Bangalore District Court
Ulsoor Ps vs Umesh @ Vijay on 26 October, 2024
KABC0D0014202014
IN THE COURT OF JUDICIAL MAGISTRATE TRAFFIC COURT-I AT
MAYOHALL, BANGALORE.
Present : Neelam Nitin Rao
Judicial Magistrate
Traffic Court-I Bengaluru
DATED 26th DAY OF OCTOBER 2024
C.C. No. 1321/2014
Complainant : Halasuru PS
Bangalore
V/s
Accused : 1. Umesh @ Vijay
S/o. Nagendra
Aged about 22 years
R/at : Santekatte Grama
Udupi Taluk
Udupi District
(Split up)
2. D. Bharadwaj
S/o. Devendranath
Aged about 26 years
Kamasamudra Grama
Bangarpet Taluk
Kolar District
(Rep by: Adv Sri. TGS)
3. John
4. Raj
(A3 & 4 absconded)
1. Date of commission of offence: 28.05.2014
2. Offence alleged : P/U/S.3, 4, 5 & 7 ITP Act
2
C.C. No. 1321/2014
3. Date of recording of evidence : 02.04.2019
4. Date of Judgment : 25.10.2024
JUDGMENT
This case is arising out of charge sheet filed by PSI of Halasuru Police against accused No.1 to 4 for the alleged offences punishable U/s. 3, 4, 5 & 7 of ITP Act.
2. Case of the prosecution in brief is that:
On 28.05.2014, CW.1 received a credible information that at Bhaiji Food Court Building, Floor No.1, Beside metro station, the accused were involved in prostitution. CW.1 after confirming the information, obtained the permission for raid from the ACP and had been to the spot along with his staff. He conducted the raid and detained accused No.1 and 2, who were involved in prostitution. Accused No.1 and 2, CW.5 detained on the spot. The CW.1 conducted the raid and drawn the mahazar and seized the mobile phones, amount and nirodh. Thereafter, CW.1 has lodged suo motto case against accused in Cr No. 211/2014 for the alleged offence punishable U/s. 3, 4, 5 & 7 of ITP Act and registered FIR and proceeded for investigation.
3. After investigation the IO filed Charge Sheet against accused No. 2 for alleged offences p/u/s 3, 4, 5 and 7 of ITP Act. After receipt of charge sheet, this court considering that there are prima facie materials on record, this court has taken cognizance for the said offences and a criminal case has been registered against accused No. 2 in register No. III and issued process.
3C.C. No. 1321/2014
4. Despite granting sufficient opportunities, the IO has unable to secure accused No. 1, 3 & 4. Hence, the case was spit up against them with direction to IO to file separate charge sheet against them in register No. III. This case is pending against the accused No. 1, 3 & 4. Accused No. 2 appeared through counsel. He was enlarged on bail. Copy of prosecution papers were furnished to accused as contemplated under Section 207 of Cr.P.C.
5. After hearing the prosecution and accused counsel, it is noticed that there are no grounds to discharge the accused No.
2. On the other hand, there are prima facie materials available against accused No. 2. Hence, the charge was framed. Read over and explained to accused in the language best known to them. They understood the charge. They pleaded not guilty. Hence, the case was posted for prosecution evidence. In the charge sheet, the prosecution has cited as may as 10 witnesses. However, despite granting sufficient opportunities, prosecution has not able to secure all the witnesses. Prosecution examined PW.1 to 8 and closed prosecution evidence.
6. The statement of accused No.2 as required under 313 Cr.P.C is recorded, read over and explained to accused in the language best known to him. Accused No.2 denied all incriminating circumstances appeared in prosecution evidence. However, not chosen to lead defense evidence. Hence, the case was posted for prosecution evidence.
7. As this case was split up against accused No. 1, 3 & 4 the reasons assigned in this case are only against accused No.2.
4C.C. No. 1321/2014
8. In order to bring home the guilt of the accused prosecution examined 8 witnesses as PW.1 to 8 and got marked 5 documents as Ex.P.1 to 5.
9. Heard learned APP and counsel for accused No. 2. Meticulously perused documents placed on record.
10. The following points arise for my consideration;
Point No.1: Whether prosecution proves beyond all reasonable doubt that on 28.05.2014 at about 7:30 pm at Bhaiji Food Court Building, house situated at Floor No.1, beside metro station, accused No.2 was involved in prostitution thereby, committed the offences punishable under sec.3 of ITP Act ?
Point No.2: Whether prosecution proves beyond all reasonable doubt that on aforementioned date, time and place accused No. 2 was involved in prostitution and living on the earnings of prostitution, thereby, committed the offences punishable under sec.4 of ITP Act ?
Point No.3: Whether prosecution proves beyond all reasonable doubt that on aforementioned date, time and place whether accused no. 2 procured induced or took any person for the sake of prostitution and thereby, committed the offences punishable under sec.5 of ITP Act ?
5C.C. No. 1321/2014 Point No.4: Whether prosecution proves beyond all reasonable doubt that on aforementioned date, time and place whether accused no.2 was carrying prostitution in or in the vicinity of public place and thereby committed the offences punishable under section 7 of ITP Act ?
Point No.5: What order?
11. My findings on the above points are as follows:
Point No.1 : In the Negative
Point No.2 : In the Negative
Point No.3 : In the Negative
Point No.4 : In the Negative
Point No.5 : As per the final order
for the following reasons
REASONS
12. Point No.1 to 4 : As these points are interconnected with each other, they are taken up together for common discussion, in order to avoid repetition of facts and for brevity. In the instant case the prosecution ought to establish its case against accused beyond reasonable doubt that accused was involved in prosecution in a public place and he was running a brothel and earning amount through prostitution. He is earning his livelihood also through the prosecution.
6C.C. No. 1321/2014
13. In the instant case, prosecution has examined CW.6, Smt. Kavita as PW.1 in her chief evidence. She deposed that on 28.05.2014, at about evening 7:20 pm, CW.1 received credible information that near Halasuru metro, at Bayachi Food Court, the woman and men were involved in prosecution. Accordingly, CW.1 along with his staff had been to the place and conducted the raid. When they reached the 1st floor, the raiding party observed that there is a prostitution. In one room there was one person by name Umesh and two persons by name Nagaraj and Basavaraj ran away from the spot. There was one girl present in the room and name is name is priya mandal. The raiding party seized Rs. 8,000/- from Umesh and Rs. 2,000/- from Priya Mandal. They also seized mobile and one condom. They drawn the mahazar and seized these articles in the presence of mahazar witnesses. During evidence mobile phones and condom packet were marked as MO 1 to 6. During cross examination, MO.1 to 6 were marked. During cross examination she admits that when the raiding party entered the spot the person who ran away from the spot are Raj and John. Treating PW.1 as partly hostile learned APP partly cross examined her. Wherein she suggested that the person ran away from the spot are Raj and John. She admits the same. Similarly, it was suggested that in a room there was a person whose name is Bharadwaj. She also admits the same. When they inquired the woman, she stated that Raj and John are running prostitution and they recovered Rs. 8,300/- from accused No.2. During cross examination, she deposed that she did not remember on that day in which place she was assigned work. She stated that she did not remember who called the mahazar witnesses. She admits that they raiding party have not done in person search.
7C.C. No. 1321/2014 She admits that MO No.1 to 6 can be got from any places. It was suggested that as per order of the Hon'ble High Court no case can be lodged against the customers. She stated that she did not know about the same.
14. The prosecution has examined CW.2, Sri. Johnson as PW.2. In his chief evidence, he deposed that he did not know the accused and he did not have any knowledge about the incident. Six years about police have obtained his signature. Though mahazar was marked as Ex.P.1 and his signature as Ex.P.1(a), he categorically denied having knowledge about contents of Ex.P.1. Treating this witness as hostile, learned APP fully cross examined him. However, he failed to culled out anything as he denied all suggestions made to him.
15. Further, prosecution has examined CW.3 Sri. Afsar as PW.3. In his chief evidence, he also denied having knowledge about the incident and contents of Ex.P.1 and also not identified the accused. Treating this witnesses as hostile, learned APP fully cross examined him. However, he failed to give anything contrary.
16. The prosecution has examined CW.4, Sri. Sheshakumar as PW.4. In his evidence, he deposed that near Halasuru metro station there is one house which belongs to him and on the ground floor there is one shop. In 2014, he has given that house on rent to one person by name Sunil for Chartered Accountant office. Three days later, police called him and told him there was prostitution going on in that house. The police have not shown any person to him and he given a statement to 8 C.C. No. 1321/2014 the police about giving that house on rent. During cross examination, he admits that there is no rent agreement pertaining to this house. Similarly, he has not verified whether there is any CA certificate or not. He admits that he has seen the accused 1st time in the court itself.
17. Later, prosecution has examined CW.7 Sri. Babu Nayak as PW.5. In his chief evidence, he deposed that on 28.05.2014, CW.1 along with his staff has conducted raid on 1 st floor of the house situated at OM road, near metro station. He deposed that there was a prostitution going on, in this regard they have conducted the raid. When they had been to the spot and knocked the room door, one person by name Vijay @ Umesh who is accused No.1 opened the door when they had been inside accused No.3 & 4 pushed them and absconded from the spot. When inquired the accused No.1 he stated that the persons who ran away their names are Raj and John. In another room there was one person and woman were sitting. On questioning he stated that his name is Bharadwaj S/o. Nagendra and accused No.3 & 4 brought him for prostitution. One woman by name Priya Mandal W/o. Rahul Mandal was the victim. From Priya they seized one mobile and Rs. 2,500/- and from accused No.2 they have seized Samsung mobile and Rs. 8,030/- cash along with one nirodh packet. During his chief evidence, his signature was on Ex.P.1 was marked as Ex.P.1(d). In his cross examination, he deposed that CW.6 to 8 were at patrolling duty and he was also on patrolling duty on that day. When CW.1 called them over a phone, they had been to the station. He admits that when they had been to the spot they have not conducted in person search. He admits that the seized property was not covered in cloth and 9 C.C. No. 1321/2014 it is not signed by mahazar witnesses. He deposed his ignorance about the denomination of the notes whether it was written in Ex.P.1 or not. Apart from this he denied all suggestions made to him.
18. The prosecution has examined CW.9 Sri. Nagaraju as PW.6. In his chief evidence, he deposed that on 28.05.2014, CW.1 informed them and they had been to the spot to conduct the raid. When they had been to spot two person ran away from the spot. Accused No.1 told that there names were Raj and John. In another room, there was one person and woman whose name is accused No.2 Bharadwaj. From him they seized one samsung mobile, Rs. 8,030/- and one condom. They have also seized one mobile from the woman and Rs. 2,500/- cash. During evidence these documents were marked as MO.1 to 6. During cross examination, one Ex.P.1 was confronted to him and asked whose signatures are there. He deposed that one Srinivas and Rajegowda signed the Ex.P.1. He admits that he has not given any statement that Srinivas and Rajegowda were present in the spot. He deposed that whether a notice was issued to the mahazar witnesses or not. PW.6 stated that they have conducted in person search. On suggestion that MO like materials can be available from any place. He admits the same. He stated that he did not know whether there is any mark on the MO's or not.
19. Later, prosecution has examined CW.10, Sri. Anantharamaiah as PW.7. In his chief evidence he deposed that on 28.05.2014, when he was at SHO, work at 10:30 pm CW.1 along with his staff CW.9 to 6 with CW.5 victim woman came to 10 C.C. No. 1321/2014 the police station and lodged complaint. He registered Cr No. 211/2014, U/s. 3, 4, 5 & 7 of ITP Act and registered FIR against accused. The CW.1 has produced the amount, mobiles and nirodh packets which he has reported in PF No. 40/2014. They handed over the victim woman to the remand home and inquired the accused No.1 and 2. After completion of investigation he filed a charge sheet. He admits that on Ex.P.1 there is a signature of one Srinivas and Rajappa. However, there is no mention that Srinivas and Rajappa also had been to the spot. He was suggested that CW.9 to 7 have not given any statement. He admits that he has not investigated about the mobile seized from accused No.2. He also admits that he has not investigated as to whom this mobile belongs. He admits that he has not mentioned their denomination in PF. Witness volunteers that as per mahazar he has filed PF and it was not written in PF. He admits that he has written as 63/10, Vivekanandanagar.
20. Lastly, prosecution has examined CW.1, Sri. M.H. Nagthe as PW.8. He reiterated the contents of complaint in his chief evidence. During cross examination, he stated that Ex.P.4 was filed as per his dictation. When the question was passed why the near by public were not called as mahazar witnesses, this witness deposed that there are under impression that public whether cooperate for the mahazar or not. Hence, they took mahazar witnesses with them.
21. It is interesting to note that CW.1 being the complainant has deposed that he did not know where he called his staff. He also did not know whether he called his staff over 11 C.C. No. 1321/2014 phone or in which manner. He deposed that when he had been to conduct the raid CW.6 to 9 are with him. He admits that in Ex.P.1 signature 3 & 4 belongs to Srinivas and Rajegowda and in his report there is no mention that those persons were present at the time of raid. He admits that before conducting the raid they have not conducted in person search. He also admits that who has searched him it was not mentioned. He admits that they have not conducted any in person search. He also admits that MO 1 to 6 can be available any where. Further, he admits that MO 1 to 6 are not covered with cloth and seal. He admits that on MO1 to 6 there is no signature of mahazar witnesses. On questioning why there was no hurdle for him to obtain the signature of mahazar witnesses, he stated that there is no necessity hence he has not obtained. Similarly, he also admits that there is no denomination of note written. When a suggestion was made that there is a settle of Hon'ble High Court that on customers and victims the case cannot be filed, he stated that he has to see and answer the same.
22. On over all perusal of evidence of prosecution witnesses it could be seen that they have made a contrary statement and there is no corroboration available on records. CW.1 being the complainant who conducted the raid and mahazar who have supported the case of prosecution. However, he deposed that he did not remember anything. He did not remember the material aspects. Further, for the reason best known to the persons who has drawn mahazar the seized articles were not covered in cloth and sealed. The person who conducted the mahazar ought to have obtained signature of mahazar witnesses on MO 1 to 6 also. At this juncture, it is pertinent to refer Section 3, 4, 5 & 7 of ITP Act.
12C.C. No. 1321/2014
23. At this juncture, it is worth to refer Section 3, 4 5 & 7 of ITP Act. It reads as under:
Section 3, 4, 5 and 7 of ITP Act.
3. Punishment for keeping a brothel or allowing premises to be used as a brothel.
(1) Any person who keeps or manages, or acts or assists in the keeping or management of, a brothel shall be punishable on first conviction with rigorous imprisonment for a term of not less than one year and not more than three years and also with fine which may extend to two thousand rupees and in the event of a second or subsequent conviction, with rigorous imprisonment for a term of not less than two years and not more than five years and also with fine which may extend to two thousand rupees. (2) Any person who-
(a) being the tenant, lessee, occupier or person in charge of any premises, uses, or knowingly allows any other person to sue, such premises or any part thereof as a brothel, or
(b) being the owner, lessor or landlord of any premises or the agent of such owner, lessor or landlord, lets the same or any part thereof with the knowledge that the same or any part thereof is intended to be used as a brothel, or is wilfully a party to the use of such premises or any part thereof as a brothel shall be punishable on first conviction with imprisonment for a term which may extend to two years and with fine which may extend to two thousand rupees and in the event of a second or subsequent conviction, with rigorous imprisonment for a term which may extend to five years and also with fine. (3) Notwithstanding anything contained in any other law for the time being in force, on conviction of any person referred to in clause (a) or clause (b) of sub-section (2) of any offence under that sub-section in respect of any premises or any part thereof, any lease or agreement under which such premises have 13 C.C. No. 1321/2014 been leased out or are held or occupied at the time of the commission of the offence, shall become void and inoperative with effect from the date of the said conviction.
4. Punishment for living on the earnings of prostitution.
(1) Any person over the age of eighteen years who knowingly lives, wholly or in part, on the earnings of the prostitution of a woman or girl shall be punishable with imprisonment for a term which may extend to two years, or with fine which may extend to one thousand rupees, or with both.
(2) Where any person is proved-
(a) to be living with, or to be habitually in the company of, a prostitute; or
(b) to have exercised control, direction or influence over the movements of a prostitute in such a manner as to show that such person is aiding, abetting or compelling her prostitution; or
(c) to be acting as a tout or pimp on behalf of a prostitute, it shall be presumed, until the contrary is proved, that such person is knowingly living on the earnings of prostitution of another person within the meaning of sub-section (1):Provided that no such presumption shall be drawn in the case of a son or daughter of a prostitute, if the son or daughter is below the age of eighteen years.
5. Procuring, inducing or taking woman or girl for the sake of prostitution.
(1) Any person who-
(a) procures or attempts to procure a woman or girl, whether with or without her consent, for the purpose of prostitution; or
(b) induces a woman or girl to go from any place, with the intent that she may for the purpose of prostitution become the inmate of, or frequent, a brothel; or
(c) takes or attempts to take a woman or girl, or 14 C.C. No. 1321/2014 causes a woman or girl to be taken, from one place to another with a view to her carrying on, or being brought up to carry on prostitution; or
(d) causes or induces a woman or girl to carry on prostitution; shall be punishable on first conviction with rigorous imprisonment for a term of not less than one year and not more than two years and also with fine which may extend to two thousand rupees.
(2) In the event of a second or subsequent conviction of an offence under this section a person shall be punishable with rigorous imprisonment for a term of not less than two years and not more than five years and also with fine which may extend to two thousand rupees. (3) An offence under this section shall be triable-
(a) in the place from which a woman or girl is procured, induced to go, taken or caused to be taken or from which an attempt to procure or take such woman or girl is made; or
(b) in the place to which she may have gone as a result of the inducement or to which she is taken or caused to be taken or an attempt to take her is made.
7. Prostitution in or in the vicinity of public places.
(1) Any woman or girl who carries on prostitution, and the person with whom such prostitution is carried on, in any premises which are within a distance of two hundred yards of any place of public religious worship, educational institution, hostel, hospital, nursing home or such other public place of any kind as may be notified in this behalf by the Commissioner of Police of District Magistrate in the manner prescribed, shall be punishable with imprisonment for a term which may extend to three months.
(2) Any person who-
(a) being the keeper of any public place knowingly permits prostitutes for purposes of 15 C.C. No. 1321/2014 their trade to resort to or remain in such place; or
(b) being the tenant, lessee, occupier or person in charge of any premises referred to in sub-
section (1) knowingly permits the same or any part thereof to be used for prostitution; or
(c) being the owner, lessor or landlord of any premises referred to in sub-section (1), or the agent of such owner, lessor or landlord, lets the same or any part thereof with the knowledge that the same or any part thereof may be used for prostitution, or is wilfully a party to such use shall be punishable on first conviction with imprisonment for a term which may extend to three months, or with fine which may extend to two hundred rupees, or with both, and in the event of a second or subsequent conviction with imprisonment for a term which may extend to six months and also with fine which may extend to two hundred rupees.
24. According to theses who section only the person who were involved in prostitution for wronful gain in a publ;ic place and who is living on the earnings of prostitution are to be prosecuted. The customers does not fall within the ambit of section 3, 4 5 & 7 the ingredients of the alleged offences are not established by prosecute
25. In the instant case, the case was filed against all accused and this is a split up case against accused No.1. As per prosecution evidence accused No.2 was a customer. The ingredients of the alleged offence are not proved against the customer. Hence, he cannot be prosecuted under the provisions of Section 3, 4, 5 & 7 of ITP Act. Moreover, there is a dearth of evidence and non corroboration of evidence. Considering all these aspects, I answer points No.1 to 4 in the negative.
16C.C. No. 1321/2014
26. Point No.5: For myriad reasons as discussed supra, I proceed to pass the following:
ORDER Accused No. 2 is not found guilty of the alleged offense p/u/ s.3, 4, 5 and 7 of ITP Act.
Acting U/sec 248(1) of Criminal Procedure Code, accused No. 2 is hereby acquitted of the offences alleged against him p/ u/s.3, 4, 5 and 7 of ITP Act.
Bail bond and surety bonds of accused stands canceled after completion of appeal period.
As the case is split up against other accused, the property mentioned in mahazar shall be preserved for further trial against them. Hence, no order as to release of the seized properties.
(Dictated to stenographer directly on the computer, corrected and then pronounced by me in the open court on this the 26th October 2024) Digitally signed by NEELAM NEELAM NITIN RAO NITIN RAO Date: 2024.11.16 (Neelam Nitin Rao) 16:52:03 +0530 JMFC, Traffic Court - 1 Bangalore 17 C.C. No. 1321/2014 ANNEXURE LIST OF WITNESS EXAMINED ON PROSECUSION SIDE:
1. PW.1 : Smt. Kavitha
2. PW.2 : Sri. Johnson
3. PW.3 : Sri. Afzar
4. PW.4 : Sri. Sheshakumar
5. PW.5 : Sri. Babu Nayak
6. PW.6 : Sri. Nagaraju
7. PW.7 : Sri. Anantharamaiah
8. PW.8 : Sri. M.H. Nagthe LIST OF DOCUMENTS MARKED ON PROSECUSION SIDE:
1. Ex.P.1 : Seizure mahazar
2. Ex.P.1(a) : Signature of PW.1
3. Ex.P.1(b) : Signature of PW.2
4. Ex.P.1(c) : Signature of PW.3
5. Ex.P.,1(d) : Signature of PW.5
6. Ex.P.,1(e) : Signature of PW.6
7. Ex.P.,1(f) : Signature of PW.7
8. Ex.P.,1(g) : Signature of PW.8
9. Ex.P.2 : KEB Bill
10. Ex.P.3. : Tax receipt
11. Ex.P.4 : Complaint
12. Ex.P.4(a) : Signature of PW.7
13.Ex.P,4(b) : Signature of PW.8
14. Ex.P.5 : FIR
12. Ex.P.5(a) : Signature of PW.7 18 C.C. No. 1321/2014 LIST OF MO'S MARKED:
1. MO 1 to 4 : 4 mobiles
2. MO 5 : Condom packet
3. MO 6 : Cash of Rs. 10,530/-
LIST OF WITNESS EXAMINED AND DOCUMENTS MARKED ON DEFENCE SIDE:
NIL (Dictated to stenographer directly on the computer, corrected and then pronounced by me in the open court on this the 26th October 2024) Digitally signed by NEELAM NEELAM NITIN RAO NITIN RAO Date: 2024.11.16 16:52:10 +0530 (Neelam Nitin Rao) JMFC, Traffic Court - 1 Bangalore