Bangalore District Court
State By Kothanur P.S vs Naveen.K.R(Split Up) on 4 May, 2023
KABC010194022019
IN THE COURT OF XLV ADDL. CITY CIVIL & SESSIONS
JUDGE, BENGALURU CITY (CCH-46)
DATED THIS THE 4TH DAY OF MAY, 2023
PRESENT:
Sri Manjunatha, B. A., LL.B.,
XLV Addl. City Civil & Sessions Judge, Bengaluru.
SC No.892/2019
BETWEEN
Complainant State by Kothanur P.S.,
Bangalore.
(By the learned Public
Prosecutor)
AND
Accused 1. Naveen.K.R(Split up)
2.Ravikumar
S/o Boregowda, a/a 30 Yrs.,
R/o Bindigenavile Hobli,
Mangaravalli Grama,
Nagamangala Taluk,
Mandya District.
3. Toupiq( Split up)
4.Naveen(Split up)
5.George .C T.
S/o Thomas, a/a 50 Yrs.,
R/a no.108,
I Main Road, Kaverinagar,
2
SC No.892/2019
Kaval Byrasandra,
Bengaluru-32.
6.Reethu(Split up)
7.K. V. Venugopal
S/o E. V. Govindan,
R/a No.E 68/5/384,
4th B Cross, Michaelpalya,
Indiranagara, Bengaluru-39.
(By Sri/Smt; ..........Adv.)
******
Date of offence & time 28.06.2016 at 10.00 p.m.
Date of report of offence 28.06.2016 at 23.45 hours
Date of arrest of the A2: 29.06.2016
accused
Date of release on bail 16.07.2016
Total period of custody 18 days
Name of the complainant Sri C .N. Bopaiah
Date of commencement 20.03.2021
of recording of evidence
Date of closing of 06.02.2023
evidence
Offences complained of U/s.3, 4 and 5 of ITP Act and
Sec.370 r/w Sec.34 of IPC
Opinion of the Judge Accused found not guilty
JUDGMENT
The Assistant Commissioner of Police, Sampigehalli Sub- Division, Bangalore, has filed charge sheet against accused No.2, 5 and 7 and others for the offences punishable U/s.3, 4 and 5 of Immoral Traffic (Prevention) Act, 1956 and Sec.370 r/w Sec.34 of IPC in Crime No.90/2016 of Kothanur P.S.,
2. The factual matrix of the case is that :-
The accused No.2, 5 and 7 and others running prostitution business at house No.229 belongs to accused No.7 3 SC No.892/2019 situated at 6th B Cross, Asha Town ship, Bilishivale, within the limits of Kothanur P.S., Bangalore, by trafficking CW.2 with the assurance of providing job and money, induced and indulged her in prostitution business in the public vicinity and were leading their life out of the amount of illegal gain from the said business. On 28.06.2016 at 10.00 p.m. CW.1 along with his subordinate staffs CW.6 to CW.10 conducted raid over the said house after obtaining credible information and apprehended accused No.1 to 3, who were involved in the prostitution business, rescued CW.2 and at that time seized the articles from the spot through panchanama. Thereby the accused persons are alleged with the offences punishable U/s.370 r/w Sec.34 of IPC and Sec.3, 4 and 5 of Immoral Traffic (Prevention) Act, 1956.
3. The concerned police have submitted charge sheet against accused persons for the offences punishable U/s.370 r/ w Sec.34 of IPC and Sec.3, 4 and 5 of Immoral Traffic (Prevention) Act, 1956, before the jurisdictional XI 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, 5 and 7. The case against accused No.1, 3, 4 and 6 has been split up.
4.The charge was framed against the accused No.2, 5 and 7 on 11.02.2020 for the offences punishable U/s.370 r/w Sec.34 of IPC and Sec.3, 4 and 5 of Immoral Traffic (Prevention) Act, 1956. The accused No.2, 5 and 7 pleaded not guilty and claimed to be tried.
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5.The prosecution has examined in all five witnesses as PW.1 to PW.5 and got marked documents at Ex.P.1 to P.3, and identified Mos1 to 4. The learned public prosecutor has given up witnesses CW.5, CW.6 and CW.8 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.2, but the concerned police failed to secure the said witnesses and in view of the same the evidence of CW.2 taken as nil by rejecting the prayer of the prosecution. Further the prosecution has not taken any steps to secure the witnesses CW.4, in view of the same dropping of evidence of CW.4 remained intact.
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 9.3.2023, and the same was duly recorded. The accused persons did not claim for defense evidence nor produce any documents to support their case.
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 beyond all reasonable that on 28.06.2016 at 10.00 p.m. the accused No.2, 5 and 7 and others at house bearing No.229, situated at 6th B Cross, Asha Town ship, Bilishivale, within the limits of Kothanur P.S., Bangalore, by trafficking CW.2 5 SC No.892/2019 with the false assurance of providing job money induced and indulged her in prostitution business in the public vicinity and were leading their life out of the amount of illegal gain from the said business and thereby the accused No.2, 5 and 7 have committed offences punishable U/s.3, 4 and 5 of ITP Act?
2. Whether the prosecution proves beyond reasonable doubt that on 28.06.2016 at 10.00 p.m. the accused No.2, 5 and 7 with common intention to run prostitution business by trafficking CW.2 forcibly induced her to indulge in prostitution business for wrongful gain, and thereby the accused No.2, 5 and 7 have committed offence punishable U/s.370 r/w Sec.34 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:-
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.
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11.It is the specific allegation that the accused No.2, 5 and 7 and others running prostitution business at house No.229 belongs to accused No.7 situated at 6th B Cross, Asha Town ship, Bilishivale, within the limits of Kothanur P.S., Bangalore, by trafficking CW.2 with the assurance of providing job and money, induced and indulged her in prostitution business in the public vicinity and were leading their life out of the amount of illegal gain from the said business. On 28.06.2016 at 10.00 p.m. CW.1 along with his subordinate staffs CW.6 to CW.10 conducted raid over the said house after obtaining credible information and apprehended accused No.1 to 3, who were involved in the prostitution business, rescued CW.2 and at that time seized the articles from the spot through panchanama. Thereby the accused persons are alleged with the offences punishable U/s.370 r/w Sec.34 of IPC and Sec.3, 4 and 5 of Immoral Traffic (Prevention) Act, 1956.
12.In order to prove the said allegation the prosecution has examined the complainant as PW.1. PW.1 C.N. Bopaiah has deposed that on 28.06.2016 while he was on patrolling duty received information regarding prostitution carried out in a house situated Asha Town Ship, called Police Inspector- Krishnappa, and his staff by securing panchas conducted raid at 10.00 p.m. along with his staff and panchas, apprehended accused No.1 to 3 and rescued CW.2, who was made to indulge in prostitution business by the accused persons. It is also the case of the PW.1 that he has drawn mahazar Ex.P1 regarding seizure of material objects No.1 to 4. It is pertinent to note that in the cross-examination PW.2 has admitted that the 7 SC No.892/2019 place that has been raided is thickly populated with the adjoining house . It is equally important to note that before the raid he has not physically verified himself and his staff. This clearly indicates that PW.1 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.1 that after conducting raid he has seized MOs1 to 4 from the possession of accused persons through panchanama Ex.P1 drawn in the presence of the panchas. PW.2 is the pancha, who deposed with regard to conduct of raid, apprehension of accused persons, rescue of CW.2 and seizure of material object by drawing mahazar. In spite of sufficient opportunities provided to the prosecution, failed to secure PW.2 and subject him for the test of cross-examination. Therefore the evidence of PW.2 is not much helpful to the case of the prosecution. The contents of Ex.P1 panchanama is not proved sufficiently and satisfactorily by the prosecution. It is vehemently argued by the learned counsel for accused persons that the complainant PW.1 in spite of densely populated area has not secured any of the female persons residing adjoining to the 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 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 8 SC No.892/2019 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.1 has not complied the mandatory provisions of Sec.15(2) of ITP Act. It is equally important to note that though the place of occurrence is a public place adjoining residential houses, 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 and apprehending of the accused persons along with the victim/CW.2, induced her indulging in committing prostitution and failure to prove seizure of MOs1 to 4 is fatal to the case of the prosecution. PW.3 Abdul Hameed and PW.4 Sowbhagya who are the police officials and and raiding party members, have deposed in similar way of PW.1 and deposed about conducting of raid, apprehension of accused persons, seizure of material objects and rescue of CW.2 and producing of accused persons before PW.5. The learned counsel for the accused cross-examined PW.3 and PW.4, they denied the the suggestions with regard to apprehension of accused and their participation in the raid.9
SC No.892/2019
13.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.2, who according to the prosecution, was indulging in prostitution business by trafficking and the accused persons were living out of the wrongful gain from the said business. This is fatal for the case of the prosecution, wherein the material witnesses have not been examined, so as to prove the guilt against the accused persons. Further the prosecution has not produced any piece of documentary evidence to show that accused No. 7 is the owner of the premises, where the prostitution business is being carried out,
14.PW.5 Ramanjaneya has deposed that while he was on duty on 28.06.2019 at about 11.45 p.m. Cw.1 appeared before him and lodged written complaint as Ex.P2, and based on the said complaint he registered a case in Crime No.90/2016 and submitted FIR marked as Ex.P3 to the Court. CW.1 along with complaint produced MO1 to 5, accused persons along with the victim. He brought MOs1 to 5 into PF No.39/2016, send the victim to the State Home for Women, and on the same day he recorded statements of raiding party members and panchas, after completing the arrest formalities of accused persons produced before the Court, and on the next day brought the victim from the State Home, recorded her statement, and handed over her to the custody of her uncle, and after completing the investigation he submitted charge sheet to the Court. From this it is clear that the entire investigation was 10 SC No.892/2019 carried out by PW.5 by submitting charge sheet. It is vehemently argued by the learned counsel for accused and brought to the notice of the Court the evidence of PW.5 that at the time of the incident he was working as Police Sub-inspector of Kothanur P.S., and after registering the complaint, took up investigation, has investigated the entire case by recording the statement of witnesses, victim and filed charge sheet. It is vehemently argued that PW.5 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.
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.5 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.5 clearly discloses that she being in the rank of Police Sub-Inspector, who had registered the case and recorded the statements of victims, panchas and the raiding party witnesses and filed charge sheet. It is the specific defense of the accused that the witness PW.3 who investigated the case has no authority as per the provisions of ITP Act to investigate the case since he was 11 SC No.892/2019 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 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.5 PSI who has registered the case and investigated by recording the statements of the witnesses and filed 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 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.
12SC No.892/2019
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.5 is vitiated by serious procedural irregularity and not curable in nature.
18.Therefore, from the above reasons and discussions it is very clear that the prosecution has utterly failed to establish or prove the guilt against the accused No.2, 5 and 7 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, 5, and 7 are hereby acquitted of the offenses punishable U/s.3, 4 and 5 of the Immoral Traffic (Prevention) Act, 1956 and Sec.370 r/w Sec.34 of of Indian Penal Code, 1860.The bail and surety bonds of accused No.2, 5
and 7 stand canceled.
MO1 to MO4 shall be preserved till the disposal of the case registered against accused No.1, 3, 4 and
6.
(Typed to my dictation by the Stenographer directly on Computer, corrected by me and then pronounced in open Court on this the 4th day of May, 2023) (Manjunatha) XLV Addl. City Civil & Sessions Judge, Bengaluru.
13SC No.892/2019 ANNEXURE List of Witnesses examined on behalf of Prosecution:
P.W.1: C. N. Bopaiah P.W.2: John P.W.3: Abdul Hameed P.W.4: Sowbhagya P.W.5: G. R. Ramanjaneya.
List of Documents exhibited on behalf of Prosecution:
Ex.P.1: Mahazar Ex.P.2: Complaint Ex.P.3: 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:-
MOs1 to 3: Mobile Phones
MO4; Condoms.
(Manjunatha)
XLV Addl. City Civil & Sessions Judge,
Bengaluru.
14
SC No.892/2019
Accused No.2, 5 and 7 present
The learned counsel for accused present. Judgment pronounced in the open Court vide its separate order ORDER Acting U/s.235(1) of Cr.P.C., the accused No.2, 5 and 7 are hereby acquitted of the offenses punishable U/s.3, 4 and 5 of the Immoral Traffic (Prevention) Act, 1956 and Sec.370 r/w Sec.34 of of Indian Penal Code, 1860.
The bail and surety bonds of accused No.2, 5 and 7 stand canceled.
MO1 to MO4 shall be preserved till the disposal of the split up case registered against accused No.1, 3, 4 and 6.
(Manjunatha) XLV Addl. City Civil & Sessions Judge, Bengaluru.
15 SC No.892/2019