Delhi District Court
State vs . Riya Seth Etc. Anubhav on 21 March, 2018
1
IN THE COURT OF SH. ANUBHAV JAIN, METROPOLITAN
MAGISTRATE, SOUTHEAST, SAKET COURTS, NEW DELHI.
FIR No. 40/03
PS GK
U/s. 4/5/7/34 ITP Act
State Vs. Riya Seth etc. ANUBHAV
JAIN
JUDGMENT
Digitally signed by A. SL. NO. OF THE CASE : 218/2/12 ANUBHAV JAIN Date: 2018.03.22 B. DATE OF INSTITUTION : 26.04.2003 15:41:59 +0530 C. DATE OF OFFENCE : 28.02.2003 D. NAME OF THE : ACP S.D. Mishra COMPLAINANT E. NAME OF THE ACCUSED : 1) Riya Seth @ Priya (absconder) D/o Hari Seth
2) Taniya (absconder) D/o Ashok Chibber
3) Nisha Sinha (convicted) W/o Anil Sinha
4) Ashok Dutta, S/o Raghuvir Dutta
5) Shiv Ratan, S/o Budh Ram F. OFFENCE COMPLAINED OF : U/s 4/5/7/34 ITP Act G. PLEA OF ACCUSED : Pleaded not guilty H. FINAL ORDER : Acquittal I. DATE OF FINAL ORDER : 21.03.2018 2 Brief Statement of Reasons for Decision :
1. The present accused is produced before the court to stand trial for the offence u/s 4/5/7/34 ITP Act.
2. In brief, facts of the case of the prosecution are that on 28.02.2003 secret informer of ACP/SIT informed that one person Ashok, on giving reference of Sunil, at mobile no. 9811162687, supply girls for the purpose of prostitution. The said information was got verified through SI Rambir Singh who called at the said given number and informed the complainant, that he talked to Ashok who had agreed to supply one girl for four hours at Rs. 2,000/ and he agreed to reach at Archana Shopping Complex, G.K.I Delhi at about 4:30 PM in Indica car bearing no.
DL3CU0799. It is further stated that thereafter complainant / ACP prepared a raiding party comprising of Insp. Bhim Singh, SI Ramvir Singh, HC Atar Singh, Hc Ashok Kumar, Ct. Satender Kumar and Woman Ct. Munesh and at 4.00 pm the complainant alongwith raiding party reached the spot in two private vehicles and at about 4.15 PM Raiding party reached at Archana Complex where ACP asked the public persons to join the investigation, however none of them agreed. It is further stated that ACP appointed HC Ashok Kumar as decoy coustmer and HC Atar Singh as Shadow Witness and handed over 4 notes of denomination 500/ each to HC Ashok Kumar, after signing them, and asked HC Atar Singh to signal the raiding party on completion of deal. It is further stated that at about 4.45 pm one Indica car bearing no. DL3CU0799 stop on road in front of Archana Shopping Complex and on seeing the same, HC Ashok and HC Attar Singh approached the said car and one person deboarded from said car and Decoy Coustmer talked with said person and said person show call girls sitting on the back seat of the said car, by opening the window of the car and after about 5 minutes shadow witness signalled the raiding party upon which 3 the ACP alongwith raiding party reached the spot and apprehended accused persons. It is further case of prosecution that Decoy Coustmer HC Ashok informed that, accused Ashok Kumar produced three call girls namely Taniya Chibbar, Riya Seth and Nisha Sinha and told that all three are professional Call Girls and asked for his commission of Rs. 1,000/ and further told that each girl would charge Rs. 1,000/ and asked him to pick up one girl. It is further stated that all the said girls tried to allure him by making indecent gestures. That thereafter Decoy Coustmer HC Ashok pick a girl namely Taniya and gave two notes of denomination 500/ to accused Ashok who kept them in the pocket of his shirt and further gave two notes of denomination 500/ each to accused Taniya who kept them in the pocket of her pant. It is further stated that shadow witness HC Atar Singh corroborated the version of HC Ashok and ACP further enquired from all the accused persons individually and all of the said accused persons admit their involvement in prostitution racket. That thereafter ACP conducted personal search upon accused Ashok upon which two notes of denomination 500/ were recovered from his shirt pocket and the said notes were kept in an envelope sealed with the seal of 'RS'. That thereafter personal search of accused Taniya was conducted by women constable Munesh upon which two notes of Rs. 500/ each were recovered from back pocket of her pant and the said notes were kept in a separate envelopes and sealed with the seal of 'RS'.
Thereafter FIR u/s 4/5/8 ot ITP Act was registered against the abovesaid accused persons and seizure memo was prepared. Thereafter IO prepared the site plan and arrest the abovesaid accused persons and recorded their disclosure statement and seized the vehicle bearing no. DL3CU0799. After completion of investigation chargesheet was filed before the court.
3. It is pertinent to state in here that accused Riya Seth was declared as proclaimed offender by Ld. Predecessor court vide order dated 12.08.2010. Further 4 vide same order accused Nisha Sinha was convicted by Ld. Predecessor Court on her plea of guilt. It is further pertinent to state in here that accused Taniya was declared PO vide order dt. 17.01.2013 by Ld. Predecessor Court. Accused Ashok Dutta and Shiv Rattan was charged by Ld. Predecessor Court u/s 5/4/7/34 ITP Act vide order dt. 15.10.2013 to which the accused persons plead not guilty and claimed trial.
4. Prosecution in order to prove its case has examined following witnesses :
4.1 PW1 SI Ashok Kumar deposed that 0n 28.02.2003, he was posted as HC at SIT Crime Branch, Amar Colony and on that day, at about 3.50 pm, he alongwith ACP S.D Mishra, Inspector Bhim Singh, SI Ram Dev, HC Atar Singh, CT.
Satender and Wct. Munesh were at Crime Branch. He further deposed that ACP S.D. Mishra briefed them and told them that he has an information regarding call girl and ACP deployed him as a decoy customer and gave him four note of Rs. 500 with signature and prepared a handing over notice Ex. PW1/A. He further deposed that at about 4.00 pm, we went to Rachna complex where ACP requested some passerby to join the raiding party but none agreed and left the spot. He further deposed that ACP directed HC Atar Singh to be a shadow witness and thereafter he alongwith alongwith HC Atar Singh remained at the footpath. He further deposed that at about 4.45 pm an Indica car bearing registration no. DL3CU0799, came at the spot i.e out side the said complex and one person came out of the car and its driver remained seated inside it and he informed his name as Ashok Datta. He further deposed that accused Ashok Datta told him that three girls are sitting in his car and he can choose anyone of them and Ashok Dutta further told him that price for each girl shall be Rs. 2000/. He further deposed that thereafter, he selected one girl out of them and handed over the aforesaid four currency notes of Rs. 500/ each to the accused Ashok Datta, who kept two currency notes in the pocket of his shirt and handed over remaining two currency notes to a girl namely Tanya. He further deposed that Tanya kept the said two 5 currency notes in the pocket of her jeans and shadow witness HC Atar Singh signalled towards the staff of the crime branch and they immediately reached the spot. He further deposed that all the five persons in the said car were apprehended and thereafter, ACP S.D Mishra frisked accused Ashok Datta and recovered two currency notes of Rs. 500/ each from his pocket which were kept in an envelope and the said envelope was sealed with the seal of 'RS' and a seizure memo of the said envelope was prepared which is Ex. PW1/B. He further deposed that thereafter, Wct. Munesh searched the accused Tanya and she got recovered the remaining two currency notes of Rs. 500/ each which were similarly kept in a separate envelope and it was also sealed with the seal of 'RS' vide seizure memo Ex. PW1/C. He further deposed that thereafter, ACP S.D Mishra, prepared a Tehrir and the same was handed over to Ct. Satender, who took the same to PS G.KI and the site plan was prepared which is Ex. PW1/D. He further deposed that the said indica car was seized vide seizure memo Ex. PW1/E and IO recorded disclosure statement of accused Ashok Dutta and Shiv Ratan which is Ex. PW1/F and Ex. PW1/G. He further deposed that the mobile phone was seized vide seizure memo which is Ex. PW1/H and all the five accused persons alongwith the said Indica car were taken to the office of Crime branch where they were arrested. He further deposed that the investigation of this case was marked to SI Rambir. He identified all the accused persons in the court.
4.2 PW2 ASI Attar Singh deposed that on 28.02.2003, he was posted as HC in SIT section crime branch, police post Amar Colony, New Delhi and on that day, ACP Sh. SD Mishra, received an information regarding the illegal supply of girls by one person namely Ashok Kumar and on the basis of the above said information, the ACP prepared the raiding team including Inspector Bhim Singh, SI Ram Bir Singh, HC Ashok Kumar, Ct. Satender Kumar, W/CT Munesh Kumari and him. He 6 further deposed that the raiding team reached at Archana Shopping Complex, Greater Kailash where ACP asked some public person to join the raiding team but none agreed. He further deposed that HC Ashok Kumar was made decoy customer on the directions of ACP/IO, who gave 4 notes of Rs.500/ bearing the signature of the ACP/IO to HC Ashok Kumar and briefed him and all the staff. He further deposed that he was made shadow witness of HC Ashok Kumar. He further deposed that at around 4.45 pm, one Indica Car came bearing registration No. DL 3C U 0799 and accused Ashok Kumar came out of the car and HC Ashok Kumar went there and started dealing with accused Ashok Kumar. He further stated that in that car three girls were sitting on the back seat and accused Ashok Kumar pointed out towards those girls and showed them to HC Ashok Kumar and offered him to take one girl and HC Ashok Kumar selected one girl and gave Rs.2000/ to accused Ashok Kumar. He further deposed that accused Ashok Kumar gave Rs.1000/ to that girl and kept the remaining amount and thereafter he gave signal to the raiding team and all of them reached there and apprehended the accused Ashok Kumar along with girls. He further deposed that ACP/IO prepared the rukka and handed over the same to Ct. Satender for getting the case registered. He further deposed that accused Ashok Kumar, including the girls namely Riya Seth, Nisha and Taniya were arrested vide arrest memo Ex.PW2/A, Ex.PW2/B, Ex. PW2/C, Ex.PW2/D and Ex.PW2/E respectively. He further deposed that the notes of Rs.500/ which were given to HC Ashok Kumar by the ACP/IO were recovered from the accused persons were seized vide seizure memo already Ex.PW1/B. He further deposed that IO conducted personal search of accused Ashok Kumar and Shiv Ratan vide memo Ex.PW2/F and Ex.PW2/G. He further deposed that IO also got conducted the personal search of accused Riya Seth, Nisha, Taniya and all of them were taken to office. He identified all the accused persons in the court.
74.3 PW3 SP S.D Mishra deposed that on 28.02.2003, he was working as ACP/SIT crime branch, Delhi and at around 1:00 pm, one of the informer informed him that a person by the name of Ashok is working as a pimp and if given a reference of Sunil, will supply call girls, if calls were made to his mobile number 9811162687 and he asked SI Rambir Singh to call Ashok and SI Rambir after talking to Ashok on the said mobile number, informed him that Ashok had a few girls available with him and that he can supply a girl for Rs.2,000/ and Ashok had agreed to meet opposite Archana Shopping Complex, G.KI, New Delhi at around 4:30 pm and that he will be coming to the place alongwith the girls in a Indica car bearing registration no. DL 3CU0799. He further deposed that he formed a team comprising of Inspector Bhim Singh, SI Rambir Singh, HC Attar Singh, HC Ashok, Ct. Satender and W/Ct. Munish and reached the red light of Archana Shopping Complex at around 4:00 pm. He further deposed that he asked a number of passersby to stand as a public witness however none of them consented to become a party in the police case. He further deposed that thereafter, he made HC Ashok as a decoy customer and HC Attar Singh as a shadow witness and gave HC Ashok Rs.2,000/ (four notes of Rs.500/), after signing on them and also told the shadow witness to run his hand through his hair once the deal has been stuck so that the raiding party can move in. He further deposed that at around 4:45 pm, a golden colour Indica Car having the same number as informed came at the spot and one person came out and spoke to HC Ashok (decoy customer) and the window of the said car was lowered and three girls sitting there were spotted. He further deposed that about 5 minutes later HC Attar Singh (shadow witness) gave the signal and the raiding party immediately moved in and apprehended three girls and the driver of the car as well as the person to whom HC Ashok was speaking to and on inquiry with HC Ashok, it was learnt that Ashok Dutt @ Asharfi, 8 r/o Sukhdev Vihar, Delhi acting as a pimp had offered girls namely Taniya Chibbar, Nisha Sinha and Riya Seth for sexual favours against a payment of Rs.2,000/ of which Rs.1,000/ was the commission for Ashok Dutt and Rs.1,000/ was for the girl chosen. He further stated that HC Ashok also informed that all the girls had tried to entice him by making explicit gestures to him and he paid Rs. 2,000/ to Ashok Dutt of which he kept Rs.1,000/ in his shirt pocket and gave Rs.1,000/ to the selected girl whose name later on was revealed as Taniya Chibbar. He further deposed that he prepared the rukka Ex.PW3/A and sent to it to the PS through Ct. Satender and further investigation was taken up by SI Rambir. He further identified the case property and accused persons in the court.
PW4 W/HC Munesh Devi deposed that in 2003, she was posted as a constable at PSNDLS (New Delhi Railway Station) and on 28.02.2003, at around 01:00 pm, she was called at SIT crime branch office by ACP S.D Mishra and was informed about a raiding party to be conducted at Archana shopping center. She further deposed that the raiding party including herself, Inspector Bhim Singh, HC Ashok, HC Attar Singh and Ct. Satender. She further stated that in the briefing of the raiding party, she was informed that the raiding was to be conducted in respect of some girls, who are involved in flesh trade and at around 04:00 pm, they reached the shopping center where she saw four girls sitting in a Indica car bearing registration no. DL3C0799. She further despoed that ACP S.D Mishra sent Ct. Attar Singh with two notes of Rs.500/ to the broker (whose name we later came to know as Shiv Kumar) who accepted the said two notes. She further deposed that she can not identify accused Shiv Kumar in the court. She further deposed that thereafter, they apprehended Shiv Kumar, Ashok Kumar and the four girls. She further failed to identified the accused persons.
9PW5 Retd. SI Ram Bir Singh deposed similar on the lines of PW3 and same is not being reiterated here for the sake of brevity.
PW6 ASI Satender Kumar deposed that on 28.02.2003, he was posted as constable at SIT section crime branch and on that day, ACP S.D Mishra received a secret information regarding prostitution at Archana Shopping complex, G.KI, New Delhi and IO/ACP S.D Mishra prepared the raiding party comprising of Inspector Bhim Singh, SI Ramvir Singh, HC Attar Singh, HC Ashok Kumar and him. He further deposed that at around 04:45 pm, they reached at Archana shopping complex and raid was conducted however he did not remember the place of raid. He further deposed that IO gave him rukka and sent him to PSG.KI for registration of FIR. He further deposed that after registration of FIR, he came back at Archana Shopping complex and handed over the original rukka and copy of FIR to the IO and thereafter IO recorded his statement.
PW7 Surender Kumar, Nodal Officer from Bharti Airtel Ltd. deposed that original call detail record of mobile number 9818027792 dt. 28.02.2003 are not available because as per DOT guidelines, detail records of any mobile number are reserved for one year only.
5. After completion of prosecution evidence, statement of accused persons u/s 313 Cr.P.C was recorded wherein both the accused persons wherein they denied all the allegations as leveled against them by the prosecution. They further chooses not to lead any defence evidence.
106. I have heard Ld. APP for the state and counsels for the accused persons and perused the case file carefully.
7. It is settled proposition of law that burden lies upon the prosecution to prove its own case. It is the case of prosecution that:
a) ACP/IO S.D. Mishra received a secret information regarding running of prostitution racket
b) Said ACP/IO information is verified by SI Ram Bir Singh who called at .
9811162687 and talked to accused Ashok Dutt, who asked him to come over to Archana Complex at 4.00 pm and informed that he would charge Rs. 2000/ for each girl.
c) That ACP prepared a raiding team comprising of ACP S.D Mishra, Inspector Bhim Singh, SI Ram Dev, HC Attar Singh, CT. Satender and W/HC Munesh and raiding party reached Archan Complex at 4.00 PM
d) That HC Attar Singh was made as shadow witness and HC Ashok Kumar as decoy witness and ACP hand over 4 notes of denomination 500/ to HC Ashok Kumar bearing his signature.
e) That accused persons arrived at spot in vehicle bearing no. DL3CU0799 where Accused Ashok Dutta produce 3 girls and decoy costumer choses one girl and hand over 4 notes of denomination 500/= to accused Ashok which kept two notes with him and handed over two notes to Tanya.
f) That on the signal of shadow witness, raiding party apprehended the accused persons. Conduct their personal search and lodged the FIR.
8. It is argued by the counsel for the accused that prosecution has failed to discharge its burden and has failed to prove its case beyond reasonable doubts. It is argued by the counsel for the accused that:
a) PW4 Woman Constable did not support the case of prosecution. It is further 11 argued that she was never declared hostile by the Ld. APP for the state.
b) It is further argued that although seizure memo was prepared subsequent to the lodging of FIR, seizure memo bears FIR Number which raises serious suspicion over the case of prosecution.
c) That DD No. 9A was never brought on record or proved by the prosecution.
d) That malkhana register no. 19 was never brought on record or proved by the prosecution in order to prove that the seized items were kept safely in the malkhana. Further MHCM was never examined by prosecution.
e) That provision of sec. 157 Cr.P.C are not complied with by the police officials.
f) No public witness was joined in at the time of raid.
g) That no witness has deposed anything against the accused Shiv Rattan.
9. In the present case in hand, the allegations against accused Ashok Dutta and Shiv Ratan are that they in furtherance of their common intentions were found inducing and influencing girls for the purpose of prostitution and for the same, they received a sum of Rs. 2000/ from the decoy customer namely SI Ashok Kumar. Before proceeding further with the present case on merits, it would be pertinent to state in here relevant provisions of Immoral Trafficking Prevention Act, 1956 as well as law with regard to the same.
2 [(f) "prostitution" means the sexual exploitation or abuse of per sons for commercial purpose, and the expression "prostitute" shall be construed accordingly;]
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 1[any other person] 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[and where such earnings relate to the prostitution of a child or a minor, shall be punishable with imprisonment for a term of not less than seven years and not more than ten years].
3[(2) where any person over the age of eighteen years is proved--
12(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 his 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 per son within the meaning of subsection (1).
5. Procuring, inducing or taking 1[person] for the sake of prostitution.-- (1) Any person who--
(a) procures or attempts to procure a 2[person] whether with or without his consent, for the purpose of prostitution; or
(b) induces a 3[person] to go from any place, with the intent that he may for the purpose of prostitution become the inmate of, or frequent, a brothel;
(c) takes attempts to take a 4[person] or causes a 5[person] to be taken, from one place to another with a view to his carrying on, or being brought up to carry on prostitution; or
(d) causes or induces a 6[person] to carry on prostitution;
7[shall be punishable on conviction with rigorous imprisonment for a term of not less than three years and not more than seven years and also with fine which may extend to two thousand rupees, and if any offence under this subsection is committed against the will of any person, the punishment of imprisonment for a term of seven years shall extend to imprisonment for a term of fourteen years:
Provided that if the person in respect of whom an offence committed under this subsection,--
(i) is a child, the punishment provided under this subsection shall extend to rigorous imprisonment for a term of not less than seven years but may extend to life; and
(ii) is a minor, the punishment provided under this subsection shall extend to rigorous imprisonment for a term of not less than seven years and not more than fourteen years;] (2) 8[. . . . . . .] (3) An offence under this section shall be triable--13
(a) in the place from which a 9[person] is procured, induced to go, taken or caused to be taken or from which an attempt to procure or take such 10[person] is made; or
(b) in the place to which he may have gone as a result of the inducement or to which he is taken or caused to be taken or an attempt to take him is made.
7. Prostitution in or in the vicinity of public places.-- 1[(1) Any 2[person], who carries on prostitution and the person with whom such prostitution is carried on, in any premises--
(a) which are within the area or areas, notified under subsection (3), or,
(b) which are within a distance of two hundred metres of any place of public religious worship, educational institution, hostel, hospi tal, nursing home or such other public place of any kind as may be notified in this behalf by the Commissioner of Police or Magistrate in the manner prescribed, shall be punishable with imprisonment for a term which may ex tend to three months].
[(1A) Where an offence committed under subsection (1) is in 3 respect of a child or minor, the person committing the offence shall be punishable with imprisonment of either description for a term which shall not be less than seven years but which may be for life or for a term which may extend to ten years and shall also be liable to fine:
Provided that the court may, for adequate and special reasons to be mentioned in the judgment, impose a sentence of imprisonment for a term of less than seven years.] (2) ......5
[(3) The State Government may, having regard to the kinds of persons frequenting any area or areas in the State, the nature and the density of population therein and other relevant considera tions, by notification in the official Gazette, direct that prostitution shall not be carried on in such area or areas as may be specified in the notification.
14(4) Where a notification is issued under subsection (3) in respect of any area or areas, the State Government shall define the limits of such area or areas in the notification with reasonable certainty. (5) No such notification shall be issued so as to have effect from a date earlier than the expiry of a period of ninety days after the date on which it is issued].
10. In State v. Bashir Ahmed, 1983 SCC OnLine Del 137 while dealing with sim ilar facts as in the present case, it was observed by Hon'ble High Court of Delhi:
5. Morals and law are not synonymous. As soon as law enters the sphere of morals, its construction and implementation both seem to be fraught with difficulties. One such law is this legislation relating to suppression of prostitution. Whatever be its origins and reason for its survival, be they biological, economical, social or psychological, prostitution is a practice as old as civilisation. It even came to be as sociated with devotion and dedication to gods, priests and temples. At one time courtesans carved for themselves an accepted niche in soci ety nearing respectability. Still later it came to be protected, licensed and regulated by law. In spite of puritan fervour it is difficult to to tally eradicate this ancient practice unless the society guarantees to supply suitable employment and more rigorous its suppression is, more defiantly does it emerge overtly and covertly in other sophisti cated forms. In general there is universal agreement that the practice of nonmerital sex as a profession is degrading to the dignity of mankind, of women in particular. In pursuance of ratification by In dia of the International Convention of the suppression of traffic in persons and of the exploitation of the prostitution by others, signed in New York in 1950 on May 9, the Act was enacted. One cannot fail to note that it primarily punishes miserable and helpless women who on account of circumstances are largely driven to live by this de grading trade. And one may pause to ask legitimately why not men except when he supplies her for the purpose be liable to punishment like her? That is one reason why the provisions of the Act should be strictly construed against prosecution.
6. Prostitution has been defined as follows:15
"2. (f). 'prostitution' means the act of a female offering her body for promiscuous sexual intercouse for hire, whether in money or in kind, and whether offered immediately or otherwise, and the expression 'prostitute' shall be construed accordingly."
7. It was urged that what the Act seeks to do is not to stop the profes sion or trade of a prostitute altogether: Shama Bai v. State of Uttar Pradesh, AIR 1959 All. 57, and imposes reasonable restrictions on it. MC Malerkotla v. Mushtaq, AIR 1960 Punjab 18. What it seeks to prohibit is the act of a common prostitute and, therefore, a single act of offer cannot amount to an offer for purposes of promiscuous inter course. Promiscuity in prostitution means indiscriminate bartering of sex favours without any emotional attachment and for monetary con siderations. In re Ratnamala, AIR 1962 Mad. 31, and Bai Shanta v. State of Gujarat, AIR 1967 Gujarat 211, it was pointed out that the purpose of the Act is not to render prostitution per se a crimi nal offence, but it is to inhibit or abolish commercialised vice as an organised means of living. So In re Kamala, AIR 1966 Madras 312, it was held that merely to indulge in some flirtation with a stranger, or to behave in such a way as to attract the attention of persons of the opposite sex, may be regrettable or immodest, but per se, it does not amount to any offence under the Act. It excludes a permanently kept concubine or a women taken without paying any consideration. The entire scheme behind the Act is not the proof of a single incident of prostitution or of the activities of a prostitute. There must be indis criminate sexuality requiring more than one customer: In re Devaku mar , (1972) 1 M.L.J. 200, and Bai Shanta (supra). In re Dhanalalc shmi 1974 Cri. L.J. 61, it was observed that the phrase 'for purposes of prostitution' postulates plurality of instances of prostitution. A single instance would not suffice for the purpose of prostitution. But plural and indiscriminate sexuality can be inferred from the facts and surrounding circumstances of the case and it is not neces sary that the evidence of more than one customer of the prostitute should be adduced, vide T. Jacob v. Stats of Kerala, 1971 Cri. L.J. 952, and Krishnamurthy @ Tailor Krishnan v. Public Prosecutor, Madras, 1967 Cri. L.J. 544, and Devkumar (supra). Promiscuity lies in an intentional indifference in the selection of parties as long as they pay. The relationship is usually marked by brevity and inside contempt for each other. Mere offer for such promiscuous sex, in or near a public place will be an offence under Section 8 of the Act. If the facts alleged could be proved, then certainly the act complained of was an act for purposes of prostitution in this case.
168. What is then the evidence that prosecution has collected? It relies solely upon the statement of the accused themselves. Two questions in this regard have been raised, first whether what they did was in a public place and the second and more important one, whether the statements could be read in evidence against the accused.
9. .........
10. As respects the second question, the learned Magistrate dis carded the statements as confessions made to a police officer. Con fession is not defined in the Evidence Act. But a 'confession' is not a statement by an accused 'suggesting the inference that he committed' the crime. An admission of a gravely incriminating fact, even a con clusively incriminating fact is not in itself a confession. A confession must either admit in terms, the offence, or at any rate substantially all the facts which constitute the offence: Pakala Narayana Swami v. Emperor, AIR 1939 PC. 47. Now, the solicitation made by the accused to the police officer was not a confession made to him of an offence but was an offence committed in relation to a person who happened to be a police officer. Confession is always of past events. It cannot, therefore, be said that whatever was said by the accused to the police officer concerned was a confession, and inadmissible un der Section 25 of the Evidence Act. But, it appears to me the said statement of the accused having been made during investigation is excluded from evidence under Section 162 Cr. P.C. with reference to a trap laid by the AntiCorruption police, it was held in Maha Singh v. State (Delhi Admn.), (1976) 1 SCC 644 : AIR 1976 SC 449, that where the Inspector recorded the complaint, arranged the raid by noting each step taken thereafter in a regular manner, later on forwarded the complaint for formal registration of the case under Section 154, Cr. P.C. at the Police Station, and whatever he did in order to detect the accused while taking the bribe, all that came within the term 'investigation' under Section 2(h) of the Code of Criminal Procedure because investigation had commenced on recording by him of the complainant's statement disclosing a cognis able offence. Investigation may start without information or without reducing the same in writing unde'r Section 154 Cr. P.C.: State of U.P. v. Bhagwant Kishore Joshi, AIR 1964 SC 221. In this case also investigation was commenced when the police officer got the infor mation and set the trap. The statement of the accused to the decoy police constable was, therefore, inadmissible under Section 162 Cr.
17P.C. The learned counsel defending the accused also attacked the employment of a police officer as a decoy. "It cannot be too strongly emphasised that it is wholly wrong for a police officer or any other person to be sent to commit an offence in order that an offence by another person may be detected".: Bramnan v. Peek , (1947) 2 All E.R. 572 at 583584, approved in Kamalabai v. State of Maharashtra , AIR 1972 SC 1189. I am in agreement with the criti cism made in this regard. It is in the interest of the prosecution not to use a police officer as a decoy. These prosecutions have failed because of such use.
11. Further in Renu Bansal v. U.T Chandigarh 2009 SCC OnLine P&H 4631, on the similar facts it was observed by Hon'ble high Court of Punjab and Haryana:
15. Now putting the facts of the present case on parameters of the aforesaid interpretations, I am inclined to hold that facts and circum stances prevailing over the case do not constitute offences under Sec tions 4 and 5 of the Act. The facts as exposed before me are that three ladies were sitting in the car, whereas, Deepak Chauhan, was standing outside. He received a sum of Rs. 1000/ from the decoy customer, later on that money was recovered from the ladies. There is no such evidence that the ladies came out of the car intending to go with the decoy customer or that they offered their body for sexual intercourse to him. The allegations is only that as soon as decoy customer handed over the money to Deepak Chauhan, raid was conducted and money was recovered from the ladies, therefore, to my mind no ingredients appear to have been completed in order to record observations that ei ther Deepak Chauhan was living on the earning of the prostitution or he was habitually in their company; he handed over the ladies for sex ual intercourse to the decoy customer; he was acting as a tout or pimp between the ladies and the decoy customer or that the ladies were the prostitutes as defined under Section 2(f) of the Act.
16. Now coming to the offence under Section 8 of the Act, it is not the case of chance detection. It was the decoy customer who had intention ally gone to Deepak Chauhan treating him to be as pimp or tout. Since there is no evidence that the ladies were offered to the decoy cus tomer. Mere acceptance of money by him from the decoy customer and in the absence of other evidence of any other overt act leading to 18 sexual intercourse, merely handing over the money to the ladies is hardly sufficient to prove that the money was received on behalf of ladies by him for the purpose of prostitution, much less for the pur pose of sexual intercourse with those ladies or offering them for prostitution. As a matter of fact, since the three ladies sitting in the car are not covered within the definition of 'prostitutes', the offence of acting as a tout or pimp by Deepak Chauhan as provided under Section 4 of the Act is not established. Similarly, when the ladies are not proved to be prostitutes having been found in the houses of de fame and they even did not come out of the car or did any act to wards sexual intercourse, they did not even show their intention to move with the decoy customer then to attract or endeavour to attract the customers by the three ladies by making gestures also can't be said to be proved. Particularly when no such part of the body was shown or offered by them to the decoy customer.
12. In light of the abovesaid facts and law it is clear that the provision of the act are to be construed strictly against the prosecution. It is the case of prosecution that ac cused Ashok and Shiv Dutta, in furtherance of their common intention, produced 3 girls for prostitution to decoy customer namely HC Ashok Kumar and in lieu of the same he received Rs. 2,000/ from the decoy customer of which he kept Rs.1000/ and gave remaining Rs. 1000/ to girl namely Tanya.
13. It was upon the prosecution to prove that the girls alleged to be produced by ac cused Ashok to the decoy customer were prostitute as per section 2f of ITP Act. Al though it is stated in the charge sheet that indecent gestures were made by the girls on seeing the decoy customer, however HC Ashok who was the decoy customer never deposed with regard to the said fact. As such, the prosecution has failed to prove that there was over overt act on the part of accused Tanya apart from receiving the money from accused Ashok Dutta. As held by Hon'ble High Court of Punjab & Haryana in Renu Bansal case (Supra) that mere acceptance of money from the decoy customer and in absence of other evidence of any other overt act leading to sexual intercourse, 19 merely handing over the money is hardly sufficient to prove that the money was re ceived for the purpose of prostitution, the prosecution has failed to show that the said girls squarely falls within the provision of section 2f of ITP Act.
14. Be that as it may, it goes without saying that there are several lapses in the case of the prosecution. W/HC Munesh, who was a member of raiding party, and stepped into witness box as PW4, did not corroborate the case of prosecution in total and fur ther failed identify any accused persons in the court. Further ASI Satender Kumar who stepped into the witness box as PW6 does not disclose any detail with regard to the facts of the present case. It is further pertinent to state in here that ASI Satender Kumar was never declared hostile by the prosecution.
15. It is further pertinent to state in here that although the FIR was lodged subse quent to the handing over memo and seizure memo, however all the abovesaid docu ments bears the FIR number. At this stage, it would be relevant to state in here that the observations made by Hon'ble High Court of Delhi in Pradeep Saini v. State 2009 SCC OnLine Del 2803 :
70. Another circumstance which needs to be highlighted is that as per the case of the prosecution the sketch Ex.PW3/D of the knife purport edly recovered from the possession of accused Kishore Kumar was prepared before the registration of the FIR Ex.PW2/B. Surprisingly, sketch Ex.PW3/D of the knife contains the number of the FIR regis tered in the present case. The prosecution has not offered any explana tion whatsoever as to under what circumstances number of the FIR Ex.PW2/B has appeared on the document, which was allegedly pre pared before registration of the FIR. This gives rise to two inferences;
either the FIR Ex. PW2/B was recorded prior to the alleged recovery of the knife or number of the said FIR was inserted in said document after its registration. In both the situations, it seriously reflects upon the veracity of the prosecution version and creates a good deal of 20 doubt about recovery of the knife in the manner alleged by the prose cution.
16. Further more as discussed above, that the provisions of the act are to be strictly construed against the prosecution, it was for the prosecution to prove that the seized items i.e. four notes of denomination 500/ which were recovered from the possession of accused persons were kept safely in the Malkhana. It is pertinent to state in here that no witness has been examined with regard to the same nor the malkhana register no. 19 was ever brought before the court in order to show that the seized property was deposited in Malkhana. For the same, I may gainfully referred to the observations made by Hon'ble Apex Court in Md. Morful Haque v. The State of West Bengal 2017 SCC OnLine Cal 3380 :
21. The Indian Currency Notes suspected to be fake seized on August 19, 2009 were sent to General Manager, Currency Note Press, Nasik for expert opinion by P.W. 9 only on February 3, 2010 and was received there on February 6, 2010. But such inordinate delay had not been explained. The claim of P.W. 10 that on September 1, 2009 he applied before CJM Malda for sending the seized currency notes to Nasik for examination through court and got permission is without any basis. Seized articles were reportedly kept in the thana Malkhana but neither the Malkhana register was seized and produced during trial nor Malkhanaincharge was examined to prove that those alamats were kept in Malkhana and were properly sealed, packed and labelled when received in Malkhana. There was also no explanation to that effect. Taking into account the entire circumstances, we find that recovery of the counterfeit Indian Currency Notes from the possession of the appellant was not proved beyond reasonable doubt.
In the present case, the recovery of said 4 notes of denomination 500/ from the possession of accused persons was an important piece of evidence as it is the case of prosecution that accused persons were supplying the girls for prostitution against the consideration. As observed above that the provisions of the ITP Act are to be con 21 strued strictly against the prosecution, it was for the prosecution to show that the said notes after recovery were kept safely at Malkhana immediately after the raid. As the prosecution has failed to adduce any such evidence that seized notes were immedi ately deposited in the Malkhana safely, the same amount to serious lapse on the part of the prosecution.
17. Furthermore in the present case in hand, the police officials was deputed as a trap witness / decoy customer. In State vs. Bashir Ahmed (supra), Hon'ble High Court of Delhi has stated that the statement of accused to the decoy police constable is inad missible u/s 162 Cr.P.C. Hon'ble High Court of Delhi has further observed that it is in the interest of prosecution to not to use a police officer as a decoy. Furthermore Hon'ble Apex Court with regard to the evidentiary value of the trap witness has ob served in Vinod Kumar v. State of Punjab, (2015) 3 SCC 220 :
24. From the aforesaid authorities it is clear that a trap witness is an interested witness and his testimony, to be accepted and relied upon requires corroboration and the corroboration would depend upon the facts and circumstances, nature of the crime and the character of the trap witness.
In the present case in hand, testimony of trap witness is corroborated by shadow witness, who has stated to have accompanied the decoy customer for negotia tions with accused Ashok Dutta, himself a police official and is an interested witness. All the other prosecution witnesses only deposed what were informed to them by de coy customer i.e. SI Ashok Kumar himself.
18. It is further pertinent to state in here that the raid was conducted by the raiding team in pre planned manner and in a public place, however despite the same no public person was joined investigation. All the witnesses of prosecution have stated during 22 the course of their deposition that several public persons were present at the spot at the time of incident, however none of the public persons joined the investigation. In Surender @ Dheeraj v. State 2018 SCC OnLine Del 7506, it was observed by Hon'ble High Court of Delhi:
77. The arrests of the accused were all in public places and yet none of the arrests were in the presence of independent public witnesses.
Parrotlike statements to the effect that passersby were asked but de clined to join are given by the IOs in the present case. This does not convince the Court. In Kehar Singh v. State (1988) 3 SCC 609 : AIR 1988 SC 1883 one of the accused, Balbir Singh, was arrested at the bus stand at Najafgarh, which was a public place but there were no independent public witnesses to the arrest. It was argued by the State that there was no such requirement in the Cr PC. Repelling this con tention, the Supreme Court observed:
"It may be as technically argued by the learned Additional So licitor General that the presence of public witness under the scheme of Code of Criminal Procedure is required when there is search and seizure from the house or property of the accused but not when a person is arrested and something is recovered from the personal Search. But it is wellknown that in all mat ters where the police wants that the story should be believed they always get an independent witness of the locality so that that evidence may lend support to what is alleged by the police officers. Admittedly for this arrest at Najafgarh and for the seizure of the articles from the person of this accused is no other evidence except the evidence of police officers. Indepen dent witness in this case would be all the more necessary espe cially in view of what has been found above as his release after the earlier arrest is not established, and his abscondence is not proved. In such a controversial situation the presence of an in dependent witness from the public, if not of the locality, would have lent some support to the case of the prosecution."
78. In the present case every arrest is on the basis of both informa tion provided by and identification by a secret informer who is not produced as a PW. Most arrests have taken place from open public places and during times when there is a lot of movement of the pub lic. It is therefore difficult to accept that in every such instance, no in 23 dependent witness was available. The circumstance of arrest has not been convincingly proved by the prosecution.
19. It was further argued by counsel for the accused that there is nothing placed on record by the IO in order to show that timely intimation regarding lodging of FIR is made to the area magistrate in compliance of Sec 157 Cr.P.C. which further raise sus picion on the case of prosecution. In this regard Hon'ble Apex Court in Yogesh Singh v. Mahabeer Singh, (2017) 11 SCC 195 has observed:
40. It has been consistently held by this Court through a catena of ju dicial decisions that although in terms of Section 157 CrPC, the po lice officer concerned is required to forward a copy of the FIR to the Magistrate empowered to take cognizance of such offence promptly and without undue delay, it cannot be laid down as a rule of univer sal application that whenever there is some delay in sending the FIR to the Magistrate, the prosecution version becomes unreliable and the trial stands vitiated. When there is positive evidence to the fact that the FIR was recorded without unreasonable delay and investiga tion started on the basis of that FIR and there is no other infirmity brought to the notice of the Court, then in the absence of any preju dice to the accused, it cannot be concluded that the investigation was tainted and the prosecution story rendered unsupportable. (See Pala Singh v. State of Punjab [Pala Singh v. State of Punjab, (1972) 2 SCC 640 : 1973 SCC (Cri) 55] , Sarwan Singh v. State of Pun jab [Sarwan Singh v. State of Punjab, (1976) 4 SCC 369 : 1976 SCC (Cri) 646] , Anil Rai v. State of Bihar [Anil Rai v. State of Bihar, (2001) 7 SCC 318 : 2001 SCC (Cri) 1009] , Munshi Prasad v. State of Bihar [Munshi Prasad v. State of Bihar, (2002) 1 SCC 351 : 2002 SCC (Cri) 175] , Aqeel Ahmad v. State of U.P. [Aqeel Ahmad v. State of U.P., (2008) 16 SCC 372 : (2010) 4 SCC (Cri) 11] , Dharamveer v. State of U.P. [Dharamveer v. State of U.P., (2010) 4 SCC 469 : (2010) 2 SCC (Cri) 872] and Sandeep v. State of U.P. [Sandeep v. State of U.P., (2012) 6 SCC 107 : (2012) 3 SCC (Cri) 18]) In the present matter the incident took place on 28.02.2003 at about 4.00 pm and as per the FIR, same was lodged at about 7.00 pm on 28.02.2003 itself. It is perti nent to state in here that DO Ram Dutt never appeared before the court in order to 24 prove the said FIR as he was stated to have expired, however ASI Satender Kumar de posed that he got the FIR registered on the same day and handed over the copy of same to the IO. Merely because there is nothing on record to show that at what time the FIR was produced before the Magistrate u/s 157 CrPC, the same cannot be in it self stated to be a lapse on the part of the prosecution.
20. It is further pertinent to state in here that although it is stated by the prosecution that accused Ashok Dutta and Shiv Ratan were acting in furtherance of their common intention, however no evidence has been brought forth in this regard by the prosecu tion. Only facts so stated by the prosecution witnesses with regard to accused Shiv Ratan was that he was driving the vehicle. Nothing has been brought on record to show that accused Shiv Ratan was also involved in the alleged prostitution racket.
21. Be that as it may, considering the law and facts stated above and further considering the lapses on the part of prosecution to prove itse case beyond reasonable doubt, the accused persons are acquitted for the offences for which they were charged for.
ANNOUNCED IN OPEN COURT (ANUBHAV JAIN)
Today i.e. 21.03.2018 METROPOLITAN MAGISTRATE02
SOUTH EAST, SAKET COURTS,
NEW DELHI
Present judgment consisted of 24 pages and each page bears my signatures.
(ANUBHAV JAIN) METROPOLITAN MAGISTRATE02 SOUTHEAST, SAKET COURTS, NEW DELHI