Karnataka High Court
S Geetha vs State By Women Police on 14 December, 2018
Author: K.Somashekar
Bench: K.Somashekar
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IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 14TH DAY OF DECEMBER, 2018
BEFORE
THE HON'BLE MR.JUSTICE K.SOMASHEKAR
CRIMINAL REVISION PETITION NO.1008 OF 2011
BETWEEN
S. Geetha,
W/o Nagaraja,
Staff Nurse in
City Central Hospital,
Aged about 35 years,
Resident of 10th Cross,
Vinobha Nagara,
Davanagere. ... Petitioner
(By Sri. Madangouda N. Patil, Advocate for
Sri. R. Kothwal, Advocate)
AND
State by Women Police,
Davanagere. ... Respondent
(By Sri. S.T. Naik, HCGP)
This CRL.R.P. is filed under Section 397 Cr.P.C
praying to set aside the judgment and order dated
11.10.2010 passed by the JMFC, Davanagere in
C.C.No.1240/2005 and also judgment and order dated
29.08.2011 passed by the Principal District and Sessions
Judge, Davanagere in Crl.A. No. 28/2011.
This CRL.R.P. coming on for hearing, this day, the
court made the following:
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ORDER
This Criminal Revision Petition has been preferred by the petitioner / accused S. Geetha under Section 397 Cr.P.C. praying to set aside the order on I.A.No.1 dated 29.08.2011 passed in Crl.A.No.28/2011 by the Principal District & Sessions Judge, Davanagere confirming the judgment of conviction and order of sentence dated 11.10.2010 in C.C.No.1240/2005 passed by the JMFC-I, Davanagere and thereby acquit the petitioner. By the judgment of the Trial Court, the accused was sentenced to undergo simple imprisonment for one year and to pay a fine of Rs.1,000/- for the offence under Section 3 of the Immoral Traffic (Prevention) Act, 1956 (for short 'ITP Act') along with default clause. Further, the accused was sentenced to undergo simple imprisonment for six months and to pay a fine of Rs.500/- for the offence punishable under Section 4 of the 'ITP Act' along with default clause. The sentences were to run concurrently.
2. Heard the learned counsel for the petitioner - accused and the learned HCGP for the respondent. :3:
3. The factual matrix of this petition is as under:
The case of the prosecution was that the present petitioner / Accused No.5 Geetha had taken the house bearing Door No.2843 situated at MCC 'B' Block, 4th Main, 3rd Cross, Davanagere on lease basis and was residing there. On 5.2.2005 at about 6.30 p.m., PW-3 being the CPI, Central Circle, Davanagere, had raided the said house of Geetha and found that Accused Nos.1 and 4 were involved in prostitution. It was the allegation that the petitioner / Geetha had allowed the said act of prostitution being carried in her house. The police had seized three mobile phones MOs 1 to 3 and cash of Rs.4,500/- from the said four accused persons. On receipt of complaint, Women Police Station, Davanagere had registered a case in Crime No.8/2005 and accused Nos.1 to 4 were arrested and produced before court and subsequently were released on bail. After laying of charge-sheet, in fact since Accused Nos.1 to 4 had pleaded guilty for the offence under Section 8 of the IPT Act, they were convicted. It is thereafter, the present :4: accused No.5 / petitioner was traced and was then arrested and produced before court and was then released on bail. On completion of the investigation, PW-3, laid a charge-sheet against the accused / petitioner under Sections 3 and 4 of the ITP Act and investigated the matter. Petitioner / Accused No.5 pleaded not guilty and claimed to be tried. To substantiate the case of the prosecution, the prosecution had examined 5 witnesses as PW-1 to PW-5 and got marked Exhibits P-1 and P-2 and also three mobiles as MOs 1 to 3. The statement of the accused under Section 313 Cr.P.C. was recorded wherein she denied the truth of the prosecution case but did not choose to tender any oral evidence on her behalf. After hearing the arguments of the prosecutor and the defence counsel, the Trial Court had convicted the accused for the offences under Sections 3 and 4 of the ITP Act and sentenced her as aforesaid.
The said judgment passed by the Trial Court was taken up in appeal before the First Appellate Court in Crl.A.No.28/2011. In the appeal, the appellant - Accused :5: No.5 had filed an application under Section 5 of the Limitation Act seeking to condone the delay of 107 days in preferring the appeal. The reason for the delay in preferring the appeal was stated that the accused had conceived and was suffering from pregnancy related problems due to which the Doctor had advised her rest and as such she was not able to consult her counsel in time and could not furnish information to file the appeal in time. The said I.A.1 came to be dismissed confirming the order of conviction and sentence passed by the Trial Court in C.C.No.1240/2005. It is these two judgments of the Trial Court as well as the First Appellate Court which are under challenge in the present Revision Petition.
4. Learned counsel for the petitioner contends that the First Appellate Court has erred in dismissing the appeal on the ground of limitation. It ought to have taken into consideration the fact that the petitioner / Accused No.5 had conceived and was suffering from pregnancy related problems and the fact that the Doctor had advised :6: her strict rest, due to which she was unable to contact her counsel and furnish information to file the appeal in time.
He further contends that merely because Accused Nos.1 to 4 had pleaded guilty for the offences under Section 8 of the ITP Act and a charge-sheet has been laid against Accused No.5 / petitioner for the offences under Sections 3 and 4 of the ITP Act, it cannot be said that the prosecution has proved the guilt of the accused Geetha that she has facilitated her house to Accused Nos.1 to 4 for the purpose of prostitution. Despite of which the accused has been convicted by the Trial Court.
It is the further contention of the learned counsel that Accused No.5 / petitioner was not at all present in the house when the raid took place. It is from the mahazar witnesses PWs 1 and 2 the police have come to know that the said house was occupied by accused No.5 / petitioner. Though PWs 1 and 2 have been examined, they have not been cross-examined regarding this aspect as to whether the accused No.5 was really the occupant of the raided house. Moreover, the fact that PWs 1 and 2 :7: have turned hostile regarding the seizure of properties MOs 1 to 3, is also to be taken into consideration. Hence, the learned counsel for the petitioner contends that the judgments of the Trial Court as well as the First Appellate Court may be set aside and the petitioner be acquitted of the offences levelled against her.
5. Per contra, the learned HCGP for the State contends that though PWs 1 and 2 have not been cross- examined regarding the house occupied by the petitioner, it would not totally cut the root of the prosecution case, since it has come in evidence that in fact the house was occupied by the petitioner / accused No.5 on lease basis. The statement of PW-1 who was residing nearby the house of accused No.5, cannot be disbelieved. Moreover, the fact that Accused Nos.1 to 4 as well had stated that they were doing prostitution business regularly in the house of Geetha - Accused No.5, cannot be lost sight of. Hence, he contends that the orders passed by the Trial Court as well as the First Appellate Court are well-reasoned orders :8: which do not call for any interference and hence seeks for dismissal of the revision petition.
6. On hearing the learned counsel for the revision petitioner as well as the learned Government Advocate, it is seen that as per the case of the prosecution, the police had raided the house which was said to be taken on lease by Accused No.5 / petitioner and found that Accused Nos.1 to 4 were involved in prostitution and framed charges against those accused and all the four accused pleaded guilty and were convicted for the offence under Section 8 of the ITP Act. However, this Accused No.5 / petitioner, was not present in the said house during the raid. She was apprehended after some days and was then charge-sheeted for the offence under Sections 3 and 4 of the ITP Act that she had facilitated prostitution in her house. But however, she had totally denied the case of the prosecution and told that she was in no way related to the case. PW-1 who was residing three houses away from the said raided house was examined. The said PW-1 in his examination-in-chief had stated that the house was :9: occupied by Geetha / present petitioner. But however, the said PW-1 was not at all cross-examined regarding the said aspect. Hence, it cannot be conclusively said that the raided house was occupied by the said Geetha / petitioner. Moreover, PW-2 who was secured by the police as a panch witness and who was not at all a neighbour or was not at all residing in that area, had stated to the effect that Geetha / petitioner was residing in the said raided house. Both PWs 1 and 2 who had given evidence to the effect that Geetha was the occupant of the raided house, have not at all been cross-examined to prove the said fact. The said lapse on the part of the prosecution has been brushed aside by the Trial Court, to pass the order of conviction dated 11.10.2010.
Added to it, the First Appellate Court not even giving an opportunity to Accused No.5 / petitioner, has proceeded to dismiss the application I.A.1 and consequently has affirmed the conviction order of the Trial Court. This has caused serious prejudice to the petitioner.
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7. Further, the said raid has been conducted without following the mandatory provisions of Section 15 of the Immoral Traffic (Prevention) Act, 1956, which reads as under:
15. Search without warrant.-(1) Notwithstanding anything contained in any other law for the time being in force, whenever the special police officer [for the trafficking police officer, as the case may be,] has reasonable grounds for believing that an offence punishable under this Act has been or is being committed in respect of a [person] living in any premises, and that search of the premises with warrant cannot be made without undue delay, such officer may, after recording the grounds of his belief, enter and search such premises without a warrant.
(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:
[Provided that the requirement as to the respectable inhabitants being from the locality in which the place to be searched is situate shall : 11 : not apply to a woman required to attend and witness the search.] (3) Any person who, without reasonable cause, refuses or neglects, to attend and witness a search under this section, when called upon to do so by an order in writing delivered or tendered to him, shall be deemed to have committed an offence under section 187 of the Indian Penal Code (45 of 1860).
(4) The special police officer or the trafficking police officer, as the case may be, entering any premises under sub-section (1) shall be entitled to remove therefrom all the persons found therein.] (5) The special police officer [or the trafficking police officer, as the case may be, after removing [the [person]] under sub-section (4) shall forthwith produce [him] before the appropriate magistrate.
[(5A) Any person who is produced before a magistrate under sub-section (5), shall be examined by a registered medical practitioner for the purposes of determination of the age of such person, or for the detection of any injuries as a result of sexual abuse or for the presence of any sexually transmitted diseases.
Explanation.-In this sub-section, "registered medical practitioner" has the same meaning as in the Indian Medical Council Act, 1956 (102 of 1956).] : 12 : (6) The special police officer [or the trafficking police officer, as the case may be,] and other persons taking part in, or attending, and witnessing a search shall not be liable to any civil or criminal proceedings against them in respect of anything lawfully done in connection with, or for the purpose of, the search.
[(6A) The special police officer or the trafficking police officer, as the case may be, making a search under this section shall be accompanied by at least two women police officers, and where any woman or girl removed under sub-section (4) is required to be interrogated, it shall be done by a woman police officer and if no woman police officer is available, the interrogation shall be done only in the presence of a lady member of a recognized welfare institution or organisation.
Explanation.-For the purpose of this sub- section and section 17A, "recognized welfare institution or organisation" means such institution or organisation as may be recognized in this behalf by the State Government.] [(7) The provisions of the Code of Criminal Procedure, 1973, (2 of 1974) shall, so far as may be, apply to any search under this section as they apply to any search made under the authority of a warrant issued under section 94 of the said Code.
(emphasis supplied) : 13 :
8. Therefore, Section 15 of the ITP Act which is a mandatory provision, has been violated by PW-3 before conducting the raid. Though warrant was not obtained in view of the fact that the accused persons required to be apprehended immediately, PW-3 ought to have recorded in writing the reason for not obtaining a prior warrant and then should have proceeded to conduct raid. This mandatory provision having not been followed, it has resulted in an irregularity and consequently has led to miscarriage of justice. The Trial Court as well, without taking into consideration the fact that the material witnesses PW-1 and PW-2 have not been cross-examined to prove the fact that the accused No.5 / petitioner was actually residing in the raided premises, had believed the examination of the said witnesses to be true and has proceeded to convict the accused. Moreover, as pointed out by the learned counsel for the petitioner, the application filed by the petitioner before the First Appellate Court has been rejected outright without taking into consideration the genuine delay that has been caused due to her pregnancy and related ailments. Hence, the : 14 : accused has been deprived of an opportunity to address her case. Hence, in my opinion, it has resulted in a miscarriage of justice. For the aforesaid reasons, I proceed to pass the following:
ORDER Criminal Revision Petition filed by the petitioner / accused No.5 under Section 397 read with Section 401 of the Cr.P.C. is hereby allowed. Consequently, the judgment of the Trial Court in C.C.No.1240/2005 dated 11.10.2010 and the judgment of the Appellate Court in Crl.A.No.28/2011 dated 29.08.2011 are set aside. The petitioner / accused No.5 is acquitted for the offences under Sections 3 and 4 of the ITP Act. If any fine amount has been deposited by the petitioner - accused, the same shall be refunded to her, on proper identification.
Sd/-
JUDGE KS