Bangalore District Court
D.J. Halli P.S vs A1 Fathima Mandal on 30 September, 2024
KABC010242552021
IN THE COURT OF XLV ADDL. CITY CIVIL &
SESSIONS JUDGE, BENGALURU CITY (CCH-46)
DATED THIS THE 30th DAY OF SEPTEMBER 2024
PRESENT:
SRI. MOHAMMED MOINUDDIN
BA LLB(SPL).,
SC No.1316/2021
Complainant State by D J Halli P.S.,
(Rep. by Learned Public
Prosecutor)
AND
Accused 1.Smt. Fathima Mandal
(Case against accused No.1
is Split up and registered in
SC No.1164/2024)
2. Smt. Ayesha Shekh
W/o Mansoor Ali Sheik
a/a 31 years
Presently R/at Flat No.25,
Hiranmayi apartment, 3rd
main, MM layout,
Kavalbyrasandra, R T Nagar
post, Bengaluru
Permanent R/O Benapole,
Jasor district, Bangladesh
(By Sri/Smt: VM.Adv.,)
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SC No1316/2021
Date of offence & 26.03.2021 at 06.00 p.m
time
Date of report of 26.03.2021 at 08.15 p.m
offence
Date of arrest of the 27.03.2021
accused
Date of release on Accused No.2 is in Judicial
bail custody
Total period of 03 years 06 months 03 days
custody
Name of the Sri.Kiran Kumar B Nayak (PI)
complainant
Date of 08.02.2023
commencement of
recording of evidence
Date of closing of 15.06.2023
evidence
Offences complained
of U/s.3, 4, 5 of ITP Act and Sec.370
of IPC and Sec.14 of Foreigners
Act, 1946.
Opinion of the Judge
Accused No.2 is found not
guilty for the offences
punishable U/sec. 3, 4, 5 of ITP
and Sec. 370 of IPC.
Accused No.2 is found guilty
and convicted for the offence
punishable U/s.14 of Foreigners
Act , 1946.
JUDGMENT
The Sub Inspector of Police, DJ Halli police station Bangalore has filed charge sheet against accused No.1 3 SC No1316/2021 and 2 for the offences punishable U/s.3, 4, 5 of Immoral Traffic (Prevention) Act, 1956, Sec.370 of IPC and Sec.14 of Foreigners Act 1946 in Crime No.108/2021.
2. The factual matrix of the case is that:-
On 26.03.2021 at about 6.00 pm on credible information CW1 along with CW2 and 3 the panchas and with his staff CW6 to 10 raided the rented house in occupation of accused No.1 situated at 3 rd main, No.25 Hiranamayi apartment, Flat No.2 and found that the accused No.1 after assurance to accused No.2 and CW11 of employment indulged in human trafficking and prostitution for their unlawful gain. Accordingly CW-1 after seizure of material objects such as condom, cash of Rs.4,900-00 and two mobile phones at the place of the offence prepared mahazar and filed complaint before the SHO. The IO after completion of the investigation has filed the charge sheet against the accused No.1 and 2 for the offenses described above since both accused being Bangladeshi citizens illegally entered the territory of India without any valid permit. 4
SC No1316/2021
3. The concerned police have submitted charge sheet against accused No.1 and 2 for the offences punishable U/s.370 of IPC and Sec.3, 4, 5 and 7 of Immoral Traffic (Prevention) Act, 1956, and Sec.14 of Foreigners Act, 1946 before the jurisdictional XI Addl., CMM Court Bangalore. The learned Magistrate has committed the case to the Sessions Court by complying with Sec.207 of Cr.P.C.
4. The charges were framed against the accused No.1 and 2 on 31.10.2022 for above offences. They pleaded not guilty and claimed to be tried however during pendency of the case accused No.1 remained absent since his presence was not secured by the police as such the case against him is split up and pending in separate Sessions case and the case against the accused No.2 was proceeded.
5. The following points that arises for consideration of this court:
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SC No1316/2021
1. Whether the prosecution proves beyond all reasonable that on 26.03.2021 at about
6.00 pm, the accused No.2 along with accused No.1 at G2 Hirnmayi Apartment in flat No.25 situated at 3 rd main, MM layout, Kavalbyrasandra within the limits of the DJ Halli P.S., Bangalore by trafficking CW.11, with false assurance of employment, induced and indulged her in prostitution business in the public vicinity and was leading her life out of the amount of illegal gain from the said business and thereby the accused No.2 has committed the offences punishable U/s.3, 4, 5 of ITP Act?
2. Whether the prosecution proves beyond reasonable doubt that on 26.03.2021 at about 6.00 pm, the accused No.2 with intention to run prostitution business by trafficking CW.11, forcibly induced her to indulge in prostitution business for wrongful gain, and thereby the accused has committed offence punishable U/s.370 of IPC?
3. Whether the prosecution proves beyond reasonable doubt that the accused No.2 being the citizen of Bangladesh without 6 SC No1316/2021 having any valid permission from the competent authority illegally stayed in India and thereby she has committed the offences punishable U/Sec 14 of Foreigners act?
4. What Order?
6. To prove the guilt of accused No.2 the prosecution got examined in all six witnesses as PW.1 to PW.6 and got marked documents at Ex.P.1 to P.6, and identified material objects at MO 1 to 5.
7. Thereafter the statement of accused No.2 as provided U/s.313 of Cr.P.C. was recorded on 21.06.2023. The accused No.2 after denying all the incriminating evidence against her did not lead her defense evidence nor produce any document to support her case.
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SC No1316/2021
8. I have heard the arguments from both sides and perused the materials on record. My finding to the above points is as under:
Point No.1: In the Negative
Point No.2: In the Negative
Point No.3: In the Affirmative
Point No.4: As per final order
for the following:-
REASONS
9. Points No.1 and 2: Both the points are taken up together for discussion as they are related to each.
The prosecution has to prove the allegations that the accused No.2 with accused No.1 was indulged in prostitution on 26.03.2021 at about 6-00 p.m. when CW1 raided the house and seized cash of Rs. 4,900/-, two mobile phones and condom from the spot.
10. PW1 who conducted the raid has deposed to the effect that he was in police station at about 5 pm on 26.03.2021 at that time he received a credible information about the prostitution being observed in a house situated at G2 Hirnmayi Apartment flat No.25 8 SC No1316/2021 situated at 3rd main, MM layout, Kavalbyrasandra within the limits of the DJ Halli P.S., Bengaluru. Accordingly he secured two panchas and along with CW6 to 10 raided on the said place and found cash of Rs.4900/- two mobile phones with SIM cards along with a Condom. He seized the said articles from the spot, prepared mahazar between 6.15 p.m. to 7.00 p.m. at the place of the offence and thereafter arrested the accused No.1 and 2 and produced them before the SHO and lodged the complaint.
11. PW1 further deposed that both the accused being Bangladesh nationals but they stayed in India without any valid permit. The witness identified 04 documents a notice issued by him to panchas as per EX.P1, record of reasons for not taking any search warrant from proper aturhority as per EX.P2 and panchanama as per EX.P-3 and first information at EX.P4. He also identified the seized articles as per MO1 to 4. This witness identified the accused persons before the court through Video conference. 9
SC No1316/2021
12. PW2 to 4 the pancha witnesses have deposed that in support of the prosecution case and stated that they were also present at the time of raid by CW1 at the place of offense where the accused persons were found involved in prostitution. They have identified the MO-1 to 4, notices and mahazar and their signature on mahazar. They have also identified the accused persons before the court through Video conference.
13. PW5 has deposed to the effect that on 26.03.2021 at about 5 p.m he was on duty at police station. CW1 informed him about the definite information received regarding prostitution and secure two panchas for the purpose of raid and also directed CW7 to 10 be present at the time of raid. Accordingly two panchas CW2 and 3 were brought by staff member and produced them before PW1. As per the instructions of CW1 he had gone inside the house with cash of Rs.2,000/- as a customer to check the reality of the alleged prostitution and then to inform/gesture to CW-1. 10
SC No1316/2021 When he entered the premises accused persons welcomed him and received cash of Rs.2000/- from him since the witness did not return for considerable time as such CW-1 raided said place thinking that, the information which he had received is true and found the accused No.1 and 2 and MO-1 to 4 with cash of Rs,4,900-00. The witness identified accused No.1 before the court and accused No.2 through Video conference and also MO1 to 4.
14. PW6 is the IO has deposed to the effect that on 26.03.2021 at about 8.15 p.m. CW1 appeared before him and lodged the complaint and also produced documents such as record of reasons, notices issued to panchas and the mahazar along with MO 1 to 4 and cash of Rs,4,900-00. Since he received the complaint and registered case against the accused No.1 and 2 in crime No.108/2021 of their PS. The witness has identified his signature on Ex.P1 to 4 and also on MO 1 to 4. The witness identified the accused No.1 and 2 and 11 SC No1316/2021 deposed regarding statements of witnesses recorded by him.
15. The IO further deposed that he has collected MO1 to 4 and prepared PF No.29/2021 and recorded the statements of CW2 to 10. Since the investigation was completed as such he filed the charge sheet against the accused No.1 and 2 for the offences mentioned above.
16. As per the prosecution case on 26.03.2021 both the accused were involved in prostitution at the place of the offence. Off course, the pancha witnesses have supported the case of the prosecution regarding the very raid and recovery of MO 1 to 4, during cross examination he has admitted that before the raiding the said place of offenses no independent witnesses were secured from the place of offence.
17. It is well settled law that in order to bring home the guilt of the accused persons for the offences PU/sec.3 to 5 of ITP Act and Sec. 370 of IPC the prosecution has to show that, the accused No.2 was 12 SC No1316/2021 indulged in prostitution to earn money. The lease agreement Ex,P-6 shows that, the accused No.1 had taken the house the place of offence on rent in her name and the accused No.2 seems to be a victim of said offence and there is nothing on record to show that, the accused No.2 was also involved with accused No.1 to do illegal activities. It is well settled law that, the victims of prostitution cannot be punished. The accused No.2 as per the prosecution case so far the offences PUS 3, 4 and 5 of ITP Act is a victim. The entire evidence adduced by the prosecution is against the accused No.1 who is absconding and the case against her already split up.
18. Though this court has framed charges against the accused Nol also for the alleged offences but she being a victim the evidence cannot be read against her in respect of offences PUS 3, 4 and 5 of ITP Act. If none of the offences under ITP Act attracts against the victim of prostitution then the offence PUS 370 of IPC also does not attract against the accused No.2. Thus for the 13 SC No1316/2021 discussion made above I am of the opinion that, the prosecution has failed to prove the charges against the accused No.2 for the offences PUS 3, 4 and 5 of ITP Act and also for the offence PUS 370 of IPC. Hence the prosecution has failed to prove the guilt of the accused No.2 for the offences punishable U/sec.3 to 5 of ITP and Sec.370 of IPC beyond all reasonable doubt. Accordingly I answer the point No.1 and 2 in the Negative.
19. POINT No.3 : So far as the charges u/sec. 14 of Foreigners Act 1946 admittedly the accused No.2 is a Bangladeshi national and she entered the territory of India without any permit from the competent authority which is mandatory under the Act. Though the accused No.2 in her statement recorded U/s 313 of Cr.P.C has stated that she has valid documents to enter the territory of India. But in the entire file there is no such document available to prove that she has entered India from Bangladesh with a valid document from the government of India. As per Sec. 8 of Foreigners act, 1946, there is a reverse burden on accused to prove 14 SC No1316/2021 that, he or she being a foreign national had entered the territory of India with valid permit duly issued by the competent authority. Since the accused No.2 not lead any defense evidence and nor produced any document to show that, she has valid permit at the time of entry into territory of India or to stay here. Under such circumstances the presumption has to be raised as per Sec.8 of Foreigners Act that accused No.2 has failed to prove that, she has valid document to substantiate her claim. As such it has to be further inferred that, the accused No.2 has committed the offence punishable U/sec. 14 of Foreigners Act 1946. Hence I hold that prosecution has proved the guilt of the accused No.2 for the offence punishable U/sec.14 of Foreigners Act beyond all reasonable doubt. Accordingly, I answer this point in affirmative.
20.Point No.4: In view of answer of this court on points No.1 to 3, this court proceed to pass the following:-
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SC No1316/2021 ORDER Acting U/sec.235(2) of Cr.P.C. the accused No.2 is found guilty and convicted for the offence punishable U/sec.14 of Foreigners Act, 1946.
Acting U/sec.235(1) of Cr.P.C., the accused No.2 is hereby acquitted from the charges leveled against her for the offences punishable U/s.3, 4, 5 of the Immoral Traffic Prevention Act, 1956 and Sec.370 of Indian Penal Code, 1860.
To hear on sentence by 01.10.2024. (Typed to my dictation by the Stenographer directly on Computer, corrected by me and then pronounced in open Court on this the 30 th day of September 2024) Digitally signed by MOHAMMED MOHAMMED MOINUDDIN MOINUDDIN Date: 2024.10.08 15:51:19 +0530 (MOHAMMED MOINUDDIN) XLV ADDL. CITY CIVIL & SESSIONS JUDGE BENGALURU (CCH 46) ORDER ON SENTENCE The convict (A2) produced from JC. The counsel for accused called out. Heard 16 SC No1316/2021 The convict said that she is having husband and 04 children (Two daughter and two sons) all are residing in Bangladesh. She further said that she is having old aged mother in Bangladesh and requested to take liniant view while imposing sentence.
The Learned PP said that maximum sentence may be imposed against accused No.2. however the learned counsel for convict said she has already spent more than 03 years in jail as such prayed to take liniant view. The records show that the convict is in JC from 27.03.2021 till date. But she has been convicted for the offense pus 14 of Foreigners Act 1946 the maximum punishment for the said offenses is upto 05 years. Having regard to the fact that she has the husband and 04 children who are minors and old aged mother I am of the opinion that the convict is entitled for liniant view. Hence the following;
ORDER The convict (A2) is sentenced to undergo SI for 02 years for the offense pus 14 of Foreigners act 1946. since she has been defended by a legal aid counsel has such it is not proper to impose fine on her.
Since the convict is in JC from 27.03.2021 till date as such she is entitled for setoff as per Sec.428 of Cr.P.C as against the period undergone as UTP.
Since the split case in SC 1164/2024 is pending against accused No.1 as such office is directed to preserve MO1 to 5 fo the purpose of trial in that case. 17
SC No1316/2021 Issue conviction warrant accordingly to the jailer informing that the convict is entitled for setoff U/s 428 of Cr.P.C. Office is to issue intimation to concerned police to deport to her native country i.e., Bangladesh after medical examination of the convict/accused No.2 after setoff is given as per jail manual. The jailer and concerned police shall report this matter to this court as early as possible. Supply free copy of this judgment to the convict.
Digitally signed by MOHAMMED MOHAMMED MOINUDDIN MOINUDDIN Date:
2024.10.08 15:51:26 +0530 (MOHAMMED MOINUDDIN) XLV ADDL. CITY CIVIL & SESSIONS JUDGE BENGALURU (CCH 46) ANNEXURE List of Witnesses examined on behalf of Prosecution:
P.W.1: Kiran Kumar B N
P.W.2: Venkatesh
P.W.3: Geetha
P.W.4: Mathew
PW.5: Sunil
PW6: Nagadeva
List of Documents exhibited on behalf of
Prosecution:
Ex.P.1: Notice
Ex.P.2: Record of reasons
Ex.P.3: Mahazar
Ex.P.4: Complaint
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Ex.P.5: FIR
Ex.P.6: Rental 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:-
MO1 to 4 Mobile Phones MO5 Condoms. Digitally signed by MOHAMMED MOHAMMED MOINUDDIN MOINUDDIN Date: 2024.10.08 15:51:31 +0530 (MOHAMMED MOINUDDIN) XLV ADDL. CITY CIVIL & SESSIONS JUDGE BENGALURU (CCH 46)