Bangalore District Court
And Decoy Pw.4 That When They Raided The vs But In The Cross-Examination The Said ... on 21 April, 2022
KABC010387912019
IN THE COURT OF XLV ADDL. CITY CIVIL & SESSIONS
JUDGE, BENGALURU CITY (CCH-46)
DATED THIS THE 21ST DAY OF APRIL, 2022
PRESENT:
Sri. Abdul Rahim Husain Shaikh,
B.Sc., B.Ed., LL.B.(Spl.)
XLV Addl. City Civil & Sessions Judge,
Bengaluru.
SC No.1967/2019
BETWEEN
State by Bandepalya P.S.,
Bangalore. .. COMPLAINANT
(By the learned Public Prosecutor)
AND
Smt.Rekha
C/o Anand Reddy,
A/a 47 Yrs.,
R/o Oppl to Burial Ground,
Maruthi Timber Road,
Ambedkar Colony,
Bandepalya,
Bangalore City. ..ACCUSED
(By Sri GSN, Advocate)
******
Date of offence & time 26.06.2019 at 15.25 hours
Date of report of offence 26.06.2019 at 17.15 hours
Date of arrest of the accused 27.06.2019
Date of release on bail 5.10.2019
2 SC No.1967/19
Total period of custody two months five days
Name of the complainant Sri A. B. Sudhakara.
Date of commencement of 25.11.2021
recording of evidence
Date of closing of evidence 14.03.2022
Offences complained of U/s.3, 4, 5 and 6 of ITP Act and
Sec.370 of IPC
Opinion of the Judge Accused found not guilty
JUDGMENT
The Police Sub-Inspector of Bandepalya Police Station, Bangalore, has filed charge sheet against accused for the offences punishable U/s.3, 4, 5 and 6 of Immoral Traffic (Prevention) Act, 1956 and Sec.370 of IPC in Crime No.123/2019.
2. The factual matrix of the case is that :-
The accused was running the prostitution business in a residential house situated at Timber Road, Ambedkar Colony, Bandepalya, within the limits of Bandepalya P.S., Bangalore by trafficking CW.4 with the false assurance of getting job, and indulged her in prostitution business in the public vicinity and was leading her life from the amount of illegal gain from the said business. On 26.06.2019 at 15.15 hours the complainant along with panchas and his staff conducted raid after obtaining credible information and apprehended accused, who was involved in the prostitution business, rescued CW.4 and at that time seized condoms and cash from the spot through panchanama. Thereby the accused is alleged with the offences punishable U/s.370 of IPC and Sec.3, 4, 5 and 6 of Immoral Traffic (Prevention) Act, 1956.3 SC No.1967/19
3. The concerned police have submitted charge sheet against the accused for the offences punishable U/s.3, 4, 5 and 6 of Immoral Traffic (Prevention) Act, 1956 and Sec.370 of IPC, before the jurisdictional CMM., Bangalore. The learned Magistrate has committed the case to the Sessions Court by complying Sec.207 of Cr.P.C. after furnishing charge sheet copies to the accused. The same is numbered as SC No.1967/2019 in this Court.
4.The charge was framed against the accused on 27.10.2021 for the offences punishable U/s.3, 4, 5 and 6 of ITP Act and Sec.370 of IPC. The accused has pleaded not guilty and claimed to be tried.
5.The prosecution has examined in all four witnesses as PW.1 to PW.4 and got marked documents at Ex.P.1 to P.4, and identified Mos1 and 2. The learned Public Prosecutor has given up the witnesses CW.3, CW.7 and CW.8 on 14.03.2022, in view of the evidence of other police official witnesses, as repetition witnesses. In spite of sufficient opportunities provided to the prosecution by issuing summons, warrant and proclamation for securing CW.4, but the concerned police failed to secure the said witnesses and in view of the same on 21.02.2022 the evidence of CW.4 was taken as nil by rejecting the prayer of the prosecution. Further the prosecution has not taken any steps to secure the witnesses CW.4, in view of the same dropping of evidence of CW.4 remained intact.
6.After closure of the evidence of prosecution, the case was posted for recording statement of accused as provided U/s.313 of Cr.P.C. on 16.04.2022, and the same was duly 4 SC No.1967/19 recorded. The accused did not claim for defense evidence nor produced any documents to support her case in spite of sufficient opportunities. The accused has complied provisions U/s.437A of Cr.P.C.,
7.Heard the arguments on both sides and perused the materials on record.
8.The following points that arises for consideration of this court:
1. Whether the prosecution proves that the accused was running prostitution business in a residential house situated at maruti Timber Road, Ambedkar Colony, Bandepalya, within the limits of Bandepalya P.S., Bangalore, by trafficking CW.4 with the false assurance of getting job, and indulged her in prostitution business in the public vicinity and were leading her life from the amount of illegal gain from the said business and thereby the accused has committed an offences punishable U/s. 3, 4, 5 and 6 of ITP Act?
2. Whether the prosecution proves that the accused with an intention to run prostitution business by trafficking CW.4 forcibly induced her to indulge in prostitution business for wrongful gain, and thereby the accused has committed an offence punishable U/s.370 of IPC?
3. What Order?5 SC No.1967/19
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:-
REASONS
10. Points No.1 and 2: Both the points are taken up together for discussion as they are related to each other and to avoid repetition in the discussion.
11.It is the specific allegation against the accused that she was running the prostitution business in a residential house situated at Timber Road, Ambedkar Colony, Bandepalya, within the limits of Bandepalya P.S., Bangalore by trafficking CW.4 with the false assurance of getting job, and indulged her in prostitution business in the public vicinity and was leading her life from the amount of illegal gain from the said business. On 26.06.2019 at 15.15 hours the complainant along with panchas and his staff conducted raid after obtaining credible information and apprehended accused, who was involved in the prostitution business, rescued CW.4 and at that time seized condoms and cash from the spot through panchanama. Thereby the accused is alleged with the offences punishable U/s.370 of IPC and Sec.3, 4, 5 and 6 of Immoral Traffic (Prevention) Act, 1956.
12.The prosecution has examined the complainant/PW.1 Sudhakara, who deposed that on 26.06.2019 after obtaining credible information that the prostitution is carried out in house 6 SC No.1967/19 situated at Timber Road, Ambedkar Colony, Bandepalya, within the limits of Bandepalya P.S., Bangalore, by obtaining oral permission from the higher officials, secured the panchas, requested CW.6/PW.4 to be decoy for the said raid and handed over two currency notes of Rs.500/- each to decoy and instructed him to intimate him through signal after ascertaining the illegal activities is carried out in the house to be raided. It is also the evidence of PW.1 after obtaining the information from the decoy they raided house and found accused, who stated that she is carrying out prostitution business by trafficking and indulging CW.4 by name Smt. Manjula W/o Thippesh Reddy. Further it is the evidence of PW1 that on enquiry the accused showed the room provided to the decoy to carry out the prostitution with CW.4, and when the said room was opened they found CW.6/PW.4 Decoy along with the Victim CW.4-Smt. Manjula, who an enquiry stated that the accused has trafficked her and indulged her in prostitution and also utilized the money gained from the said business for her personal use. It is pertinent to note that the decoy is examined as PW.4, who deposed that quiet contrary to the evidence of PW.1. In the cross-examination the decoy deposed that he had been to the spot where the raid has been conducted on his motorbike and before proceeding to the raiding house no physical verification has been conducted by PW.1, who had deposed in his evidence that he has given to the notice to decoy and took him in his departmental vehicle along with panchas and has conducted the physical verification of decoy before permitting him to take part in the raid. In the cross-examination there is 7 SC No.1967/19 clear evidence by the complainant/PW.1 that he has not produced single document to show that he has conducted the physical verification of the decoy before permitting him to take part in the raid. In this case according to PW.1 he has handed over two currency notes of Rs.500/- each to the decoy to use the same for settlement of transaction with the accused person and the same has been seized from the possession of accused through panchanama Ex.P2. But in the evidence of decoy PW.4, he admitted that his signature was not taken on the currency notes, which were handed over to him. There is no clear evidence from the complainant/PW.1 and also from the evidence of PW.4 decoy regarding the currency notes of the notes, which were handed over to decoy by PW.1. The entire averments of panchanama Ex.P2 does not disclose the currency numbers and denomination, which has been seized from the possession of the accused, which has been used by the decoy for carrying transaction regarding prostitution with the accused. The evidence produced by the prosecution is not sufficient and satisfactory to establish that the currencyt notes MO2 that has been seized from the possession of accused through panchanama Ex.P2 are the same currency notes that has been handed over by the complainant/PW.1 to decoy PW.4. In view of the contradictions in the evidence of PW.1 and decoy PW.4, the contention of the prosecution that decoy PW.4 was part of the raid and on the information PW.1 along with staff members raided the house and apprehending the accused by seizing material objects MO1 and MO2 through panchanama Ex.P2 from the possession of accused cannot be taken into 8 SC No.1967/19 consideration for want of sufficient evidence. Further it is equally important to note that according to the complainant/PW.1 and decoy PW.4 that when they raided the spot, they apprehended the victim CW.4, who was induced in prostitution business by the accused. But the material witness CW.4 in spite of sufficient warrant and proclamation was not secured by the prosecution and the evidence of the said witness is taken as nil. In the absence of the prime witness the victim CW.4 it is very difficult to ascertain that the accused by trafficking CW.4 indulged her in prostitution business and leading her life on the said illegal gain. Non-examination of the material witness victim CW.4 is also fatal for the case of prosecution.
13.In the the evidence PW.1 deposed that after conducting the raid he had executed panchanama Ex.P2 in the presence of panchas and seized MOs1 and 2 from the spot and later produced the accused along with seized properties and documents before the jurisdictional P.S., SHO CW.9/PW.2 and submitted a report Ex.P3, and based on the said report, CW.9/PW.2 has registered the case against accused in Crime No.123/2019 and submitted Ex.P4 FIR.
14.As already discussed above, the police official witness PW.1 though given evidence about the raid and seizure of material objects MOs1 and 2 from the possession of accused, but in the cross-examination the said witness has admitted that he has not called any women from the locality to be the pancha nor there is an evidence from the witness that in spite of his request no women panchas from the locality have 9 SC No.1967/19 denied to be the pancha in spite of admission of the witness that the said raided spot is densely populated. The pancha CW.2/PW.3 Awaiz and CW.3 are the male persons out of the m PW.3 in his cross-examination has clearly deposed that he does not the exact time when the panchanama was executed and also he had no knowledge regarind the execution of Panchanama Ex.P2, the another pancha CW.3 is not secured by the prosecution, in spite of issuance of warrants and proclamation. 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 witness the search, and may issue an order in writing to them or any of them so to do:
It is crystal clear from the provisions of Sec.15(2) of ITP Act, 1956 that it mandates that two or more respectable inhabitants of the locality in which the place to be searched is 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, and they not supported the case of the prosecution. Even in the cross-examination of I.O., PW.2 he admitted that after taking the investigation of the case, he has not visited the spot, nor he has recorded the statements of the 10 SC No.1967/19 witnesses to ascertain whether the accused was indulging in committing the alleged offence in the raided house. From this fact it is crystal clear that the complainant/PW.1 has not complied the mandatory provisions of Sec.15(2) of ITP Act. It is also equally important to note that the police officials PW.1, and the investigation Officer PW.2, who has filed the charge sheet, have admitted that in spite of dense locality and adjoining residential houses, near the place of raid, as witnesses for mahazar nor recorded the statements regarding the occurrence of the alleged offence against the accused. It is equally important to note that though the incidental spot is a public place adjoining to commercial shops, non citing of the local persons as a witness by the Investigating Officer_PW.2 also creates a doubt in the prosecution case regarding the conduct of raid and and apprehending of the accused along with the victim/Smt. Manjula who is cited as CW.4 and forced to indulging committing prostitution and seizure of MOs1 and 2 as per Ex.P2 panchanama is fatal to the case of the prosecution.
15.Further in the evidence the said SHO/I.O., PW.2 Shivappa, who deposed that after submitting the FIR recorded the statements of the witnesses and after completion of investigation has filed charge sheet against the accused. It is pertinent to note that in the cross-examination the I.O., PW.2 has deposed that he has not collected any documents to ascertain to whom the said raided house belongs, but he has collected only the electricity bill and has not enquired whether the name appeared in the bill is the owner of the said house. From this admission of the I.O., it is crystal clear that he has 11 SC No.1967/19 never investigated the case to who the said raided house belongs and on what status the accused was residing in the said house. Further it is denied by PW.2 that he has no authority to investigate the case and file charge sheet against the accused person.
16. It is vehemently argued by the accused counsel and brought to the notice of the Court the evidence of I.O.,/PW.2 who deposed that at the time of the incident he was working as Police Sub-inspector of Bandepalya P.S., and after registering the complaint and after completion of investigation and has filed the charge sheet was not authorized not a Special Police Officer, as specified by the State Government or on behalf of the Government in investigating the cases pertaining to the ITP Act.
17.At this juncture I would like to refer the provision of Sec.13(2) of the ITP Act, 1956, wherein it is mandatory that the investigation has to be done by Special Officer and an Advisory body i.e., the Special Police Officer, who shall not be, below the rank of Police Inspector, having authority to investigate the case and file charge sheet. In the instant case the I.O., PW.2 has not produced any document to show that he 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.2 clearly discloses that he being in the rank of Police Sub-Inspector, who had registered the case and recored the statements of the witnesses during investigation and filed charge sheet. It is the specific defense of the accused that the witness PW.2 who had 12 SC No.1967/19 investigated the case has no authority as per the provisions of ITP Act to investigate the case 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 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.2 PSI who registered the case and investigated by recording the statements of the witnesses, submitted 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.
18.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 13 SC No.1967/19 another , wherein this Court in the said petition also has categorically held that the Police Officer who is below the rank of the Police Inspector has no jurisdiction to investigate the matter and file charge sheet under the above said provisions.
19.Relying upon the above said provision of Section 13(2) of the said Act and the dictum of law laid down in the above said ruling it is crystal clear that the investigation done by the Police-Sub-Inspector PW.2 is vitiated by serious procedural irregularity and not curable in nature.
20.Therefore, from the above reasons and discussions it is very crystal clear that the prosecution has utterly failed to establish or prove the guilt against the accused beyond all reasonable doubt. Accordingly, I answer Points No. 1 and 2 in the negative.
21.Point No.3: In view of answer of this court on points No.1 and 2, this court pass the following:-
ORDER Acting U/s.235(1) of Cr.P.C., the accused is hereby acquitted of the offences punishable U/s.3, 4, 5 and 6 of the Immoral Traffic (Prevention) Act, 1956 and Sec.370 of Indian Penal Code, 1860.
The bail and surety bonds of accused stand canceled.
MO1 shall be destroyed and MO2 shall be confiscate to the State after appeal period is over. (Typed to my dictation by the Judgment Writer directly on Computer, corrected by me and then pronounced in open Court on this the 21st day of April, 2022) (Abdul Rahim Husain Shaikh) XLV Addl. City Civil & Sessions Judge, Bengaluru.
14 SC No.1967/19ANNEXURE List of Witnesses examined on behalf of Prosecution:
P.W.1: Sudhakara.A. B., P.W.2: Shivappa R Sonnada P.W.3: Awaiz P.W.4: Abdul Asif
List of Documents exhibited on behalf of Prosecution:
Ex.P.1: Notice to witnesses Ex.P.2: Mahazar Ex.P.3: Complaint. Ex.P.4 FIR No.123/2019 dated 26.06.2019.
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: Condoms
MO2: Cash of Rs.1,000/-(Rs.500/- each).
(Abdul Rahim Husain Shaikh)
XLV Addl. City Civil & Sessions Judge,
Bengaluru.
15 SC No.1967/19
Judgment pronounced in the open Court
vide its separate order
ORDER
Acting U/s.235(1) of Cr.P.C., the accused is hereby acquitted of the offences punishable U/s.3, 4, 5 and 6 of the Immoral Traffic (Prevention) Act, 1956 and Sec.370 of Indian Penal Code, 1860.
The bail and surety bonds of accused stand canceled. MO1 shall be destroyed and MO2 shall be confiscate to the State after appeal period is over.
(Abdul Rahim Husain Shaikh) XLV Addl. City Civil & Sessions Judge, Bengaluru.