place that has been raided is thickly populated with the adjoining residential houses. It is equally important to note that before the raid he has not physically verified himself and his staff. This clearly indicates that PW.2 has never taken any steps before raid regarding the materials that has been carried by him and his staff at the time of raid. Further it is also the evidence of PW.2 that after conducting raid he has seized MOs1 to 4 from the possession of accused through 7 SC No.650/2021 panchanama Ex.P4 drawn in the presence of the panchas CW.2 and CW.3. PW.3 is the pancha, who has turned hostile to the case of the prosecutionby deposing that about 3 years back at the request of the police he signed Ex.P2 to 4 in the Police Station and police have not seized any articles from his presence. Nothing has been elicited from PW.3 during the cross-examination in support of the case of the prosecution. It is also very important to note that pancha CW.2, in spite of sufficient summons and warrants were not secured before the Court, and his evidence was taken as nil. In the absence of CW.3 the contents of Ex.P3 panchanama is also not proved sufficiently and satisfactorily by the prosecution. It is vehemently argued by the learned counsel for accused that the complainant PW.2 in spite of densely populated area has not secured any of the female persons residing adjoining to the raided house to be one of the pancha to the panchanama Ex.P3 as mandated by the Act U/s.15(2) of the ITP Act. The pancha CW.2 and CW.3 are the male persons. At this juncture I would like to reproduce the provisions of Se.15(2) of ITP Act, which reads as follows:-
Sec.15(2) before making a search under sub-section(1), the special police officer(or the trafficking police officer, as the case may be) shall call upon two or more respectable inhabitants(at least one of whom shall be a woman) of the locality in which the place to be searched is situate, to attend and witness the search, and may issue an order in writing to them or any of them so to do:8
SC No.650/2021 It is clear from the provisions of Sec.15(2) of ITP Act, 1956 that it mandates two or more respectable inhabitants of the locality in which the place to be searched is situated has to be called them for panchanama, out of them at least one of them shall be a women residing in the said locality. In the instant case the panch witnesses, who were cited are male persons. From this fact it is clear that the PW.2 has not complied the mandatory provisions of Sec.15(2) of ITP Act. It is equally important to note that though the place of occurrence is a public place adjoining to commercial shops, non citing of the local persons as a witness by the Investigating Officer-PW.4 also creates a doubt in the prosecution case regarding the conduct of raid and and apprehending of the accused along with the victims/CW.4 to CW.6, induced them indulging in committing prostitution and failure to prove seizure of MOs1 to 4 is fatal to the case of the prosecution.
13.In order to prove the allegations against the accused the prosecution has examined PW.1, who is the victim, she has turned hostile to the case of the prosecution by deposing that the police have not enquired and the accused has not indulged her in prostitution by assuring to give money to indulge in prostitution business. It is also very important to note that the prosecution in spite of issuing summons and warrants to the victims/CW.4 and CW.5, failed to secure the material witness before the Court, when the entire case rest on the evidence of victim/Cw.9, who according to the prosecution, was indulging in prostitution business by trafficking and the accused was living on the wrongful gain from the said business. This is fatal for 9 SC No.650/2021 the case of the prosecution, wherein the material witness CW.4 and CW.5 have not been examined, so as to prove the guilt against the accused.
14.PW.4 Shivanna has deposed that on 10.06.2017 at
11.00 p.m. during night CW.1 appeared before him and submitted Ex.P5 report, based on the said report he has registered the case in Crime No.324/2017, and forwarded FIR to the Court marked as Ex.P6. Along with report Ex.P5 Cw.1 produced seized articles, record of reasons, notice and victims CW.4 to 6 before him. he brought MO1 to MO4 seized articles into PF No.75/2017, arrested the accused and recorded his voluntary statement, and he sent the the victims to State Home for Women, recorded statements of CW.2, CW.3 and CW.8 to Cw.10, victims were brought from State Home for Women, recorded thier statements and produced them along with accused before the Court. He handed further investigation to CW.12, in turn CW.12 by recording the statement of CW.7 submitted charge sheet to the Court. CW.12 submitted charge sheet against the accused to the Court based on the statement and the investigation done by the PW.4. From this it is clear that CW.12 being the I.O., has done only part investigation, and the entire investigation was carried out by PW.4 and on the said investigation only charge sheet has been filed by CW.12. It is vehemently argued by the learned counsel for accused and brought to the notice of the Court the evidence of PW.4 that at the time of the incident he was working as Police Sub-inspector of HSR Layout P.S., and after registering the complaint, took up investigation, has investigated the entire case by recording the 10 SC No.650/2021 statement of witnesses, victim and handed over further investigation to CW.12, who has only filed charge sheet. It is vehemently argued that PW.4 being PSI not authorized as a Special Police Officer, as specified by the State Government or on behalf of the Government in investigating the cases pertaining to the ITP Act, as investigated the entire case and handed over further investigation to CW.12, who filed charge sheet on the said investigation.
15.At this juncture I would like to refer the provision of Sec.13(2) of the ITP Act, 1956, wherein it is mandatory that the investigation has to be done by Special Officer and an Advisory body i.e., the Special Police Officer, who shall not be, below the rank of Police Inspector, having authority to investigate the case and file charge sheet. In the instant case the PW.4 has not produced any document to show that he is appointed as a Special Officer and having the rank of Police Inspector in the Department having authority to investigate cases pertaining to ITP Act,, 1956. The evidence of PW.4 clearly discloses that he being in the rank of Police Sub-Inspector, who had registered the case and recored the statements of the witnesses during investigation, recorded the voluntary statement of accused, statement of victims and the raiding party witnesses. It is the specific defense of the accused that the witness PW.4 who investigated the case has no authority as per the provisions of ITP Act to investigate the case since he was working under the rank of PSI, below the rank of Police Inspector. At this context it is worth to note a decision of Hon'ble High Court of Karnataka regarding the said mandate of the Act reported in 11 SC No.650/2021 Shankaregowda @ Shankara Vs. State by Madanayakanahalli Police Station, Bengaluru and others reported in ILR 2016 Kar 3067, wherein it is held that:-
"Police Sub-Inspector cannot be a Special Officer, as per the mandate of Section 13 of the Act, it can only be the Inspector of Police or an Officer of above the rank of Police Inspector who can be appointed as Special Officer. When a procedure is prescribed under law to do a thing in a particular manner, it should be carried out in that manner only. In the instant case PW.4 PSI who has registered the case and investigated the case by recording the statements of the witnesses, is not shown to be qualifying as "Subordinate Police Officer" notified by the State Government to assist the Special Officer. Hence, the investigation is found to be defective without any compliance to Sec.13(2) of ITP Act, 1956.
16.It is equally important to note that the same point came up for consideration in Criminal Petition No.5497/2016 between G. S. Mallinath Vs. State of Karnataka and another , wherein the Hon'ble High Court of Karnataka in the said petition also has categorically held that the Police Officer who is below the rank of the Police Inspector has no jurisdiction to investigate the matter under the above said provisions.
17.Relying upon the above said provision of Section 13(2) of the said Act and the dictum of law laid down in the above said ruling it is clear that the investigation done by the 12 SC No.650/2021 Police Sub-Inspector PW.4 is vitiated by serious procedural irregularity and not curable in nature.
18.Therefore, from the above reasons and discussions it is very clear that the prosecution has utterly failed to establish or prove the guilt against the accused beyond all reasonable doubt. Accordingly, I answer Points No. 1 and 2 in the negative.
19.Point No.3: In view of answer of this court on points No.1 and 2, this court pass the following:-
ORDER Acting U/s.235(1) of Cr.P.C., the accused is hereby acquitted of the offences punishable U/s.3, 4, 5, 6 and 7 of the Immoral Traffic (Prevention) Act, 1956 and Sec.370 of of Indian Penal Code, 1860.
The bail and surety bonds of accused stand canceled.
MO3 shall be destroyed and MOs1, 2 and 4 shall be confiscated to the state after appeal period is over.
(Typed to my dictation by the Stenographer directly on Computer, corrected by me and then pronounced in open Court on this the 2nd day of February, 2023) (Manjunatha) XLV Addl. City Civil & Sessions Judge, Bengaluru.
ANNEXURE 13 SC No.650/2021 List of Witnesses examined on behalf of Prosecution:
P.W.1: Smt. Saru Pradhan P.W.2: K. Narayana Gowda P.W.3: Rajesh P.W.4: G. K. Ravi
List of Documents exhibited on behalf of Prosecution:
Ex.P.1: Statement Ex.P.2: Notice Ex.P.3: Record of reasons Ex.P.4: Mahazar Ex.P.5: complaint Ex.P.5: FIR.
List of Witnesses examined on behalf of Accused:
NIL List of Documents exhibited on behalf of Accused:-
NIL List of Material Objects marked on behalf of Prosecution:-
MO1: Mobile Phones
MO2: Swiping Machine
MO3: Condom packets
MO4: DVR.
(Manjunatha)
XLV Addl. City Civil & Sessions Judge,
Bengaluru.
Accused present
14
SC No.650/2021
The learned counsel for accused present. Judgment pronounced in the open Court vide its separate order ORDER Acting U/s.235(1) of Cr.P.C., the accused is hereby acquitted of the offences punishable U/s.3, 4, 5, 6 and 7 of the Immoral Traffic (Prevention) Act, 1956 and Sec.370 of of Indian Penal Code, 1860.
The bail and surety bonds of accused stand canceled. MO3 shall be destroyed and MOs1, 2 and 4 shall be confiscated to the state after appeal period is over.
For compliance of Sec.437(A) of Cr.P.C., call on (Manjunatha) XLV Addl. City Civil & Sessions Judge, Bengaluru.