Bangalore District Court
As Per The Order Of The Court vs To The Court . From This It Is Clear That ... on 15 February, 2023
KABC010168162018
IN THE COURT OF XLV ADDL. CITY CIVIL & SESSIONS
JUDGE, BENGALURU CITY (CCH-46)
DATED THIS THE 15TH DAY OF FEBRUARY, 2023
PRESENT:
Sri Manjunatha, B. A., LL.B.,
XLV Addl. City Civil & Sessions Judge, Bengaluru.
SC No.1030/2018
BETWEEN
State by Malleshwaram P.S.,
Bangalore. .. COMPLAINANT
(By the learned Public Prosecutor)
AND
Smt. Renuka Bai @ Sowmya
C/o Ganesh Rao, a/a 55 Yrs.,
r/a No.99,3rd Cross, KHB Colony,
Basaveshwaranagar,
Bengaluru. ..ACCUSED
(By Sri TTSG, Advocate)
******
Date of offence & time 2.1.2018 at 13.30 hours
Date of report of offence 2.1.2018 at 1930 hours
Date of arrest of the 03.01.2018
accused
Date of release on bail 01.01.2018
Total period of custody 7 days
Name of the complainant Sri K.Manjunath Shetty
Date of commencement 25.10.2021
of recording of evidence
2
SC No.1030/2018
Date of closing of 11.01.2023
evidence
Offences complained of U/s.3, 4, 5 and 6 of ITP Act and
Sec.370 of IPC
Opinion of the Judge Accused found not guilty
JUDGMENT
The Police Inspector, Malleshwaram P.S., Bangalore, has filed charge sheet against accused for the offences punishable U/s.3, 4, 5 and 3 of Immoral Traffic (Prevention) Act, 1956 and Sec.370(3) of IPC in their Crime No.1/2018.
2. The factual matrix of the case is that :-
The accused was running prostitution business at Flat No.2, 2nd Floor, bearing No.59 Nisarga Apartment, situated at 18th cross, 8th Main, within the limits of Malleshwaram P.S., Bangalore, by trafficking CW.5 and CW.6 with the assurance of getting job, induced and indulged her in prostitution business in the public vicinity and was leading her life from the amount of illegal gain from the said business. On 02.01.2018 at 13.30 hours the complainant along with panchas CW.2 and CW.3, decoy CW.4 and his subordinate staffs CW.8 to 10 conducted raid over the said house after confirming the credible information and apprehended accused, who was involved in the prostitution business, rescued CW.5 and CW.6 and at that time seized the articles from the spot through panchanama. Thereby the accused is alleged with the offences punishable Sec.370(3) of IPC and Sec.3, 4, 5 and 6 of Immoral Traffic (Prevention) Act, 1956.3
SC No.1030/2018
3. The concerned police have submitted charge sheet against accused for the offences punishable U/s.370(3) of IPC and U/s.3, 4, 5 and 6 of Immoral Traffic (Prevention) Act, 1956 of IPC, before the jurisdictional LVI 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 14.10.2019 for the offences punishable U/s.3, 4, 5 and 6 of ITP Act and Sec.370(3) of IPC. The accused pleaded not guilty and claims to be tried.
5.The prosecution has examined in all six witnesses as PW.1 to PW.6 and got marked documents at Ex.P.1 to P.7, and identified MO1. The learned public prosecutor has given up witnesses CW.7 to CW.10 and CW.13, 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.5 and CW.11, but the concerned police failed to secure the said witnesses and in view of the same the evidence of CW.5 and CW.11 taken as nil by rejecting the prayer of the prosecution.
6.After closure of the evidence of prosecution, the case was posted for recording statement of accused persons as provided U/s.313 of Cr.P.C. on 27.01.2023, and the same was duly recorded. The accused did not claim for defense evidence nor produce any documents to support her case.
7.Heard the arguments on both sides and perused the materials on record.
4SC No.1030/2018
8.The following points that arises for consideration of this court:
1. Whether the prosecution proves beyond all reasonable that on 2.1.2018 at 13.30 hours the accused at Flat No.2, 2nd Floor, bearing No.59 Nisarga Apartment, situated at 18th cross, 8th Main, within the limits of Malleshwaram P.S., Bangalore, by trafficking CW.5 and CW.6 with the assurance of getting money induced and indulged them in prostitution business in the public vicinity and was leading her life from the amount of illegal gain from the said business and thereby the accused has committed offences punishable U/s.3, 4, 5 and 6 of ITP Act?
2. Whether the prosecution proves beyond reasonable doubt that on 2.1.2018 at 13.30 hours the accused with intention to run prostitution business by trafficking CW.5 and CW.6 forcibly induced them to indulge in prostitution business for wrongful gain, and thereby the accused has committed offence punishable U/s.370(3) 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 5 SC No.1030/2018 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 at Flat No.2, 2 nd Floor, bearing No.59 Nisarga Apartment, situated at 18th cross, 8th Main, within the limits of Malleshwaram P.S., Bangalore, by trafficking CW.5 and CW.6 with the assurance of getting job, induced and indulged her in prostitution business in the public vicinity and was leading her life from the amount of illegal gain from the said business. On 02.01.2018 at 13.30 hours the complainant along with panchas CW.2 and CW.3, decoy CW.4 and his subordinate staffs CW.8 to 10 conducted raid over the said house after confirming the credible information and apprehended accused, who was involved in the prostitution business, rescued CW.5 and CW.6 and at that time seized the articles from the spot through panchanama. Thereby the accused is alleged with the offences punishable Sec.370(3) of IPC and Sec.3, 4, 5 and 6 of Immoral Traffic (Prevention) Act, 1956.
12.In order to prove the said allegation the prosecution has examined the complainant PW.4, who deposed that on 2.1.2018 at 11.30 hours after obtaining credible information regarding prostitution carried out at Flat No.2, 2 nd Floor, bearing 6 SC No.1030/2018 No.59 Nisarga Apartment, situated at 18th cross, 8th Main, within the limits of Malleshwaram P.S., Bangalore, by trafficking CW.5 and CW.6 and after Ex.P2 issuing notices to panchas and prepared record of reasons as per Ex.P3, deputed CW.4 as decoy, and after confirmation he conducted raid over the house at 11.30 hours along with his staff and panchas, apprehended the accused and rescued CW.5 and CW.6, who were made to indulge in prostitution business by the accused. It is also the case of the PW.4 that he has drawn mahazar Ex.P1 regarding seizure of material object No.1. It is pertinent to note that in the cross-examination PW.4 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.4 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.4 that after conducting raid he has seized MO1 from the possession of accused through panchanama Ex.P1 drawn in the presence of the panchas CW.2 and Cw.3. After that he appeared before the SHO along with seized articles, accused and victim, and submitted a Ex.P6 complaint. PW.1 and PW.3 are the panchas, who have turned hostile and not supported the case of the prosecution. The contents of Ex.P1 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.4 in spite of densely populated area has not secured any of the female persons residing adjoining to the 7 SC No.1030/2018 raided house to be one of the pancha to the panchanama Ex.P1 as mandated by the Act U/s.15(2) of the ITP Act. The panchas 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:
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 occurence is a public place adjoining to commercial shops, non citing of the local persons as a witness by the Investigating Officer-PW.6 also creates a doubt in the prosecution case regarding the conduct of raid and and apprehending of the accused along with the victims/CW.5 and 6, induced them indulging in committing prostitution and failure to prove seizure of MO1 is fatal to the case of the prosecution. PW.5 Shashidhar, Police 8 SC No.1030/2018 Constable, who is one of the raiding party member and decoy, has deposed in similar way of PW.4 and deposed about conducting of raid, apprehension of accused, seizure of material objects and rescue of CW.5 and CW.6, and producing of accused before PW.6. The learned counsel for the accused cross-examined PW.5 and he also denies the suggestions with regard to apprehension of accused and his participation in the raid.
13.In order to prove the allegations against the accused the prosecution has not examined CW.11, who is the owner of the house. It is also very important to note that the prosecution in spite of issuing summons and warrants to the victim/CW.2 failed to secure the material witness before the Court, when the entire case rest on the evidence of victim/Cw.5, 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 the case of the prosecution, wherein the material witness CW.5 has not been examined, so as to prove the guilt against the accused persons. PW.2 being the victim has also turned hostile and not supported the case of prosecution by deposing that the accused never induced her, and she has not given any statement to the police.
14.PW.6 Renuka has deposed that while she was on duty on 2.1.2018 at 7.30 p.m. CW.1 appeared before him and lodged Ex.P6 complaint, based on the same she registered a case in Crime No.1/2018, submitted FIR to the Court and her higher officials as per Ex.P7. PW.1 along with complaint produced mahazar, record of reasons and notice, and the same 9 SC No.1030/2018 were brought into record, and MO1 has been brought into PF No.1/2018 and remaining articles were given to the custody of applicants as per the order of the Court, Ex.P5 is the photograph of the said articles, She recorded the satements of victims and panchas CW.5 and 6 and given victims to the custody of their relatives. On the same day after completion of arrest formalities recorded the voluntary statement of accused, and and sent to State Home for Women, and on the next day brought the the accused and produced before the Court, handed over further investigation to CW.13, in turn CW.13 recorded the statement of CW.11, who is the owner of the flat and received rental agreement, and after completing the investigation CW.13 has submitted charge sheet against the accused to the Court . From this it is clear that the entire investigation was carried out by PW.6. It is vehemently argued by the learned counsel for accused and brought to the notice of the Court the evidence of PW.6 that at the time of the incident she was working as Police Sub-inspector of Malleshwaram P.S., and after registering the complaint, took up investigation, has investigated the entire case by recording the statement of witnesses, victim and handed over further investigation to CW.13, in turn CW.13 only submitted charge sheet against the accused. It is vehemently argued that PW.6 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 filed charge sheet.10
SC No.1030/2018
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.6 has not produced any document to show that she 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.6 clearly discloses that he being in the rank of Police Sub-Inspector, who had registered the case and recorded the statements of the witnesses during investigation, recorded the statement of victim/CW.2 and the raiding party witnesses and handed over further investigation to CW.13, and on perusal fo the records CW.13 submitted charge sheet against accused. It is the specific defense of the accused that the witness PW.6 who investigated the case has no authority as per the provisions of ITP Act to investigate the case since she 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 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 11 SC No.1030/2018 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.6 PSI who has registered the case and investigated 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 Police Sub-Inspector PW.6 is vitiated by serious procedural irregularity and not curable in nature. Therefore, from the above reasons and discussions it is very clear that the prosecution has 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.
12SC No.1030/2018
18.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 offenses punishable U/s.3, 4, 5 and 6 of the Immoral Traffic (Prevention) Act, 1956 and Sec.370(3) of of Indian Penal Code, 1860.
The bail and surety bonds of accused stand canceled.
MO1 shall be destroyed 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 15th day of February, 2023) (Manjunatha) XLV Addl. City Civil & Sessions Judge, Bengaluru.
13SC No.1030/2018 ANNEXURE List of Witnesses examined on behalf of Prosecution:
P.W.1: Shivaprasad P.W.2: Sahana P.W.3: Sachin P.W.4: Manjunatha Shetty P.W.5: Shashidhar P.W.6: Renuka.
List of Documents exhibited on behalf of Prosecution:
Ex.P.1: Mahazar Ex.P.2: Nitice Ex.P.3: Record of Reasons Ex.P.4: Statement of PW.2 Ex.P.5: Photograph Ex.P.6 Complaint Ex.P.6: 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 Condom packet.
(Manjunatha)
XLV Addl. City Civil & Sessions Judge,
Bengaluru.
Accused present
The learned counsel for accused present.14
SC No.1030/2018 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 offenses punishable U/s.3, 4, 5 and 6 of the Immoral Traffic (Prevention) Act, 1956 and Sec.370(3) of of Indian Penal Code, 1860.
The bail and surety bonds of accused stand canceled. MO1 shall be destroyed 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.