Bangalore District Court
Rajarajeshwari Nagar Ps vs A2 Gangalakshmamma on 22 February, 2024
KABC010385852019
IN THE COURT OF XLV ADDL. CITY CIVIL & SESSIONS
JUDGE, BENGALURU CITY (CCH-46)
DATED THIS THE 22ND DAY OF FEBRUARY, 2024
PRESENT:
Sri Manjunatha, B. A., LL.B.,
XLV Addl. City Civil & Sessions Judge, Bengaluru.
SC No.1953/2019
BETWEEN
State by Rajarajeshwarinagar P.S.,
Bangalore. .. COMPLAINANT
(By the learned Public Prosecutor)
AND
1.Basavaraju(Split up)
2.Smt. Gangalakshamamma
C/o jayaramaiah, a/a 32 Yrs.,
r/o Mallaghatta Rama, Begur Post,
Kasaba Hobli, Kunigal Taluk,
Tumkur District.
3.Raju @ Munawar Pasha
S/o Abdul Khader Sab, a/a 42 Yrs.,
r/a No.139/1, Kaggalipura,
Bangalore-82.
4.Jitendra Kumar
S/o A. R. Ramaiah, a/a
r/a No.26, Agara, Thathaguni Post,
Kanakapura Main Road, Bangalore. ...ACCUSED
(By Sri DR, Advocate)
******
2
SC No.1953/2019
Date of offence & time 3.5.2017
Date of report of offence 3.5.2017
Date of arrest of the A2: 3.5.2017
accused A4: 3.5.2017
Date of release on bail 15.05.2017
Total period of custody 13 days
of the complainant Sri B. Shhivareddy
Date of commencement 12.06.2023
of recording of evidence
Date of closing of 11.01.2024
evidence
Offences complained of U/s.3, 4 and 5 of ITP Act and
Sec.370(3) r/w 34 of IPC
Opinion of the Judge Accused found not guilty
JUDGMENT
The Police Sub-Inspector, Rajarajeshwarinagar P.S., Bangalore, has filed charge sheet against accused No.2 to 4 and another for the offences punishable U/s.3, 4 and 5 and 6 of Immoral Traffic (Prevention) Act, 1956 and Sec.370(3) of IPC, 1860 in their Crime No.115/2017.
2. The factual matrix of the case is that :-
The accused persons were running prostution business under the name and style as RV Unisex(Golden) Spa and Saloon in a rented building belongs to CW.10 in the name of accused No.1 II Floor situated PP Plaza, Opposite to Shanimahathma Temple, near BEML Gate Bus Stop, 9 th Main, Ideal Home Layout, Rajarajeshwarinagar, within the limits of Rajarajeshwarinagar P.S., Bangalore, by trafficking CW.4 to CW.6 with the false promise of good salary induced and indulged them in prostitution activities such as body to body massage, and happy ending, and leading their life out of the 3 SC No.1953/2019 amount of illegal gain from the said business. And on 3.5.2017 at 10.30 a.m. on credible information and by registering a case, by inviting panchas CW.2 and CW.3, and by informing the same, deputing CW.7 as customer along CW.11 to 14 conducted raid over the said building after confirmation from CW.7 found that the accused persons by by trafficking CW.4 to CW.6 with promise of good salary and induced and indulged them in prostitution and were leading their life out of the amount of illegal gain from the said business. Thereby the accused No.2 to 4 are alleged with the offences punishable U/s.370(3) of IPC and Sec.3, 4 and 5 of Immoral Traffic (Prevention) Act, 1956.
3. The concerned police have submitted charge sheet against accused No. 2 to 4 and others for the offences punishable U/s.370(3) of IPC and U/s.3, 4 and 5 of Immoral Traffic (Prevention) Act, 1956, before the jurisdictional III Addl.,CMM., Bangalore. The learned Magistrate has committed the case to the Sessions Court by complying Sec.207 of Cr.P.C. after furnishing charge sheet copies to the accused No.2 to 4.
4.The charge was framed against the accused No.2 to 4 on 10.11.2021 for the offences punishable U/s.3, 4 and 5 of ITP Act and Sec.370(3) r/w Sec.34 of IPC. The accused persons pleaded not guilty and claim to be tried.
5.The prosecution has examined in all 6 witnesses as PW.1 to PW.6 and got marked documents at Ex.P.1 to P.5, and identifies Mos1 to 6. The learned public prosecutor has given up witnesses CW.12 and CW.13, in view of available evidence 4 SC No.1953/2019 of other witnesses. In spite of sufficient opportunities provided to the prosecution by issuing summons, warrant and proclamation for securing CW.4 to CW.6, but the concerned police failed to secure the said witnesses and in view of the same the evidence of CW.4 to CW.6 taken as nil by rejecting the prayer of the prosecution. Further the prosecution has not taken any steps to secure the witnesses CW.2, CW.7, CW.8, and CW.11, in view of the same dropping of evidence of CW.2, CW.7, CW.8, and CW.11 remained intact.
6.After closure of the evidence of prosecution, the case was posted for recording statement of accused No.2 to 4 as provided U/s.313 of Cr.P.C. on 11.01.2024, and the same was duly recorded. The accused persons did not claim for defense evidence nor produce any documents in support their case.
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 3.5.2017 at 10.30 a.m. the accused No.2 to 4 and another at RV Unisex(Golden) Spa and Saloon in a rented building belongs to CW.10 in the name of accused No.1 II Floor situated PP Plaza, Opposite to Shanimahathma Temple, near BEML Gate Bus Stop, 9th Main, Ideal Home Layout, Rajarajeshwarinagar, within the limits of Rajarajeshwarinagar P.S., Bangalore, by 5 SC No.1953/2019 trafficking CW.4 to CW.6 induced and indulged them in prostitution business and were leading their life out of the amount of illegal gain from the said business and thereby the accused No. 2 to 4 have committed offences punishable U/s.3, 4 and 5 of ITP Act?
2. Whether the prosecution proves beyond reasonable doubt that on 3.5.2017 at 10.30 a.m. .
the accused No.2 to 4 with common intention to run prostitution business by trafficking CW.4 to CW.6 induced and indulged them in prostitution business for wrongful gain at RV Unisex(Golden) Spa and Saloon in a rented building belongs to CW.10 in the name of accused No.1 II Floor situated PP Plaza, Opposite to Shanimahathma Temple, near BEML Gate Bus Stop, 9th Main, Ideal Home Layout, Rajarajeshwarinagar, within the limits of Rajarajeshwarinagar P.S., Bangalore, and thereby the accused No.2 to 4 have committed offence punishable U/s.370 (3) r/w Sec.34 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:-6
SC No.1953/2019 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 case of the prosecution that the accused persons were running prostitution business under the name and style as RV Unisex(Golden) Spa and Saloon in a rented building belongs to CW.10 in the name of accused No.1 II Floor situated PP Plaza, Opposite to Shanimahathma Temple, near BEML Gate Bus Stop, 9th Main, Ideal Home Layout, Rajarajeshwarinagar, within the limits of Rajarajeshwarinagar P.S., Bangalore, by trafficking CW.4 to CW.6 with the false promise of good salary induced and indulged them in prostitution activities such as body to body massage, and happy ending, and leading their out of the amount of illegal gain from the said business. And on 3.5.2017 at 10.30 a.m. on credible information and by registering a case, by inviting panchas CW.2 and CW.3, and by informing the same, deputing CW.7 as customer along CW.11 to 14 conducted raid over the said building after confirmation from CW.7 found that the accused persons by by trafficking CW.4 to CW.6 with promise of good salary and induced and indulged them in prostitution and were leading their life out of the amount of illegal gain from the said business. Thereby the accused No.2 to 4 are alleged with the offences punishable U/s.370 of IPC and Sec.3, 4 and 5 of Immoral Traffic (Prevention) Act, 1956.
7SC No.1953/2019
12.In order to prove the said allegation the prosecution has examined the complainant PW.5 V. Shiva Reddy deposed that on 3.5.2017 at 10.30 a.m. he received credible information from the informant regarding prostitution carried out in a rented building belongs to CW.10 in the name of accused No.1 II Floor situated PP Plaza, Opposite to Shanimahathma Temple, near BEML Gate Bus Stop, 9th Main, Ideal Home Layout, Rajarajeshwarinagar, within the limits of Rajarajeshwarinagar P.S., Bangalore, by trafficking girls with the false promise and wrongfully confining them. He registered the case in FIR No.115/2017 based on his summotto complaint marked as Ex.P4, and forwarded Ex.P5 FIR to the jurisdictional Court, by inviting CW.2 and 3 panchas, and informing her staffs CW.11 to 14 near the spot and deputed CW.7 as customer/decoy, and after confirmation from CW.7, he conducted raid over the premises along with his staff and panchas, apprehended the accused persons, and rescued CW.4 to CW.6 who were victims of human trafficking, and induced and indulging them in prostitution business by the accused persons. It is also the case of the PW.5 that he has drawn mahazar Ex.P1 regarding seizure of material objects, and further along with accused persons, victims and seized material appeared to Police Station and brought the seized articles into PF No.51/2017 and handed over further investigation to CW.15. It is pertinent to note that in the cross-examination PW.5 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 8 SC No.1953/2019 clearly indicates that PW.5 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.5 that after conducting raid he has seized MOs1 to 6 from the possession of accused persons through panchanama Ex.P1 drawn in the presence of the panchas CW.2 and CW.3. Pancha CW.3, who is examined as PW.1 has been treated as hostile witnesses and cross-examined by the Learned Public Prosecutor. Nothing has been elicited from the mouth of PW.1 to establish the case of the prosecution. In spite of sufficient summons and warrants CW.2 was not secured before the Court, and his evidence was taken as nil. In the absence of evidence of CW.2 the contents of Ex.P1 panchanama is also not proved sufficiently and satisfactorily by the prosecution. It is vehemently argued by the learned counsel for accused herein that the complainant PW.5 in spite of densely populated area has not secured any of the female persons 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 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 place to be searched is situate, to attend and 9 SC No.1953/2019 witness the search, and may issue an order in writing to them or any of them so to do:
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.5 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 building, non citing of the local persons as a witness by the Investigating Officer/PW.6 also creates a doubt in the prosecution case regarding the conduct of raid and apprehending of the accused No.2 and 4 along with the victims/CW.4 to CW.6, induced them indulging in committing prostitution and failure to prove seizure of MOs1 to 6 is fatal for the case of the prosecution.
13.PW.2 Balakrishna is the customer, who turned hostile and not supported the case of the prosecution. The learned Public Prosecutor has cross-examined PW.2, but nothing has been elicited in supported of the case of the prosecution. In order to prove the allegations against the accused the prosecution has examined the owner of the house as PW.3 who deposed that he has rented a shop to accused No.1, and in the said shop saloon was running, in the May 2017 police have called, and informed him about running of illegal activites and obtained his signature. During the cross-examination he 10 SC No.1953/2019 deposed that he did not know what was the business taking place, and police have obtained the copy of agreement, and he also denies the suggestion made by the learned counsel for the accused persons. It is also very important to note that the prosecution in spite of issuing summons and warrants to the victim/CW.4 to CW.6 failed to secure the material witnesses before the Court, when the entire case rest on the evidence of victim/CW.4 to CW.6, who according to the prosecution, were induced and indulging in prostitution business by trafficking and the accused No.2 to 4 were leading their life out of the amount of illegal gain from the said business. This is fatal for the case of the prosecution, wherein the material witnesses CW.4 to CW.6 have not been examined, so as to prove the guilt against the accused persons.
14.PW.4 Shivaswamy, head constable, who is the the raiding party member, has deposed in similar way of PW.5 and deposed about conducting of raid, apprehension of accused, seizure of material objects and rescue of CW.4 to CW.6, and producing of accused persons before SHO.
15.It is pertinent to note that PW.6 C. Lakshmana being PSI has deposed that on 3.5.2017 he took up further investigation from Cw.1, recorded statements of CW.2 to CW.14, and filed requisition before III MMTC for transfer of the case. And filed requisition before III ACMM to include Sec.370 of IPC. Filed requisition to remand CW.4 to 6 to State Home, recorded voluntary statement of accused No.2 and 4 and produced them before Court. Accused No.1 and 3 appeared before him by obtaining anticipatory bail, and he completed the 11 SC No.1953/2019 arrest formalities and investigation, and filed charge sheet against the accused persons.
It is vehemently argued by the learned counsel for the accused and brought to the notice of the Court the evidence of PW.6 that at the time of the incident he was working as Police Sub-inspector of Rajrajeshwarinagar P.S., has investigated the entire case by recording the statements of witnesses and completed the investigation, submitted charge sheet against accused. It is vehemently argued that PW.6 being PSI not authorized as 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, as investigated the entire case and filed charge sheet.
16.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 PW.6 has not produced any document to show 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.6 clearly discloses that he being in the rank of Police Sub-Inspector, who had recorded the statements of victims, panchas and the raiding party witnesses. It is the specific defense of the accused persons that the witness PW.6 who investigated the case has no authority as per the provisions of ITP Act to investigate the case 12 SC No.1953/2019 since he was working under the rank of PSI, below the rank of Police Inspector. At this context it is worth to note a decision of Hon'ble High Court of Karnataka 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 Sub-Inspector cannot be a Special Officer, as per the mandate of Section 13 of the Act, it can only be the Inspector of Police or an Officer of above the rank of Police Inspector who can be appointed as Special Officer. When a procedure is prescribed under law to do a thing in a particular manner, it should be carried out in that manner only. In the instant case PW.6 PSI, who has investigated the case by recording the statements of the witnesses and victim, and filed charge sheet, 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.
17.It is equally important to note that the same point came up for consideration in Criminal Petition No.5497/2016 between G. S. Mallinath Vs. State of Karnataka and another , wherein the Hon'ble High Court of Karnataka 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 under the above said provisions.
13SC No.1953/2019
18.Relying upon the above said provision of Section 13(2) of the said Act and the dictum of law laid down in the above said ruling it is clear that the investigation done by the Police Sub-Inspector PW.6 is vitiated by serious procedural irregularity and not curable in nature.
19.Therefore, from the above reasons and discussions it is very clear that the prosecution has utterly failed to establish or prove the guilt against the accused No.2 to 4 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 No.2 to 4 are hereby acquitted of the offences punishable U/s.3, 4 and 5 of the Immoral Traffic (Prevention) Act, 1956 and Sec.370(3) r/w Sec.34 of of Indian Penal Code, 1860.The bail and surety bonds of accused No.2 to 4
stand canceled.
MOs1 to 6 shall be preserved till the disposal of split up case registered against accused No.1. (Typed to my dictation by the Stenographer directly on Computer, corrected by me and then pronounced in open Court on this the 22nd day of February, 2024) (Manjunatha) XLV Addl. City Civil & Sessions Judge, Bengaluru.Digitally signed by
MANJUNATH MANJUNATH RAMA NAIK RAMA NAIK Date: 2024.02.23 12:09:34 +0530 14 SC No.1953/2019 ANNEXURE
List of Witnesses examined on behalf of Prosecution:
P.W.1: C. Jagadeesh P.W.2: Balakrishna P.W.3: Puneeth Jain P.W.4: Shivaswamy P.W.5: V. Shivareddy P.W.6: C. Lakshman.
List of Documents exhibited on behalf of Prosecution:
Ex.P.1: Mahazar Ex.P.2: Adhaar Card Ex.P.3: Driving License Ex.P.4: Complaint Ex.P.6: 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:-
MO1 to MO5: Mobile Phones
MO6: Condom packets.
(Manjunatha)
XLV Addl. City Civil & Sessions Judge,
Bengaluru.
Digitally signed
by MANJUNATH
MANJUNATH RAMA NAIK
RAMA NAIK Date: 2024.02.23
12:09:43 +0530
15
SC No.1953/2019
Accused No.2 to 4 present.
The learned public Prosecutor present. The learned counsel for accused present. Judgment pronounced in the open Court vide its separate order ORDER Acting U/s.235(1) of Cr.P.C., the accused No.2 to 4 are hereby acquitted of the offences punishable U/s.3, 4 and 5 of the Immoral Traffic (Prevention) Act, 1956 and Sec.370(3) r/w Sec.34 of of Indian Penal Code, 1860.
The bail and surety bonds of accused No.2 to 4 stand canceled. MOs1 to 6 shall be preserved till the disposal of split up case registered against accused No.1.
(Manjunatha) XLV Addl. City Civil & Sessions Judge, Bengaluru.
16 SC No.1953/2019