Bangalore District Court
Pw.4 Has Not Complied The Provisions Of ... vs And Seized Properties And Filed ... on 24 February, 2022
KABC010166932018
IN THE COURT OF XLV ADDL. CITY CIVIL & SESSIONS
JUDGE, BENGALURU CITY (CCH-46)
DATED THIS THE 24TH DAY OF FEBRUARY, 2022
PRESENT:
Sri. Abdul Rahim Husain Shaikh,
B.Sc., B.Ed., LL.B.(Spl.)
XLV Addl. City Civil & Sessions Judge,
Bengaluru.
S.C. No.1020/2018
BETWEEN
State by Mico Layout PS.,
Bangalore. .. COMPLAINANT
(By the learned Public Prosecutor)
AND
Kumar S/o Rajegowda,
A/a 35 Yrs.,
R/a.No.172, 4th Cross,
5th Main, Royal Shelter,
Devarachikkanahalli,
Bengaluru.
Permanent R/at.
Hosalli Village,
Malavalli Taluk,
Mandya District.
..ACCUSED
(By Sri.RE,, Advocate)
*****
Date of offence & time 13.02.2017 at 13.50 hours
Date of report of offence 13.02.2017 at 16.30 hours
Date of arrest of the accused 13.02.2017
Date of release on bail 04.03.2017
2 S.C. No.1020/2018
Total period of custody 19 days
Name of the complainant Sri B.K.Shekhar
Date of commencement of 22.1.2020
recording of evidence
Date of closing of evidence 07.02.2022
Offences complained of U/s.3, 4 and 5 of ITP Act and
Sec.370(3), 370(A)(2) of IPC
Opinion of the Judge Accused found not guilty
JUDGMENT
The Police Inspector, Mico Layout Police Station, Bangalore, has filed charge sheet against accused for the offences punishable U/s.370(3) and 370(A)(2) of IPC and Sec.3, 4 and 5 of Immoral Traffic (Prevention) Act, 1956.
2. The factual matrix of the case is that :-
The accused was running prostitution business at residential house bearing No.172, Ground floor, situated at 4th Cross, 5th Main, Royal Shelter, Devarachikkanahalli Grama, Bengaluru, by trafficking CW.2 and CW.3 and indulged them in prostitution business for illegal gain with customers contacted through phone and induced them for prostitution. On 13.02.2017 at 13.50 hours the complainant along with CW.4, CW.5 and CW.7 to CW.10 conducted raid over the said house, apprehended the accused and rescued CW.2 and CW.3, and at that time seized mobile phone, condoms, cash etc., from the spot. Thereby the accused is alleged with the offences punishable U/s.3, 4 and 5 of ITP Act and Sec.370(3), 370(A)(2) of IPC.
3. The concerned police have submitted charge sheet against the accused for the offences punishable U/s.3, 4 and 5 of ITP Act and Sec.370(3), 370(A)(2) of IPC, before the jurisdictional VI Addl.,CMM., Bangalore. The learned Magistrate 3 S.C. No.1020/2018 has committed the case to the Sessions Court by complying Sec.207 of Cr.P.C. after furnishing charge sheet copies to the accused. The same is numbered as SC No.1020/2018 in this Court.
4.The charge was framed against the accused on 19.10.2019 for the offenses punishable U/s.3, 4 and 5 of ITP Act and Sec.370(3), 370(A)(2) of IPC, 1956. The accused has pleaded not guilty and claims to be tried.
5.The prosecution has examined in all six witnesses as PW.1 to 6 and got marked documents at Ex.P.1 to P.10, and identified Mos1 to 3. The learned Public Prosecutor has given up the witness CW.6, CW.7, CW.9, CW.10 and CW.12, in view of the evidence of other police official witnesses, as repetition witness. In spite of sufficient opportunities provided to the prosecution by issuing summons, warrant and proclamation for securing of CW.5, but the concerned police failed to secure the said witness and in view of the same on 7.2.2022 the evidence of said witness was taken as nil by rejecting the prayer of the prosecution. Further the prosecution has not taken any steps to secure the witness CW.5, in view of the same dropping of evidence of CW.5 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 19.02.2022, and the same was duly recorded. The accused did not claim for defense evidence nor produced any documents to support his case in spite of sufficient opportunities. The accused has complied provisions U/s.437A of Cr.P.C., 4 S.C. No.1020/2018
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 running prostitution business residential house bearing No.172, ground floor, situated at 4th Cross, 5th Main, Royal Shelter, Devarachikkanahalli Grama, Bengaluru, by trafficking CW.2 and CW.3 and indulged them in prostitution business for illegal with customers contacted through phone and induced them for prostitution and thereby the accused has committed an offences punishable U/s. 3, 4 and 5 of ITP Act?
2. Whether the prosecution proves that the accused with an intention to run prostitution business by trafficking CW.2 and CW.3 forcibly induced them to indulge in prostitution business for wrongful gain, and thereby the accused has committed an offence punishable U/s.370(3) and 370(A)(2) 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:-5 S.C. No.1020/2018
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 that residential house bearing No.172, Ground floor, situated at 4th Cross, 5th Main, Royal Shelter, Devarachikkanahalli Grama, Bengaluru, by trafficking CW.2 and CW.3 and indulged them in prostitution business for illegal with the customers contacting through phone and induced them for prostitution. On 13.02.2017 at 13.50 hours the complainant along with CW.4, CW.5 and CW.7 to CW.10 conducted raid over the said house, apprehended the accused and rescued CW.2 and CW.3, and at that time seized mobile phone, condoms, cash etc., from the spot. Thereby the accused is alleged with the offences punishable U/s.3, 4 and 5 of ITP Act and Sec.370(3), 370(A)(2) of IPC and seized Mos 1 to 3 from the spot under seizure panchanama in the presence of panchas.
12.In order to prove the said allegation the prosecution has examined PW.4/CW.1 B. K. Shekarhas deposed that on 13.02.2017 at 13.50 hours the along with CW.4, CW.5 and CW.7 to CW.10 conducted raid over the said house, and before raiding obtained search warrant from ACP, secured panchas, and appointed CW.8 Police Constable as decoy by handing over Rs.2,000/- to be used to trap the accused person . Further the evidence of PW.4, CW.8 decoy visited the house and after confirmation about carrying of prostitution business informed through sign to PW.4, who along panchas raided the house and 6 S.C. No.1020/2018 found the accused persons involved in committing the alleged offence of prostitution by indulging CW.2/PW.5 Kumari Sowmya, CW.3/PW.6 Salma and apprehended the accused and rescued CW.2 and CW.3, and seized mobile phone, condoms, cash of Rs.2,000/- etc., from the spot by executing panchanama in the presence of panchas , The notice issued to the in the presence of panchas PW.1/CW.4 and CW.5, and produced the seized properties, victims and accused before CW.11/PW.3 along with report, which is marked as Ex.P.4. The panchanama is marked as Ex.P.2. Search Warrant is marked as Ex.P8, and copies of notice to witnesses is marked as Ex.P1.
13.It is pertinent to note that the pancha PW.1 B. V. Raju, who being the mahazar witness, has deposed that he had never been to the incident spot at any point of time and he has no knowledge regarding seizure of MOs1 to 3 from the possession of the accused person from the spot through panchanama Ex.P2. The said witness PW.1 was treated as hostile by the prosecution and cross-examined at length, but no materials has been extracted from his evidence to prove that he was present at the time of conducting raid along with CW.5 and signed the Ex.P2 panchanama after knowing the contents regarding seizure of MOs1 to 3 at the spot from the possession of the accused. The evidence of PW.1 does not corroborate with the evidence of PW.4 and PW.3 .5. It is pertinent to note that another pancha CW.5 was not secured before the Court, in spite of issuance of warrant against him. In view of the same though the panchanama Ex.P2 marked and MOs1 to 3 have 7 S.C. No.1020/2018 been identified, but the prosecution has utterly failed to prove sufficiently and satisfactorily the execution of panchanama Ex.P2 and seizure of MOs1 to 3 in the presence of panchas PW.1 and CW.5.
14.As already discussed above, the police official witnesses PW.4 though given evidence about the raid, but in the cross-examination he admitted he has not called any women from the locality and adjoining to the house to be the pancha. The pancha PW.1 is a male person, who has not supported the case of prosecution, which discloses that the complainant PW.4 has not complied the provisions of law regarding seizure of MOs1 to 3 under panchanama Ex.P.2 in accordance with the provisions of ITP Act. 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 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 situate has to be called them for panchanama, out of them at 8 S.C. No.1020/2018 least one of them shall be a women residing in the said locality. In the instant case the panch witnesses cited PW.1 and CW.5 are male persons, and out of them PW.1 has turned hostile and CW.5 could not be secured by the prosecution. From this fact it is crystal clear that the I.O., PW.3 and PW.4 have not complied the mandatory provisions of Sec.15(2) of ITP Act. Further it is also equally important to note that the police officials PW.4 and the investigation Officer PW.3, have admitted that in spite of dense locality and adjoining building, near the place of raid they have not secured any local neighbor of the adjoining raid building as witness for mahazar nor recorded the statements regarding the occurrence of the alleged offence against the accused. Though the records discloses that incidental spot as admitted is a dense locality and surrounded by the adjoining buildings, non citing of the local persons as a witness by the Investigating Officer also creates a doubt in the prosecution case regarding the conduct of raid and apprehending of the accused along with the victim CW.2 and CW.3, who were forced to indulging committing prostitution.
15.In the instant case it is very pertinent to note that the victims CW.2 and CW.3, were examined as PW.5 and PW.6 to prove the case of the prosecution. Both the witnesses PW.5 and PW.6 have deposed that they had never been indulged in prostitution by the accused person and they have never been apprehended by the police officials and they have not given any statements before the police regarding the accused person by trafficking indulged them in committing the prostitution and were living on the illegal gain. Both the witnesses were treated as 9 S.C. No.1020/2018 hostile and were cross-examined at length, but no incriminating evidence has been elicited from the victim witnesses to prove that they were apprehended by the police official PW.4 and were produced before PW.3 I.O., after raid while they were involved in committing the alleged offence of prostitution on the instigation of accused. The entire case of the prosecution depends on the credible evidence of victims/PW.5 and PW.6, but the said witnesses have not supported the case of the prosecution as regard to raid and involvement of the accused person in committing the alleged offence of prostitution by indulging the victims in the said business for wrongful gain this is fatal for the case of the prosecution.
16.In the instant case the prosecution PW.2 has deposed that he had accompanied PW.4 at the time of raid and was appointed as a decoy to negotiate with the accused person with regard to illegal prostitution business carried out by the accused and was given Rs.2,000/- for the said transaction. Further it is the evidence of the witness that after ascertaining the prostitution carried out he paid Rs.2,000/- as a customer and informed the raiding party who raided the spot and seized the said amount from the accused persons through panchanama. In the cross-examination of PW.4 it is admitted by the complainant-police official that he has not mentioned the denomination of the currency note of Rs.2,000/- that has been seized at the time of raid. At this juncture it is very pertinent to note that the police official PW.4-complainant has deposed in his chief examination that the currency note handed over to the decoy was signed by the panchas. But in the cross-
10 S.C. No.1020/2018examination admitted that he has not mentioned the said fact regarding the signature and number of the currency note in the panchanama. Non-mentioning the currency number in the panchanama draws a suspicion regarding the seizure of cash of Rs.2,000/- from the possession of accused, which was paid to the accused by the decoy. In the cross-examination of PW.2 he admitted that no local persons have been called for the panchanama nor they have been cited as witness for the seizure of cash of Rs.2,000/- and other material objects. The evidence of PW.2 is quiet contrary to the evidence of CW.3/PW.6 victim, who according to the decoy was present in the room at the time of raid. Further the evidence of PW.5/CW.2 victim Sowmya also does not corroborate with the evidence of PW.2 decoy regarding his presence on the incident spot and apprehending the victims indulged in prostitution. In view of the same the evidence of PW.2 decoy cannot be taken into consideration in proving the guilt against the accused person.
17.The witness PW.3 Smt. Renuka has deposed that on 13.02.2017 CW.1/PW.4 B. K. Shekar produced victims, accused and seized properties and filed statement which was considered as complaint and registered in crime No.128/2017. Further it is the evidence of PW.3 that she submitted FIR to the Court, and copies to his higher officers, and after receipt of seized properties entered in PF No.33/2018 and submitted to the Court. IN the evidence PW.3 has deposed that she has recorded the statements of the Victims and witnesses CW.4, 5, 7 and 10 and handed over further investigation to CW.12, who 11 S.C. No.1020/2018 in turn has submitted charge sheet against accused before the Court.
18.It is vehemently argued by the accused counsel that the I.O., PW.3 is 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. On perusal of the entire evidence and documents it is found that no iota of evidence is produced by the prosecution to show that PW.3 has been appointed as Special Police Officer, as specified by the Statement Government for investigation of this case. The evidence of PW.3 discloses that the entire investigation has been conducted by her in recording the statements of victims and witnesses. CW.12 has only took further investigation from PW.3 and filed charge sheet. By considering the arguments of the counsel for accused, 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 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.3 clearly discloses that she being in the rank of Police Sub- Inspector, and has handed over further the investigation to CW.12 after completing the entire investigation by recording the statements of the victims and the witnesses. It is the specific 12 S.C. No.1020/2018 defence of the accused that the witness PW.3 has no authority to investigate the case since she is working under the rank of WPSI and below the rank of Police Inspector as per the provisions of ITP Act. 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:-
"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 Police Sub-
Inspector-PW.3 Smt. Renuka, who had
completed entire the investigation, after
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.
19.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 case, when she is not a Special Officer appointed under the special act.
20.Relying upon the above said provision of Section 13(2) of the said Act and the dictum of law laid down in the 13 S.C. No.1020/2018 above said ruling it is crystal clear that the investigation done by the Police-Sub-Inspector PW.3 Renuka is vitiated by serious procedural irregularity and not curable in nature.
21.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 beyond all reasonable doubt. Accordingly, I answer Points No. 1 and 2 in the negative.
22.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 and 5 of ITP Act and Sec.370(3), 370(A)(2) of IPC.
The bail and surety bonds of accused stand canceled.
MOs.1 and 3 shall be confiscate to the State and MO2 shall be destroyed after appeal period is over.
(Typed to my dictation by the Judgment Writer, directly on Computer, corrected by me and then pronounced in open Court on this the 24th day of February, 2022) (Abdul Rahim Husain Shaikh) XLV Addl. CC and SJ, Bengaluru, 14 S.C. No.1020/2018 ANNEXURE List of Witnesses examined on behalf of Prosecution:
P.W.1: Raju P.W.2: Prashanth K.R. P.W.3: Renuka P.W.4: B.K.Shekhar P.W.5: Soumya P.W.6: Salma
List of Documents exhibited on behalf of Prosecution:
Ex.P.1: Notice to witnesses. Ex.P.1(a): Signature of PW.1 Ex.P.2: Mahazar. Ex.P.2(a): Signature of PW.1. Ex.P.3: Statement of PW.1 Ex.P.4: Complaint Ex.P.4(a): Signature of PW.3. Ex.P.5: FIR Ex.P.5(a) Signature of PW.3 Ex.P.6: PF No.33/17 dated 13.3.2020 Ex.P.7: Rental Agreement. Ex.P.8: Search Warrant. Ex.P.9: Statement of PW.5. Ex.P.10: Statement of PW.6.
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 phone
MO2: Condoms
MO3: Cash of Rs.2,000/-
(Abdul Rahim Husain Shaikh)
XLV Addl. CC & SJ, Bengaluru
15 S.C. No.1020/2018
Order 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 and 5 of ITP Act and Sec.370(3), 370(A)(2) of IPC.
The bail and surety bonds of accused stand canceled.
MOs.1 and 3 shall be confiscate to the State and MO2 shall be destroyed after appeal period is over.
(Abdul Rahim Husain Shaikh) XLV Addl. City Civil & Sessions Judge, Bengaluru.
16 S.C. No.1020/2018