Bangalore District Court
That He Deputed One Of His Staff Cw.8 As vs Persons And Accordingly He Had Been To ... on 12 April, 2022
KABC010121072016
IN THE COURT OF XLV ADDL. CITY CIVIL & SESSIONS
JUDGE, BENGALURU CITY (CCH-46)
DATED THIS THE 12TH 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.706/2016
BETWEEN
State by Girinagar P.S.,
Bangalore. .. COMPLAINANT
(By the learned Public Prosecutor)
AND
1.Smt. Sangeetha @ Kasturi
C/o Late Devaraj, A/a 35 Yrs.,
R/a No.41, 17th A Main,
Srinivasanagara, Bank Colony,
BSK I Stage, Bangalore-560 050.
2.Smt. Gowri
C/o Prabhu @ Raghu, A/a 43 Yrs.,
C/o r/o Shashikala Building, 13th Main,
5th Cross, Near Bettaiah Hotel,
Magadi Road,
Bangalore. ...ACCUSED
(By Sri KP, Advocate)
******
2 SC No.706/16
Date of offence & time 11.02.2015 at 4.30 p.m.
Date of report of offence 11.02.2015 at 19.00 hours
Date of arrest of the accused 12.02.2015
Date of release on bail 2.3.2015
Total period of custody 18 days
Name of the complainant Sri K. S. Thanvir.
Date of commencement of 28.02.2020
recording of evidence
Date of closing of evidence 28.02.2020
Offences complained of U/s.3, 4, 5 and 7 of ITP Act and
Sec..370(3) and 370A(2) r/w
Sec.34 of IPC
Opinion of the Judge Accused found not guilty
JUDGMENT
The Police Inspector, Girinagar Police Station, Bangalore, has filed charge sheet against accused No.1 and 2 for the offences punishable U/s.3, 4, 5 and 7 of ITP Act and Sec..370(3) and 370A(2) r/w Sec.34 of IPC in Crime No.62/2015.
2. The factual matrix of the case is that :-
The accused No.1 and 2 were running prostitution business at residential house bearing No.41, situated at 17th A Main, Srinivasanagara, BSK I stage, within the limits of Girinagar P.S., Bangalore by trafficking CW.4 and CW.5 with the false assurance of getting job at Bangalore, and indulged them in prostitution business in the public vicinity and were leading their life from the amount of illegal gain from the said business. On 11.02.2015 at 4.30 p.m. the complainant along with panchas and his staff conducted raid after obtaining credible information and apprehended accused persons, who were involved in the prostitution business, rescued CW.4 and CW.5 and at that time 3 SC No.706/16 seized Mobile phones, condoms and cash from the spot through panchanama. Thereby the accused No.1 and 2 are alleged with the offences punishable U/s.370(3) and 370(A)(2) r/w Sec.34 of IPC and Sec.3, 4, 5 and 7 of Immoral Traffic (Prevention) Act, 1956.
3. The concerned police have submitted charge sheet against the accused No.1 and 2 for the offences punishable U/s.3, 4, 5 and of Immoral Traffic (Prevention) Act, 1956 of IPC and Sec.370(3) and Sec.370A(2) r/w Sec.34 of IPC, before the jurisdictional XXIV 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.1 to 2. The same is numbered as SC No.706/2016 in this Court.
4.The charge was framed against the accused No.1 and 2 on 16.01.2020 for the offences punishable U/s.3, 4, 5 and 7 of ITP Act and Sec.370 of IPC. The accused No.1 and 2 have pleaded not guilty and claimed to be tried.
5.The prosecution has examined in all three witnesses as PW.1 to PW.3 and got marked documents at Ex.P.1 to P.5, and identified Mos1 to 4. The learned Public Prosecutor has given up the witnesses CW.6, CW.7 CW.9, CW.10 and CW.12 on 08.02.2022, 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.2 to CW.4, but the concerned police failed to secure the said witnesses and in view of the same on 24.02.2022 and on 4.1.2022 the evidence 4 SC No.706/16 of CW.2 to 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.2 to CW.4, in view of the same dropping of evidence of CW.2 to 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 19.3.2022, and the same was duly recorded. The accused No.1 and 2 did not claim for defense evidence nor produced any documents to support their case in spite of sufficient opportunities. The accused No.1 and 2 have 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 No.1 and 2 a were running prostitution business at residential house bearing No.41, situated at 17th A Main, Srinivasanagara, BSK I stage, within the limits of Girinagar P.S., Bangalore by trafficking CW.4 and CW.5 with the false assurance of getting job at Bangalore, and indulged them in prostitution business in the public vicinity and were leading their life from the amount of illegal gain from the said business and thereby the accused No.1 and 2 have committed an offences punishable U/s.3, 4, 5 and 7 of ITP Act?5 SC No.706/16
2. Whether the prosecution proves that the accused No.1 and 2 with an intention to run prostitution business by trafficking CW.4 and 5 with false assurance of gettingj ob at Bengaluru, forcibly induced them to indulge in prostitution business for wrongful gain, and thereby the accused No.1 and 2 have committed an offence punishable U/s.370 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:-
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 No.1 and 2 The accused No.1 and 2 were running prostitution business at residential house bearing No.41, situated at 17th A Main, Srinivasanagara, BSK I stage, within the limits of Girinagar P.S., Bangalore by trafficking CW.4 and CW.5 with the false assurance of getting job at Bangalore, and indulged them in prostitution business in the public vicinity and were leading their life from the amount of illegal gain from the said business. On 11.02.2015 at 4.30 p.m. the complainant along with panchas 6 SC No.706/16 and his staff conducted raid after obtaining credible information and apprehended accused persons, who were involved in the prostitution business, rescued CW.4 and CW.5 and at that time seized Mobile phones, condoms and cash from the spot through panchanama. Thereby the accused No.1 and 2 are alleged with the offences punishable U/s.370(3) and 370(A)(2) r/w Sec.34 of IPC and Sec.3, 4, 5 and 7 of Immoral Traffic (Prevention) Act, 1956
12.In order to prove the said allegation the prosecution has examined the complainant PW.1 Thanveer Ahmed who deposed that on 11.022015 after obtaining credible information regarding prostitution carried out at residential house bearing No.41, situated at 17th A Main, Srinivasanagara, BSK I stage, within the limits of Girinagar P.S., Bangalore, he secured the witnesses CW.8 to 10 and after instructing them regarding the raid left the office at 3.45 p.m. and reached the spot to be raided at 4.00 p.m. where CW.2 and CW.3 secured the panch witness with the assistant of his staff and executed the notice and record of reasonings. Further it is the evidence of complainant/PW.1 that he deputed one of his staff CW.8 as decoy and handed over Rs.2,000/- to him to trap the accused persons. Further it is the evidence of PW.1 that on confirmation of prostitution carried out in the said house from CW.8 decoy raided the spot along with his staff and panch witnesses CW.2, 3, 9 and 10, and found three girls sitting on the sofa in the said house, who on enquiry showed them a room, where CW.8 was permitted to carry prostitution with the girl. Further it is the evidence of PW.1 that when the said room was opened they 7 SC No.706/16 found decoy CW.8 along with one girl, who on enquiry stated that her name is Mageshwari and the accused No.1 and 2 had involved her and another lady Jayalakshmi CW.4 and CW.5 in prostitution business on pretext of assuring them to provide job. The two ladies in the hall on enquiry revealed that they were Sangeeetha and Gowri, who admitted that they had induced to indulging in carrying prostitution business through CW.4 and CW.5 by falsely assuring them to provide job. It is also the case of PW.1 that he has seized an amount of Rs.1,000/- from the possession of accused No.1 along with condoms and mobile from accused No.2 by executing the panchanama on the spot. Further produced the victims, accused along with panchanama, seized properties, statements of victims and accused persons before PW.3/CW.11 PSI Girinagar P.S., It is pertinent to note that in the cross-examination admitted that before raid he has not undergone physical verification along with decoy nor he is not able to say the exact face vale and number of currency notes an amount of Rs.2,000/- that has been handed over to the decoy for trapping the accused persons. It is also admitted by PW.1 in his cross-examination that he has not mentioned the face value and currency numbers in the seizure panchanama, which he has executed in presence of the panchas. It is equally important to note that the PW.1 has admitted the place of raid was densely populated with shops and residential house and he has not taken any efforts to secure the women from the locality as a pancha to the panchanama Ex.P3. It is also pertinent to note that the witness PW.1 has admitted that he has not seized the properties Mos1 to 3 and endorsed his 8 SC No.706/16 signature on the said articles. In the evidence of decoy PW.2 he deposed that on 11.02.2015 he was appointed as a decoy PW.1 by handing over an amount of Rs.2,000/- to trap the accused persons and accordingly he had been to the spot and after negotiation he has paid Rs.2,000/- to the accused and obtained their consent to carry on prostitution along with girls provided. Further it is the case of the PW.2 that after obtaining the hint PW.1 raided the spot and apprehended the accused persons along with victims, seized an amount of Rs.3,000/- from the possession of accused persons and out of the said amount returned an amount of Rs.2,000/- to decoy used for trapping the accused persons. At this juncture very important point that has to be taken consideration that the decoy has not deposed in his evidence regarding the face value, and number of seized an amount of Rs.3,000/- from the possession of accused. From this evidence of PW.1 and PW.2 it is crystal clear that the I.O., has not followed the procedural law while seizing currency notes and executing the panchanama Ex.P3 on the spot as regard to physical verification of himself, staff and decoy before raid and identifying the currency notes involved in trapping the accused persons. In view of the same the Ex.P3 Panchama does not discloses as to the face value and number of the currency notes that has been handed over to decoy PW.2 by the complainant PW.1 and the same had been seized from the possession of accused persons through panchanama Ex.P3. The prosecution has not examined the panchas CW.2 and CW.3 in spite of issuance of summons and 9 SC No.706/16 warrant in proving the seizure panchanama Ex.P3, which is fatal for the case of the prosecution.
13. As already discussed above, the police official witness PW.1 though given evidence about the raid and seizure of material objects MOs1 to 4 from the possession of accused No.1 and 2, 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 denied to be the pancha in spite of admission of the witness that the said raided spot is densely populated. The pancha CW.2 and CW.3 are the male persons were 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.10 SC No.706/16
In the instant case the panch witnesses, who were cited are male persons, and were not examined by the prosecution. Even in the cross-examination of I.O., PW.3 he admitted that after taking the investigation of the case, he has not visited the spot, nor he has recorded the statements of the witnesses, who were carrying out their business near the raided spot. 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 by not securing the female person as the pancha to the panchanama Ex.P3 from the locality. It is equally important to note that though the incidental spot is a public place adjoining to commercial shops, non citing of the local person specially a women a panch/witness by the Investigating Officers_PW.1 and PW.3 creates a doubt in the prosecution case regarding the conduct of raid and apprehending of the accused No.1 and 2 along with the victims who were forced to indulging in committing prostitution and seizure of MOs1 to 4 is fatal to the case of the prosecution.
14.In order to prove the allegations against the accused persons the prosecution has examined PW.3 the Police Official K. Subramani, who deposed that at the time of occurrence of the said incident he was working as a PSI at Girinagar P.S., and CW.1/PW.1 has produced the victims, seized properties and accused persons, along with complaint Ex.P4, which he has registered in crime No.62/2015 and submitted FIR Ex.P.5 to his higher officials and to the Court. Further it is the evidence of PW.3 that he has entered the property particulars in PF No.8/2015 MOs1 to 4. Further it is the evidence of PW.3 I.O., 11 SC No.706/16 that he has recorded the statements of the witnesses and the panchas CW.8 to CW.10 and panchas CW.2 and CW.3. Further it is the evidence of PW.3 I.O., that after completing the investigation he has submitted charge sheet against the accused persons to the Court. In the cross-examination of PW.3 admitted that after obtaining the investigation he has never visited the spot and by enquiring secured the witnesses, who have present at the time of raid. It is also pertinent to note that the prime witnesses CW.2 to CW.5 were not secured by the prosecution in spite of sufficient warrants and proclamation. The non-examination of the material victim witnesses CW.4 and CW.5 is fatal for the prosecution case, who according to the prosecution were indulging in prostitution business by accused persons. It is vehemently argued by the accused counsel and brought to the notice of the Court the evidence of I.O.,/PW.3 who deposed that at the time of the incident he was working as Police Sub-inspector of Girinagar P.S., and after completion of investigation has filed the charge sheet. This clearly discloses that the said I.O., PW.3 who was not authorized as Special Police Officer, as specified by the State Government or on behalf of the Government in investigating the cases pertaining to the ITP Act has filed a charge against the provisions of the Act..
15.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 12 SC No.706/16 case and file charge sheet. In the instant case the I.O., PW.3 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.3 clearly discloses that he being in the rank of Police Sub-Inspector, who had registered the case, recored the statements of the witnesses and after completing investigation filed charge sheet. It is the specific defense of the accused that the witness PW.3 who had 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.3 PSI who registered the case and investigated by recording the statements of the witnesses, submitted charge 13 SC No.706/16 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.
16.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 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.
17.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.3 is vitiated by serious procedural irregularity and not curable in nature.
18.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 No.1 and 2 beyond all reasonable doubt. Accordingly, I answer Points No. 1 and 2 in the negative.
19.Point No.3: In view of answer of this court on points No.1 and 2, this court pass the following:-
14 SC No.706/16ORDER Acting U/s.235(1) of Cr.P.C., the accused No.1 and 2 are hereby acquitted of the offenses punishable U/s.3, 4, 5 and 7 of the Immoral Traffic (Prevention) Act, 1956 and Sec.370 of Indian Penal Code, 1860.The bail and surety bonds of accused No.1 and 2
stand canceled.
MO3 shall be destroy and MOs1, 2 and 4 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 12th day of April, 2022) (Abdul Rahim Husain Shaikh) XLV Addl. City Civil & Sessions Judge, Bengaluru.15 SC No.706/16
ANNEXURE List of Witnesses examined on behalf of Prosecution:
P.W.1: K. S. Thavir P.W.2: Manjunatha P.W.3: K. Subramani.
List of Documents exhibited on behalf of Prosecution:
Ex.P.1: Notice. Ex.P.1a: Signature of PW.1 Ex.P.2: Record of reasons Ex.P.2a: Signature of PW.1 Ex.P.3: Mahazar Ex.P.3a: Signature of PW.1 Ex.P.4: Complaint. Ex.P.4a: Signature of PW.1 Ex.P.4b: Signature of PW3 Ex.P.5: FIR Ex.P.5a: Signature of PW.3.
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:- MOs1 to 4: Mobile Phones, condoms and cash of Rs.1,000/-
(Abdul Rahim Husain Shaikh) XLV Addl. City Civil & Sessions Judge, Bengaluru.16 SC No.706/16 17 SC No.706/16
Judgment pronounced in the open Court vide its separate order ORDER Acting U/s.235(1) of Cr.P.C., the accused No.1 and 2 are hereby acquitted of the offenses punishable U/s.3, 4, 5 and 7 of the Immoral Traffic (Prevention) Act, 1956 and Sec.370 of Indian Penal Code, 1860.
The bail and surety bonds of accused No.1 and 2 stand canceled.
MO3 shall be destroy and MOs1, 2 and 4 shall be confiscate to the State after appeal period is over.
(Abdul Rahim Husain Shaikh) XLV Addl. City Civil & Sessions Judge, Bengaluru.