Delhi District Court
State vs . Kishan Saxena Etc. on 18 July, 2018
1
IN THE COURT OF SH. ANUBHAV JAIN, METROPOLITAN MAGISTRATE,
SOUTHEAST, SAKET COURTS, NEW DELHI.
FIR No. 330/07
PS - Lajpat Nagar
U/s. 4/5/8 ITP Act ANUBHAV
State Vs. Kishan Saxena etc.
JAIN
JUDGMENT
Digitally signed by A. SL. NO. OF THE CASE : 373/2/12 ANUBHAV JAIN Date: 2018.07.18 B. DATE OF INSTITUTION : 15.06.2007 21:36:57 +0530 C. DATE OF OFFENCE : 16.04.2007 D. NAME OF THE : ACP M.L. Sharma COMPLAINANT E. NAME OF THE ACCUSED : 1) Kishan Saxena S/o Devi Dayal Saxena
2) Radha W/o Kishan Saxena
3) Poonam W/o Ospal Singh
4) Shikha D/o Dinesh Mandal F. OFFENCE COMPLAINED OF : U/s 4/5/8 ITP Act G. PLEA OF ACCUSED : Pleaded not guilty H. FINAL ORDER : Acquittal I. DATE OF FINAL ORDER : 18.07.2018 2 Brief Statement of Reasons for Decision :
1. The present accused persons are produced before the court to stand trial for the offence u/s 4/5/8 ITP Act.
2. In brief, facts of the case of the prosecution are that on 16.04.2007 Insp.
M.L. Sharma was informed by SI Pramod, InchargePP Amar Colony, regarding prostitution racket being run by one person namely Kishan Saxena. It is further stated that it is informed by SI Pramod that said person Kishan Saxena is contacted on mobile no. 9910081663 upon which he stated that he could provide the girls for the purpose of prostitution. Upon the same, Insp. M.L. Sharma asked SI Pramod to verify the said information and after verification of the same, SI Pramod informed Insp. M.L. Sharma that one person namely Kishan Saxena is ready to supply girls for prostitution for a consideration amount of Rs. 1000/ and that he will reach at Lajpat Bhawan, Lajpat Nagar4 at about 6.30 pm in mouse colour shirt. It is further stated that Insp. M.L. Sharma informed about the said fact to ACP Harish Joshi. It is further stated that at about 6.15 pm Insp. M.L. Sharma alongwith W/Ct. Savita reached at Lajpat Bhawan in a Govt. vehicle where they found SI Pramod Gupta, Ct. Satender, HC Ved Prakash and Ct. Balraj. It is further stated that Insp. M.L. Sharma appointed Pramod Gupta as decoy customer and requested some public persons to join the investigation upon which two public persons namely Ram Niwas and Shri Bhagwan agreed to join the investigation. It is further stated that Insp. M.L. Sharma appointed Ram Niwas as Shadow Witness and handed over one note of denomination Rs.1000/ bearing no. 6AL62078J to SI Pramod Gupta after signing the same, and 3 asked the shadow witness to signal the raiding party after completion of deal. It is further stated that at about 6.45 pm one person aged about 45 years wearing mouse colour Tshirt reached the spot and started talking to the shadow witness and decoy customer and decoy customer SI Pramod Gupta handed over to him the said note of Rs. 1000/ which he kept in right pocket of his trousers. It is further stated that the said person informed that two girls are reaching the spot on rickshaw and after about five minutes two girls and one woman reached the spot whose name were subsequently revealed as Radha, Poonam and Shikha. It is further stated that Radha and Kishan Saxena produced the girls namely Poonam and Shikha to decoy customer and shadow witness. It is further stated that the said girls started making indecent gestures. It is further stated that shadow witness gave the signal upon which raiding party reached the spot and apprehended accused persons. It is further stated that thereafter decoy customer and shadow witness informed about the details of negotiations and thereafter Insp. M.L. Sharma conducted search upon accused Kishan Saxena and recovered a notes of Rs. 1000/ from the right side pocket of his pant bearing no. 6AL62078J which was put in an envelope and was sealed with seal of 'MLS'. It is further stated that the case u/s 4/5/8 ot ITP Act was registered against the abovesaid accused persons. Thereafter IO prepared the site plan and arrest the abovesaid accused persons and recorded their disclosure statement. After completion of investigation chargesheet was filed before the court.
3. Accused persons appeared before the court and copy of charge sheet was supplied to them u/s 207 CrPC on 13.07.2007. Accused persons were charged by Ld. Predecessor Court u/s 4/5/8 ITP Act vide order dt. 14.12.2007 4 to which accused persons plead not guilty and claimed trial.
4. Prosecution in order to prove its case has examined following witnesses:
4.1 PW1 HC Balraj deposed that on 16.04.2007, he was posted as constable at PPAmar Colony and on that day, at about 2.05 pm, secret informer informed to SI Pramod Gupta that one person namely Kishan Saxena supplies girls for the purpose of prostitution and SHO namely M.L. Sharma have also been informed about the same. He further deposed that at about 6.00 pm he alongwith SI Pramod Gupta, HC Ved Prakash, Ct. Satender reached at Lajpat Bhawan Vikram Vihar and SHO alongwith lady Ct. Savita also came over there. He further deposed that IO requested some public persons to join the investigation and two of them namely Ram Niwas and Jai Bhagwan joined the investigation. He further deposed that Ram Niwas was joined with SI Pramod Gupta as a witness and second person Jai Bhagwan remained with the raiding party. He further deposed that SHO M.L. Sharma told Ram Niwas to signal the raiding party after the deal with accused Kishan Saxena will complete. He further deposed that accused Kishan Saxena started talking with SI Pramod Gupta and Ram Niwas near the gate of Lajpat Bhawan and after sometime a lady and 2 girls came on a rickshaw at the gate of Lajpat Bhawan and Ram Niwas gave them signal and they apprehended the accused persons and SHO M.L. Sharma conducted the formal search of Kishan Saxena and a note of denomination of Rs. 1,000/ was recovered from his right side of his pant. He further deposed that SHO M.L. Sharma seized the note in an envelope and sealed with the seal of 'MLS' vide seizure memo Ex. PW1/A and prepared rukka and got the FIR registered through him. He 5 identified all the accused persons in the court.
4.2 PW2 HC Jeet Singh proved the FIR Ex. PW2/B. 4.3 PW3 Sh. Bhagwan deposed that during the summer season in the year 2007 he was waiting for the bus to go to Faridabad near Moolchand Flyover at about 5.30 pm, when two persons came to him in plain clothes and told him about some illegal activities. He further deposed that the said persons asked him to stay at the spot and took part in the investigation. He further deposed that the abovesaid persons insisted him to stay there and thereafter took him to PS and asked to sign certain documents and some printed performa which he signed and the said documents were blank when he signed them. He further deposed that he signed the documents and left the PS and he could not say about the illegal activities carried out at the spot. He further failed to identify the accused persons in the court.
It is pertinent to state in here that the said witness is cross examined by Ld. APP for the State as he was resiling from his previous statement given to the police.
PW4 ASI Ved Prakash deposed that on 16.04.2007 he was posted as HC at PSLajpat Nagar and on that day he alongwith SI Pramod Gupta, Ct. Satender and Ct. Balraj who were present at PPAmar Colony and at about 2 2.15 pm a secret informer came to PP and informed that a person namely Kishan Saxena used to supply prostitutes on being contacted on the cell phone no. 9910081663. He further deposed that SI Pramod Gupta shared this information with them and informed to SHO, PSLajpat Nagar and also 6 entered this information in DD No. 19, PPAmar Colony. He further deposed that SHO directed SI Pramod Gupta to verify the information and after getting verified the information he alongwith Ct. Satender, Ct. Balraj and SI Pramod Gupta proceeded towards near Lajpat Bhawan, Vikram Vihar. He further deposed that at about 5.30 pm they reached over there alongwith lady Ct. Savita and Insp. M.L. Sharma requested public persons to join the raiding party and two public persons namely Ram Niwas and Shri Bhagwan joined the investigation. He further deposed that SHO prepared the raiding party comprising of SI Pramod Gupta, Ct. Satender, Ct. Balraj, Lady Ct. Savita, Ram Niwas and Shri Bhagwan and SHO deputed SI Pramod as decoy customer and Ram Niwas as shadow witness. He further deposed that SHO also gave a currency note of Rs. 1,000/ denomination duly signed by him to SI Pramod Gupta and instructed Ram Niwas to waive his hand on his head after striking the deal. He further deposed that they all concealed at the spot and at about 6.45 pm a person came from front side who started talking with SI Pramod Gupta and Ram Niwas and SI Pramod Gupta handed over the above mentioned currency notes of the denomination of Rs. 1000/ to that person who kept the same into his pocket. He further deposed that after a few minutes, 3 females also arrived at the spot on a rickshaw and they also started talking with SI Pramod Gupta and Ram Niwas. He further deposed that after striking of the deal, Ram Niwas waived his hand on his head and gave signal to them and thereafter they rushed towards them and managed to apprehend all those persons. He further deposed that SHO interrogated all the accused persons and formally searched the accused Kishan Saxena and currency note of Rs. 1,000/ which was signed by the SHO was recovered from the right pocket of accused Kishan Saxena. He further deposed that 7 SHO M.L. Sharma seized the note in an envelope and sealed with the seal of MLS vide seizure memo Ex. PW1/A and prepared rukka and got the FIR registered through Ct. Balraj. He further deposed that accused persons were arrested and their personal search was conducted vide memo Ex. PW3/A to PW3/D and Ex. PW4/A and PW4/D and SHO recorded his statement and prepared the site plan at the instance of SI Pramod Gupta. He further deposed that accused persons got medically examined and sent to lock up. He identified all the accused persons and case property in the court.
PW5 Insp. Pramod Gupta deposed that on 16.04.2007 he was posted as SI and posted as CIPP Amar Colony and on that day he alongwith Ct. Satender, HC Ved Prakash and Ct. Balraj were present in PPAmar Colony. He further deposed that on that day at around 2.45 pm secret informer came and informed him that a person namely Kishan Saxena having mobile no. 991008..... indulged in a business of providing girls at the rate of Rs. 1000/ for prostitution. He further deposed that he informed about the secret information to SHO / Insp. M.L. Sharma, PSLajpat Nagar and Insp. M.L. Sharma instructed him to verify the secret information by calling on the mobile number of Kishan Saxena and on calling Kishan Saxena agreed to provide girls at the rate of Rs. 1000/ for prostitution and asked him to come at about 6.30 pm at Lajpat Bhawan and he will wear mouse colour shirt. He further deposed that he informed SHO, who instructed him to go to Lajpat Bhawan and thereafter he alongwith HC Ved Prakash and Ct. Balraj proceeded from PP Amar Colony from Lajpat Bhawan. He further deposed that he and Ct. Satender were in civil dress and rest of members of raiding party were in uniform. He further deposed that at around 6.15 pm Insp. M.L. Sharma also 8 came at Lajpat Bhawan alongwith lady Ct. Savita and Insp. M.L. Sharma requested few public persons to join the investigation and two public persons namely Ram Niwas and Shri Bhagwan agreed to join the investigation. He further deposed that IO gave a currency note of Rs. 1000/ to him after signing the same and after noted down the number of that currency note. He further deposed that he was as decoy customer and Shri Bhagwan and Ram Niwas were deputed as shadow witness and asked him to strike a deal and further asked Ram Niwas to gave signal by waiving his hand on his head after striking the deal. He further deposed that at around 6.45 pm accused Kishan Saxena came at Lajpat Bhawan wearing mouse colour shirt and told him that girl was coming within 5 minutes and asked him to give Rs. 1000/. He further deposed that he handed over the said currency note of Rs. 1000/ to accused Kishan Saxena and that accused kept the currency note of Rs. 1000/ in his right pocket of pant and after 24 minutes one woman and 2 girls came on a rickshaw. He further deposed that accused Kishan and Radha offered him to select the girl out of two girls for prostitution and the name of two girls revealed as Poonam and Shikha. He further correctly identified the accused persons and case property in the court.
PW6 HC Satender Singh deposed that on 14.04.2007 he was posted as constable at PPAmar Colony, PSLajpat Nagar and on that day he alongwith SI Pramod came back to PPAmar Colony after doing patrolling. He further deposed that at around 2.30 pm a secret informer came and inform SI Pramod that a person namely Kishan Saxena is indulged in the business of prostitution in the area of PSLajpat Nagar and SI Pramod informed about the secret information to SHO / Insp. M.L. Sharma, PSLajpat Nagar. He further deposed that on the instructions of Insp. M.L. Sharma, SI Pramod has verified 9 the secret information by calling on the mobile number of Kishan Saxena which was given to him by the secret informer. He further deposed that the person to whom SI Pramod had talked on phone disclosed his name as Kishan Saxena and told that he would come alongwith two girls at Lajpat Bhawan at around 6.45 pm and also quoted rate of Rs. 1000/ per intercourse. He further deposed that Insp. M.L. Sharma instructed to prepare the raiding party and SI Pramod prepared the raiding party comprising of HC Ved Prakash, Ct. Balraj and him and they all were in plain clothes and reached at Lajpat Bhawan at around 6.00 pm. He further deposed that at around 6.15 pm Insp. M.L. Sharma also came at Lajpat Bhawan alongwith lady Ct. Savita and Insp. M.L. Sharma handed over one signed currency note of Rs. 1000/ to SI Pramod Gupta. He further deposed that SI Pramod Gupta requested few public persons to join the investigation and two public persons namely Shri Bhagwan and Ram Niwas had joined the investigation. He further deposed that they remained present outside the Lajpat Bhawan and SI Pramod Gupta was deputed as decoy customer and Shri Bhagwan and Ram Niwas were deputed as shadow witness. He further deposed that at around 6.45 pm a person came at Lajpat Bhawan on foot wearing mouse colour shirt and said person started talking with SI Pramod and SI Pramod handed over one currency note of Rs. 1000/ duly signed by Insp. M.L. Sharma to that person. He further deposed that that person kept the currency note of Rs. 1000/ in his right pocket of pant and after sometime one woman and 2 girls came on a rickshaw and they also joined that person who was talking with SI Pramod. He further deposed that both the girls were making indecent gestures towards SI Pramod and SI Pramod gave a signal by waiving his hand on his head upon which they rushed towards those persons and managed to apprehend them.
10He further deposed that the name of person who was talking with SI Pramod was revealed as Kishan Saxena and the name of that woman is Radha Saxena and the name of two girls who accompanied accused Radha Saxena revealed as Poonam and Shikha. He further deposed that formal search of accused Kishan Saxena was got conducted and the currency note of Rs. 1000/ duly signed by Insp. M.L. Sharma was recovered from his right side pocket of his pant and said note was kept in an envelope and it was duly sealed with the seal of 'MLS'. He further deposed that IO / Insp. M.L. Sharma prepared the rukka and got the FIR registered through Ct. Balraj. He further deposed that all the accused persons were taken to PSLajpat Nagar and they were sent to the lockup. He further correctly identified the accused persons and case property in the court.
PW7 Retd. ACP M.L. Sharma deposed that on 16.04.2007 he was posted as SHO at PSLajpat Nagar and on that day at about 2.453.00 pm he received call through SI Pramod, Incharge of PPAmar Colony regarding prostitution business running by one person and he got the secret information regarding the same. He further deposed that thereafter he told SI Pramod to verify this information and at about 3.30 pm he received call through SI Pramod and SI Pramod stated that the information is correct and a person namely Kishan Saxena reached at Lajpat Bhawan at about 6.30 pm. He further deposed that he told SI Pramod to meet at Lajpat Bhawan alongwith staff of PPAmar Colony. He further deposed that he also reached at Lajpat Bhawan alongwith lady Ct. Savita and at about 6.15 pm he met SI Pramod and other police staff namely HC Ved Prakash, Ct. Satender and Ct. Balraj. He further deposed that he requested some public persons to join the raiding party and two of them namely Ram Niwas and Shri Bhagwan agreed to join 11 them and thereafter he prepared raiding party and briefed the staff. He further deposed that he handed over one note of Rs. 1000/ duly signed on the same and made SI Pramod as decoy customer and PW Ram Niwas as shadow witness and told them to gave a signal when the deal was finalised. He further deposed that at about 6.45 pm accused namely Kishan Saxena reached at the spot and talked to SI Pramod and Ram Niwas and stated that two girls are coming within 5 minutes and thereafter two girls alongwith lady reached at the spot. He further deposed that the name of the lady was revealed to be Radha subsequently and the name of girls was revealed as Shikha and Poonam subsequently. He further deposed that thereafter SI Pramod and Ram Niwas went to the girls and the said girls started making obscene gestures towards SI Pramod and Ram Niwas and SI Pramod handed over the note of Rs. 1000/ to Kishan Saxena which he kept in his right pocket of trouser. He further deposed that thereafter Ram Niwas gave a signal and he reached the spot with a raiding party and conducted personal search upon accused Kishan and note of Rs. 1000/ was recovered from his left pocket which is seized vide memo Ex. PW1/A. He further deposed that he made certain enquiry from Ram Niwas and SI Pramod and prepared rukka Ex. PW7/A and got the FIR registered through Ct. Balraj. He further deposed that he recorded the statement of witnesses, prepared the site plan Ex. PW7/B. He further deposed that all the accused persons were arrested and their personal search was conducted vide Ex. PW3/A to PW3/D and PW4/A to PW4/D and after completion of investigation he prepared the challan and submitted in the court. He correctly identified the accused persons and case property in the court.
4.8 PW8 Ram Niwas deposed that in the April 2007 he alongwith one 12 other person Shri Bhagwan was coming from Defence Colony and when they reached at Moolchand Stand, police officials met them and asked for the help. He further deposed that he agreed to help the police officials and thereafter they took him to PS and obtained his signatures on certain documents. He further deposed that he does not aware about any other fact of the present case.
It is pertinent to state in here that the said witness is cross examined by Ld. APP for the State as he was resiling from his earlier statement given to the police.
5. After completion of prosecution evidence, statement of accused persons u/s 313 Cr.P.C was recorded wherein all the accused persons wherein they denied all the allegations as leveled against them by the prosecution. They further chooses not to lead any defence evidence and the matter was fixed for final arguments.
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) Inspector M.L. Sharma received a secret information regarding running of prostitution racket from SI Pramod Gupta.
b) That Inspector got the information verified through SI Pramod Gupta who talked to accused Kishan Saxena and fixed to meet at Lajpat Bhawan, Lajpat Nagar, at about 6.30pm and informed that he would 13 charge Rs. 1,000/ for each girl.
c) That Inspector M.L. Sharma prepared a raiding team comprising of SI Pramod Gupta, Ct. Satender, Ct. Balraj, Lady Ct. Savita, Ram Niwas and Shri Bhagwan.
d) That SI Pramod was made as decoy customer and Ram Niwas as shadow witness and ACP handed over 1 notes of denomination 1000/ to SI Pramod Gupta bearing his signature.
e) That accused Kishan Saxena arrived at spot and SI Pramod Gupta handed over to him said note of Rs. 1000/ which he kept in the left pocket of his pant and after about 5 minutes accused Radha reached at spot with accused Poonam and Shikha on a rickshaw. 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 is argued by the counsel for the accused that:
a) Both the public witnesses I.e Sh. Bhagwan and Ram Niwas did not support the case of prosecution.
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. 19 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.14
e) That provision of sec. 157 Cr.P.C are not complied with by the police officials.
9. In the present case in hand, the allegations against accused Kishan Saxena and Radha are that they in furtherance of their common intentions were found inducing and influencing girls for the purpose of prostitution and for the same, Kishan Saxena received a sum of Rs. 1,000/ from the decoy customer namely SI Ashok Kumar. Further allegations against accused Poonam and Shikha are that they were making indecent gestures and endeavors to attract attention of decoy costumer for purpose of prostitution. 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 persons 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, 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].
3[(2) where any person over the age of eighteen years is proved--
(a) to be living with, or to be habitually in the company 15 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 pros titution of another person within the meaning of sub section (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
(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;
7[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:
16Provided that if the person in respect of whom an offence committed under this subsection,--
(i) is a child, the punishment provided under this sub section 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 sub section shall extend to rigorous imprisonment for a term of not less than 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 in stitution, 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].
17 3[(1A) Where an offence committed under subsection (1) is in respect of a child or minor, the person commit ting 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) ......5
[(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 car ried 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 notifi cation 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].
10. In State v. Bashir Ahmed, 1983 SCC OnLine Del 137 while dealing with similar 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 imple 18 mentation both seem to be fraught with difficulties. One such law is this legislation relating to suppression of pros titution. 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 associated with devotion and dedication to gods, priests and temples. At one time courtesans carved for themselves an accepted niche in society nearing re spectability. Still later it came to be protected, licensed and regulated by law. In spite of puritan fervour it is diffi cult to totally eradicate this ancient practice unless the so ciety guarantees to supply suitable employment and more rigorous its suppression is, more defiantly does it emerge overtly and covertly in other sophisticated forms. In gen eral there is universal agreement that the practice of non merital sex as a profession is degrading to the dignity of mankind, of women in particular. In pursuance of ratifica tion by India of the International Convention of the sup pression 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 degrading trade. And one may pause to ask legitimately why not men except when he sup plies 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 con strued accordingly."19
7. It was urged that what the Act seeks to do is not to stop the profession or trade of a prostitute altogether: Shama Bai v. State of Uttar Pradesh, AIR 1959 All. 57, and im poses 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 intercourse. 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 criminal offence, but it is to inhibit or abolish commercialised vice as an organised means of liv ing. 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 per sons 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 prostitution or of the activities of a prostitute. There must be indiscriminate sexuality requiring more than one customer: In re Devakumar , (1972) 1 M.L.J. 200, and Bai Shanta (supra). In re Dhanalalcshmi 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 indiscrimi nate sexuality can be inferred from the facts and sur rounding circumstances of the case and it is not nec essary that the evidence of more than one customer of the prostitute should be adduced, vide T. Ja cob v. Stats of Kerala, 1971 Cri. L.J. 952, and Krishna murthy @ Tailor Krishnan v. Public Prosecutor, Madras, 20 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.
8. What is then the evidence that prosecution has col lected? 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 ac cused.
9. .........
10. As respects the second question, the learned Magis trate discarded the statements as confessions made to a police officer. Confession 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 conclu sively incriminating fact is not in itself a confession. A con fession must either admit in terms, the offence, or at any rate substantially all the facts which constitute the of fence: Pakala Narayana Swami v. Emperor, AIR 1939 PC.
47. Now, the solicitation made by the accused to the po lice officer was not a confession made to him of an of fence but was an offence committed in relation to a per son who happened to be a police officer. Confession is al ways of past events. It cannot, therefore, be said that whatever was said by the accused to the police officer concerned was a confession, and inadmissible under Sec tion 25 of the Evidence Act. But, it appears to me the said 21 statement of the accused having been made during inves tigation 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 In spector recorded the complaint, arranged the raid by not ing 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 'investiga tion' 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 com menced 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. The learned counsel defending the accused also attacked the employment of a police officer as a decoy. "It cannot be too strongly empha sised 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 Maharash tra , 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 22 and Haryana:
15. Now putting the facts of the present case on parame ters of the aforesaid interpretations, I am inclined to hold that facts and circumstances prevailing over the case do not constitute offences under Sections 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 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 or der to record observations that either Deepak Chauhan was living on the earning of the prostitution or he was habit ually in their company; he handed over the ladies for sexual 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 cus tomer who had intentionally gone to Deepak Chauhan treating him to be as pimp or tout. Since there is no evi dence that the ladies were offered to the decoy cus tomer. Mere acceptance of money by him from the de coy 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 be half of ladies by him for the purpose of prostitution, much less for the purpose of sexual intercourse with those ladies or offering them for prostitution. As a mat 23 ter of fact, since the three ladies sitting in the car are not covered within the definition of 'prostitutes', the of fence of acting as a tout or pimp by Deepak Chauhan as provided under Section 4 of the Act is not estab lished. Similarly, when the ladies are not proved to be prostitutes having been found in the houses of defame and they even did not come out of the car or did any act towards 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 prose cution that accused Kishan Saxena and Radha, in furtherance of their com mon intention, produced 2 girls for prostitution to decoy customer namely SI Pramod Kumar and in lieu of the same he received Rs. 1,000/ from the decoy customer.
13. It was upon the prosecution to prove that the girls alleged to be pro duced by accused Kishan Saxena to the decoy customer were prostitute as per section 2f of ITP Act. It is alleged by SI Pramod Kumar that the said 2 girls were alluring them by making indecent gestures. It has not been stated by the witness during the course of his deposition as to what type of gestures which are stated to be indecent were made by the accused persons. Merely making an averment that indecent gestures were being made by the accused persons in order to allure the decoy costumer cannot be in itself said to be sufficient to prove that any overt act was being done by the accused persons leading to 24 sexual intercourse. It is further pertinent to state in here that Shadow Witness Ram Niwas who deposed as PW8 does not support the testimony of Decoy Costumer.
As held by Hon'ble High Court of Punjab & Haryana in Renu Bansal case (Supra) that mere acceptance of money from the decoy customer and in absence of other evidence of any other overt act leading to sexual inter course, merely handing over the money is hardly sufficient to prove that the money was received for the purpose of prostitution, the prosecution has failed to show that the said girls squarely falls within the provision of section 2f of ITP Act.
14. It is further pertinent to state in here that although the FIR was lodged subsequent to the handing over memo and seizure memo, however all the abovesaid documents bears the FIR number. At this stage, it would be rele vant to state in here that 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.PW 3/D of the knife purportedly recovered from the possession of accused Kishore Kumar was prepared before the regis tration of the FIR Ex.PW2/B. Surprisingly, sketch Ex.PW 3/D of the knife contains the number of the FIR registered in the present case. The prosecution has not offered any explanation whatsoever as to under what circumstances number of the FIR Ex.PW2/B has appeared on the docu ment, which was allegedly prepared 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 situa 25 tions, it seriously reflects upon the veracity of the pros ecution version and creates a good deal of doubt about recovery of the knife in the manner alleged by the pros ecution.
15. 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 the seized items i.e. note of denomination 1,000/ 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 26 Indian Currency Notes from the possession of the appellant was not proved beyond reasonable doubt.
In the present case, the recovery of said one note of denomination 1000/ from the possession of accused persons was an important piece of evi dence as it is the case of prosecution that accused persons were supplying the girls for prostitution against the consideration. As observed above that the provisions of the ITP Act are to be construed strictly against the prosecution, it was for the prosecution to show that the said notes after recovery were kept safely at Malkhana immediately after the raid. As the prosecution has failed to adduce any such evidence that seized notes were immediately deposited in the Malkhana safely, the same amount to serious lapse on the part of the prosecution.
16. Furthermore in the present case in hand, the police officials was de puted as a trap witness / decoy customer. In State vs. Bashir Ahmed (supra), Hon'ble High Court of Delhi has stated that the statement of accused to the decoy police constable is inadmissible u/s 162 Cr.P.C. Hon'ble High Court of Delhi has further observed that it is 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 observed in Vinod Kumar v. State of Punjab, (2015) 3 SCC 220 :
24. From the aforesaid authorities it is clear that a trap wit ness is an interested witness and his testimony, to be ac cepted and relied upon requires corroboration and the cor roboration would depend upon the facts and circum stances, nature of the crime and the character of the trap witness.27
In the present case in hand, testimony of trap witness i.e. SI Pramod Gupta never found any corroboration from the testimony of Shadow Witness Ram Niwas. Ram Niwas denied being accompanying the decoy costumer or the raiding party. As such, testimony of SI Pramod Gupta cannot be relied upon.
17. It is further pertinent to state in here that both the public witnesses i.e Sh. Bagwan and Sh. Ram Niwas did not support the case of prosecution. Both the said witnesses denied having knowledge of the any such incident and both the witnesses stated that they were made to sign certain documents at PS.
18. Considering the law and facts stated above, prosecution has failed to prove its case beyond reasonable doubts and all the accused persons are acquitted for the offences they are charged for.
ANNOUNCED IN OPEN COURT (ANUBHAV JAIN)
Today i.e. 18.07.2018 METROPOLITAN MAGISTRATE02
SOUTH EAST, SAKET COURTS,
NEW DELHI
Present judgment consisted of 27 pages and each page bears my signatures.
(ANUBHAV JAIN) METROPOLITAN MAGISTRATE02 SOUTHEAST, SAKET COURTS, NEW DELHI