Bangalore District Court
Along With Panchas Cw.2 And 3 And His ... vs No.1 And 2 Have Committed Offences on 3 March, 2023
KABC010252912021
IN THE COURT OF XLV ADDL. CITY CIVIL & SESSIONS
JUDGE, BENGALURU CITY (CCH-46)
DATED THIS THE 3RD DAY OF MARCH, 2023
PRESENT:
Sri Manjunatha, B. A., LL.B.,
XLV Addl. City Civil & Sessions Judge, Bengaluru.
SC No.1369/2021
BETWEEN
State by Begur P.S.,
Bangalore. .. COMPLAINANT
(By the learned Public Prosecutor)
AND
1.Taseena
C/o Kayaz @ Imran, a/a 35 Yrs.,
R/o Near Afzal Shadi Masjid,
Mysore Road, Goripalya, Bengaluru City.
2.Rehena
C/o Razad Pasha, a/a 36 Yrs.,
R/a No.392, Muslim Burial Ground,
Farooqnagar, Padarayanapura,
Bengaluru City. ..ACCUSED
(By Sri NMD, Advocate)
*****
Date of offence & time 25.08.2021 4.45 p.m.
Date of report of offence 25.08.2021 at 18.30 hours
Date of arrest of the 25.08.2021
accused
Date of release on bail 24.09.2021
Total period of custody 29 days
2
SC No.1369/2021
Name of the complainant Sri Shivalumar B Muchandi
Date of commencement 28.09.2022
of recording of evidence
Date of closing of 24.01.2023
evidence
Offences complained of U/s.4, 5 and 6 of ITP Act and
Sec.370 of IPC
Opinion of the Judge Accused found not guilty
JUDGMENT
The Police Sub-Inspector, Begur P.S., Bangalore, has filed charge sheet against accused No.1 and 2 for the offences punishable U/s.4, 5 and 6 of Immoral Traffic (Prevention) Act, 1956 and and Sec.370 of IPC in their Crime No.173/2021.
2. The factual matrix of the case is that :-
The accused No.1 and 2 were running prostitution business at house bearing No.81 situated 3rd Cross, Behind Ganesh Temple, AECS Layout, Singasandra within the limits of Begur P.S., Bengaluru, by trafficking CW.4 and CW.5 with false assurance of getting job, induced and indulged them in prostitution business in the public vicinity and were leading their life from the amount of illegal gain from the said business. On 25.08.2021 in between 4.45 p.m. and 6.15 p.m., the complainant along with panchas CW.2 and 3 and his staffs CW.8 to CW.11 conducted raid over the said house after obtaining credible information and apprehended accused No.1 and 2, who were involved in the prostitution business, rescued CW.4 and CW.5 and at that time seized the articles from the spot through panchanama. Thereby the accused persons are alleged with the offences punishable U/s.370 of IPC and Sec.4, 5 and 6 of Immoral Traffic (Prevention) Act, 1956.3
SC No.1369/2021
3. The concerned police have submitted charge sheet against the accused persons for the offences punishable U/s.370 IPC and U/s.4, 5 and 6 of Immoral Traffic (Prevention) Act, 1956, before the jurisdictional XLI Addl.,CMM., Bangalore. The learned Magistrate has committed the case to the Sessions Court by complying Sec.207 of Cr.P.C. after furnishing charge sheet copies to the accused persons. The same was numbered as SC No.1369/2021.
4.The charge was framed against the accused No.1 and 2 on 14.02.2022 for the offences punishable U/s.3, 4, 5 and 6 of ITP Act and Sec.370 of IPC. The accused persons have pleaded not guilty and claimed to be tried.
5.The prosecution has examined in all seven witnesses as PW.1 to PW.7 and got marked documents at Ex.P.1 to P.7, and identifies Mos1 and 2. The learned public prosecutor has given up witnesses CW.9 to CW.11, in view of the available evidence of other police official witnesses. The prosecution has not taken any steps to secure the witnesses CW.5 and CW.6, in view of the same dropping of evidence of CW.5 and CW.6 remained intact.
6After closure of the evidence of prosecution, the case was posted for recording statement of accused persons as provided U/s.313 of Cr.P.C. on 9.2.2023, and the same was duly recorded. The accused persons did not claim for defense evidence nor produce any documents to support their case.
7.Heard the arguments on both sides and perused the materials on record.
4SC No.1369/2021
8.The following points that arises for consideration of this court:
1. Whether the prosecution proves beyond all reasonable that on 25.08.2021 in between 4.45 p.m. and 6.15 p.m. the accused No.1 and 2 at house bearing No.81 situated 3rd Cross, Behind Ganesh Temple, AECS Layout, Singasandra within the limits of Begur P.S., Bengaluru, by trafficking CW.4 and CW.5 with false assurance of getting job, induced and indulged them in prostitution business in the public vicinity and were leading their life from the amount of illegal gain from the said business and thereby the accused No.1 and 2 have committed offences punishable U/s.3, 4, 5 and 6 of ITP Act?
2. Whether the prosecution proves beyond reasonable doubt that on on 25.08.2021 in between 4.45 p.m. and 6.15 p.m. the accused No.1 and 2 with common intention to run prostitution business by trafficking CW.4 and 5 forcibly induced them to indulge in prostitution business for wrongful gain at house bearing No.81 situated 3rd Cross, Behind Ganesh Temple, AECS Layout, Singasandra within the limits of Begur P.S., Bengaluru, and thereby the accused No.1 and 2 have committed offence punishable U/s.370 r/w Sec.34 of IPC ?
3. What Order?5
SC No.1369/2021
9.This Court has answered the above points are as hereunder:
Point No.1: In the Negative Point No.2: In the Negative Point No.3: As per final order for the following:-
REASONS
10. Points No.1 and 2: Both the points are taken up together for discussion as they are related to each other and to avoid repetition in the discussion.
11.It is the specific allegation that the accused No.1 and 2 were running prostitution business at house bearing No.81 situated 3rd Cross, Behind Ganesh Temple, AECS Layout, Singasandra within the limits of Begur P.S., Bengaluru, by trafficking CW.4 and CW.5 with false assurance of getting job, induced and indulged them in prostitution business in the public vicinity and were leading their life from the amount of illegal gain from the said business. On 25.08.2021 in between 4.45 p.m. and 6.15 p.m., the complainant along with panchas CW.2 and 3 and his staffs CW.8 to CW.11 conducted raid over the said house after obtaining credible information and apprehended accused No.1 and 2, who were involved in the prostitution business, rescued CW.4 and CW.5 and at that time seized the articles from the spot through panchanama.Thereby the accused persons are alleged with the offences punishable U/s.370 of IPC and Sec.3, 4, 5 and 6 of Immoral Traffic (Prevention) Act, 1956.
12.In order to prove the said allegation the prosecution has examined the complainant-PW.1 Shivaumar B Muchchandi 6 SC No.1369/2021 being the Police Inspector of Begur P.S.., deposed in his evidence that 25.08.2021 in between 4.45 p.m. and 6.15 p.m., received reliable information that at house bearing No.81 situated 3rd Cross, Behind Ganesh Temple, AECS Layout, Singasandra within the limits of Begur P.S., Bengaluru, prostitution being carried out, therefore, after obtaining oral permission from his higher officials, he along with panchas and his subordinate staffs after confirming information through CW.8 decoy conducted raid on the said house and found the accused persons indulged in prostitution business by trafficking CW.4 and CW.5. In fact PW.1 took investigation materials with him while conducting raid and seized mobile phones and condom packets from the custody of the accused persons and drawn mahazar marked as Ex.P3 in the presence of mahazar witnesses. PW.1 also found CW.4 and CW.5, who are cited as Victim/witnesses in the charge sheet. Before conducting raid he has prepared record of reasons and issued notices to CW.2 and CW.3 to assist as mahazar witnesses as per Ex.P1, the seized properties produced and marked as MO1 and MO2 and he identifies the accused persons during the course of his evidence. The learned counsel for the accused persons subjected PW.1 for cross-examination and denied the alleged offences committed by the accused persons. No documents produced before the Court to show that the mobile phones seized belongs to the accused persons. The accused persons have not claimed properties alleged to have been seized from their custody. PW.1 filed complaint before PW.7 marked as Ex.P4. PW.1 had not obtained any search warrant before 7 SC No.1369/2021 conducting raid, his staffs were orally informed regarding proposed raid. The neighbouring residents, particularly women were not called as mahazar witnesses, as mandated under Immoral Traffic Act. The explanation offered by PW.1 that neighboring residents not co-operated while drawing the mahazar in a busy locality is not acceptable one. Admittedly before conducting raid, inside the premises physical search was not carried out. Seizure of material objects from the custody of accused persons denied by the learned counsel for the accused persons.
13.PW.2 Shamshuddin and PW.3 Fayaz, who being the panchas have turned hostile and not supported the case of the prosecution. The learned public prosecutor cross-examined them, but nothing has been elicited from their mouth to establish the guilt of the accused persons. The contents of Ex.P3 panchanama is not proved sufficiently and satisfactorily by the prosecution.
14.PW.4 Nazia @ Saniya, who being the victim has turned hostile and not supported the case of the prosecution. She denies the statement given to the I.O., marked as Ex.P5. This is fatal for the case of the prosecution, and failed to establish the to prove the guilt against the accused No.1 and 2. In spite of issuance of summons and warrants CW.5/victim was not secured before the Court, and her evidence was taken as nil. In order to prove the allegations against the accused persons the prosecution has failed to examine the owner of the house CW.6.
8SC No.1369/2021
15.PW.5 Tabrez Pasha, who being the independent witness has turned hostile and not supported the case of the prosecution. He denies the statement given to the I.O., marked as Ex.P6. This is fatal for the case of the prosecution, and failed to establish the to prove the guilt against the accused No.1 and 2.
16.PW.6 Mohan, Head Constable cum-decoy and one of the raiding party member has deposed in similar way of PW.1 and deposed about conducting of raid, apprehension of accused, seizure of material objects and rescue of CW.4 and 5. The learned counsel for the accused persons cross-examined PW.6 and he also denies the suggestions with regard to apprehension of accused persons and his participation in the raid.
17.PW.7 Manjunatha Barki has deposed that on 25.08.2021 at 6.30 p.m. CW.1 appeared before him along with accused persons, victims, seized articles and seizure mahazar and submitted Ex.P4 report, based on the said report he has registered the case in Crime No.173/2021, and forwarded FIR to the Court marked as Ex.P7. Along with report Ex.P1 Cw.1 produced seized articles, record of reasons, notice and victims CW.4 to 6 before him. he brought MO1 and MO2 seized articles into PF No.173/2021, arrested the accused and recorded his voluntary statement, and he sent the the victims to State Home for Women, recorded statements of CW.2 and CW.3, on 26.08.2021 brought the accused and victims from State Home, produced before the Court, and as per the order of the Court he sent the victims to State Home for Women, recorded statement 9 SC No.1369/2021 of CW.6, and 13.09.2021 completed the investigation and submitted charge sheet to the Court. From this it is clear that the entire investigation was carried out by PW.7 and submitted chearge sheet. It is vehemently argued by the learned counsel for accused and brought to the notice of the Court the evidence of PW.7 that at the time of the incident he was working as Police Sub-inspector of Begur P.S., and after registering the complaint, took up investigation, has investigated the entire case by recording the statement of witnesses, victim and after completing investigation submitted charge sheet to the Court. It is vehemently argued that PW.7 being PSI not authorized as a Special Police Officer, as specified by the State Government or on behalf of the Government in investigating the cases pertaining to the ITP Act.
18.At this juncture I would like to refer the provision of Sec.13(2) of the ITP Act, 1956, wherein it is mandatory that the investigation has to be done by Special Officer and an Advisory body i.e., the Special Police Officer, who shall not be, below the rank of Police Inspector, having authority to investigate the case and file charge sheet. In the instant case the PW.7 has not produced any document to show that he is appointed as a Special Officer and having the rank of Police Inspector in the Department having authority to investigate cases pertaining to ITP Act,, 1956. The evidence of PW.7 clearly discloses that he being in the rank of Police Sub-Inspector, who had registered the case and recorded the statements of the witnesses during investigation, recorded the voluntary statement of accused, statement of victims and the raiding party witnesses and 10 SC No.1369/2021 submitted cheage sheet. It is the specific defense of the accused persons that the witness PW.7 who investigated the case has no authority as per the provisions of ITP Act to investigate the case since he was working under the rank of PSI, below the rank of Police Inspector. The Hon'ble High Court of Karnataka in Shankaregowda @ Shankara Vs. State by Madanayakanahalli Police Station, Bengaluru and others reported in ILR 2016 Kar 3067, has held that:-
"Police Sub-Inspector cannot be a Special Officer, as per the mandate of Section 13 of the Act, it can only be the Inspector of Police or an Officer of above the rank of Police Inspector who can be appointed as Special Officer. When a procedure is prescribed under law to do a thing in a particular manner, it should be carried out in that manner only. In the instant case PW.7 PSI who has registered the case and investigated the case by recording the statements of the witnesses, and submitted charge sheet, is not shown to be qualifying as "Subordinate Police Officer" notified by the State Government to assist the Special Officer. Hence, the investigation is found to be defective without any compliance to Sec.13(2) of ITP Act, 1956.
19.It is equally important to note that the same point came up for consideration in Criminal Petition No.5497/2016 between G. S. Mallinath Vs. State of Karnataka and another , the Hon'ble High Court of Karnataka has held that the Police 11 SC No.1369/2021 Officer who is below the rank of the Police Inspector has no jurisdiction to investigate the matter under the above said provisions.
20.Relying upon the above said provision of Section 13(2) of the said Act and the dictum of law laid down in the above said ruling it is clear that the investigation done by the Police Sub-Inspector PW.7 is vitiated by serious procedural irregularity and not curable in nature.
21.Therefore, from the above reasons and discussions it is very clear that the prosecution has utterly failed to establish or prove the guilt against the accused persons beyond all reasonable doubt. Accordingly, I answer Points No. 1 and 2 in the negative.
22.Point No.3: In view of answer of this court on points No.1 and 2, this court pass the following:-
ORDER Acting U/s.235(1) of Cr.P.C., the accused No.1 and 2 are hereby acquitted of the offenses punishable U/s.3, 4, 5 and 6 of the Immoral Traffic (Prevention) Act, 1956 and Sec.370 r/w Sec.34 of Indian Penal Code, 1860.The bail and surety bonds of accused No.1 and 2
stand canceled.
MO1 shall be confiscated to the State and MO2 being worthless shall be destroyed, after appeal period is over.
(Typed to my dictation by the Stenographer directly on Computer, corrected by me and then pronounced in open Court on this the 3rd day of March, 2023) (Manjunatha) XLV Addl. City Civil & Sessions Judge, Bengaluru.12
SC No.1369/2021 ANNEXURE List of Witnesses examined on behalf of Prosecution:
P.W.1: Shivakumar B Muchhandi P.W.2: Shamshuddin P.W.3: Nayaz P.W.4: Naziya @ Saniya P.W.5: Tabrez Pasha, P.W.6: Mohan P.W.7: Manjunatha Barki.
List of Documents exhibited on behalf of Prosecution:
Ex.P.1: Notice Ex.P.2: Record of Reasons Ex.P.3: Mahazar Ex.P.4: Complaint Ex.P.5: Statement of PW.4 Ex.P.6: Statement of PW.5 Ex.P.7: FIR.
List of Witnesses examined on behalf of Accused:
NIL List of Documents exhibited on behalf of Accused:-
NIL List of Material Objects marked on behalf of Prosecution:-
MO1: Mobile phone
MO2: Condoms.
(Manjunatha)
XLV Addl. City Civil & Sessions Judge,
Bengaluru.
13
SC No.1369/2021
Accused No.1 and 2 present
The learned counsel for accused present. Judgment pronounced in the open Court vide its separate order ORDER Acting U/s.235(1) of Cr.P.C., the accused No.1 and 2 are hereby acquitted of the offenses punishable U/s.3, 4, 5 and 6 of the Immoral Traffic (Prevention) Act, 1956 and Sec.370 r/w Sec.34 of Indian Penal Code, 1860.
The bail and surety bonds of accused No.1 and 2 stand canceled.
MO1 shall be confiscated to the State and MO2 being worthless shall be destroyed, after appeal period is over.
For compliance of Sec.437A of Cr.P.C., call on....
(Manjunatha) XLV Addl. City Civil & Sessions Judge, Bengaluru.