Bangalore District Court
State By Dj Halli P.S vs A3.Punith Kumar on 20 January, 2023
KABC010112482021
IN THE COURT OF XLV ADDL. CITY CIVIL & SESSIONS
JUDGE, BENGALURU CITY (CCH-46)
DATED THIS THE 20TH DAY OF JANUARY, 2023
PRESENT:
Sri Manjunatha, B.A., LL.B.,
XLV Addl. City Civil & Sessions Judge, Bengaluru.
SC No.573/2021
Complainant State by DJ Halli P.S.,
(Rep. by Learned Public
Prosecutor)
AND
Accused A3.Punith Kumar
S/o Puttasiddappa, a/a 21 Yrs.,
r/o Kerehalli Village,
Mudabalu Post, Palya Hobli,
Aaluru Taluk, Hassan District
A4.C.Ravi
S/o Channarayappa, a/a 24 Yrs.,
r/o Opp. to Eshwari Medicals,
Shanthamma Compound
KB Sandra, Bengaluru-560 085.
A7: G.S.Punith Kumar
S/o Shivanna, a/a 19 Yrs.,
r/o Ajjanhali, Gollarahatti,
Ponnasamudra Post,
Arasikere Taluk, Hassan District.
2 SC No.573/2021
(By Sri/Smt: HAK, Adv.,)
*****
Date of offence & time 21.03.2013 at 2.50 a.m.
Date of report of offence 21.03.2013 at 5.00 a.m.
Date of arrest of the accused 21.03.2013
Date of release on bail A3: 03.05.2013
A4: 19.04.2013
A7: 22.04.2013
Total period of custody A3: 45 days
A4: 30 days
A7: 33 days
Name of the complainant Sri S. Parashivamurthy
Date of commencement of 16.01.2023
recording of evidence
Date of closing of evidence 16.01.2023
Offences complained of U/s.3, 4, 5, 6 and 9 of ITP Act
and Sec.370 r/w Sec.34 of IPC
Opinion of the Judge Accused found not guilty
JUDGMENT
The Police Inspector, DJ Halli Police Station, Bangalore, has filed charge sheet against accused No.3, 4, 7 and others for the offences punishable U/s.3, 4, 5, 6 and 9 of Immoral Traffic (Prevention) Act, 1956 in their Crime No.77/2013.
2. The factual matrix of the case is that :-
The accused No.1 and 2 were running prostitution business in a rented house belongs to CW8 No.C17/12, III Floor, Hansi Alpha Apartments situated Rajaramanna Road, near Gurukrupa Hotel, Kaval Byrasandra within the limits of DJ Halli P.S., Bangalore, by trafficking CW.4 to CW.7 with the assurance of getting money, induced and indulged them in prostitution with accused No.3 to 7 by receiving money and 3 SC No.573/2021 providing shelter for prostitution and doing the pimp work and were leading their life from the amount of illegal gain from the said prostitution business. The complainant along with panchas and his staff on 21/22.03.2013 during night hours at 3.00 a.m. conducted raid over the said house after obtaining credible information and apprehended accused No.1 to 7, who were involved in the prostitution business, rescued CW.4 to CW.7 and at that time seized the articles from the spot through panchanama. Thereby the accused persons are alleged with the offences punishable U/s.3, 4, 5, 6 and 9 of Immoral Traffic (Prevention) Act, 1956 and Sec.370 r/w Sec.34 of IPC.
3. The concerned police have submitted charge sheet against accused No.3, 4, 7 and others for the offences punishable U/s.3, 4, 5, 6 and 9 of Immoral Traffic (Prevention) Act, 1956 and Sec.370 r/w Sec.34 of IPC, before the jurisdictional MMTC-I Court, 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 No.3, 4, and 7.
4.The charge was framed against the accused No.3, 4 and 7 on 21.12.2021 for the offences punishable U/s.3, 4, 5, 6 and 9 of Immoral Traffic (Prevention) Act, 1956 and Sec.370 r/w Sec.34 of IPC. The accused persons pleaded not guilty and claimed to be tried.
5.The prosecution has examined CW.1 as PW.1 and got marked documents at Ex.P.1 to P.5. The charge sheet against accused No.3, 4 and 7 as customers apprehended when CW.1 was conducted raid. Hon'ble High Court of Karnataka in 4 SC No.573/2021 number of decisions held that the provisions of ITP Act as well as Sec.370 of IPC is not applicable to the customers. Therefore, the witnesses cited as CW.4, CW.2, CW.3, CW.6 and CW.8 to CW.19 ordered to be dropped by this Court as per the order sheet dated 21.11.2022 and 16.01.2023 on the ground that the examination of such witnesses do not serve any purpose so far as accused No.3, 4 and 7 concerned. In spite of sufficient opportunities provided to the prosecution by issuing summons, warrant and proclamation for securing CW.5 and CW.7 , but the concerned police failed to secure the CW.5 and CW.7 and in view of the same on 21.12.2021 the evidence of CW.5 and CW.7 taken as nil by rejecting the prayer of the prosecution.
6.After closure of the evidence of prosecution, the statement of accused No.3, 4 and 7 has been dispensed with, as there is no incriminating evidence against them.
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 beyond all reasonable that on 21/22.03.2013 at 3.00 a.m. the accused No.3, 4 and 7 at No.C17/12, III Floor, Hansi Alpha Apartments situated Rajaramanna Road, near Gurukrupa Hotel, Kaval Byrasandra within the limits of DJ Halli P.S., Bangalore, by trafficking CW.4 to 5 SC No.573/2021 CW.7 with the assurance of getting money induced and indulged them in prostitution business and thereby the accused No.3, 4 and 7 have committed offences punishable U/s.3, 4, 5, 6 and 9 of ITP Act?
2. Whether the prosecution proves beyond reasonable doubt that on 21/22.03.2013 at 3.00 a.m. the accused No.3, 4 and 7 with common intention to run prostitution business by trafficking CW.4 to CW.7 forcibly induced them to indulge in prostitution business for wrongful gain, and thereby the accused No.3, 4 and 7 have committed offence punishable U/s.Sec.370 r/w Sec.34 of IPC ?
3. What Order?
9.This Court has answered the above points are as hereunder:
1.Point No.1: In the Negative
2.Point No.2: In the Negative
3.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.
6 SC No.573/2021It is the case of the prosecution that the accused No.1 and 2 were running prostitution business in a rented house belongs to CW8 No.C17/12, III Floor, Hansi Alpha Apartments situated Rajaramanna Road, near Gurukrupa Hotel, Kaval Byrasandra within the limits of DJ Halli P.S., Bangalore, by trafficking CW.4 to CW.7 with the assurance of getting money, induced and indulged them in prostitution with accused No.3 to 7 by receiving money and providing shelter for prostitution and doing the pimp work and were leading their life from the amount of illegal gain from the said prostitution business. The complainant along with panchas and his staff on 21/22.03.2013 during night hours at 3.00 a.m. conducted raid over the said house after obtaining credible information and apprehended accused No.1 to 7, who were involved in the prostitution business, rescued CW.4 to CW.7 and at that time seized the articles from the spot through panchanama. Thereby the accused persons are alleged with the offences punishable U/s.3, 4, 5, 6 and 9 of Immoral Traffic (Prevention) Act, 1956.
11.In order to prove the said allegation the prosecution has examined the complainant PW.1, who deposed that on 21.03.2013 during night hours at 2.15 a.m. after obtaining credible information regarding prostitution carried out in a rented house belongs to CW8 No.C17/12, III Floor, Hansi Alpha Apartments situated Rajaramanna Road, near Gurukrupa Hotel, Kaval Byrasanda within the limits of DJ Halli P.S., Bangalore, he along with his staff CW.11 to CW.19 and secured the panch witnesses CW.2 and 3, and issued notice Ex.P1, prepared record of reasons, deputed CW.6 as decoy, and after 7 SC No.573/2021 confirmation he conducted raid over the house at 3.00 a.m. along with his staff and panchas, apprehended the accused persons and rescued CW.4 to CW.7, who were made to indulge in prostitution business by the accused persons. It is also the case of the PW.1 that he has drawn mahazar Ex.P3 regarding seizure of articles, and registered sou-motto complaint against the accused persons, and seized properties were brought into PF No.41/2013, and produced the victim before State Women Reception Center as per the order of the Court, and on 22.03.2013 subjected the victims for medical examination , and on 21.3.2013 he recorded statements of panchas and his staff, and on 5.4.2013 received copy of rent agreement from CW.8 and on 29.04.2013 given the interim custody of the two wheeler to the applicant as per the order of the Court, completed the investigation submitted charge sheet against accused persons It is pertinent to note that in the cross-examination PW.1 has admitted that the place that has been raided is thickly populated with the adjoining residential houses. It is equally important to note that before the raid he has not physically verified himself and his staff. This clearly indicates that PW.1 has never taken any steps before raid regarding the materials that has been carried by him and his staff at the time of raid. Further it is also the evidence of PW.1 that after conducting raid he has seized articles from the possession of accused persons through panchanama Ex.P3 drawn in the presence of the panchas CW.2 and 3. It is vehemently argued by the learned counsel for accused that the complainant PW.1 in spite of densely populated area has not secured any of the female persons 8 SC No.573/2021 residing adjoining to the raided house to be one of the pancha to the panchanama Ex.P3 as mandated by the Act U/s.15(2) of the ITP Act. The panchas CW.2 and CW.3 are the male persons. At this juncture I would like to reproduce the provisions of Sec.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 place 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:
12.It is clear from the provisions of Sec.15(2) of ITP Act, 1956 that it mandates two or more respectable inhabitants of the locality in which the place to be searched is situated 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, who were cited are male persons. From this fact it is clear that the PW.1 has not complied the mandatory provisions of Sec.15(2) of ITP Act. It is equally important to note that though the place of occurrence is a public place adjoining to commercial shops, 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 of the accused No.3, 4 and 7 along with the victim/CW.4 to CW.7, induced them indulging in 9 SC No.573/2021 committing prostitution and failure to prove seizure of articles fatal to the case of the prosecution.
13.On careful reading of the above provisions of the Act, none of the section are attracted so far as to the customers of a brothel home is concerned. The allegations made against the accused No.3, 4 and 7 will not come within the ambit of above referred provisions of the Acts. Hon'ble High Court of Karnataka in Crl. Pet., No.1757 of 2022 dated 24.03.2022(Bharath SP Vs. State of Karnataka) , has held that Sec..3, 4, 5, 6 and 9 of Immoral Traffic (Prevention) Act, 1956 and Sec.370 r/w Sec.34 of IPC are not attracted so far as to customers are concerned. In Criminal Petition No.388/2020 dated 18.03.2020 between Amarnath Vs., State of Karnataka has also held that customers cannot be prosecuted for the offences punishable U/s.3, 4, 5, 6 and 9 of ITP Act of IPC and the proceedings against the customers has been quashed.
14.In view of the above discussions, by applying the ratio laid down by the Hon'ble High Court as referred above, it is clear that the accused No.3, 4 and 7 are being the customers as per the available materials on record and none of the offences as mentioned in the charge sheet attract to proceed against these accused No.3, 4 and 7. A person who visits brothel house only as customer is not covered by any of the above provisions of ITP Act 1956 In the present case the allegations made against accused No.3, 4 and 7, and the material collected against the accused No.3, 4 and 7 do not show commission of any of the offences alleged against them in 10 SC No.573/2021 the charge sheet Accordingly, examination of other witnesses cited in the charge sheet dropped by this Court. Therefore, from the above reasons and discussions it is clear that the prosecution has failed to establish or prove the guilt against the accused No.3, 4 and 7 beyond all reasonable doubt. Accordingly, I answer Points No. 1 and 2 in the negative.
15.Point No.3: In view of answer of this court on point No.1, this court pass the following:-
ORDER Acting U/s.235(1) of Cr.P.C., the accused No.3, 4 and 7 are hereby acquitted of the offences punishable U/s.3, 4, 5, 6 and 9 of the Immoral Traffic (Prevention) Act, 1956 and Sec.370 r/w Sec.34.The bail and surety bonds of accused No.3, 4
and 7 stand canceled.
(Typed to my dictation by the Stenographer directly on Computer, corrected by me and then pronounced in open Court on this the 20th day of January, 2023) (Manjunatha) XLV Addl. CC & SJ, Bengaluru.
11 SC No.573/2021ANNEXURE List of Witnesses examined on behalf of Prosecution:
P.W.1: Parashivamurthy List of Documents exhibited on behalf of Prosecution:
Ex.P.1: Record of reasons Ex.P.2: Notice Ex.P.3: Mahazar Ex.P4: Complaint Ex.P5: FIR.
List of Witnesses examined on behalf of Accused:
NIL List of Documents exhibited on behalf of Accused:
NIL List of Material Objects marked on behalf of Prosecution:-
NIL (Manjunatha) XLV Addl. City Civil & Sessions Judge, Bengaluru.12 SC No.573/2021
Order pronounced in the open Court vide its separate order ORDER Acting U/s.235(1) of Cr.P.C., the accused No.3, 4 and 7 are hereby acquitted of the offences punishable U/s.3, 4, 5, 6 and 9 of the Immoral Traffic (Prevention) Act, 1956 and Sec.370 r/w Sec.34 of IPC The bail and surety bonds of accused No.3, 4 and 7 stand canceled.
(Manjunatha) XLV Addl. City Civil & Sessions Judge, Bengaluru.
13 SC No.573/2021