Delhi District Court
State vs . Pushp Lata & Ors. on 6 June, 2019
IN THE COURT OF SH. BALWINDER SINGH
MM(East) KARKARDOOMA COURTS, DELHI
STATE VS. PUSHP LATA & ORS.
FIR No. : 153/11
PS : Jagat Puri
Sr. No of the case : 10232/16
Date of Institution : 15.04.2011
Date of commission of Offence : 03.04.2011
Name of complainant : Inspector Rajender Singh
Name of accused, their : i) Pushp Lata @ Sania
parentage and address W/o Sh. Rajesh Kaushik,
R/o 9395 Sarojini Park,
Shastri Nagar, Delhi
ii) Kulwant Kaur,
W/o Sh. Devender Singh,
R/o H. No. A35, 2nd Floor,
New Govind Pura, Gali no. 10,
Delhi.
iii) Mohd. Nasir,
S/o Sh. Islamuddin,
R/o 58, Gali No. 6,
Khureji Khas, Delhi
Offence Complained of : 3/ 4/5/8 Immoral Traffic
(Prevention) Act, 1956
Plea of the accused : Pleaded not guilty
Final order : Acquitted
Date of reserving judgment/order : 21.05.2019
Date of pronouncement : 06.06.2019
FIR No. 153/11 PS Jagat puri State Vs. Pushp Lata & Ors. Page No. 1 of 18
Brief reasons for the decision of the case:
1. As per the prosecution case, on 03.04.2011, when the
complainant Inspector Rajender Singh was on patrolling duty in
the area of PS Jagat Puri, Delhi, at about 1.35 pm he received an
information through HC Sanjay that one lady namely Kulwant
Kaur was doing prostitution work at H. No. 35, 2nd Floor, Gali No.
10, Govind Pura, Delhi and the residents of the building were
deeply annoyed with her acts. The complainant Rajender Singh
immediately shared the said information with the ACP, Preet
Vihar on telephone and without wasting any time, reached at PS
and constituted a raiding party consisting of Inspector Yogesh
Malhotra, SI Rajesh Dangwal, Ct. Monu, Lady Ct. Anita and Lady
Ct. Sanyogita and thereafter, left the PS in civil uniform for
conducting raid at Govind Pura, Delhi in government vehicle
bearing No. DL1CJ7422. On reaching at Govind Pura, Delhi,
they stopped the said government vehicle at some distance from
H. No. 35 and the raiding party proceeded towards the said
house. On the ground floor of the said house in a room, HC
Sanjay and Ct. Kanwar Pal alongwith four public persons namely
Mr. Sanjeev Khosla, Mr. Ashok Gupta, Sh. Bhagwati Prasad
Sharma and Smt. Renu Chopra met them and told that they also
live in the same building on different floor and on the second floor
of same building in one flat in which accused Kulwant Kaur
resides, she does prostitution work which is also casting bad
effect on their daughters and daughterinlaws. It was further told
that even this time, the prostitution work was being done at house
of Kulwant Kaur and if a raid is conducted, all who are involved in
FIR No. 153/11 PS Jagat puri State Vs. Pushp Lata & Ors. Page No. 2 of 18
the same can be apprehended red handed. Thereafter, all the
above said public persons were also joined as member of raiding
party and HC Sanjay and Ct. Kanwar Pal were discharged. SI
Rajesh Dangwal was made a decoy customer and Ct. Monu was
made a shadow witness. Complainant Inspector Rajender Singh
handed over two currency notes of 500/ bearing No. 9MM
282030 and 3PA228764 after putting his signature and date to SI
Rajesh Dangwal. Ct. Monu who was made a shadow witness,
was instructed that he would hear the talk between SI Rajesh
Dangwal and the accused persons and thereafter, would give a
signal by waiving a handkerchief. Thereafter, at about 2.20 PM,
both SI Rajesh Dangwal and Ct. Monu left to struck a deal with
the accused persons and at about 2.30 PM, Ct. Monu signaled
towards the complainant by waiving a handkerchief whereupon,
the complainant alongwith other members of raiding party went to
the second floor of the said house. In side the house in the
drawing room, SI Dangwal and one aged lady was found and SI
Rajesh Danwal disclosed that this lady has agreed to provide a
girl for purpose of prostitution at rate of Rs. 1,000/ and has further
disclosed that one lady is busy with a customer in another room
and one another beautiful girl is also about to come there. The
said lady was arrested by the complainant with the help of lady Ct.
Anita and on interrogation she disclosed her name as Kulwant
Kaur @ Pammy and on her personal search conducted by lady
Ct. Anita, the above said two currency notes which were handed
over to decoy customer SI Rajesh Dangwal were also recovered.
Thereafter, with the help of other staff, the complainant opened
one another room of the flat wherein one lady and a man were
FIR No. 153/11 PS Jagat puri State Vs. Pushp Lata & Ors. Page No. 3 of 18
found in half naked and objectionable condition. Both of them
were given sufficient time to put on their clothes and on
interrogation both of them disclosed their names as Pushp Lata
and Mohd Nasir. It is stated that some other objectionable
articles like some packets of unused condoms and one used
condom were also recovered from their room. The recovered
case property was seized by the complainant and the accused
persons were also formally arrested. Accordingly, the present
FIR was registered against the accused persons for the
commission of offences u/s 3/4/5/8 ITP Act. Thereafter on the
completion of investigation, a charge sheet for the commission of
above said offences was also filed in the court against all three
the accused. Cognizance of offences was also accordingly taken
by the court.
2. However, the accused Smt. Kulwant Kaur was formally charged
for the commission of offences u/s 3/4/5 (1) (d) of ITP Act, 1956,
accused Smt. Pushpa Lata was formally charged for the
commission of offence U/s 8 (a) of ITP Act, 1956 and accused
Mohd. Nasir was formally charged for offence u/s 8 (b) of ITP Act,
1956 on 28.02.2013. The accused persons pleaded not guilty to
the charges and claimed trial. Thereafter, the prosecution was
called to lead evidence to prove its case.
3. During prosecution evidence, total thirteen witnesses were
examined by the prosecution to prove its case.
4. PW 1 is duty officer HC Ravinder who simply deposed about the
registration of FIR on the basis of rukka sent by Inspector
FIR No. 153/11 PS Jagat puri State Vs. Pushp Lata & Ors. Page No. 4 of 18
Rajender through Ct. Monu on 03.04.2011. Copy of FIR is Ex.
PW 1/A and his endorsement on rukka is Ex. PW 1/B.
5. PW 2 Sh. Ashok Gupta, PW 3 Sh. Sanjeev Khosla, PW 5 Smt.
Renu Chopra and PW 6 Sh. Bhagwat Prasad Sharma are the
public witnesses who purportedly were also the member of the
raiding party. However, it is pertinent to mention here that all the
above said public witnesses turned hostile during their
examination in the court and did not depose anything incriminating
against the accused persons. All the above said public witnesses
not only denied that they joined any raiding party but also denied
that the accused were involved in any of prostitution work. It is
further important to note here that PW 5 Smt. Renu Chopra who
purportedly made a call to police at 100 number even deposed in
the court that she had made a call to the police only on the basis
of apprehension as some girls and male persons used to visit the
house of Kulwant Kaur at different times, though later on she
came to know that since Kulwant Kaur was running a business of
committee, the said girls and males used to visit her house in that
regard. All the public witnesses have also denied that accused
Pushp Latta and Mohd. Nasir were apprehended by the police in
objectionable condition or that any currency note or other
objectionable articles were found during the course of alleged
raid.
6. The remaining prosecution witnesses are PW 4 ASI Mangat
Singh, the DD writer, PW7 lady Ct. Anita, PW8 Ct. Monu Kumar,
the alleged shadow witness, PW9 ACP Rajender Singh Adhikari
ie. Complainant( the then Inspector), PW10 SI Rajesh Danwal,
FIR No. 153/11 PS Jagat puri State Vs. Pushp Lata & Ors. Page No. 5 of 18
the alleged decoy customer, PW11 HC Sanjay Sharma, PW12
Ct. Kanwar Pal and PW13 Ct. Hakikat, the MHC (M). All these
witnesses are the police witnesses.
7. PW 7, PW 8, PW9 and PW10 are the members of the raiding
party and all of them have deposed about the constitution of
raiding party by PW9 on the basis of information received through
HC Sanjay who had deposed that he received one call vide DD
No. 24A on 03.04.2011 at about 1.20 PM about the prostitution
work being done at flat no. A35, Gali No. 10, 2nd Floor, Govind
Pura, Delhi and had reached there with Ct. Kanwar Pal. All the
PWs further deposed that public witnesses namely PW 2, PW 3,
PW 5 and PW 6 also met them near the building on the ground
floor and joined the raiding party. It is further deposed by all the
police witnesses that after PW 10 and PW8 were made decoy
customer and shadow witnesses, a raid was conducted at the 2 nd
floor inside the house of accused Kulwant Kaur and all the
accused persons were arrested being indulged in the prostitution
work. Police witnesses have also deposed about the recovery of
currency notes from the accused persons and that accused Pushp
Latta and Mohd Nasir were found in objectionable condition and
seizure of various objectionable articles like packets of unused
condoms and one used condom from their room.
8. After completion of the prosecution evidence, statements of
accused persons under sec. 313 of Cr.P.C. were recorded
wherein they denied the allegations and stated that they are
innocent and have been falsely implicated in this case by the
police. No evidence was led by the accused persons in their
FIR No. 153/11 PS Jagat puri State Vs. Pushp Lata & Ors. Page No. 6 of 18
defence.
9. I have heard the final arguments and have gone through the
material available on the record.
10. 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
(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
FIR No. 153/11 PS Jagat puri State Vs. Pushp Lata & Ors. Page No. 7 of 18
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.
(2A) For the purposes of subsection (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 (a) or clause (b) of subsection (2)
of any offence under that subsection 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.
11. Sec. 2 (a) defines a "brothel" as follows:
"Brothel" includes any house, room,
FIR No. 153/11 PS Jagat puri State Vs. Pushp Lata & Ors. Page No. 8 of 18
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".
12. Sec. 4 of the Act deals with punishment for living on the earnings
of prostitution. It reads as under:
4. Punishment for living on the
earnings of prostitution. (1) Any
person over the age of eighteen years
who knowingly lives, wholly or in part,
on the earnings of the prostitution
of 1[any other person] shall be
punishable with imprisonment for a
term which may extend to two years,
or with fine which may extend to one
thousand rupees, or with both 2[and
where such earnings relate to the
prostitution of a child or a minor, shall
be punishable with imprisonment for a
term of not less than seven years and
not more than ten years].
(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
(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
FIR No. 153/11 PS Jagat puri State Vs. Pushp Lata & Ors. Page No. 9 of 18
prostitution of another person
within the meaning of subsection
(1)."
13. Sec. 5 of the Act deals with procuring, inducing or taking (person)
for the sake of prostitution. It reads as under:
5. Procuring, inducing or taking
1[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 [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, FIR No. 153/11 PS Jagat puri State Vs. Pushp Lata & Ors. Page No. 10 of 18 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 imprisonment for a term of fourteen years.
14. "Prostitution" is defined in clause (f) of section 2 of the Act. It reads as under:
(f) "Prostitution" means the sexual exploitation or abuse of persons for commercial purposes, and the expression "prostitute" shall be construed accordingly.
15. Section 8 of ITP Act deals with seducing or soliciting for the purpose of prostitution :
"Whoever, in any public place or within sight of, and in such manner as to be seen or heard from, any public place, whether from within any building or house or not
(a) by words, gestures, willful exposure of his person (whether by sitting by a window or on balcony of a building or house or in any other way), or otherwise tempts to or endeavours to tempt, or attract or endeavours to attract the attention of, any purpose for the purpose of prostitution; or
(b) Solicit or molest any person or loiters or acts in such manner as to cause obstruction or annoyance to persons residing nearby or passing by such public place or to offend against public decency, for FIR No. 153/11 PS Jagat puri State Vs. Pushp Lata & Ors. Page No. 11 of 18 the purpose of prostitution, shall be punishable on first conviction with imprisonment for a term which may extend to six months or with fine which may extend to five hundred rupees, or with both, and in the event of second or subsequent conviction, with imprisonment for a term which may extend to one year, and also fine which may extend to five hundred rupees:
Provided that where an offence under this section is committed by a man, he shall be punishable with imprisonment for a period of not less than seven days but which may extend to three months.
16. 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.
17. It is the case of the prosecution that accused Kulwant Kaur agreed to provide a girl to the decoy customer SI Rajesh Dangwal for the purpose of prostitution and also took Rs. 1,000/ for the same.
18. Thus, to bring home the guilt of the accused Kulwant Kaur, prosecution has solely relied upon the statement/gestures of accused made to the decoy customer SI Rajesh Dangwal during FIR No. 153/11 PS Jagat puri State Vs. Pushp Lata & Ors. Page No. 12 of 18 the course of investigation.
19. Sec. 162 of Cr.P.C imposes a bar on the use of any statement made by any person to a Police Officer in the course of investigation save as provided therein. It is no more res integra that "any person" includes "accused".
20. Sec. 162 of the Code reads as under:
162. Statements to police not to be signed: Use of statements in evidence.
(1) No statement made by any person to a police officer in the course of an investigation under this Chapter, shall, if reduced to writing, be signed by the person making it; nor shall any such statement or any record thereof, whether in a police diary or otherwise, or any part of such statement or record, be used for any purpose, save as hereinafter provided, at any inquiry or trial in respect of any offence under investigation at the time when such statement was made:
Provided that when any witness is called for the prosecution in such inquiry or trial whose statement has been reduced into writing as aforesaid, any part of his statement, if duly proved, may be used by the accused, and with the permission of the Court, by the prosecution, to contradict such witness in the manner provided by section 145 of the Indian Evidence Act, affect 1872 (1 of 1872 ); and when any part of such statement is so used, any part thereof may also be used in the re examination of such witness, but for the purpose only of explaining any matter referred to in his cross examination.
FIR No. 153/11 PS Jagat puri State Vs. Pushp Lata & Ors. Page No. 13 of 18 (2) Nothing in this section shall be deemed to apply to any statement falling within the provisions of clause (1) of section 32 of the Indian Evidence Act, 1872 (1 of 1872 ), or to affect the provisions of section 27 of that Act.
Explanation. An omission to state a fact or circumstance in the statement referred to in sub section (1) may amount to contradiction if the same appears to be significant and otherwise relevant having regard to the context in which such omission occurs and whether any omission amounts to a contradiction in the particular context shall be a question of fact.
21. The Hon'ble High Court of Delhi while dealing with a similar situation in the case of State vs. Basir Ahmed & Ors (1983)23 DLT 486 held as under: ".....it appears to me that 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 Anti Corruption police, it was held in Maha Singh v. State (Delhi Admn.), 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 FIR No. 153/11 PS Jagat puri State Vs. Pushp Lata & Ors. Page No. 14 of 18 cognizable offence. Investigation may start without information or without reducing the same in writing under Section 154 Cr. P.C.: State of UP vs. Bhagwat Kishore Joshi. In this case also, investigation was commenced when the police officer got the information and set the trap. The statement of the accused to the decoy police constable was, therefore, inadmissible under Section 162 Cr. P.C. "
22. The Hon'ble High Court further held as under: "The constable stated that when he went to the Kotha, the accused came to him and asked if he wanted to enjoy. He had three girls to offer and that he will charge Rs. 20/. He will give Rs. 10.00 out of that to the girl. The girls were produced before him and they offered themselves for sexual intercourse. Thereupon the constable gave to him two notes of Rs. 10.00 each. From these facts, there is no doubt that Bashir had been inducing girls to take to prostitution, was running a brothel, and was living upon the earning of prostitution, and the girls were carrying on prostitution. But unfortunately the statements of the accused are hit by Section 162 Cr.P.C. and cannot be read in evidence. The girls have, therefore, been rightly acquitted. Bashir has not come up in revision. The State has. They are aggrieved by the direction that they should file a separate challan against Bashir. But, for the reason of inadmissibility of evidence, this court should exercise its powers to direct that he shall also be discharged. I, therefore, direct...."
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23. Thus, sec. 162 of the Code is a hurdle in the way of the prosecution and the statement made by the accused to the decoy police customer SI Rajesh Dangwal during investigation cannot be read in evidence against her.
24. Further, the decoy customer/witness SI Rajesh Dangwal cannot be considered to be independent witnesses being the members of the raiding party.
25. Moreover, as already noted above all the public witnesses namely PW 2, PW 3 , PW 5 and PW 6 have already not supported the case of prosecution and have denied that the accused persons were doing any prostitution work or that any money or any other objectionable articles were recovered from their possession.
26. Thus as the public witnesses who have already turned hostile during their examination in the court and have failed to deposed anything incriminating against the accused persons, no implicit reliance can be placed on the testimony of remaining prosecution witnesses who are just the police officials and are not the independent witnesses.
27. Further, during prosecution evidence, the proseuction has also failed to place on record any personal search memo of the decoy customer i.e. of PW10/SI Rajesh Dangwal or any handing over memo of currency notes handed over to him by the complainant. Further the seizure memo of currency notes Ex. PW2/B and recovery memo of objectionable articles Ex. PW2/A were also stated to be prepared at the spot prior to registration of the FIR but both these documents bear registration number of the FIR. Prosecution has not offered any explanation under under what circumstances number of the FIR has appeared on the top of FIR No. 153/11 PS Jagat puri State Vs. Pushp Lata & Ors. Page No. 16 of 18 these documents. Reliance may be placed on a judgment passed by the Hon'ble High Court of Delhi in the case of Pawan Kumar vs. the Delhi Administration 1989 Crl. L.J 127 wherein it was held as under:
"In the normal circumstances, the FIR number should not find mention in the recovery memo or the sketch plan which had come into existence before the registration of the case. However, from the perusal of the recovery memo, I find that the FIR is mentioned whereas the sketch plan does not show the number of the FIR. It is not explained as to how and under what circumstances the recovery memo came to bear the FIR number which had already come into existence before the registration of the case. These are few of the circumstances which create a doubt, i n my mind, about the genuineness of the weapon of offence alleged to have been recovered from the accused."
28. Thus, the circumstances mentioned as above create a reasonable doubt regarding the truthfulness of the prosecution version. Hence, the benefit of doubt must go to the accused persons.
29. Having discussed as above, this court is of the view that the prosecution has failed to prove its case beyond reasonable doubt. Hence, accused namely Kulawant Kaur W/o Sh. Devender Singh, Pushplata @ Sania, W/o Sh. Rajesh Kaushik and accused Mohd. Nasir S/o Sh. Islamuddin are hereby acquitted of all the offence alleged against them and punishable under section 3,4,5 and 8 FIR No. 153/11 PS Jagat puri State Vs. Pushp Lata & Ors. Page No. 17 of 18 respectively of Immoral Traffic (Prevention ) Act.
30. Bail bond furnished under section 437A of Cr.P.C will remain in force the period of six months.
31. Case property, if any, shall stand confiscated to the State and be disposed of as per rules.
32. File be consigned to the Record Room after due compliance.
Digitally signed by BALWINDER BALWINDER SINGH
Announced in open court SINGH Date: 2019.06.09
15:00:32 +0530
on Dated: 06.06.2019
(BALWINDER SINGH)
MM(E)/KKD/DELHI/06.06.2019
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