Telangana High Court
Kum Nanavath Kaika Bai , Kavitha And ... vs State Of A.P., on 30 April, 2024
THE HON'BLE SRI JUSTICE E.V.VENUGOPAL
CRIMINAL REVISION CASE No.368 OF 2014
ORDER :
This Criminal Revision Case is preferred by the petitioners/accused Nos.1 and 2 under Section 397 read with Section 401 of Criminal Procedure Code (for short 'Cr.P.C.') aggrieved by the judgement dated 21.02.2014 in Crl.A.No.534 of 2012 on the file of the learned IV Additional Metropolitan Sessions Judge, Hyderabad wherein and whereby the conviction of petitioners sentencing them to undergo rigorous imprisonment for a period of one year each and to pay a fine of Rs.1,000/- each in default to suffer simple imprisonment for three months each for the offence punishable under Section 3 of Immoral Traffic (Prevention) Act, 1956 passed by the learned IV Additional Chief Metropolitan Magistrate, Hyderabad in CC No.1304 of 2010 dated 01.06.2012 was confirmed.
2. Heard Sri K.Sai Babu, learned counsel for the petitioners and Sri Khaja Vizarath Ali, learned Assistant Public Prosecutor representing learned Public Prosecutor for the State/respondent.
3. CC No.1304 of 2010 is a case registered against the petitioners for the offences under Sections 3 and 5 of PIT Act on the allegation that on 14.05.2010 PW1/the investigating officer/Inspector of Police, upon reliable and authentic information that one lady by name Kaika Bai was running a brothel house in Page 2 of 7 house No.3-2-707, 3rd floor, Rahmathbagh, Kachiguda, after obtaining required orders, preparing search proceedings, arranging one lady Home Guard by name Mrs.Narayanamma/PW5 and mediator Khaja Pasha/PW3 sent one Home Guard viz. Hanumanthu/PW4, deputing him as a decoy to strike a deal with the organizer at that house and after Hanumanthu reaching there and upon receiving his signal, the entire team entered the premises and found the said decoy in the company of a sex worker by name Kum.Urmila in one of the rooms of the said house, seized Rs.1,000/- currency notes and three mobile phones with SIM Nos.9700278643 and 9394758238 from accused No.1 and another cell phone with SIM No.9866477548 from accused No.2, recorded seizure-cum- confession statements, registered crime in FIR No.192 of 2010, marked under Ex.P4 and caused arrest of the accused/petitioners herein. After thorough investigation charge-sheet was laid against the petitioners for the offences punishable under Sections 3 and 5 of ITP Act.
4. After completion of required procedural aspects, the Court below proceeded with the trial. During trial, on behalf of the prosecution, PWs.1 to 5 were examined and Exs.P1 to P4 and MO-1 were marked. No oral or documentary evidence is adduced by the defence.
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5. The case of the petitioners/accused is that PW1 was not competent to raid and investigate the matter, PW1 intentionally and wantonly implicated the petitioners in the present case with ill- motives, there is no proof either in the form of rental agreement or receipts of payment of rent to establish the ownership of PW2 over the house where the raid was conducted and brothel house was allegedly run.
6. Upon considering the evidence available on record and also the contentions advanced by either side, the learned IV Additional Chief Metropolitan Magistrate, Hyderabad found the petitioners guilty and sentenced them as stated supra. Aggrieved by the said findings, the petitioners herein preferred Criminal Appeal No.534 of 2012 on the file of the learned IV Additional Metropolitan Sessions Judge, Hyderabad. However the learned IV Additional Metropolitan Sessions Judge after reappreciating the entire evidence, confirmed the findings of the trial Court by judgment dated 21.02.2014. Aggrieved thereby the present criminal revision case is preferred.
7. The learned counsel for the petitioners contended that both the Courts below failed to appreciate the evidence in a right perspective and found the petitioners guilty. Instead of examining the wife of PW2, who was the owner of the subject house, the prosecution examined PW2. The learned counsel for the petitioners Page 4 of 7 relied upon the decisions rendered in Mohan Lal Vs. State of Punjab 1, Gadiraju Venkata Satya Subrahmanya Raju and others Vs. State of A.P. 2 and Nemalipitta Vidya Sagar Vs. State of A.P. 3 mainly contending that if the informant and the investigating officer are the same persons, there is every possibility of infraction of constitutional guarantee of fair investigation.
8. On the other hand, learned Assistant Public Prosecutor vehemently opposed the present criminal revision case mainly contending that both the Courts below have thoroughly scrutinized the entire material available on record and the law laid down in a catena of decisions and hence, there is no necessity for interference of this Court with the well considered findings.
9. This Court perused the entire material available on record including the judgments of both the Courts below. With regard to the first and foremost contention, which was never raised before the Courts below by the learned counsel for the petitioners, is that the informant and the investigating officer cannot be one and the same, this Court places reliance on Mukesh Singh Vs. State 1 2019(1) ALD (Crl.) 696 (SC) 2 2020(1) ALT (Crl.) 68 (AP) 3 2020(1) ALT (Crl.) 78 (AP) Page 5 of 7 (Narcotic Branch of Delhi) 4 wherein the Hon'ble Supreme Court observed as follows:
12. From the above discussion and for the reasons stated above, we conclude and answer the reference as under:
I. That the observations of this Court in the cases of Bhagwan Singh Vs. State of Rajasthan (1976) 1 SCC 15; Megha Singh Vs. State of Haryana (1996) 11 SCC 709; and State by Inspector of Police, NIB, Tamil Nadu v. Rajangam (2010) 15 SCC 369 and the acquittal of the Accused by this Court on the ground that as the informant and the investigator was the same, it has vitiated the trial and the Accused is entitled to acquittal are to be treated to be confined to their own facts. It cannot be said that in the aforesaid decisions, this Court laid down any general proposition of law that in each and every case where the informant is the investigator there is a bias caused to the Accused and the entire prosecution case is to be disbelieved and the Accused is entitled to acquittal;
II. In a case where the informant himself is the investigator, by that itself cannot be said that the investigation is vitiated on the ground of bias or the like factor. The question of bias or prejudice would depend upon the facts and circumstances of each case. Therefore, merely because the informant is the investigator, by that itself the investigation would not suffer the vice of unfairness or bias and therefore on the sole ground that informant is the investigator, the Accused is not entitled to acquittal. The matter has to be decided on a case to case basis. A contrary decision of this Court in the case of Mohan Lal v. State of Punjab (2018) 17 SCC 627 and any other decision taking a contrary view that the informant cannot be the investigator and in such a case the Accused is entitled to acquittal are not good law and they are specifically overruled (underlined by me).
10. In view of the finding of the Hon'ble Apex Court in the case cited supra, this Court is of the considered opinion that there is 4 (2020) 10 SCC 120 Page 6 of 7 no force in the contention of the learned counsel for the petitioner that the de-facto complainant and the investigating officer cannot be one and the same person.
11. Reverting to the facts of the case on hand, both the Courts, on appreciation of the oral and documentary evidence in a right perspective, have rightly found the petitioners guilty for the offence under Section 3 of the ITP Act, which finding, in my considered view, does not call for any interference. The prosecution succeeded in bringing home the guilt of the petitioners/accused beyond all reasonable doubt for the offence punishable under Section 3 of the ITP Act by letting cogent, concrete and convincing evidence in the form of PWs.1 to 5 and documents under Exs.P1 to P4. The other aspects raised through this criminal revision case were already answered in a convincing and acceptable way by both the Courts below and hence, there is no need or necessity for this Court to interfere with the same. Accordingly, this criminal revision case is liable to be dismissed.
12. In view of the fact that the offences with which the petitioners were charge-sheeted are all non-bailable offences because of which, they must have suffered incarceration during trial and from the date of pronouncement of the judgment by the appellate Court till they were granted bail by this Court on 25.02.2014 they were in Page 7 of 7 jail, suffered mental agony and hardship and that since from the date of inception of the incident till now they are roaming around the Courts, this Court is inclined to take a lenient view insofar as the period of sentence is concerned.
13. Accordingly, the sentence of imprisonment awarded against the petitioners herein by the trial Court and confirmed by the appellate court is hereby reduced to that of the period, which the petitioners had already undergone while upholding the fine amount. Except the above modification with regard to the period of imprisonment, this criminal revision case is dismissed in all other aspects.
14. Miscellaneous applications, if any pending, shall also stand dismissed.
____________________ E.V.VENUGOPAL, J Dated :30-04-2024 abb