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Bangalore District Court

Along With Panchas Cw.2 And Cw.3 vs The Same Is Numbered As Sc No.327/2019 on 16 December, 2021

  IN THE COURT OF XLV ADDL. CITY CIVIL &
 SESSIONS JUDGE, BENGALURU CITY (CCH­46)

   DATED THIS THE 16TH DAY OF DECEMBER, 2021

                     PRESENT:
        Sri. Abdul Rahim Husain Shaikh,
              B.Sc., B.Ed., LL.B.(Spl.)
       XLV Addl. City Civil & Sessions Judge,
                    Bengaluru.

                   S.C. No.327/2019

BETWEEN

State by Madiwala PS.,
Bangalore.                         .. COMPLAINANT

      (By the learned Public Prosecutor)

AND

4.M. Sujith
S/o Mukundaiah,
A/a 30 Yrs.,
R/a No.68,
9th Main,
13th Cross,
Wilson Garden,
Bengaluru City.

5.R. Chiranjeevi
S/o Raj,
A/a 25 Yrs.,
R/a No.2041,
4th Cross,
KHB Colony,
                           2                   SC No.327/2019


Prashanthnagar,
Housing Board,
Bengaluru City.                            ..ACCUSED

(By Sri HRK,, Advocate)

                        *****

                     JUDGMENT

The Police Inspector, Madiwala Police Station, Bangalore, has filed charge sheet against accused No.4 and 5, and others for the offences punishable U/s.3, 4 and 5 of Immoral Traffic (Prevention) Act, 1956 and Sec.370(3) and 370A(2) r/w Sec.34 of IPC.

2. The factual matrix of the case is that :­ The accused No.1 to 3 at house bearing No.4, 3rd Floor situated at I Cross, 2nd Main Road, Chikka Adugodi Extension, Tavarekere, within the limits of Madiwala P.S., Bangalore, were running the prostitution business by trafficking CW.4 and CW.5 with the false assurance of getting job and indulged them in prostitution business to earn more money in the public vicinity and were leading their life from the 3 SC No.327/2019 amount of illegal gain from the said business. The complainant along with panchas CW.2 and CW.3, his staff Cw.6 to 8 on 25.10.2013 at 6.30 a.m. conducted raid over the said house, and apprehended accused No.4 and 5, who were customers and indulged in the prostitution, and rescued CW.4 and CW.5. Thereby the accused No.4 and 5 are alleged with the offences punishable U/s.3, 4 and 5 of Immoral Traffic (Prevention) Act, 1956 and Sec.370(3) and Sec.370A(2) r/w Sec.34 of IPC.

3. The concerned police have submitted charge sheet against the accused for the offences punishable U/s.3, 4 and 5 of Immoral Traffic (Prevention) Act, 1956 and Sec.370(3) and Sec.370A(2) r/w Sec.34 of IPC, before the jurisdictional III 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. The same is numbered as SC No.327/2019 4 SC No.327/2019 in this Court, and the case against accused No.1 to 3 has been split up.

4.The charge was framed against the accused No.4 and 5 on 30.09.2019 for the offenses punishable U/s.3, 4 and 5 of Immoral Traffic (Prevention) Act, 1956 and Sec.370(3) and Sec.370A(2) r/w Sec.34 of IPC. The accused No.4 and 5 have pleaded not guilty and claims to be tried.

5.The prosecution has examined in all five witnesses as PW.1 to 5 and got marked documents at Ex.P.1 to P.6, and identified Mos1 to 3. The learned Public Prosecutor has given up the witnesses CW.7 and CW.8 as repetition witnesses, in view of support to the case of the prosecution by other police official. In spite of sufficient opportunities provided to the prosecution by issuing summons, warrant and proclamation to secure CW.3 to CW.5, but the concerned police failed to secure the said witnesses and in view of the same on 2.11.2021 and 1.12.2021 5 SC No.327/2019 the evidence of said witnesses was taken as nil by rejecting the prayer of the prosecution with liberty to examine the said witnesses before disposal of the case. Further the prosecution in spite of sufficient opportunities provided has not taken any steps to secure the witnesses CW.3 to CW.5.

6.After closure of the evidence of prosecution, the case was posted for recording statement of accused as provided U/s.313 of Cr.P.C. on 7.12.2021, and the same was duly recorded. The accused No.4 and 5 did not claim for defense evidence nor produced any documents to support their case in spite of sufficient opportunities. The accused No.4 and 5 have complied provisions U/s.437A of Cr.P.C.,

7.Heard the arguments on both sides and perused the materials on record.

8.The following points that arises for consideration of this court:

1. Whether the prosecution proves that the accused No.4, 5 and other accused were running prostitution business at house bearing No.4, 3rd Floor situated at I Cross, 2nd Main Road, Chikka Adugodi Extension, Tavarekere, within the limits of Madiwala P.S., Bangalore, by trafficking CW.4 and CW.5 with the false assurance of getting job at Bangalore, and induced them to indulge in the prostitution business in the public vicinity and leading their life from the amount of illegal gain and thereby the accused No.4 and 5 have committed an offences punishable U/s. 3, 4 and 5 of ITP Act?

2. Whether the prosecution proves that the accused No.4 and 5 with an intention to run prostitution business by trafficking CW.4 and 5 forcibly induced them to indulge in prostitution business for wrongful gain, and thereby the accused No.4 and 5 have committed an offence punishable U/s.370 of IPC?

3. What Order?

9.This Court has answered the above points are as hereunder:

                    Point No.1:      In the Negative
                    Point No.2:      In the Negative
                    Point No.3:      As per final order
                                     for the following:­
                          REASONS

10. Points No.1 and 2: Both the points are taken up together for discussion as they are related to each other and to avoid repetition in the discussion.

11.It is the specific allegation against the accused No.1 to 3 were running prostitution business at house bearing No.4, 3rd Floor situated at I Cross, 2nd Main Road, Chikka Adugodi Extension, Tavarekere, within the limits of Madiwala P.S., Bangalore, by trafficking CW.4 and CW.5 with the false assurance of providing job and indulged them in prostitution business to earn more money in the public vicinity and were also leading their life 8 SC No.327/2019 from the amount of illegal gain from the said business. The present accused No.4 and 5 were customers and were indulge in prostitution with CW.4 and CW.5. The complainant along with panchas CW.2 and CW.3, his staff Cw.6 to 8 on 25.10.2013 at 6.30 a.m. conducted raid over the said house, and apprehended accused No.4 and 5, who were customers and involved in the prostitution, and rescued CW.4 and 5. CW.1 Police Inspector has conducted raid on obtaining the credible information regarding running of prostitution business and apprehended the accused No.4 and 5 along with CW.4 and CW.5/Victims involved in committing the offences U/s. 3, 4 and 5 of ITP Act and Sec.370(3) and 370A(2) r/w Sec.34 of IPC and seized Mos 1 to 3 from the spot under seizure panchanama in the presence of panchas.

12.In order to prove the said allegation the prosecution has examined PW.3 Sugandhan, who 9 SC No.327/2019 being the mahazar witness. In his evidence PW.3 has deposed that police have not conducted any raid over house, where the prostitution business was running and no material objects were seized in his presence as per panchanama Ex.P.1. It is pertinent to note that though in the evidence PW.2 has deposed that he had issued notice as per Ex.P2 to the said witness and prepared record of reasons as per Ex.P3 regarding the raid and obtained the signatures of PW.3 on Panchanama as per Ex.P1b, notice as per Ex.P2b, and record of reasons as per Ex.P3b, but the said witness PW.3 has deposed quiet contrary to the evidence of the police officials PW.2 and PW.1 that he had not accompanied for any raid, and not signed the said documents Ex.P1 to P3 on the spot. It is equally important to note that the witness PW.3 was cross­ examined at length by treating him as hostile, but no materials has been elciited from the witness to prove the contents of Ex.P1 to P3. In the instant case the 10 SC No.327/2019 prosecution has not examined any other panch witnesses, who were signatories to the said documents Ex.P1 to P3, In view of the same though the doucments panchanama Ex.P1, witness Notice Ex.P2, and record of reasons Ex.P3 are marked, but they are not sufficiently and satisfactorily proved.

13.In order to prove the alleged allegations against accused No.4 and 5, the prosecution examined the police official witnesses PW.1 and PW.2, who had been to the spot at the time of raid . In the evidence the aid witnesses deposed that when they reached the spot and knocked the door they found accused No.4 and No.5 were in the room along with CW.4 and CW.5 and indulging in committing alleged offence of prostitution. It is also the evidence of PW.1 and PW.2 that the victims/CW.4 and CW.5 were apprehended from the room stated that the accused No.1 to 3 have procured them and indulge them in prostitution with accused No.4 and No.5. 11 SC No.327/2019 Further it is the evidence of witnesses that they seized MOs1 to 3 from the accused and the victims, which were used for committing the alleged offence through Ex.P1 panchanama in the presence of the pancha PW.3 and produced the said seizure properties along with victims before PW.5 for further investigation. At this juncture it is very pertinent to note that both the witnesses have deposed that the place where they have raided was densely populated with the adjoining houses. In the cross­examination the said witnesses have admitted that they have not called any women from the locality to be the pancha nor there is an evidence from the witness that in spite of their request no women panchas from the locality have co­operated and the action taken by them against the said panchas as per the provisions of law. The pancha PW.3 is a male person, who has not supported the case of prosecution. At this 12 SC No.327/2019 juncture I would like to reproduce the provisions of Se.15(2) of ITP Act, which reads as follows:­ Sec.15(2) before making a search under sub­ section(1), the special police officer(or the trafficking police officer, as the case may be) shall call upon two or more respectable inhabitants(at least one of whom shall be a woman) of the locality in which the lace to be searched is situate, to attend and witness the search, and may issue an order in writing to them or any of them so to do:

It is crystal clear from the provisions of Sec.15(2) of ITP Act, 1956 that it mandates that two or more respectable inhabitants of the locality in which the place to be searched is situate has to be called them for panchanama, out of them at least one of them shall be a women residing in the said locality. In the instant case the panch witness, who was examined is male person, has turned hostile to the case of the prosecution. From this fact it is crystal clear that the I.O., PW.5 and PW.2 have not 13 SC No.327/2019 complied the mandatory provisions of Sec.15(2) of ITP Act.. It is also equally important to note that the police officials PW.2, PW.1 and the investigation Officer PW.5, who has conducted investigation and PW.4 who has filed charge sheet, have admitted that in spite of dense locality and adjoining residential houses, near the place of raid they have not secured any local neighbor of the adjoining raid residential building as witness for mahazar nor recorded their statements regarding the occurrence of the alleged offence against the accused No.4 and 5. Further it is also important to note that though the incidental spot is a residential locality and building surrounded by the adjoining residential houses, non citing of the local persons as a witness and women from the locality as pancha by the Investigating Officer also creates a doubt in the prosecution case regarding the conduct of raid and and apprehending of the accused No.4 and 5, along with the victims CW.4 and Cw.5, 14 SC No.327/2019 who were forced to indulging committing prostitution.

14. On perusal of the records and appreciating of the evidence it discloses that the prosecution has not examined the prime witnesses CW.4 and CW.5 the victims who have been protected at the time of raid by the police officials PW.1 and PW.2 in spite of warrant and proclamation. The non­examination of the prime witnesses CW.4 and CW.5/victims is a fatal for the case of the prosecution since according to the prosecution the accused No.4 and 5 were apprehended along with the victims/CW.4 and CW.5 at the time of raid, and the entire case rest upon the evidence of the said Victims/CW.4 and CW.5.

15.The witness PW.5 Zameer Hussain, who being Assistant Sub­Inspector, has deposed that he has registered crime No.1132/2017 on the basis of compliant lodged by the Police Sub­Inspector i.e., PW.1, submitted FIR to the Court, and copies to his 15 SC No.327/2019 higher officers, recorded statements of CW.2, CW.3, CW.6 to Cw.8, and produced the seized properties through PF No.262/2017 to the Court and handed over further investigation to CW.11/PW.4, who in turn submitted charge sheet against the accused No.4 and 5. This fact clearly discloses that the entire investigation of the case has been carried out by PW.5, and only charge sheet is submitted by CW.11/PW.4. In the cross­examination of PW.5 it is specifically suggested and vehemently argued by the counsel for accused contending that a false case has been lodged for statistics purpose against the accused No.4 and 5 on the pressure of higher officers without complying the mandatory provisions of law that the case has to be investigated exclusively by the Special Officer specified by the special law. Though the suggestion was denied by the I.O., PW.5 the said fact that the PW.5/I.O., is not a Special Police Officer, as specified by the State Government or on 16 SC No.327/2019 behalf of the Government in investigating the cases pertaining to the ITP Act has to be taken into consideration by appreciating the evidence and dictum of law.

16.At this juncture I would like to recapitulate the provision of law on the subject. On analyzing the the fact and circumstances of the case with the existing law it is found that in Sec.13(2) of the ITP Act, 1956, 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 I.O., PW.5 has not produced any document or lead any evidence 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. On carefully scrutinizing the evidence of PW.5 it clearly 17 SC No.327/2019 discloses that at the time of investigation PW.5 was working as an Assistant Sub­Inspector at Madiwala P.S., and not as a special officer as enumerated in the special act. The evidence deposed by PW.5 that it is crystal clear that without he being the special officer as registered the case, recorded statements of witnesses and the victims, and after investigating the case has handed over further investigation to CW.11/PW.4, who in turn has only filed charge sheet without conducting any investigation. It is the specific defense of the accused No.4 and 5 that the witness PW.5 has no authority to investigate the case since he was working under the rank of ASI at the time of incident, and below the rank of Police Inspector. On appreciating the entire evidence, recapitulating the law on the subject and applying to the present facts and circumstances of the case it is clearly establishes that PW.5 has investigated the case without any authority in contrary to the dictum 18 SC No.327/2019 of law laid by the ITP Act. At this juncture it would be worth to place reliance on the decision of Hon'ble High Court regarding the said mandate of the Act reported in Shankaregowda @ Shankara Vs. State by Madanayakanahalli Police Station, Bengaluru and others reported in ILR 2016 Kar 3067, wherein it is held that:­ "Police Sub­Inspector 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, Assistant Sub­Inspector­PW.5 Zameer Hussain, who has completed the investigation without being qualified 19 SC No.327/2019 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.

17.It is equally important to note that the same point came up for consideration in Criminal Petition No.5497/2016 between G. S. Mallinath Vs. State of Karnataka and another, wherein this Court in the said petition also has categorically held that the Police Officer who is below the rank of the Police Inspector has no jurisdiction to investigate the matter and file charge sheet under the above said provisions.

18.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 crystal clear that the investigation done by the Assistant Sub­ 20 SC No.327/2019 Inspector PW.5 is vitiated by serious procedural irregularity and not curable in nature.

19.Further on careful reading of the above provisions Sec.3, 4 and 5 and ITP Act, 1956, it is found that none of the section are attracted to accused No.4 and 5, since they are apprehended on the spot by the Police Officials PW.1 and PW.2, as a customers indulging in prostitution with victims/CW.4 and CW.5. The statement of the victims/CW.4 and CW.5 recorded by the I.O., PW.5 discloses that accused No.1 to 3 have procured CW.4 and CW.5, and indulge them in committing the alleged offence of prostitution with the customers accused No.4 and 5.

20.Such being the case, on carefully referring the dictum of law laid down in the order passed by the Hon'ble High Court of Karnataka in Criminal Petition No.2187/2018, dated 31.05.2018, Criminal Petition No.7056/2014, dated 18.12.2015, Criminal 21 SC No.327/2019 Petition No.7110/2011, dated 17.12.2015, Criminal Petition No.5808/2016, dated 18.11.2016, Criminal Petition No.9682/2016 dated 13.1.2017 WP No.56504/2015 dated 17.12.2015, Criminal Petition No.8055/2015, dated 31.03.2017 and Criminal Petition No.200782/2016, dated 12.07.2016 it clearly establishes that the allegations against accused No.4 and No.5 would not come under the ambit of the alleged provisions Sec.3, 4 and 5 of ITP Act, 1956. The Hon'ble High Court of Karnataka in Criminal Petition No.388/2020 dated 18.03.2020 between Amarnath Vs., State of Karnataka has held that the proceedings against the customers cannot be invoked under provisions of U/s.3, 4, 5 and 7 of ITP Act and Sec.370(A) of IPC and as per the guidelines rendered in decision Goenka Sajan Kumar vs., State of Andhra Pradesh in 2015(3) Crimes 281 (AP).

21.So in view of the above discussions, by applying the above dictum of law as referred above, it is very clear that the accused No.4 and 5 are being the customers as per the available materials on record and none of the offences as mentioned in the charge sheet certainly attract against accused No.4 and 5.

22.Therefore, from the above reasons and discussions it is very crystal clear that the prosecution has utterly failed to establish or prove the guilt against the accused No.4 and 5 beyond all reasonable doubt. Accordingly, I answer Points No. 1 and 2 in the negative.

23.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.4 and 5 are hereby acquitted of the offences punishable U/s.3, 4 and 5 of the 23 SC No.327/2019 Immoral Traffic (Prevention) Act, 1956 and Sec.370(3) and 370A(2) r/w Sec.34 of Indian Penal Code, 1860.

The bail and surety bonds of accused No.4 and 5 stand canceled.

MOs.1 to 3 shall preserve, till the disposal of split up case against accused No.1 to 3.

(Typed to my dictation by the Stenographer directly on Computer, corrected by me and then pronounced in open Court on this the 16th day of December, 2021) (Abdul Rahim Husain Shaikh) XLV Addl. City Civil & Sessions Judge, Bengaluru.

ANNEXURE List of Witnesses examined on behalf of Prosecution:

P.W.1:       Mehboob Guddalli
P.W.2:       Paul Priyakumar
P.W.3:       Sugunathan
P.W.4:       G. Nagaraj
P.W.5:       Zameer Hussain.

List of Documents      exhibited   on   behalf      of
Prosecution:

Ex.P.1:   Spot Mahazar
Ex.P.2:   Notice
Ex.P.3:   Record of reasons
Ex.P.4:   Complaint
Ex.P.5:   Statement of PW.3

Ex.P.6: FIR No.1132/2013 dated 25.10.2013. 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 : Three Mobile phones MO2: Condoms MO3: Rs.250/­ (Abdul Rahim Husain Shaikh) XLV Addl. City Civil & Sessions Judge, Bengaluru.

Order pronounced in the open Court vide its separate order ORDER Acting U/s.235(1) of Cr.P.C., the accused No.4 and 5 are hereby acquitted of the offences punishable U/s.3, 4 and 5 of the Immoral Traffic (Prevention) Act, 1956 and Sec.370(3) and 370A(2) r/w Sec.34 of Indian Penal Code, 1860.

The bail and surety bonds of accused No.4 and 5 stand canceled.

MOs.1 to 3 shall preserve, till the disposal of split up case against accused No.1 to 3.

(Abdul Rahim Husain Shaikh) XLV Addl. City Civil & Sessions Judge, Bengaluru.