Bangalore District Court
M Prabhushakar Pi vs Deelip Kumar N R on 3 October, 2025
KABC030614572015
Digitally
DEEPA signed by
VEERASWAMY DEEPA
VEERASWAMY
Presented on : 09-09-2015
Registered on : 09-09-2015
Decided on : 03-10-2025
Duration : 10 years, 0 months, 24 days
IN THE COURT OF THE VIII ADDITIONAL CHIEF
JUDICIAL MAGISTRATE, BENGALURU CITY
Present: Smt. Deepa.V., B.A.L. LL B.
VIII ACJM, Bengaluru City.
Date: this the 03rd day of October, 2025
C.C. No.22207/2015
Crime No.245/2013
State by Sanjay Nagara Police Station,
Bengaluru. ... Complainant
(Represented by Sri Vishwanath, Senior APP)
Versus
Sri Dilip Kumar.N.R.,
Aged about 28 years,
S/o Sri Rajegowda,
R/at No.30/2, 4th Cross,
4th Main Road,
Agrahara Dasarahalli,
Bengaluru City. ... Accused
(Represented By Sri. M. V. Chowdappa, Advocate)
KABC030614572015 CC No.22207/2015
1. Date of commission of 24-08-2013
offence
2. Date of FIR 24-08-2013
3. Date of Charge sheet 15-06-2014
4. Name of Complainant Sri M.Prabhu Shankar,
PI, Sanjay Nagara pS,
Bengaluru.
5. Offences complained of Under Section 3, 4, 5 and
7 of ITP Act
6. Date of framing charge 09-01-2019
7. Charge Pleaded not guilty
8. Date of commencement 105-01-2021
of Evidence
9. Date of Judgment is 03-10-2025
reserved
10. Date of Judgment 03-10-2025
11. Final order Accused is acquitted
12. Date of Sentence -
2
KABC030614572015 CC No.22207/2015
JUDGMENT
The Police Sub-Inspector of Sanjay Nagara Police Station submitted charge sheet against accused for the offences punishable under Section 3, 4, 5 and 7 of Immoral Traffic (Prevention) Act.
2. Prosecution Case: On the receipt of credible information, on 24-08-2013, at about 6.30 p.m, at house No. 40, 4th Main, 3rd Stage, AECS Layout, RMV II Stage within the limit of Sanjay Nagara Police Station, the accused was indulged in the prostitution work by keeping CW10 namely Smt. Bharathi and CW11 namely Smt. Archana and hence CW1 namely Sri. M. Prabhushankar, Police Inspector along with CW2 to CW7 raided the said house and arrested the accused and seized cash, mobile phone and condom packets.
3. First Information Report: On receipt of credible information, CW1, PI of Sanjay Nagara Police Station raided the house No.40, 4 th Main, 3rd Stage, AECS layout, RMV 2nd Stage, Bengaluru along with CW2 to CW7 and seized cash, mobile phone and condoms through spot cum seizure mahazar as per Ex.P2 and handed over the accused to the Police Station along with the report as per Ex.P3. 3 KABC030614572015 CC No.22207/2015
4. Investigation: After receipt of report as per Ex.P3, CW12 Sri.S.Narasimhaiah, PSI of Sanjay Nagara PS, registered Crime No.245/2013 against the accused for the offences punishable under Section 3, 4, 5 and 7 ITP Act, prepared FIR as per Ex.P4 and sent the same to the Court and to his superior officers, recorded the statement of requisite witnesses, collected the documents and after completion of investigation, he submitted the charge sheet against the accused for the alleged offences.
5. Accused was enlarged on bail at pre- cognizance stage by the order dated 27-08-2013.
6. On receipt of charge sheet, this Court took cognizance of offences alleged against the accused.
7. Copies of prosecution papers as required U/Sec.207 of Cr.P.C have been furnished to the accused.
8. Charge: After hearing learned Sr.APP and counsel for accused, charge for the offences punishable U/Sec.3, 4, 5 and 7 ITP Act has been framed, read over and explained to the accused in the language known to him, who, in turn, pleaded not guilty and claimed to be tried.
4 KABC030614572015 CC No.22207/2015
9. Prosecution Evidence: The prosecution in order to establish its case cited 11 witnesses however examined 6 witnesses and exhibited 4 documents, MO1 to 3 and closed their side. The presence of CW2 and CW3 could not be secured despite the due examination of proclamation and hence dropped out by the order dated 25/11/2019. On account of examination of CW6, the examination of CW7 was given up by the order dated 17/01/2025. The presence of CW10 could not be secured for examination despite due execution of proclamation and hence dropped out and the process of proclamation returned unexecuted for 6(six) dates of hearing against CW11 and hence the examination of CW11 was dropped out by the order dated 17/09/2025.
10. Statement of accused as per section 313 of CrPC: After completion of evidence of prosecution, the accused examined as per section 313 of Cr.P.C, wherein he denied all incriminating evidence appearing in the statement of prosecution witnesses and did not lead any rebuttal evidence.
11. Heard the arguments. Perused materials on the record.
5 KABC030614572015 CC No.22207/2015
12. The following point are arises for consideration is as follows;
1. Whether the prosecution proved beyond all reasonable doubt that on 24-08-2013 at about 6.30 p.m, at house th No.40, 4 Main, III Stage, AECS layout, RMV II Stage within the limit of Sanjay Nagara Police Station, the accused was indulged in the prostitution work by keeping CW10 namely Smt. Bharathi and CW11 namely Smt. Archana thereby resulted in commission of offences punishable under Section 3, 4, 5 and 7 of ITP Act?
2. What order?
13. The court's findings on the above points are as under:
Point No.1 : In the Negative
Point No.2 : As per final order
6
KABC030614572015 CC No.22207/2015
REASONS
14. Point No.1: In support of prosecution case as narrated in paragraph 2 and the point for consideration in paragraph 12 of this judgment, the prosecution examined the witnesses which are as follows i. CW1 by name Sri Prabhushankar, being informant and PI of Sanjay Nagara PS, examined as PW1 deposed that on 24-08-2013 at 4:30 PM, while on patrolling duty, he received the information that the prostitution was going at AECS Layout, 3 rd Phase, 4th Main Road, House No.40, he signed on Rs.1000/- denomination note and sent with CW4 to the house as decoy. He informed the ACP over the phone and took oral permission to raid and raided the house with pancha witnesses, female staff namely CW6 and CW7 in a police jeep and searched the said house, 2 mobile phones and Rs.4,600/- were found from the accused. The victim namely Smt. Archana found in one room and CW4 and another woman Smt. Bharathi were in another room. When CW5 searched the two women, 2 condoms were found in their possession. Later, he seized the properties and produced the accused, victims with panchaname before SHO and submitted report as per Ex.P3. He identified the seized amount of Rs.4600/-, 4 condoms as per MO1 and MO2.
7 KABC030614572015 CC No.22207/2015 ii. CW4 Sri Ashwathreddy, the then PC of Sanjay Nagara PS examined as PW2 deposed that on 24-8- 2013, he went to the house No. 40, AECS Layout as decoy and found the accused and victims, informed about the prostitution in that house to CW1 and thereafter, CW1, CW5 and female police personnel raided the house and rescued victim and seized Rs.4,600/-, two mobiles and 4 condoms through panchaname.
iii. CW6 by name Smt. Kalavathi, the then WPC of Sanjay Nagara PS examined as PW3, who accompanied with CW1 at the time of raid deposed the same version of PW1.
iv. CW6/PW4 by name Smt. Arogyamma, deposed that on 24-08-2013, the Yeshwantpur Police Station was informed that prostitution was going on at AECS Layout, House No. 40 and called her as a pancha witness, sent CW4 as decoys and confirmed that prostitution was going on. When he went to the said house, two women namely Smt. Bharathi and Smt. Archana and the accused were present. The women were rescued and 2 mobile phones, condoms, Rs. 1000/- and Rs. 3600/- given to the decoy, a total of Rs. 4,600/- were seized.
8 KABC030614572015 CC No.22207/2015 v. CW12 by name S.Narasimhaiah, the then PSI of Sanjay Nagara PS examined as PW5 deposed that on 24-8-2013, on the basis of written complaint filed by CW1, case was registered, CW1 produced the accused and the victims namely Smt. Bharathi and Smt. Archana along with the complaint, seized cash of Rs. 4,600/-, 2 mobile phones and 4 condom packets and the same were subjected to PF No. 81/2013, secured the documents, recorded the voluntary statement of accused, statements of victims and witnesses, after completion of investigation filed charge sheet against the accused.
vi. CW9/PW6 Sri Srinivas deposed that in the year 2013, he had given his house bearing No.40, situated at AECS, Sanjaynagara, Bengaluru to the accused for monthly rent of Rs.16,000/- and received an advance payment of Rs. 1,50,000/- and there was a rental agreement between them. Further, pleaded ignorance about the prosecution case and police have not inquired him and not obtained his statement. In this regard, the learned Senior APP cross examined this witness by treating him as hostile witness however no favorable answers has been elicited from him to support the prosecution case. His denial of statement given before the police is marked as Ex.P4. 9 KABC030614572015 CC No.22207/2015
15. The relevant provision for the trying the charges framed against accused are Section 3 of Immoral Traffic (Prevention) Act, deals with punishment for keeping a brothel or allowing premises to be used as a brothel.
3. Punishment for keeping a brothel or allowing premises to be used as a brothel.
(1) Any person who keeps or manages, or acts or assists in the keeping or management of, a brothel shall be punishable on first conviction with rigorous imprisonment for a term of not less than one year and not more than three years and also with fine which may extend to two thousand rupees and in the event of a second or subsequent conviction, with rigorous imprisonment for a term of not less than two years and not more than five years and also with fine which may extend to two thousand rupees.10
KABC030614572015 CC No.22207/2015 (2) Any person who
(a)being the tenant, lessee, occupier or person in charge of any premises, uses,or knowingly allows any other person to use, such premises or any part thereof as a brothel, or
(b)being the owner, lessor or landlord of any premises or the agent of such owner, lessor or landlord, lets the same or any part thereof with the knowledge that the same or any part thereof is intended to be used as a brothel, or is wilfully a party to the use of such premises or any part thereof as a brothel, shall be punishable on first conviction with imprisonment for a term which may extend to two years and with fine which may extend to two thousand rupees and in the event of a second or subsequent conviction, with rigorous imprisonment for a term which may extend to five years and also with fine.
11 KABC030614572015 CC No.22207/2015 (2A) For the purposes of sub-
section (2)it shall be presumed until the contrary is proved, that any person referred to in clause(a) or clause(b) of that subsection,is knowingly allowing the premises or any part thereof to be used as a brothel or, as the case maybe, has knowledge that the premises or any part thereof are being used as a brothel, if,
(a) a report is published in a newspaper having circulation in the area in which such person resides to the effect that the premises or any part thereof have been found to be used for prostitution as a result of a search made under this Act; or
(b) a copy of the list of all things found during the search referred to in clause (a) is given to such person].
(3) Notwithstanding anything contained in any other law for the time being in force,on conviction of any person referred to in clause 12 KABC030614572015 CC No.22207/2015
(a) or clause (b) of subsection (2) of any offence under that sub-
section in respect of any premises or any part thereof, any lease or agreement under which such premises have been leased out or are held or occupied at the time of the commission of the offence, shall become void and inoperative with effect from the date of the said conviction.
Section 2(a) defines a "brothel" as includes any house, room, conveyance or place or any portion of any house, room, conveyance or place, which is used for purposes of sexual exploitation or abuse or for the gain of another person or for the mutual gain of two or more prostitutes".
Section 4 of the Act deals with punishment for living on the earnings of prostitution as under:
4. Punishment for living on the earnings of prostitution.
13 KABC030614572015 CC No.22207/2015 (1) Any person over the age of eighteen years who knowingly lives, wholly or in part, on the earnings of the prostitution of [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 [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].
(2) Where any person over the age of eighteen years is proved (a) to be living with, or to be habitually in the company of, a prostitute; or
(b) to have exercised control, direction or influence over the movements of a prostitute in such a manner as to show that such person is aiding, abetting or compelling her prostitution; or 14 KABC030614572015 CC No.22207/2015
(c) to be acting as a tout or pimp on behalf of a prostitute, it shall be presumed, until the contrary is proved, that such person is knowingly living on the earnings of prostitution of another person within the meaning of subsection Section 5 of the Act deals with procuring, inducing or taking (person) for the sake of prostitution which reads as under:
5. Procuring, inducing or taking [person] for the sake of prostitution.
(1) Any person who--
(a) procures or attempts to procure a [person], whether with or without [his] consent, for the purpose of prostitution; or 1[person], whether with or without 2[his] consent, for the purpose of prostitution; or"
(b) induces a [person] to go from any place, with the intent that 15 KABC030614572015 CC No.22207/2015 [he] may for the purpose of prostitution become the inmate of, or frequent, a brothel; or 1[person] to go from any place, with the intent that 3[he] may for the purpose of prostitution become the inmate of, or frequent, a brothel; or"
(c) takes or attempts to take a [person], or causes a [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 [person] to carry on prostitution,1[person] to carry on prostitution, [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 sub section is committed against the will of any person, the punishment of imprisonment for a term of seven years shall extend to 16 KABC030614572015 CC No.22207/2015 imprisonment for a term of fourteen years.
7. Prostitution in or in the vicinity of public places.--6[(1) Any 1[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 sub-section (3), or
(b) which are within a distance of two hundred metres of any place of public religious worship, educational institution, hostel, hospital, nursing home or such other public place of any kind as may be notified in this behalf by the Commissioner of Police or magistrate in the manner prescribed, shall be punishable with imprisonment for a term which may extend to three months.] 1[(1A) Where an offence committed under sub-section (1) 17 KABC030614572015 CC No.22207/2015 is in 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) Any person who--
(a) being the keeper of any public place knowingly permits prostitutes for purposes of their trade to resort to or remain in such place; or
(b) being the tenant, lessee, occupier or person in charge of any premises referred to in sub-
section (1) knowingly permits the 18 KABC030614572015 CC No.22207/2015 same or any part thereof to be used for prostitution; or
(c) being the owner, lessor or landlord, of any premises referred to in sub-section (1), or the agent of such owner, lessor or landlord, lets the same or any part thereof with the knowledge that the same or any part thereof may be used for prostitution, or is wilfully a party to such use, shall be punishable on first conviction with imprisonment for a term which may extend to three months, or with fine which may extend to two hundred rupees, or with both, and in the event of a second or subsequent conviction with imprisonment for a term which may extend to six months and also with fine 2[which may extend to two hundred rupees, and if the public place or premises happen to be a hotel, the licence for carrying on the business of such hotel under any law for the time being in force shall also be liable to be suspended for a period of not less 19 KABC030614572015 CC No.22207/2015 than three months but which may extend to one year:
Provided that if an offence committed under this sub-section is in respect of a child or minor in a hotel, such licence shall also be liable to be cancelled.
Explanation.--For the purposes of this sub-section, "hotel" shall have the meaning an in clause (6) of section 2 of the Hotel-Receipts Tax Act, 1980 (54 of 1980).] 3[(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 considerations, 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.
(4) Where a notification is issued under sub-section (3) in respect of any area or areas, the State 20 KABC030614572015 CC No.22207/2015 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.]
16. The term "Prostitution" is defined in clause
(f) of Section of the Act which reads as under
(f) "Prostitution" means the sexual exploitation or abuse of persons for commercial purposes, and the expression "prostitute" shall be construed accordingly.
From a plain reading of the aforesaid provisions, it is evident that "prostitution" is the sine qua non for constituting an offence under the Act. Mere handing over of money or receipt of money is not sufficient to bring home the charge under the Act or fasten the guilt unless there is evidence to show that the money was accepted or demanded for the purpose of prostitution.
21 KABC030614572015 CC No.22207/2015
17. Based upon the provision of law, this court had gone through the evidence of PW1/Raiding officer/PI and CW4/PW2/decoy and the same has been extracted as under
ದಿನಾಂಕ 24-8-2013 ರಂದು ಸಂಜೆ 4-30 ಗಂಟೆಗೆ ನಾನು ಗಸ್ತು ಕರ್ತವ್ಯದಲ್ಲಿದ್ದಾಗ ಎಇಸಿಎಸ್ ಲೇಔಟ್ ನ 3ನೇ ಹಂತದ 4ನೇ ಮುಖ್ಯರಸ್ತೆ ಮನೆ ಸಂಖ್ಯೆಃ 40 ರಲ್ಲಿ ವೇಶ್ಯಾವಾಟಿಕೆ ನಡೆಯುತ್ತಿದೆ ಎಂಬ ಮಾಹಿತಿ ಬಂದ ಮೇರೆಗೆ ನಾನು ಠಾಣೆಗೆ ಬಂದು ನಮ್ಮ ಠಾಣಾ ಸಿಬ್ಬಂದಯಾದ ಚಾಸಾ 4 ರವರಿಗೆ ಒಂದು ಸಾವಿರ ನೋಟಿನ ಮೇಲೆ ಸಹಿ ಮಾಡಿ ಅದನ್ನು ಅವರಿಗೆ ಕೊಟ್ಟು ಡಿಕಾಯಿ ಸಾಕ್ಷಿಯಾಗಿ ಆ ಮನೆಗೆ ಗಿರಾಕಿಯಂತೆ ನಟಿಸಿ ಹೋಗಿ ಎಂದು ಕಳಿಸಿಕೊಟ್ಟಿರುತ್ತೇನೆ. ಅದೇ ವೇಳೆಯಲ್ಲಿ ಸಾಮೂಹಿಕ ಕಾರ್ಯಕರ್ತೆಯಾದ ಚಾಸಾ 5 ಹಾಗೂ ಚಾಸಾ 2 ಮತ್ತು 3 ರವರನ್ನು ಪಂಚರಾಗಿ ಬರುವಂತೆ ಕೋರಿ ನೋಟೀಸನ್ನು ಕೊಟ್ಟಿರುತ್ತೇನೆ. ಅವರು ಪಂಚರಾಗಿ ಬರಲು ಒಪ್ಪಿ ಸಹಿ ಮಾಡಿರುತ್ತಾರೆ. ಅಷ್ಟರಲ್ಲಿ ಚಾಸಾ 4 ರವರು ಮಾಹಿತಿಯ ಬಗ್ಗೆ ಖಚಿತ ಪಡಿಸಿ ನನಗೆ ಮಿಸ್ ಕಾಲ್ ಸನ್ನೆ ಕೊಟ್ಟಿ ರುತ್ತಾರೆ. ಈ ಬಗ್ಗೆ ನಮ್ಮ ಮೇಲಾಧಿಕಾರಿಗಳ ಎಸಿಪಿಯವರಿಗೆ ಪೋನ್ ಮೂಲಕ ವಿಷಯ ತಿಳಿಸಿರುತ್ತೇನೆ. ಅವರಿಂದ ಅನುಮತಿ ಪಡೆದು ವಾರೆಂಟ್ ಪಡೆದು ದಾಳಿ ಮಾಡುವಷ್ಟರಲ್ಲಿ ಆರೋಪಿಗಳು ಪರಾರಿಯಾಗುವ ಸಂಭವ ಇದ್ದ ಕಾರಣ ದಾಳಿ ಮಾಡಲು ಅವರ ಮೌಖಿಕ ಅನುಮತಿ ಪಡೆದುಕೊಂಡು ನಮ್ಮ ಠಾಣಾ ಜೀಪ್ನಲ್ಲಿ ಪಂಚರನ್ನು ಹಾಗೂ ಸಾಕ್ಷಿದಾರರಾದ ಚಾಸಾ 5 ರವರನ್ನು ಹಾಗೂ 22 KABC030614572015 CC No.22207/2015 ಮಹಿಳಾ ಸಿಬ್ಬಂದಿಗಳಾದ ಚಾಸಾ 6 ಮತ್ತು 7 ರವರನ್ನು ಕರೆದುಕೊಂಡು ಮಾಹಿತಿಯಲ್ಲಿ ತಿಳಿದುಬಂದ ಮನೆಗೆ ದಾಳಿ ಮಾಡಿರುತ್ತೇನೆ. ದಾಳಿ ಮಾಡಿ ಮನೆಯೊಳಗೆ ಪ್ರವೇಶಿಸಿದಂತೆ ದಿಲೀಪ್ ಕುಮಾರ್ ಎಂಬ ವ್ಯಕ್ತಿ ಸಿಕ್ಕಿರುತ್ತಾನೆ. ಅವನ ಅಂಗಶೋಧನೆ ಮಾಡಿದಾಗ ಆತನ ಬಳಿ ಎರಡು ಮೊಬೈಲ್ ರೂ.4,600/- ಹಣ ಸಿಕ್ಕಿರುತ್ತದೆ. ಪಕ್ಕದ ಕೋಣೆಯಲ್ಲಿ ಒಬ್ಬ ಮಹಿಳೆ ಇದ್ದಳು.
ಆಕೆಯ ಹೆಸರು ಅರ್ಚನಾ ಎಂದಾಗಿರುತ್ತದೆ.
ಇನ್ನೊಂದು ಕೋಣೆಯಲ್ಲಿ ಡಿಕಾಯಿ ಕಾನ್ಸ್ಟೇಬಲ್ ಚಾಸಾ 4 ರವರು ಮತ್ತು ಇನ್ನೊಬ್ಬ ಮಹಿಳೆ ಇದ್ದಳು. ಆಕೆಯ ಹೆಸರು ಭಾರತಿ ಎಂದಾಗಿರುತ್ತದೆ. ಆ ಇಬ್ಬರು ಮಹಿಳೆಯರನ್ನು ಚಾಸಾ 5 ರವರು ಅಂಗಶೋಧನೆ ಮಾಡಿದಾಗ ಭಾರತಿ ಎಂಬವರ ಬಳಿ ಎರಡು ಕಾಂಡೋಮ್ ಸಿಕ್ಕಿರುತ್ತದೆ. ಈ ಬಗ್ಗೆ ವಿವರವಾದ ಪಂಚನಾಮೆ ಮಾಡಿ ಆ ವಸ್ತುಗಳನ್ನು ವಶಪಡಿಸಿಕೊಂಡಿರುತ್ತೇವೆ.
and ದಿನಾಂಕ 24-8-2013 ರಂದು ಸಂಜೆ 4-30 ಗಂಟೆಗೆ ನಮಗೆ ಠಾಣೆಗೆ ಕರೆದು ಠಾಣಾ ಸರಹದ್ದಿನ ಎಇಸಿಎಸ್ ಲೇಔಟ್ನ ಮನೆ ಸಂಖ್ಯೆಃ 40 ರಲ್ಲಿ ವೇಶ್ಯಾವಾಟಿಕೆ ನಡೆಯುತ್ತಿದೆ ಎಂಬ ಮಾಹಿತಿ ಬಂದ ಮೇರೆಗೆ ಚಾಸಾ 5 ರವರನ್ನು ಕರೆದು ಠಾಣಾ ಸಿಬ್ಬಂದಿ ಸಹಾಯದಿಂದ ಪಂಚರನ್ನು ಬರಮಾಡಿಕೊಂಡು ವಿಷಯ ತಿಳಿಸಿ ಪಂಚರಾಗಲು ಒಪ್ಪಿ ಕೊಂಡ ನಂತರ ಅವರಿಗೆ ನೋಟೀಸ್ ಕೊಟ್ಟು ನಂತರ ಚಾಸಾ 1 ರವರು ನನಗೆ ಪಂಚರು ಮತ್ತು ಚಾಸಾ 1 ಸಹಿ ಮಾಡಿದ ಒಂದು ಸಾವಿರ ನೋಟನ್ನು ಕೊಟ್ಟು ನೀವು ಸದರಿ ಮನೆಗೆ ಹೋಗಿ ವಿಷಯ ಖಚಿತಪಡಿಸಿಕೊಂಡು ಮಾಹಿತಿ ತಿಳಿಸಿ 23 KABC030614572015 CC No.22207/2015 ಅಂತ ಹೇಳಿದರು. ನಾನು ಸದರಿ ಮನೆಗೆ ಹೋಗಿ ನೋಡಿದಾಗ ಒಬ್ಬ ಆಸಾಮಿ ಇಬ್ಬರು ಹೆಣ್ಣು ಮಕ್ಕಳು ಇದ್ದು ನಾನು ಡಿಕಾಯಿಯಂತೆ ನಟಿಸಿ ಆ ಮನೆಯಲ್ಲಿ ವೇಶ್ಯಾವಾಟಿಕೆಯನ್ನು ಖಚಿತಪಡಿಸಿಕೊಂಡು ಚಾಸಾ 1 ರವರಿಗೆ ತಿಳಿಸಿದೆನು. ಸಂಜೆ 05-00 ಗಂಟೆಗೆ ಸರಿಯಾಗಿ ಚಾಸಾ 1, ಚಾಸಾ 5 ಮತ್ತು ಮಹಿಳಾ ಪೊಲೀಸ್ ಸಿಬ್ಬಂದಿಯವರು ಕೂಡಿ ಸದರಿ ಮನೆಯ ಮೇಲೆ ದಾಳಿ ಮಾಡಿದರು. ವೇಶ್ಯಾವಾಟಿಕೆ ನಡೆಸುತ್ತಿದ್ದ ದಿಲೀಪ್ ಕುಮಾರ್ ವೇಶ್ಯಾವಾಟಿಕೆಯಲ್ಲಿ ತೊಡಗಿದ್ದ ನೊಂದ ಮಹಿಳೆಯರಾದ ಭಾರತಿ, ಅರ್ಚನ ಅವರನ್ನು ಚಾಸಾ 5 ರವರು ರಕ್ಷಿಸಿದರು.
ನಂತರ ಪಂಚನಾಮೆಯನ್ನು ಚಾಸಾ 1 ಜರುಗಿಸಿ ಡಿಕಾಯಿ ಹಣ ಸೇರಿಕೊಂಡ ರೂ.4,600/- ಹಣ ಮತ್ತು ವೇಶ್ಯಾವಾಟಿಕೆಗೆ ಬಳಸುತ್ತಿದ್ದ ಎರಡು ಮೊಬೈಲ್ಗಳು, ನಾಲ್ಕು ಕಾಂಡೋಮ್ಗಳು ಎಲ್ಲವನ್ನು ಪಂಚರ ಸಮಕ್ಷಮ ಅಮಾನತ್ತು ಪಡಿಸಿಕೊಂಡೆವು.
and the statement of PW2/CW4 does not depict that he was taken to separate room and was with the said Bharathi(CW9) in the said room at the time of search however PW1 has exaggerated his version by deposing that the said CW9 and the PW2 were in one room.
18. It was upon the prosecution to prove that the CW9 was alleged to be produced by the accused to the decoy customer/PW2 for indulging in prostitute as per Section 2f of ITP Act.
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19. Although it is stated in the statement under Sec.162 of CrPC that he went and confirmed by paying the money to the accused and then gave a missed call to the PW1, however PW2 who was the decoy customer never deposed with regard to sending of him and the said Bharathi (CW9) to one room for having sexual intercourse. As such, the prosecution failed to prove that there was an overt act on the part of said Bharathi (CW9) upon the PW2 apart from receiving the money from PW2.
20. Mere acceptance of money from PW2 by the accused and in absence of other evidence of any other evidence of any other overt act leading to sexual intercourse is hardly sufficient to prove that the money was received for the purpose of prostitution and as such prosecution failed to show that the CW9 and CW10 squarely falls within the provision of ITP Act.
21. The denomination of notes sent through decoy was not mentioned in the seizure mahazar as per Ex.P2 except with the signature of PW1.
22. The alleged offences under section 3, 4, 5 and 7 of Immoral Traffic (Prevention) Act, 1956 are cognizable offences. In this regard, it is relevant to extract Section 14 of Immoral Traffic (Prevention) Act, 25 KABC030614572015 CC No.22207/2015 1956 are Offences to be cognizable which reads as under
- Notwithstanding anything contained in the Code of Criminal Procedure, 1898 (5 of 1898), any offence punishable under this Act shall be deemed to be a cognizable offence within the meaning of that Code: Provided that, notwithstanding anything contained in that Code,-
(i) arrest without warrant may be made only by the special police officer or under his direction or guidance, or subject to his prior approval;
(ii) when the special police officer requires any officer subordinate to him to arrest without warrant otherwise than in his presence any person for an offence under this Act, he shall give that subordinate officer an order in writing, specifying the person to be arrested and the offence for which the arrest is being made;
and the latter officer before 26 KABC030614572015 CC No.22207/2015 arresting the person shall inform him of the substance of the order and, on being required by such person, show him the order;
(iii) any police officer not below the rank of inspector specially authorised by the special police officer may, if he has reason to believe that on account of delay involved in obtaining the order of the special police officer, any valuable evidence relating to any offence under this Act is likely to be destroyed or concealed, or the person who has committed or is suspected to have committed the offence is likely to escape, or if the name and address of such a person is unknown or there is reason to suspect that a false name or address has been given, arrest the person concerned without such order, but in such a case he shall report, as soon as may be, to the special police officer the arrest and the circumstances in which the arrest was made.
27 KABC030614572015 CC No.22207/2015 The offenses being cognizable in nature, PW1 has arrested the accused without registration of FIR however the PW1 has not tendered the explanation in writing before proceeding with the raid as per section 14 of I. T. P. Act.
23. It appears from the record that accused persons with vehemence argued that the procedure for search was not followed as per Section 15 of ITP Act. In this regard, it is relevant to mention Section 15 of the Immoral Traffic (Prevention) Act, 1956 which reads as under
15. Search without warrant.
(1) Notwithstanding anything contained in any other law for the time being in force, whenever the special police officer has reasonable grounds for believing that an offence punishable under this Act has been or is being committed in respect of a woman or girl living in any premises, and that search of the premises with warrant cannot be made without undue delay, such officer may, after recording the grounds of his 28 KABC030614572015 CC No.22207/2015 belief, enter and search such premises without a warrant.
(2) Before making a search under sub-section (1), the special police officer shall call upon two or more respectable inhabitants (at least one of whom shall be a woman) of the 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.
(3) Any person who, without reasonable cause, refuses or neglects, to attend and witness a search under this section, when called upon to do so by an order in writing delivered or tendered to him, shall be deemed to have committed an offence under section 187 of the Indian Penal Code (45 of 1860).
(4) The special police officer entering any premises under sub-
section (1) shall be entitled to remove therefrom any girl, if in his opinion she is under the age 29 KABC030614572015 CC No.22207/2015 of twenty-one years and is carrying on or is being made to carry on, or attempts are being made to make her carry on, prostitution.
(5) The special police officer, after removing the girl under sub-
section (4) forthwith produce her before the appropriate magistrate. (6) The special police officer and other persons taking part in, or attending, and witnessing a search shall not be liable to any civil or criminal proceedings against them in respect of anything lawfully done in connection with, or for the purpose of, the search.
Thus, from the plain reading of Sub-section 2 of the above section 15, it is evident that the raid could be conducted only in the presence of two or more witnesses of the locality particularly two persons should be present to witness the raid should be respectable people from the locality, and one should be a woman, and if no woman could be found in the locality, a woman could be brought from some other locality to witness the raid. However CW2 namely Sri 30 KABC030614572015 CC No.22207/2015 Anil Kumar S/o. Mahesh resident of Geddalahalli, Bangalore and CW3 namely Sri Shankar S/o. Manju resident of M. S. Ramaiah 80 feet road and Smt. Arokyamma SJPO North was present however the alleged spot at house No.40, 4th Main, 3rd Stage, AECS Layout, RMV II Stage within the limit of Sanjay Nagara Police Station and was bounded on the South by AECS Layout 4th Main Road, East by House No.41, North by residential houses and West by Danalakshmi Center. The independent witnesses from the local inhabitants were not secured though there were residential houses and woman from the said locality.
24. The presence of CW2 and CW3 could not be secured for proving the authenticity of Ex.P2 (seizure cum spot mahazar).
25. The prosecution has not offered any explanation whatsoever as to under what circumstances the alleged CW2, CW3 and PW4 secured by the PW1 at the time of drawing of Ex.P2 to accept the evidence of PW4 though she claims to be an independent witnesses.
26. In the present case, the recovery of said Rs.3,600/-, mobile and four condoms from the possession of accused and CW9 and CW10 was an 31 KABC030614572015 CC No.22207/2015 important piece of evidence as it is the case of prosecution that the accused was supplying the CW9 and CW10 for prostitution against their consent. As observed above, the provisions of ITP Act are to be construed strictly against the prosecution, it is for the prosecution to show that the said notes were kept safely in the hands of third party (officers who are unrelated to the case) immediately after the raid. As the prosecution failed to adduce any such evidence that seized notes were immediately deposited in the safe custody and the same amounts to lapse on the part of prosecution.
27. Furthermore, the decoy /PW2 is none other than police official was deputed as a trap witness and in the interest of prosecution, the police officials cannot be used as a trap witness. The Hon'ble Supreme Court of India in the case of Vinod Kumar Vs State of Punjab reported in (2015) 3 SCC 220 held that the trap witness is an interested witness and his testimony is required corroboration and the corroboration would depend upon the facts and circumstances, nature of the crime and character of trap witness. The evidence of trap witness is clear that he did not do any overt act for sexual intercourse except giving the money to the accused which is in favour of accused.
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28. In addition to which, no neighbor have been made as a witness in this case, creates doubt on the prosecution case.
29. PW1 or PW5 has not examined the adjacent owners of the flat nor recorded their statements. The adjacent owners are not examined by the prosecution, which creates doubt.
30. According to the prosecution case, Sri Srinivas (CW9/PW6) was the owner of alleged incident place house No.40, 4th Main, 3rd Stage, AECS Layout, RMV II Stage within the limit of Sanjay Nagara Police Station however no documentary evidence as to her ownership of said house or rental agreement produced and no efforts were made to show by PW5/IO that PW6 had given the premises to the accused for lease. They have not seized the certified copy of sale deed that the premises stands in the name of PW6 and the original lease agreement from the accused or any document to corroborate that the accused has transferred the money to the PW6 to take the premises for lease. The prosecution has not enquired the witnesses in the lease agreement.
31. On considering the entire evidence of the prosecution and the documents adduced by them, it 33 KABC030614572015 CC No.22207/2015 can be discerned that in case of cognizable offences before registration of FIR, the investigation cannot be done however in the present case, even before registering F.I.R, the search, seizure mahazar and taking of accused to their custody was done.
32. The examined witness PW1 to PW3, PW5 are all official witness has not been successful to prove the case of the Prosecution beyond all reasonable doubt and hence, seizure Panchanama at Ex.P2 cannot be relied upon. Basing only on the version of official witnesses, the charges do not stand proved against the accused. Thus the prosecution failed in proving the charges against the accused beyond all reasonable doubt.
33. Further, on considering the evidence of all the witness on record, it is relevant to note that the evidence of public servants cannot be disbelieved however they are interested in the success of prosecution case. Considering the various discrepancies in the evidence of prosecution makes it doubtful to believe the version of the prosecution in toto as discussed above. Based only on the evidence of these official witnesses namely PW1 to PW3 and PW5, the guilt of the accused cannot be concluded. 34 KABC030614572015 CC No.22207/2015
34. The evidence on record does not prove that the accused was carrying on brothel business on the date of alleged raid by the PW1 and his staff. Hence, this court is of the opinion that the prosecution has utterly failed to bring home the guilt of the accused beyond all reasonable doubt and the evidence placed by the prosecution is not at all sufficient to hold that the accused has committed the offence charged against him. Accordingly, this court answers points No.1 in the Negative
35. Point No.2: From the discussion made herein above, it is clear that the accused deserves to be an order of acquittal for the offences charged against him in this case. In the result, therefore, this court proceeds to pass the following:
ORDER Acting U/Sec.248(1) of the Cr.P.C.
(i) The accused is found not guilty and acquitted from the offences punishable under Sec.3, 4, 5 and 7 of Immoral Traffic Prevention Act.
(ii) Accused is set at liberty.
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(iii) In view of Section 437-A of Cr.P.C his bail bond shall be in force for 6 (six) months.
(iv) After expiry of appeal period, MO1 Rs.4,600/- confiscated to State Govt. and MO2 shall be destroyed.
(v) After expiry of appeal period, the interim custody of Micro Max and Nokia mobile phones granted in favour of petitioner is made absolute.
(vi) Ordered accordingly.
(Dictated to the stenographer, typed by steno, verified and corrected by me in my laptop, then the judgment pronounced by me in the open court, on this the 03rd day of October, 2025) Digitally DEEPA signed by VEERASWAMY DEEPA VEERASWAMY (Deepa.V.), VIII Addl. Chief Judicial Magistrate, Bengaluru City.
36 KABC030614572015 CC No.22207/2015 ANNEXURE Witnesses examined for Prosecution :
PW1 : Sri Prabhushankar PI/informant PW2: Sri Ashwath Reddy PC PW3: Smt. Kalavathi WHC PW4: Smt. Arogyamma Social worker PW5: Sri S Narasismhaiah PSI/IO PW6: Sri Srinivas Documents marked on behalf of Prosecution:
Ex.P1: Notice to Pancha witnesses PW1 Ex.P2: Mahazar PW1 Ex.P3: Complaint PW5 Ex.P4: FIR / PW5 Statement of PW6 PW6 Material Objects marked on behalf of the prosecution:
MO1 : Cash of Rs.4600/-
MO2 : Two condoms
MO3 : Mobile
37
KABC030614572015 CC No.22207/2015
Witnesses examined for the defence: Nil Documents marked on behalf of the defence: Nil Digitally DEEPA signed by VEERASWAMY DEEPA VEERASWAMY VIII Addl. Chief Judicial Magistrate, Bengaluru City.38
KABC030614572015 CC No.22207/2015 Judgment pronounced in the open court vide separately ORDER Acting U/Sec.248(1) of the Cr.P.C.
(i) The accused is found not guilty and acquitted from the offences punishable under Sec.3, 4, 5 and 7 of Immoral Traffic Prevention Act.
(ii) Accused is set at liberty.
(iii) In view of Section 437-A of Cr.P.C his bail bond shall be in force for 6 (six) months.
(iv) After expiry of appeal period, MO1 Rs.4,600/- confiscated to State Govt. and MO2 shall be destroyed.
(v) After expiry of appeal period, the interim custody of Micro Max and Nokia mobile phones granted in favour of petitioner is made absolute.
39 KABC030614572015 CC No.22207/2015
(vi) Ordered accordingly.
VIII ACJM, B'luru City.
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 A. SL. NO. OF THE CASE : 218/2/12 ANUBHAV JAIN 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 40 KABC030614572015 CC No.22207/2015
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 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 raidi ng party comprising of Insp. Bhim Singh, SI Ramvir Singh, HC Atar Singh, Hc Asho k Kumar, Ct. Satender Kumar and Woman Ct. Munesh and at 4.00 pm the complain ant alongwith raiding party reached the spot in two private vehicles and at about 4.15 41 KABC030614572015 CC No.22207/2015 PM Raiding party reached at Archana Complex where ACP asked the public persons t o 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 comple tion 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 t he 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 per son show call girls sitting on the back seat of the said car, by opening the window of t he car and after about 5 minutes shadow witness signalled the raiding party upon whi ch the ACP alongwith raiding party reached the spot and apprehended accused perso 42 KABC030614572015 CC No.22207/2015 ns. 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 hi s 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 allur e 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 50 0/ 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 A CP further enquired from all the accused persons individually and all of the said accus ed persons admit their involvement in prostitution racket. That thereafter ACP condu 43 KABC030614572015 CC No.22207/2015 cted 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 w ere 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 a nd 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. Furthe 44 KABC030614572015 CC No.22207/2015 r 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 declare d 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 orde r 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 a nd 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 45 KABC030614572015 CC No.22207/2015 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 A CP directed HC Atar Singh to be a shadow witness and thereafter he alongwith along with HC Atar Singh remained at the footpath. He further deposed that at about 4.45 p m an Indica car bearing registration no. DL3CU- 0799, 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 i t 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 th em 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 th e 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 curre ncy notes to a girl namely Tanya. He further deposed that Tanya 46 KABC030614572015 CC No.22207/2015 kept the said two currency notes in the pocket of her jeans and shadow witness HC Atar Singh signa lled 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 curre ncy 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. Mune sh searched the accused Tanya and she got recovered the remaining two currency not es 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 tha t thereafter, ACP S.D Mishra, prepared a Tehrir and the same was handed over to Ct. Satender, who took the same to PS G.K- I and the site plan was prepared which is Ex. 47 KABC030614572015 CC No.22207/2015 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 Ra tan which is Ex. PW1/F and Ex. PW1/G. He further deposed that the mobile phone w as 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 informatio n, 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. H e 48 KABC030614572015 CC No.22207/2015 further deposed that the raiding team reached at Archana Shopping Complex, Gre ater 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 t he 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 furt her 49 KABC030614572015 CC No.22207/2015 deposed that ACP/IO prepared the rukka and handed over the same to Ct. Satende r for getting the case registered. He further deposed that accused Ashok Kumar, includ ing 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 me mo already Ex.PW1/B. He further deposed that IO conducted personal search of accus ed 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, Nish a, Taniya and all of them were taken to office. He identified all the accused persons i n the court.
4.3 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 informe d 50 KABC030614572015 CC No.22207/2015 him that a person by the name of Ashok is working as a pimp and if given a refere nce of Sunil, will supply call girls, if calls were made to his mobile number 98111626 87 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 hi m and that he can supply a girl for Rs.2,000/- and Ashok had agreed to meet opposite Archana Shopping Complex, G.K- I, 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 Bhi m 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 Sin gh as a shadow witness and gave HC Ashok Rs.2,000/ (four notes of Rs.500/- 51 KABC030614572015 CC No.22207/2015 ), 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 depo sed 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 (deco y 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 (shado w witness) gave the signal and the raiding party immediately moved in and apprehen ded 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 @ Ashar fi, r/o Sukhdev Vihar, Delhi acting as a pimp had offered girls namely Taniya Chibba r, 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 gir l 52 KABC030614572015 CC No.22207/2015 chosen. He further stated that HC Ashok also informed that all the girls had tried t o 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 t 53 KABC030614572015 CC No.22207/2015 he shopping center where she saw four girls sitting in a Indica car bearing registratio n no. DL3C-
0799. 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. PW5 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.K- I, 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 54 KABC030614572015 CC No.22207/2015 further deposed that at around 04:45 pm, they reached at Archana shopping compl ex 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. H e 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 thereaf ter 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 al l the allegations as leveled against them by the prosecution. They further chooses n ot to lead any defence evidence.
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6. 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.
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e) That accused persons arrived at spot in vehicle bearing no. DL- 3CU0799 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 i s argued by the counsel for the accused that:
a) PW4 Woman Constable did not support the case of prosecution. It is further 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.57
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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, th ey 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, 58 KABC030614572015 CC No.22207/2015 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]. [(2) where any person over the age of eighteen years is proved--
(a) to be living with, or to be habitually in the company of, a prostitute; or
(b) to have exercised control, direction or influence over the movements of a prostitute in such a manner as to show that such person is aiding, abetting or compelling 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 59 KABC030614572015 CC No.22207/2015
(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; [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 sub- section,--
(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 60 KABC030614572015 CC No.22207/2015 seven years and not more than fourteen years;] (2) 8[. . . . . . .] (3) An offence under this section shall be triable--
(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 respect of a child or minor, the person committing the offence 61 KABC030614572015 CC No.22207/2015 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) ......
[(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.
(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].62
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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:
"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."63
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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 64 KABC030614572015 CC No.22207/2015 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. 65 KABC030614572015 CC No.22207/2015
8. 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. 66 KABC030614572015 CC No.22207/2015 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 67 KABC030614572015 CC No.22207/2015 mation and set the trap. The statement of the accused to the decoy police constable was, therefore, inadmissible under Section 162 Cr. P.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 68 KABC030614572015 CC No.22207/2015 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 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 a c cused Ashok and Shiv Dutta, in furtherance of their common intention, produced 69 KABC030614572015 CC No.22207/2015 3 girls for prostitution to decoy customer namely HC Ashok Kumar and in lieu of th e 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 neve r deposed with regard to the said fact. As such, the prosecution has failed to prove t hat there was over overt act on the part of accused Tanya apart from receiving the mo ney from accused Ashok Dutta. As held by Hon'ble High Court of Punjab & Haryana i n 70 KABC030614572015 CC No.22207/2015 Renu Bansal case (Supra) that mere acceptance of money from the decoy custome r and in absence of other evidence of any other overt act leading to sexual intercour se, merely handing over the money is hardly sufficient to prove that the money was r e ceived for the purpose of prostitution, the prosecution has failed to show that the s aid 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 stepp ed into witness box as PW-
4, 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 Satende r Kumar was never declared hostile by the prosecution. 71 KABC030614572015 CC No.22207/2015
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 doc u ments bears the FIR number. At this stage, it would be relevant to state in here tha t 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.PW-
2/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.PW- 2/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 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 72 KABC030614572015 CC No.22207/2015 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 t he 73 KABC030614572015 CC No.22207/2015 consideration. As observed above that the provisions of the ITP Act are to be con strued strictly against the prosecution, it was for the prosecution to show that the s aid notes after recovery were kept safely at Malkhana immediately after the raid. As t he prosecution has failed to adduce any such evidence that seized notes were immed i ately deposited in the Malkhana safely, the same amount to serious lapse on the pa rt 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 C ourt of Delhi has stated that the statement of accused to the decoy police constable is in ad missible u/s 162 Cr.P.C. Hon'ble High Court of Delhi has further observed that it i s 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 o b served in Vinod Kumar v. State of Punjab, (2015) 3 SCC 220 : 74
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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 nego tia tions with accused Ashok Dutta, himself a police official and is an interested witn ess.
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 pu blic person was joined investigation. All the witnesses of prosecution have stated durin g the course of their deposition that several public persons were present at the spot a t 75 KABC030614572015 CC No.22207/2015 the time of incident, however none of the public persons joined the investigation. I n 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 76 KABC030614572015 CC No.22207/2015 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 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 i s made to the area magistrate in compliance of Sec 157 Cr.P.C. which further raise s us picion on the case of prosecution. In this regard Hon'ble Apex Court in Yogesh Si ngh v. Mahabeer Singh, (2017) 11 SCC 195 has observed: 77
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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 pert i nent to state in here that DO Ram Dutt never appeared before the court in order to prove the said FIR as he was stated to have expired, however ASI Satender Kumar d e 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 com mon intention, however no evidence has been brought forth in this regard by the prosec 78 KABC030614572015 CC No.22207/2015 u 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 reasona ble doubt, the accused persons are acquitted for the offences for which they were char ged 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. 79