Bangalore District Court
State By Cubbonpark P.S vs Unknown on 9 December, 2020
IN THE COURT OF THE VIII ADDL. C.M.M., BENGALURU.
Dated this the 9th day of December 2020
Present: Sri.Vignesh Kumar, LL.M.
VIII ADDL.C.M.M., BENGALURU.
C.C. NO.24147/2012
JUDGMENT U/S 355 OF THE Cr.P.C. 1973.
1. Sl. No. of the Case 24147/2012
2. The date of commission 26082012
of the offence
3. Name of the complainant State by Cubbonpark P.S.
4. Name of the accused 1. Ravishankar @ Ramesh s/o
Appuswamy, aged 40 years,
r/at No.5/1, Murugesha
palya, HAL, Bangalore.
2. Prashant s/o Rudrappa,
aged 30 years, r/at No.32, 2nd
main road, J.C.Nagara,
Bangalore.
3. Sunita Dongana w/o late
Durbai, aged 26 years, r/at
Sartarsi village, Japa, Nepal.
(Split up in C.C.10357/2016)
4. Sanjay Meharotra
s/o Ramkishan Miharotra,
2 C.C.24147/2012
aged 48 years,
r/at No.663/1, Ayyappa
Nilayam, Adityangara,
R.T.Nagara Post, Bangalore.
5. The offence complained of U/s. 4, 5(A) and 7 of ITP Act
or proved
6. Plea of the accused and Pleaded not guilty
his examination
7. Final Order Acting U/sec.248(1) Cr.P.C.
accused 1, 2 and 4 are
acquitted
8. Date of such order 09122020
For the following:
JUDGMENT
This is the charge sheet filed by the PSI of Cubbonpark P.S. against the accused No.1 to 4 for the offences punishable U/sec.4, 5 (A) and & of Immoral Traffic (Prevention) Act, 1956 (hereinafter referred to as ITP Act).
2. The brief facts of the prosecution case is that:
On 26082012 at about 3.50 p.m., first informant CW1 S.Badarinath then Police Inspector of Cubbonpark Police Station received a credible information that in Room 3 C.C.24147/2012 No.313 of Ashraya International Hotel situated at Infantry Road within the limits of Cubbonpark Police Station act of prostitution is going on and as such CW1 after securing independent witness along with his staff raided the spot and at 5.00 p.m., saw that one lady split up accused No.3 herein was in semi naked state receiving cash of Rs.4,000/ from accused No.4. Upon raiding the said accused and making enquiry it is found out that the accused No.3 is a resident of Nepal and for the purpose of earning money out of prostitution she was procured by agents accused No.1 and
2. Similarly it is informed by accused No.4 that it was accused No.1 who had informed him with regard to the availability of prostitute. It is learnt by CW1 that the accused No.1 and 2 were receiving the commission for the act of prostitution carried out by accused No.3. Upon verification and search, the police were able to seize cash of Rs.30,000/ from the said room and also 4 Nirodh packets.
The police also seized one mobile phone from accused No.3; 4 C.C.24147/2012 and one mobile phone and cash of Rs.1,000/ from accused No.4. As it was informed that the accused No.1 and 2 were expected to visit the hotel to collect their commission, the police staff along with the independent witnesses waited up to 7.00 p.m., in the said hotel and as informed accused No.1 and 2 visited the hotel premises. However, upon seeing the police personnel the said accused No.1 and 2 tried to run away but they were apprehended. From the possession of accused No.1 total 4 mobile phones and cash of Rs.5,000/ and from the possession of accused No.2 one mobile phone and cash of Rs.500/ were seized. Further, car bearing Reg.No.KA03MP3294 which was used by accused No.1 to bring the customers for prostitution and one small red colour dairy was seized under detail mahazar. Thereafter, CW1 along with the accused and material objects came to the jurisdictional Cubbonpark Police Station and lodged first information on behalf of the government. After the registration of FIR the Investigating Officer collected the 5 C.C.24147/2012 documents from the hotel authority, recorded the statements of the witnesses and after the completion of investigation filed charge sheet against the accused for the aforementioned offences.
3. After filing of charge sheet accused No.1, 2 and 4 were secured and they were released on bail. Charge read over to the accused for the offence punishable U/sec.4, 5 (A) and & 7 of ITP Act. The accused have pleaded not guilty and claimed to be tried. Since accused No.3 remained absent, case against her is split up in C.C.10357/2016.
4. The prosecution in order to prove its case got examined all together 7 witnesses as PWs1 to 7. In total the prosecution is relying upon Ex.P1 to P10 documents and MO1 to 13. After the closure of prosecution side evidence, statement u/s 313 of CrPC was recorded. The accused have 6 C.C.24147/2012 denied the incriminatory materials against them. They have not preferred to lead defense evidence.
5. Heard arguments from both the sides.
6. The points that arise for determination are as follows:
1. Whether the prosecution proves beyond reasonable doubt that accused No.1 and 2 are living on the earning of prostitution and they had procured accused No.3 for the purpose of prostitution at Room No.313, Ashraya International Hotel within the jurisdiction of Cubbonpark Police Station and thereby accused No.1 and 2 have committed the offences punishable U/s.4, 5(A) of ITP Act?
2. Whether the prosecution proves beyond reasonable doubt that on 26082012 at about 5.00 p.m., at Room No.313 of Ashraya International Hotel when CW1 raided along with the independent mahazar witnesses and his staff accused No.3 was found carrying on the business of prostitution with her customer accused No.4 which is in the vicinity 7 C.C.24147/2012 of public place and accused No.1 and 2 had acted as brokers for the said act of the prostitution and thereby accused No.1 to 4 have committed the offences punishable U/s.7 of ITP Act?
3. What order?
7. The answer to the above points are as follows:
Point No.1 : In the negative Point No.2 : In the negative Point No.3 : As per final order for the following:
REASONS
8. Point No.1 and 2: In order to avoid the repetition of facts points No.1 and 2 taken together for common discussion.
9. The prosecution in order to prove its case, got examined all together 7 witnesses. The independent mahazar witnesses are examined as PW1 and 2 respectively. The Police Inspector who had raided accused and filed first 8 C.C.24147/2012 information is examined as PW3. The Police staff who had accompanied PW3 during the raid is examined as PW5. The house keeper and the Manager of the Ashraya International Hotel are examined as PW4 and 6 respectively. The Investigating Officer who had registered FIR and carried out entire investigation is examined as PW7. All together the prosecution has got marked Ex.P1 to P10 documents and Mo1 to 13 on its behalf.
10. Unfortunately, for the prosecution both the independent mahazar witness PW1 and 2 have completely turned hostile to the case. Further, the house keeper and the Manager of the Ashraya International Hotel PW4 and 6 also have completely turned hostile to the case of the prosecution. During the chief examination PW1 and 2 have refused to admit that they had accompanied PW3 Police Inspector during the alleged raid. They have denied to admit the drawing up of Ex.P2 mahazar and seizure of MO1 to 13 9 C.C.24147/2012 before them. Similarly, the officials of the hotel PW4 and 6 also have refused to admit the prosecution case and the raid conducted by the police. Although, the PW6 has admitted the booking of the room by accused No.3 but he has refused to admit that on the date of raid he was present at the hotel. As such there is absolutely no independent evidence in support of the alleged raid. Therefore, the only evidence which is available in favour of the prosecution in support of raid and drawing up of Ex.P2 mahazar is that of raiding police officials PW3 and 5 only.
11. No doubt, in their chief examination, PW3 and 5 have clearly spoken with regard to the raid conducted by them and seizure of MO1 to 13 from the possession of the accused, but during the cross examination of PW3 he has admitted that no woman was called as an independent witness before conducting the raid. It is apparent from the recitals of Ex.P2 mahazar that no independent woman from 10 C.C.24147/2012 the locality was made a mahazar witness. In this connection it is necessary to refer to Section 15 of ITP Act of 1956 which mandates the requirement for conducting search without warrant. As per the said provision before making a search it is necessary for the police officer to call upon 2 or more respectable inhabitants at least one of whom shall be a woman. As such, not taking a woman while conducting the raid is also fatal to the case of the prosecution. In the circumstance, evidence of police witness is not reliable to prove Ex.P2 mahazar. As such, the act of prostitution within the vicinity of public is not established. Therefore, section 7 of ITP Act is not proved by the prosecution beyond reasonable doubt.
12. In order to constitute the offences u/sec.4 and 5 of ITP Act the prosecution has to establish firstly that the accused had lived on the earning of prostitution. Secondly, accused 11 C.C.24147/2012 had procured or induced a person for the sake of prostitution.
13. In the present case, accused No.3 is the alleged sex worker and accused No.4 is her customer. In fact, strictly speaking sections 4 and 5 are not applicable to the victim sex worker and her customer. Only the prosecution can prove its case against accused No.1 and 2 who are the alleged commission agents or persons living on the prostitution and who had procured accused No.3 for prostitution. The best witness to prove the alleged offence committed by accused No.1 and 2 was the absconding accused No.3 herself. In stead of making her a witness, the police have wrongly arrayed her as an accused. Already cognizance is taken and my predecessor in office has split up the case against accused No.3 in C.C.10357/2016. As such, it is unnecessary to dwell upon the case as against accused No.3.
12 C.C.24147/2012
14. As far as accused No.4 who is the alleged customer of the prostitute is concerned prosecution would fail as the ingredients of Section 3 and 5 are not applicable to him. In this connection it is necessary to refer the decision of Hon'ble High Court of Karnataka in the case of Sarvan v/s. State of Karnataka 2018 SCC Online KAR 634, wherein while interpreting Sections 3, 4, 5 and 7 of ITP Act it is held as follows:
6. Therefore, the above said provisions are in no way attracted providing any punishment so far as the customer is concerned. Though it is felt by this court that the customer virtually encourages prostitution, and exploit the vicim for money, but in the absence of any specific penal provision, it cannot be said that he is liable for any prosecution for the above said offences.
15. Therefore, the scope of enquiry has to be restricted to prove the alleged offence committed by accused No.1 and 2 only. As already observed, the independent witnesses PW1, 2, 4, 6 have completely turned hostile to the case of 13 C.C.24147/2012 prosecution. The police officials PW3 and 5 who had raided the hotel have spoken with regard to the raid. However, for want of proving Ex.P2 mahazar their evidence is not sufficient to prove the case against accused. The remaining evidence is that of Investigating Officer who has registered FIR and carried on entire investigation process. In the entire investigation papers there is no materials collected to prove that accused No.1 and 2 had lived on prostitution and they had procured accused No.3 for the sake of prostitution. The Investigating Officer PW7 has collected Ex.P9 and P10 documents from the Ashraya International Hotel which only suggests that accused No.3 had paid advance and booked hotel room. Apart from that no investigation is conducted on the basis of mobile data and income of accused. As such, on the basis of said investigation prosecution cannot prove the role and involvement of accused No.1 and 2 in the alleged act of prostitution. Therefore, ingredients of alleged offences 14 C.C.24147/2012 are not proved beyond reasonable doubt. Accordingly, I answer point no.1 and 2 in the negative.
16. Point No.3: Since split up C.C.10357/2016 is pending disposal in respect of accused No.3 it is necessary to keep the copy of evidence recorded in this case so as to proceed u/sec. 299 of CrPC if required. Moreover, the material objects are required to be retained until the disposal of split up case. In the result, I proceed to pass the following:
ORDER Acting under Section 248 (1) of Cr.P.C., accused No.1, 2 and 4 are hereby acquitted of the offences punishable U/sec. 4, 5(A) and 7 of ITP Act.
Bail bonds of accused No.1, 2 and 4 and their surety bond stands cancelled.
Office shall take a copy of the evidence recorded in this case and keep it in split up C.C.10357/2016 and the 15 C.C.24147/2012 material objects shall be retained until the disposal of said split up case.
(Dictated to the stenographer directly on the computer, verified and corrected by me, then the judgment pronounced by me in the open court, on this 9th day of December 2020.) (Vignesh Kumar) VIII Addl.C.M.M. Bengaluru.
: Annexure :
1. List of Witnesses examined on behalf of the prosecution:
PW1 : Yogish
PW2 : Shanmaka Swamy
PW3 : S.Bhadrinath
PW4 : Tirupal
PW5 : Ravi
PW6 : C.P.Benny
PW7 : Girish
2. List of Documents marked on behalf of the
prosecution:
Ex.P1 & 2 : Mahazar
Ex.P1a & 2a: Signatures of PW1
Ex.P2a & 2b: Signatures of PW2
Ex.P1c : Signature of PW3
Ex.P1d : Signature of PW5
Ex.P3 : Statement of PW1
Ex.P4 : Statement of PW2
16 C.C.24147/2012
Ex.P5 : Report
Ex.P5a : Signature of PW3
Ex.P6 : Statement of PW4
Ex.P7 : Statement of PW6
Ex.P8 : FIR
Ex.P8a : Signature of PW7
Ex.P9 : Advance receipt
Ex.P10 : Guest Registration column
3. List of Material objects marked on behalf of the prosecution: NIL
4. List of witnesses and documents marked on behalf of the accused:
NIL
5. Material Objects:
MO1 to 8 : 6 Nokia mobiles, 1 Samsung mobile Rs.30,000/ cash MO9 : Rs.5,000/ cash MO10 : Rs.1,000/ cash MO11 : Rs.500/ cash MO12 : 4 condoms MO13 : Dairy VIII Addl. C. M. M. Bangalore.17 C.C.24147/2012
Judgment pronounced in the open court (vide separate order) ORDER Acting under Section 248 (1) of Cr.P.C., accused No.1, 2 and 4 are hereby acquitted of the offences punishable U/sec. 4, 5(A) and 7 of ITP Act.
Bail bonds of accused No.1, 2 and 4 and their surety bond stands cancelled.
Office shall take a copy of the evidence recorded in this case and keep it in split up C.C.10357/2016 and the material objects shall be retained until the disposal of said split up case.
VIII Addl. C. M. M. Bangalore.
18 C.C.24147/2012