Bangalore District Court
Who Raided The Spot Along With Panchas S vs Persons To The Court. In The ... on 26 March, 2022
KABC010152312018
IN THE COURT OF XLV ADDL. CITY CIVIL & SESSIONS
JUDGE, BENGALURU CITY (CCH-46)
DATED THIS THE 26TH DAY OF MARCH, 2022
PRESENT:
Sri. Abdul Rahim Husain Shaikh,
B.Sc., B.Ed., LL.B.(Spl.)
XLV Addl. City Civil & Sessions Judge,
Bengaluru.
SC No.922/2018
BETWEEN
State by Sanjaynagar P.S.,
Bangalore. .. COMPLAINANT
(By the learned Public Prosecutor)
AND
1.Dhananjaya @ Jayanna
S/o Dollaiah,a
A/a 43 Yrs.,
R/a No.18/2, Srigandadakaval,
Sunkadakatte, Sollapuradamma Layout, Bangalore.
2.Shashikumar
3.Ganesh
4.Geetha
5.Renuka (absconding/ split up) ..ACCUSED
(By Sri KP, Advocate)
******
Date of offence & time 14.06.2013 at 9.30 hours .
Date of report of offence 14.06.2013 at 11.30 hours
2 SC No.922/18
Date of arrest of the accused Not arrested due to anticipatory
bail
Date of release on bail A1 on 1.8.2013
Total period of custody ...days
Name of the complainant Sri AJ Kariappa.
Date of commencement of 03.01.2022
recording of evidence
Date of closing of evidence 02.01.2022
Offences complained of U/s.4, 5 and 6 of ITP Act
Opinion of the Judge Accused found not guilty
JUDGMENT
The Police Sub-Inspector, Sanjaynagar Police Station, Bangalore, has filed charge sheet against accused No.1 and others for the offences punishable U/s.4, 5 and 6 of Immoral Traffic (Prevention) Act, 1956 in Crime No.179/2013.
2. The factual matrix of the case is that :-
The accused persons by using the white color Maruti Van bearing No.KA_05_Z_3745 near Nandini Milk Parlour situated at 4th Cross, III Stage, AECS Layout, within the limits of Sanjaynagar P.S., Bangalore and indulged prostitution business by trafficking and supplying victims/girls with the false assurance of getting job at Bangalore, and were leading their life from the amount of illegal gain from the said business. On 14.06.2013 at 9.30 a.m. the complainant along with CW.2, 3, and 4 to 7 conducted raid, and apprehended accused No.2 to 5 who were involved in the prostitution business, and rescued victim girls, and at that time seized mobile phones and Maruti Van etc., from the spot. Thereby the accused persons are 3 SC No.922/18 alleged with the offences punishable U/s.4, 5 and 6 of Immoral Traffic (Prevention) Act, 1956.
3. The concerned police have submitted charge sheet against the accused No.1 to 5 for the offences punishable U/s.4, 5 and 6 of Immoral Traffic (Prevention) Act, 1956 of IPC, before the jurisdictional VIII 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 by split up the case against accused No.3 to 5. The same is numbered as SC No.922/2018 in this Court. The case against No.2 has been split up and has been registered in SC No.1501/2021 on 9.12.2021.
4.The charge was framed against the accused No.1 on 20.12.2021 for the offences punishable U/s.4, 5 and 6 of ITP Act and Sec.370 of IPC. The accused No.1 has pleaded not guilty and claimed to be tried.
5.The prosecution has examined in all two witnesses as PW.1 and PW.2 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.4 to CW.7 on 01.02.2022, 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 and CW.3, but the concerned police failed to secure the said witnesses and in view of the same on 3.3.2022 the evidence of CW.2 and CW.3 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 and CW.3, in 4 SC No.922/18 view of the same dropping of evidence of CW.2 and CW.3 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 7.3.2022, and the same was duly recorded. The accused No.1 did not claim for defense evidence nor produced any documents to support his case in spite of sufficient opportunities. The accused No.1 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 No.1 along with accused No.2 to 5 by using white color Maruti Van bearing No.KA_05_Z_3745 near Nandini Milk Parlour situated at 4th Cross, III Stage, AECS Layout, within the limits of Sanjaynagar P.S., Bangalore were supplying the girls to the customers and running the prostitution business by trafficking victims/girls 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 has committed an offences punishable U/s.4, 5 and 6 of ITP Act?5 SC No.922/18
2. Whether the prosecution proves that the accused No.1 along with accused No.2 to 5 with an intention to run prostitution business by trafficking girls forcibly induced them to indulge in prostitution business for wrongful gain, and thereby the accused No.1 has 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 persons by using the white color Maruti Van bearing No.KA_05_Z_3745 near Nandini Milk Parlour situated at 4th Cross, III Stage, AECS Layout, within the limits of Sanjaynagar P.S., Bangalore and indulged prostitution business by trafficking and supplying victims/girls with the false assurance of getting job at Bangalore, and were leading their life from the amount of illegal gain from the said business. On 14.06.2013 at 9.30 a.m. the complainant along with CW.2, 3, and 4 to 7 conducted raid, and apprehended accused No.2 to 5 who were involved in the 6 SC No.922/18 prostitution business, and rescued victim girls, and at that time seized mobile phones and Maruti Van etc., from the spot. Thereby the accused persons are alleged with the offences punishable U/s.370 of IPC and Sec.4, 5 and 6 of Immoral Traffic (Prevention) Act, 1956.
12.In order to prove the said allegation the prosecution has examined the complainant PW.1 Kariappa who deposed that on 14.06.2013 after obtaining credible information regarding prostitution carried out near Nandini Parlor, Dhanalakshmi Milk Center, within the limits of Sanjaynagar P.S., Bangalore, he along with his staff Cw.4 to Cw.7 secured the panch witness and out of them appointed one person by name Prathap and requested to be decoy and instruted him to after ascertaining the involvement of the accused in prostitution business. Further it is the case of the complainant/PW.1 and amount of Rs.3,000/- was paid to the decoy, to use it in trapping the accused persons and accordingly decoy went to the spot and ascertaining the prostitution business, intimated the complainant/PW.1 who raided the spot along with panchas s and staff and resecued CW.2 and CW.3 and seized MOs1 to 4 from the possession of accused and later produced before PW.2 the jurisdictional police station SHO, who registered a crime against accused persons. It is pertinent to note that in the cross-examination PW.1 admitted that he has not obtained the written search warrant from his higher officials, but have executed record of reasons. It is pertinent to note that the notice issued by the panchas has been marked as Ex.P1, but the record of reasonings that has been executed by PW.1 as 7 SC No.922/18 per his evidence is not produced before the Court and not marked. It is the specific contention of the accused counsel that PW.1 has never executed record of reasons and has raided the spot without any authority. On perusal of the documents it is crystal clear that has never obtained the search warrant nor he has executed the record of reasons, which is a material document to be executed prior to the raid. The I.O., PW.2 has not produced any sufficient evidence regarding the execution of record of reasons by PW.1. Further it is also pertinent to note that he admitted that he has not conducted any search warrant of himself, staff and panchas and event the decoy, whom he has appointed to visit the vehicle, where the prostitution was reported to be carried out by the accused persons. Further it is also very important to note that according to PW.1 he has executed the panchanama Ex.P2, but in the panchanama there is no mention as to the face value of currency note of Rs.3,000/- that has been handed over to the decoy Prathap to trap the accused. Further it is the evidence of PW.1 that at the time of panchanama he has received the said amount of Rs.3,000/- from the possession of accused by name Shashikumar which was used by the decoy to trap the accused persons. At this juncture as vehemently argued by the counsel for accused that the amount has not been seizued and the face value of the currency notes of Rs.3000/- that has been handed over to the decoy to trap the accused and later recovered from the accused is not mentioned in the panchanama Ex.P2. The fact regarding the descriptions of the face value of the currency notes not mentioned in the panchanama Ex.P2 is admitted by 8 SC No.922/18 the complainant/PW.1. This evidence of PW.1 creates suspicion regarding the currncy note of Rs.3,000/- that has been used by PW.1 in traping the accused through the decoy Prathap. It is equally important to note that the said decoy Prathap is not cited as witness in the charge sheet nor the prosecution has attempted to secure the said person as a witness to prove that on the date of the incident he was appointed as a decoy and after trapping the accused perosns indulging in the prostitution business to PW.1, who conducted the raid. Non-citing the material witness is fatal to the case of the prosecution. Further it is also important to note that the panch witnesses to Ex.P2 panchanama CW.2 and CW.3 were not secure before the Court in spite of proclamation and not examined to prove the averments of Ex.P2 panchanama regarding the seizure of MO1 to MO4 and the vehicle mentioned in Ex.P5 from the spot. Though according to the complanant/PW.1 he has execute the Ex.P2 panchanama in the presence of panhas CW.2 and 3, the same is not sufficiently and satisfactorily proved. In view of the same the Ex.P2 Panchama has lost its evidentiary value has not sufficiently and satisfactorily proved by 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.2 to 5, 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.922/18 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. 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.2 he admitted that after taking the investigation of the case, he has not visitied the spot, nor he has recorded the statements of the witnesses, who are 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. It is also equally important to note that the police officials PW.1, and 10 SC No.922/18 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 No.2 to 5 along with the victims Renuka and Geetha who are cited as accused No.4 and 5 who were forced to indulging 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 the PW.2/CW.11 the Police Official S Narasimhaiah, who deposed that at the time of occurrence of the said incident he was working as a PSI at Sanjanagar P.S., and CW.1/PW.1 has produced the victims, seized properties and accused persons, along with complaint Ex.P3, which he has registered in crime No.179/2013 and submitted FIR Ex.P4 to his higher officials and to the Court. Further it is the evidence of PW.2 that he has entered the property particulars in PF No.51/2013 MOs1 to 4. Further it is the evidence of PW.2 I.O., that he has recorded the statements of the witnesses and the panchas CW.2 to CW.7. 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 11 SC No.922/18 PW.2 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 and CW.3 were not secured by the prosecution in spite of sufficient warrants and proclamation. The non-examination of the material victim witnesses CW.2 and CW.3 is fatal for the prosecution case, since the accused persons indulging in prostitution business. It is pertinent to note that according to the complainant/PW.1 one independent witness by name Prathap was deputed as decoy, but the I.O., PW.2 has not recorded his statement not cited him as witness in the final report. Non-citing the material witnesses decoy on whose information the complainant/PW.1 has conducted the raid and apprehended the accused persons and seized Mos.1 to 4 is fatal for the prosecution case. It is vehemently argued by the accused No.1 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 Sanjaynagar 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.
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.922/18 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 No.1 that the witness PW.2 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.2 PSI who registered the case and investigated by recording the statements of the witnesses, submitted charge 13 SC No.922/18 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.2 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 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.922/18ORDER Acting U/s.235(1) of Cr.P.C., the accused No.1 is hereby acquitted of the offenses punishable U/s.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 No.1 stand canceled.
MOs1 to MOs4 shall be retained till the disposal of split up case as registered against accused No.2 to
5.
(Typed to my dictation by the Judgment Writer directly on Computer, corrected by me and then pronounced in open Court on this the 26th day of March, 2022) (Abdul Rahim Husain Shaikh) XLV Addl. City Civil & Sessions Judge, Bengaluru.
15 SC No.922/18ANNEXURE List of Witnesses examined on behalf of Prosecution:
P.W.1: Kariappa P.W.2: Narasimahaiah.
List of Documents exhibited on behalf of Prosecution:
Ex.P.1: Notice. Ex.P.1a: Signature of PW.1 Ex.P.2: Mahazar Ex.P.2a: Signature of PW.1 Ex.P.3: Complaint. Ex.P.3a: Signature of PW.1 Ex.P.4: FIR No.179/2013 dated 14.06.2013 Ex.P.4a: Signature of PW.2 Ex.P.5: Vehicle Photo.
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.
(Abdul Rahim Husain Shaikh) XLV Addl. City Civil & Sessions Judge, Bengaluru.16 SC No.922/18
Judgment pronounced in the open Court vide its separate order ORDER Acting U/s.235(1) of Cr.P.C., the accused No.1 is hereby acquitted of the offenses punishable U/s.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 No.1 stand canceled. MOs1 to MOs4 shall be retained till the disposal of split up case as registered against accused No.2 to 5.
(Abdul Rahim Husain Shaikh) XLV Addl. City Civil & Sessions Judge, Bengaluru.17 SC No.922/18