Bangalore District Court
(By The Learned Public Prosecutor) vs For The Offenses Punishable U/S.370 Of ... on 17 September, 2021
IN THE COURT OF XLV ADDL. CITY CIVIL &
SESSIONS JUDGE, BENGALURU CITY (CCH46)
DATED THIS THE 17TH DAY OF SEPTEMBER, 2021
PRESENT:
Sri. Abdul Rahim Husain Shaikh,
B.Sc., B.Ed., LL.B.(Spl.)
XLV Addl. City Civil & Sessions Judge,
Bengaluru.
S.C. No.216/2018
BETWEEN
State by Byappanahalli PS.,
Bangalore. .. COMPLAINANT
(By the learned Public Prosecutor)
AND
U. Subbareddy @ Suresh
S/o Late Narasareddy,
Aged about 34 years,
R/o Uppar Pattty Street,
Duthalur, Nellore District,
Andhra Pradesh. ..ACCUSED
(By Sri srs,, Advocate)
*****
2 S.C. No.216/2018
JUDGMENT
The Police SubInspector, Byappanahalli Police Station, Bangalore, has filed charge sheet against accused for the offenses punishable U/s.370 of IPC and Sec.3, 4, 5 and 7 of Immoral Traffic (Prevention) Act, 1956.
2. The factual matrix of the case is that : The accused being the tenant in a house bearing No.48 situated at Lottegollahalli, MLA Layout, V Cross, I Main Road, Malleshpalya, within the limits of Byappanhalli, Bangalore, belongs to CW.7 Shivakumars' father, and was running the prostitution business by trafficking CW.4, CW.5 and CW.6 with the false assurance of getting job at Bangalore. Further the accused wrongfully confined CW.4 to CW.6 them in the said house, and indulged in prostitution business in the public vicinity and was leading his life from the amount of illegal gain from the said business. The complainant along with 3 S.C. No.216/2018 CW.2, 3, 7, 8, 9 and 10 conducted raid over the said house, and apprehended accused, who was involved in the prostitution business, and rescued CW.4 to CW.6, and at that time seized mobile phone, condoms, cash, note book etc., from the spot. Thereby the accused is alleged with the offences punishable U/s.370 of IPC and Sec.3, 4, 5 and 7 of Immoral Traffic (Prevention) Act, 1956.
3. The concerned police have submitted charge sheet against the accused for the offences punishable U/s.370 of IPC and Sec.3, 4, 5 and 7 of Immoral Traffic (Prevention) Act, 1956, before the jurisdictional X 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.216/2018 in this Court.
4.The charge was framed against the accused on 23.08.2019 for the offenses punishable U/s.370 of 4 S.C. No.216/2018 IPC and Sec.3, 4, 5 and 7 of Immoral Traffic (Prevention) Act, 1956. The accused has pleaded not guilty and claims to be tried.
5.The prosecution has examined in all seven witnesses as PW.1 to 7 and got marked documents at Ex.P.1 to P.6, and identified Mos1 to 3. The learned Public Prosecution has given up the witness CW.10, in view of the evidence of other police official witnesses, as repetition witness. In spite of sufficient opportunities provided to the prosecution by issuing summons, warrant and proclamation for securance of CW.4 to CW.6, but the concerned police failed to secure the said witnesses and in view of the same on 18.03.2020 the evidence of said witnesses was taken as nil by rejecting the prayer of the prosecution. Further the prosecution has not taken any steps to secure the witnesses CW.4 to CW.6. 5 S.C. No.216/2018
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 6.3.2021, and the same was duly recorded. The accused did not claim for defense evidence nor produced any documents to support his case in spite of sufficient opportunities. The accused had 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 running prostitution business at house bearing No.48, V Cross, I Main Road, Malleshpalya, within the limits of Byappanahalli P.S., Bangalore, running the prostitution business by trafficking CW.4 to CW.6 with the false assurance of getting job at Bangalore, and wrongfully confined them in the said house, and 6 S.C. No.216/2018 induced them to indulge in the prostitution in the public vicinity and leading his life from the amount of illegal gain and thereby the accused has committed an offences punishable U/s. 3, 4, 5 and 7 of ITP Act?
2. Whether the prosecution proves that the accused with an intention to run prostitution business by trafficking CW.4 to CW.6 forcibly induced them to indulge in prostitution business for wrongful gain, and thereby the accused has 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:
7 S.C. No.216/2018
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 that he was running prostitution business at house bearing No.48, V Cross, I Main Road, Malleshpalya, within the limits of Byappanahalli P.S., Bangalore, by trafficking CW.4 Smt. Sartaj, CW.5 Smt. Sandhya and CW.6 Kumari Taj. The Assistant Commissioner of Police has conducted raid on obtaining the credible information regarding running of prostitution business and apprehended the accused along with Cw.4 to Cw.6 involved in committing the offences U/s. 3, 4, 5 and 7 of ITP Act and Sec.370 of IPC and seized Mos 1 to 3 from the spot under seizure panchanama in the presence of panchas.
8 S.C. No.216/2018
12.In order to prove the said allegation the prosecution has examined PW.1 Muthu and PW.3 Sridhar, who are being the mahazar witnesses. Both have deposed that they had never been to the incident spot at any point of time and they have no knowledge regarding seizure of MOs1 to 3 from the possession of the accused and spot under Ex.P1 panchanama. It is the evidence of the witnesses that when they had been to police station from some other work at that time the police officials have forcibly taken their signatures on the panchanama Ex.P1. In the evidence of PW.1 and 3 they have deposed that they had no knowledge regarding the contents of Ex.P1 panchanama and regarding the raid and seiure made by the police officials. Both the witnesses were treated as hostile by the prosecution and cross examined at length, but no materials has been extracted from their evidence to prove that both the 9 S.C. No.216/2018 witnesses were present at the time of conducting raid and they have signed the Ex.P1 panchanama after knowing the contents regarding seizure of MOs1 to 3 at the spot from the possession of the accused. The evidence of PW.1 and PW.3 does not corroborate with the I.Os., and the police officials PW.4, PW.5, PW.6 and PW.7, and in view of the same though the panchanama Ex.P1 marked and MOs1 to 3 have been identified but it is not sufficiently and satisfactorily proved by the prosecution.
13. As already discussed above, the police official witnesses PW.4, PW.5 PW.6 and PW.7 though given evidence about the raid, but in the cross examination 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 10 S.C. No.216/2018 the provisions of law. The panchas PW.1 and PW.3 are male persons, who have not supported the case of prosecution. At this 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 witnesses, 11 S.C. No.216/2018 who were examined are male persons, have turned hostile to the case of the prosecution. From this fact it is crystal clear that the I.O., PW.6 and PW.7 have not complied the mandatory provisions of Sec.15(2) of ITP Act. It is also equally important to note that the police officials PW.6 and the investigation Officer PW.7, who has filed the 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 the statements regarding the occurrence of the alleged offence against the accused. It is equally 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 by the Investigating Officer also creates a doubt in the prosecution case regarding the conduct of raid and and apprehending 12 S.C. No.216/2018 of the accused along with the victims CW.4 to CW.6 who were forced to indulging committing prostitution.
14.It is also noticed that no physical verification has been carried out by the Assistant Commissioner of Police prior to raid in spite of sufficient information regarding the occurrence of offence within their jurisdiction in the residential locality. Other than this fact it is equally important to note that the entire case rest upon the evidence of Victims CW.4 to Cw.6 who according to the Prosecution have been procured by the accused on the false pretext of getting job at Bangalore and used them for prostitution business and used the money earned CW.4 to Cw.6 through prostitution for his livelihood. The primary witnesses CW.4 to Cw.6 who are the victims could not be secured by the police officials in spite of warrant and proclamation issued by the Court. In view of the same the evidence of 13 S.C. No.216/2018 witnesses were dropped with the direction to the prosecution to secure the witnesses before completion of trial, but the prosecution has not secured the said witnesses till the disposal of the case. Nonexamination of the material witnesses CW.4 to CW.6, who are victims on the part of prosecution is fatal to the case of the prosecution.
15. The witness PW.7 Smt. Ramadevi, PSI, who being the investigating officer, has deposed that she has registered crime No.146/2015 on the basis of compliant lodged by the Assistant Commissioner of Police i.e., PW.6, submitted FIR to the Court, and copies to his higher officers, and after receipt of seized properties through PF No.31/2015, sent the rescued victims CW.4 to 6 produced before her to the State Home as per the order of the Court. Further in the evidence PW.7 has deposed that she has produced the accused before the Court and after completion of investigation she has submitted charge 14 S.C. No.216/2018 sheet against the accused. In the crossexamination of PW.7 it is specifically suggested by the counsel for accused contending that a false case has been lodged for statistics purpose against the accused on the pressure of higher officer without complying the mandatory provisions of law, which is denied by the witness PW.6. It is vehemently argued by the accused counsel that the I.O., is not 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.
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 I.O., PW.7 has not produced any document to show 15 S.C. No.216/2018 that she 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 she being in the rank of Police SubInspector, and after completing the investigation has filed charge sheet. It is the specific defense of the accused that the witness PW.7 has no authority to investigate the case since she is working under the rank of WPSI and below the rank of Police Inspector as per the provisions of ITP Act. At this context it is worth to note a 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 16 S.C. No.216/2018 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 Police SubInspectorPW.7 Ramadevi, who had registered the FIR, produced the accused before the Court, and completed the investigation, after recording the statements of the witnesses 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.
16.It is equally important to note that the same point came up for consideration in Criminal Petition 17 S.C. No.216/2018 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.
17.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 PoliceSub Inspector PW.7 Ramadevi is vitiated by serious procedural irregularity and not curable in nature.
18.In the evidence PW.5 deposed that he was deputed to act a decoy by CW.9/PW.5, who had handed over two currency notes of Rs.500/ each and instructed to got to the house of accused as customer and accordingly, he approached the accused house, and after negotiation with the 18 S.C. No.216/2018 accused, paid him Rs.1,000/ who introduced him to three girls in his possession and permitted to indulge in prostitution business. It is also the evidence of PW.5 that upon his information the police officials raided the house, and after ascertaining the accused involvement in prostitution business seized the currency notes of Rs.1,000/, which he had given to the accused for permitting him to carrying on sexual activities with girls and also rescued the Cw.4 to Cw.6. It is pertinent to note in the crossexamination decoy PW.5 has admitted that no panchanama nor report has been prepared by the Assistant Commissioner of Police regarding the seizure of currency notes. It is equally important to note that the burden is upon the prosecution to prove that two currency notes of Rs.500/ each that have been handed over by the Assistant Commissioner of Police to the decoy PW.5, which was paid to the accused, was in possession of the accused at the time of 19 S.C. No.216/2018 conducting raid. The fact that the said currency notes were used by decoy PW.5 for the business of prostitution with girls has to be proved by prosecution beyond all reasonable doubt. The panchanma Ex.P1 does not disclose the number and denomination of the currency notes, which have been handed over to decoy by PW.6 Assistant Commissioner of Police for trapping the accused involved in prostitution business. In view of the same the seized cash MO3 as per the Mahazar Ex.P1 cannot be attributed to the same cash or amount Rs.1,000/ that has been handed over by the decoy PW.5 to the accused, who permitted PW.5 to perform sexual activity with girls. In the instant case though the evidence of Investigating Officer PW.7 that the incident has occurred in the residential house bearing No.48 situated at Lottegollahalli, MLA Layout, V Cross, I Main Road, Malleshpalya, within the limits of Byappanhalli, Bangalore, but no 20 S.C. No.216/2018 document has been produced regarding the ownership of the said house property. Prosecution though examined PW.2, who is the son of the building owner, but has not collected the documents regarding accused obtaining the said house on lease from the father of PW.2. In the absence of non production of documentary evidence regarding the exact house and lease deed, if executed by the father of PW.2, it cannot be ascertained that the accused was in possession of the raided house as a tenant. In the absence of the document it is not possible to believe the evidence of PW.2 that his father was the owner of residential raided house bearing No.48 . The evidence of PW.2 does not corroborate with the evidence of PW.4, 5 and investigating officers PW.6 and 7, as regard to the identification of the incident spot, presence of accused along with CW.4 to 6 girls and involving in prostitution and seizure of MOs1 to 3 from the spot. There is scarcity of evidence to prove 21 S.C. No.216/2018 involvement of accused in prostitution business based on the evidence of PW.5. Hence, the evidence of PW.5 decoy cannot be accepted and considered in proving the guilt against the accused.
19.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 beyond all reasonable doubt. Accordingly, I answer Points No. 1 and 2 in the negative.
20.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 is hereby acquitted of the offenses punishable U/s.3, 4, 5 and 7 of the Immoral Traffic (Prevention) Act, 1956 and Sec.370 of Indian Penal Code, 1860. 22 S.C. No.216/2018
The bail and surety bonds of accused stand canceled.
MOs.1 and 3 shall be confiscate to the State and MO2 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 17th day of September, 2021) (Abdul Rahim Husain Shaikh) XLV Addl. City Civil & Sessions Judge, Bengaluru.
23 S.C. No.216/2018ANNEXURE List of Witnesses examined on behalf of Prosecution:
P.W.1: Muthu P.W.2: Shivakumar P.W.3: K. Sridhar P.W.4: Nanjappa P.W.5: Mubarak Pasha P.W.6: G. B. Manjunath P.W.7: Smt. Ramadevi List of Documents exhibited on behalf of Prosecution: Ex.P.1: Spot Mahazar Ex.P.2: Note Book Ex.P.3: Complaint Ex.P.4: FIR
Ex.P.5: PF No.31/15 dated 18.04.2015 Ex.P.6 Rent agreement.
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: 24 S.C. No.216/2018 MO1 : Mobile phones MO2: Condoms MO3: Rs.5,000/ (Abdul Rahim Husain Shaikh) XLV Addl. City Civil & Sessions Judge, Bengaluru.25 S.C. No.216/2018
Order pronounced in the open Court vide its separate order ORDER Acting U/s.235(1) of Cr.P.C., the accused is hereby acquitted of the offenses punishable U/s.3, 4, 5 and 7 of the Immoral Traffic (Prevention) Act, 1956 and Sec.370 of Indian Penal Code, 1860.
The bail and surety bonds of accused stand canceled.
MOs.1 and 3 shall be confiscate to the State and MO2 shall be destroyed after appeal period is over.
(Abdul Rahim Husain Shaikh) XLV Addl. City Civil & Sessions Judge, Bengaluru.