Bangalore District Court
Along With Panchas And His Staff Cw.2 To ... vs No.2 And 3 Along With Accused No on 17 March, 2022
KABC010163012018
IN THE COURT OF XLV ADDL. CITY CIVIL & SESSIONS
JUDGE, BENGALURU CITY (CCH-46)
DATED THIS THE 17TH DAY OF MARCH, 2022
PRESENT:
Sri. Abdul Rahim Husain Shaikh,
B.Sc., B.Ed., LL.B.(Spl.)
XLV Addl. City Civil & Sessions Judge,
Bengaluru.
SC No.986/2018
BETWEEN
State by Sanjaynagar P.S.,
Bangalore. .. COMPLAINANT
(By the learned Public Prosecutor)
AND
1.Jakir(absconding/ split up)
2.N. R. Sundaresh @ Rajesh
S/o Ramegowda,
A/a 29 Yrs.,
R/a No.10218
BEL layout, I Bock,
Vidyaranyapura, Bengaluru.
3.Sameen
S/o Jayaram
A/a 22 Years.,
R/o Halehalli Grama,
SR Pura Taluk,
Chikkamagaluru District.
2 SC No.986/18
4.Anil Kumar Bhatra (Discharged)
5.Ramesh Jaswal (Discharged) ..ACCUSED
(By Sri RE, Advocate)
Date of offence & time 8.9.2014 at 2.00 p.m.
Date of report of offence 8.9.2014 18.45 hours,
Date of arrest of the accused 8.9.2014
Date of release on bail A4 and A5 on 23.09.2014
A3 on 27.09.2014
Total period of custody ...days
Name of the complainant Sri K.S. Thanveer.
Date of commencement of 10.02.2022
recording of evidence
Date of closing of evidence 19.02.2022
Offences complained of U/s.3, 4, 5, 6 and 7 of ITP Act and
Sec.370 and 370A of IPC
Opinion of the Judge Accused found not guilty
JUDGMENT
The Police Inspector, Sanjaynagar Police Station, Bangalore, has filed charge sheet against accused No.2 and 3 and others for the offences punishable U/s.3, 4, 5, 6 and 7 of Immoral Traffic (Prevention) Act, 1956 and Sec.370 and 370A of IPC.
2. The factual matrix of the case is that :-
The accused No.1 and 2 along with accused No.3 were running the prostitution business at Broken Arrow Unique Saloon and Spa, Massage Parlor, III Floor, situated at Corporation Bank Building, bearing No.76, AECS Layout, Geddlahalli, within the limits of Sanjaynagar P.S., Bangalore by trafficking CW.9 and CW.10 with the false assurance of getting 3 SC No.986/18 job at Bangalore, and indulged them in prostitution business in the public vicinity and were leading their life from the amount of illegal gain from the said business. On 8.9.2014 at 3.40 p.m. the complainant along with panchas and his staff CW.2 to CW.8 conducted raid after obtaining credible information at 2.00 p.m., and apprehended accused No.3 along with customers accused No.4 and 5, who were involved in the prostitution business, rescued CW.9 and Cw.10 and at that time seized Mobile Phones, condoms and cash of Rs.2,000/- etc., from the spot through panchanama. Thereby the accused persons are alleged with the offences punishable U/s.370 and 370A 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 the accused No.1 to 5 by showing accused No.1 absconding for the offences punishable U/s.3, 4, 5, 6 and 7 of Immoral Traffic (Prevention) Act, 1956 and Sec.370 and 370A of IPC, before the jurisdictional VIII 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 No.2 to 5. The same is numbered as SC No.986/2018 in this Court. The case against No.1 has been split up and accused No.4 and 5 have been discharged by this Court.
4.The charge was framed against the accused No.2 and 3 on 12.10.2021 for the offenses punishable U/s.3, 4, 5, 6 and 7 of ITP Act and Sec.370 and 370A of IPC. The accused No.2 and 3 have pleaded not guilty and claimed to be tried.
4 SC No.986/185.The prosecution has examined in all three witnesses as PW.1 to PW.3 and got marked documents at Ex.P.1 to P.5, and identified Mos1 to 6. The learned Public Prosecutor has given up the witnesses CW.4 to 10 and CW.12 on 10.02.2022 and 19.02.2022, in view of the evidence of other police official witnesses, as repetition witnesses. In spite of sufficient opportunities provided to the prosecution by issuing summons, warrant and proclamation for securing CW.3, CW.9 and CW.10 , but the concerned police failed to secure the said witnesses and in view of the same on 25.02.2022 evidence of CW.3 and 10.02.2022 evidence of CW.9 and CW.10 was 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.9 and Cw.10, in view of the same dropping of evidence of CW.3, Cw.9 and CW.10 remained intact.
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 8.3.2022, and the same was duly recorded. The accused No.2 and 3 did not claim for defense evidence nor produced any documents to support his case in spite of sufficient opportunities. The accused No2. And 3 have complied provisions U/s.437A of Cr.P.C.,
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 that the accused No.2 and 3 along with accused No.1 5 SC No.986/18 were running prostitution business at Broken Arrow Unique Saloon and Spa, Massage Parlor, III Floor, situated at Corporation Bank Building, bearing No.76, AECS Layout, Geddlahalli, within the limits of Sanjaynagar P.S., Bangalore, by trafficking CW.9 and CW.10 with the false assurance of getting job at Bangalore, and indulged them in prostitution business in the public vicinity and were leading their life from the amount of illegal gain from the said business and thereby the accused No.2 and 3 have committed an offences punishable U/s. 3, 4, 5, 6 and 7 of ITP Act?
2. Whether the prosecution proves that the accused No.2 and 3 along with accused No.1 with an intention to run prostitution business by trafficking CW.9 and CW.10 forcibly induced them to indulge in prostitution business for wrongful gain, and thereby the accused No.2 and 3 have committed an offence punishable U/s.370 and 370A 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 6 SC No.986/18 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 against the accused No.1 and 2 along with accused No.3 were running the prostitution business at Broken Arrow Unique Saloon and Spa, Massage Parlor, III Floor, situated at Corporation Bank Building, bearing No.76, AECS Layout, Geddlahalli, within the limits of Sanjaynagar P.S., Bangalore by trafficking CW.9 and CW.10 with the false assurance of getting job at Bangalore, and indulged them in prostitution business in the public vicinity and were leading their life from the amount of illegal gain from the said business. On 8.9.2014 at 3.40 p.m. the complainant along with panchas and his staff CW.2 to CW.8 conducted raid after obtaining credible information at 2.00 p.m., and apprehended accused No.3 along with customers accused No.4 and 5, who were involved in the prostitution business, rescued CW.9 and Cw.10 and at that time seized Mobile Phones, condoms and cash of Rs.2,000/- etc., from the spot through panchanama. Thereby the accused persons are alleged with the offences punishable U/s.370 and 370A 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.1 Thanveer who deposed that at 2.00 p.m. while he was in the office he received credible information regarding prostitution carried out at Broken Arrow 7 SC No.986/18 Unique Saloon and Spa, Massage Parlor, III Floor, situated at Corporation Bank Building, bearing No.76, AECS Layout, Geddlahalli, within the limits of Sanjaynagar P.S., Bangalore by trafficking victims/girls with the false assurance of getting job at Bangalore, and indulged them in prostitution business in the public vicinity and were leading their life from the amount of illegal gain from the said business, he left his office along with staff CW.4 to CW.8 at 2.00 p.m., on his departmental vehicle, and reached near the spot at 3.00 p.m. where he secured CW.2 and CW.3 panchas and obtained their consent through notice, and prepared record of reasons. It is the further evidence of PW.1 that he raided the spot at 3.00 p.m. along with panchas and his staff found accused No.3 Sameen indulging in prostitution business by inducing CW.9 and CW.10 Victims/girls to carry out the prostitution business with customers accused No.4 and 5. Further it is the evidence of PW.1 that after obtaining the statements of the victims he apprehended the accused No.3 to 5 from the spot by conducting panchanama and seized seized Mobile Phones, condoms and cash of Rs.2,000/- etc., from the possession of accused persons and produced the victims/girls, accused persons and seized properties before CW.11/PW.3 PSI of Sanjanagar P.S., and filed a complaint as per Ex.P4. In the cross-examination the complainant PW.1 has admitted that in spite of his office situated in the building where his higher officials ACP office is situated, he has not obtained written order regarding conducting of the raid. Further the complainant/PW.1 has deposed that he has obtained only oral orders from his higher officials. This 8 SC No.986/18 evidence of PW.1, the complainant clearly established that the complainant/PW.1 has not taken any efforts to obtain a written search warrant from the higher official ACP, in spite of having access to the said office and the higher officer, who were discharging their duties in the same building on the date of raid. Further it is also admitted by the complainant/PW.1 that the Saloon and Spa where the raid was conducted is surrounded with residential houses and he has not called any of the inmate specially female of the said adjoining house to be the pancha, which is a mandatory provision of the Act. It is the evidence of PW.1 that he has secure the panchas near the spot and after issuing notice Ex.P1 to the panchas and obtaining the signatures of the said panchas on the record of reasons prepared on the spot Ex.P2 and took them for raid on their consent. It is pertinent to note that among the said pancha only PW.2/CW.2 is examined who has turned hostile to the case of the prosecution by deposing that he has no knowledge regarding the notice Ex.P1 and record of reasons Ex.P2 and panchanama Ex.P3. It is the evidence of the witness that the police officials have obtained his signatures on the said documents, while he had been to Sanjaynagar P.S., The said witness was treated as hostile by the prosecution and cross- examined at length, but no material evidence was elicited from the said witness regarding his knowledge about execution of notice Ex.P1, record of reasons Ex.P2 and panchanama Ex.P3, which has been executed with regard to seizure of MOs1 to 6 on the spot from the possession fo the accused persons. It is equally important to note that the prosecution has examined the 9 SC No.986/18 other panch witness CW.3 to prove the seizure panchanama Ex.P3. From this evidence of the complainant and the panchas it is found that though the complainant PW.1 has deposed that he has apprehended the accused No.3 to 5 along with Victims CW.9 and CW.10, and seized MOs1 to 6 through panchanama Ex.P3, but the said fact has not been satisfactorily proved from the evidence of panch witnesses PW.2 and CW.3. The evidence of the witness PW.2, who is the pancha and witness to the raid does not corroborate with the evidence of PW.1/complainant regarding involvement of the accused in committing the alleged offences.
13. As already discussed above, the police official witness PW.1 though given evidence about the raid and seizure of material objects MOs1 to 6 from the possession of accused No.3 to 5, but in the cross-examination the said witness has admitted that he has not called any women from the locality to be the pancha nor there is an evidence from the witness that in spite of his request no women panchas from the locality have co-operated and the action taken by him against the said panchas as per the provisions of law for their non-cooperation. The pancha PW.2 and CW.3 are the male persons, among them PW.2 has not supported the case of prosecution. 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 10 SC No.986/18 be a woman) of the locality in which the lace 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:
It is crystal clear from the provisions of Sec.15(2) of ITP Act, 1956 that it mandates that 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 examined are male persons, amoung them PW.2 has turned hostile to the case of the prosecution. From this fact it is crystal clear that the complainant/PW.1 has not complied the mandatory provisions of Sec.15(2) of ITP Act. It is also equally important to note that the police officials PW.1, and the investigation Officer PW.3, who has filed the charge sheet, have admitted that in spite of dense locality and adjoining residential houses, near the place of raid they have not secured any local neighbour of the adjoining raided spot, as witness for mahazar nor recorded the statements regarding the occurrence of the alleged offence against the accused. It is equally important to note that though the incidental spot is a residential locality and building surrounded by the adjoining residential houses, non citing of the local persons as a witness by the Investigating Officer_PW.3 also creates a doubt in the prosecution case regarding the conduct of raid and and apprehending of the accused No.3 to 5 along with the victim CW.2 and CW.3 who were forced to 11 SC No.986/18 indulging committing prostitution and seizure of MOs1 to 6 is fatal to the case of the prosecution.
14.In order to prove the allegations against the accused persons the prosecution has examined the PW.3/CW.11 the Police Official S Narasimhaiah, who deposed that at the time of occurrence of the said incident he was working as a PSI at Sanjanagar P.S., and CW.1/PW.1 has produced the victims, seized properties and accused persons, and submitted a complaint Ex.P4, which is registered in crime No.206/2014 and submitted FIR Ex.P5 to his higher officials and to the Court, and entered the property particulars in PF No.79/2014 MOs1 to
6. Further it is the evidence of PW.3 I.O., that he has recorded the statements of the witnesses and the panchas CW.2 and 3, and the witnesses Cw.4 to Cw.9 and also the statement of victims CW.9 and 10. Further it is the evidence of PW.5 I.O., that after completing the investigation he has submitted charge sheet against the accused persons to the Court. In the cross- examination of PW.3 admitted that after obtaining the investigation he has never visited the spot and by enquiring secured the witnesses, who have present at the time of raid. It is also pertinent to note that the prime witnesses CW.9 and 10 were not secured by the prosecution in spite of sufficient warrants and proclamation. The non-examination of the material victim witnesses CW.9 and CW.10 is fatal for the prosecution case, since the accused persons indulging them in prostitution on the false pretext of providing job is not proved. It is vehemently argued by the accused counsel and brought to the notice of the Court the evidence of I.O.,/PW.3 who deposed 12 SC No.986/18 that at the time of the incident he was working as Police Sub- inspector of Sanjaynagar P.S., and after registering the complaint and after completion of investigation and has filed the charge sheet was not authorized not 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.
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 I.O., PW.3 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.3 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 and filed charge sheet. It is the specific defense of the accused No.2 and 3 that the witness PW.3 who had 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 regarding the said mandate of the Act reported in Shankaregowda @ Shankara Vs. State by Madanayakanahalli Police Station, Bengaluru and others reported in ILR 2016 Kar 3067 , wherein it is held that:-
13 SC No.986/18"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.3 PSI who registered the case and investigated by recording the statements of the witnesses, submitted charge sheet 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 this Court 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 and file charge sheet 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 crystal clear that the investigation done by 14 SC No.986/18 the Police-Sub-Inspector PW.3 is vitiated by serious procedural irregularity and not curable in nature.
18.Therefore, from the above reasons and discussions it is very crystal clear that the prosecution has utterly failed to establish or prove the guilt against the accused No.2 and 3 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 No.2 and 3 are hereby acquitted of the offenses punishable U/s.3, 4, 5, 6 and 7 of the Immoral Traffic (Prevention) Act, 1956 and Sec.370 and 370A of Indian Penal Code, 1860.The bail and surety bonds of accused No.2 and 3
stand canceled.
MOs1 to MOs6 shall be retained till the disposal of split up case as registered against accused No.1. (Typed to my dictation by the Judgment Writer directly on Computer, corrected by me and then pronounced in open Court on this the 17th day of March, 2022) (Abdul Rahim Husain Shaikh) XLV Addl. City Civil & Sessions Judge, Bengaluru.15 SC No.986/18
ANNEXURE List of Witnesses examined on behalf of Prosecution:
P.W.1: K.S. Thanveer P.W.2: Anand P.W.3: Narasimahaiah.
List of Documents exhibited on behalf of Prosecution:
Ex.P.1: Notice. Ex.P.1a: Signature of PW.1 Ex.P.1b: Signature of PW.2 Ex.P.2: Record of reasons Ex.P.2a: Signature of PW.1 Ex.P.2b: Signature of PW.2 Ex.P.3: Mahazar Ex.P.3a: Signature of PW.1 Ex.P.3b: Signature of PW.2 Ex.P.4: Complaint. Ex.P.4a: Signature of PW.2 Ex.P.4b: Signature of PW.3 Ex.P.5: FIR No.206/2014dated 8.9.2014. Ex.P.75a: Signature of PW.3.
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:- MOs1 to 4: Mobile Phones MO5: Condom Box MO6: Cash of Rs.2,000/-.
(Abdul Rahim Husain Shaikh) XLV Addl. City Civil & Sessions Judge, Bengaluru.16 SC No.986/18
Judgment pronounced in the open Court vide its separate order ORDER Acting U/s.235(1) of Cr.P.C., the accused No.2 and 3 are hereby acquitted of the offenses punishable U/s.3, 4, 5, 6 and 7 of the Immoral Traffic (Prevention) Act, 1956 and Sec.370 and 370A of Indian Penal Code, 1860.The bail and surety bonds of accused No.2 and 3
stand canceled.
MOs1 to MOs6 shall be retained till the disposal of split up case as registered against accused No.1.
(Abdul Rahim Husain Shaikh) XLV Addl. City Civil & Sessions Judge, Bengaluru.