Bangalore District Court
Kamakshipalya P S vs A1 Ashok on 28 March, 2024
KABC010288802019
IN THE COURT OF XLV ADDL. CITY CIVIL & SESSIONS
JUDGE, BENGALURU CITY (CCH-46)
DATED THIS THE 28TH DAY OF MARCH, 2024
PRESENT:
Sri Manjunatha, B. A., LL.B.,
XLV Addl. City Civil & Sessions Judge, Bengaluru.
SC No.1359/2019
BETWEEN
State by Kamakshipalya P.S.,
Bangalore. .. COMPLAINANT
(By the learned Public Prosecutor)
AND
1.Ashok
S/o Thimmaiah, a/a 32 Yrs.,
r/o Kenchenahalli,
Huliyurdurga Hobli,
Kunigal Taluk, Tumkur District.
2.Vilas(Split up)
3.Anand
S/o Swamappa, a/a 22 yrs.,
r/o Kabbepura, Angala Hobli,
Gundlupet Taluk,
Chamarajanagar District.
4.Akmal Pasha, (Split up)
5.Chandru @ Chandrashekar.R, (Split up)
2
SC No.1359/2019
6.mahesha
S/o Nagaraju, a/a 21 Yrs.,
r/a No.47, 3rd Cross Road,
Market Troad, Bellary Town.
7. Nazma @ Marjina Begam(Splitup) ..ACCUSED
(By Sri KPS, Advocate)
*****
Date of offence & time 27.04.2016
Date of report of offence 28.04.2016
Date of arrest of the A1, A3 and A6 28.04.2016
accused
Date of release on bail 25.05.2016
Total period of custody 29 days
Name of the complainant Smt. Ayesha
Date of commencement 16.07.2022
of recording of evidence
Date of closing of 13.02.2024
evidence
Offences complained of U/s.3, 4, 5 and 7 of ITP Act and
Sec.370 of IPC
Opinion of the Judge Accused found not guilty
JUDGMENT
The Police Inspector, Kamakshipalya P.S., Bangalore, has filed charge sheet against accused No.1, 3 and 6 and others for the offences punishable U/s.3, 4, 5 and 7 of Immoral Traffic (Prevention) Act, 1956 and Sec.370 of IPC in their Crime No.178/2016.
2. The factual matrix of the case is that :-
That on 27.04.2016 at 17.15 hours CW.1 received information that prostitution business is carried out by accused persons in a rented building under the name and style as Balaji 3 SC No.1359/2019 Deluxe Comforts Lodge bearing No.47 situated at Srigandada Kavalu, Magadi Main Road, Sunkadakatte, within the limits of Kamakshipalya P.S., Bangalore, by providing rooms and by trafficking girls with the promise of providing job, induced them indulging in prostitution for wrongful gain. CW.1 along with panchas CW.2 and CW.3 and her subordinate staffs CW.4 to CW.6 after confirmation of the information conducted raid and apprehended accused No.1 and 3 to 7, and found that the accused persons by trafficking CW.10 to CW.15 with the false assurance of providing job, induced them indulging in prostitution business in the public vicinity and leading their life out of the amount of wrongful gain from the said business, rescued CW.10 to CW.15 and at that time seized the articles from the spot through panchanama. Thereby the accused persons are alleged with the offences punishable U/s.370 of IPC and Sec.3, 4, 5 and 7 of Immoral Traffic (Prevention) Act, 1956.
3. The concerned police have submitted charge sheet against accused persons for the offences punishable U/s.370 of IPC and Sec.3, 4, 5 and 7 of Immoral Traffic (Prevention) Act, 1956, before the jurisdictional V 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, 3 and 6. The case against accused No.2, 4, 5 and 7 has been split up. The present case is against accused No.1, 3 and 6 only.
4.The charge was framed against accused No.1, 3 and 6 on 28.02.2023 for the offences punishable U/s.370 of IPC and 4 SC No.1359/2019 Sec.3, 4, 5 and 7 of Immoral Traffic (Prevention) Act, 1956. The accused persons pleaded not guilty and claims to be tried.
5.The prosecution has examined in all 6 witnesses as PW.1 to PW.6 and got marked documents at Ex.P.1 to P.8, and identifies Mos1 to 6. In spite of sufficient opportunities provided to the prosecution by issuing summons and warrant for securing CW.2 to CW.5, CW.7, CW.8 and CW.11 to CW.14, but the concerned police failed to secure the said witnesses and in view of the same the evidence of CW.2 to CW.5, CW.7, CW.8 and CW.11 to CW.14 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.5, CW.7, CW.8 and CW.11 to CW.14 in view of the same dropping of evidence of CW.2 to CW.5, CW.7, CW.8 and CW.11 to CW.14 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 18.03.2024, and the same was duly recorded. The accused No.1, 3 and 6 did not claim for defense evidence nor produced any documents in support of their case.
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 beyond all reasonable that on 27.04.2016 at 17.15 hours .
prostitution business is carried out by the accused No.1, 3, 6 and others in a rented 5 SC No.1359/2019 building under the name and style as Balaji Deluxe Comforts Lodge bearing No.47 situated at Srigandada Kavalu, Magadi Main Road, Sunkadakatte, within the limits of Kamakshipalya P.S., Bangalore, by providing rooms and by trafficking CW.10 to CW.14 with the promise of providing job, induced them indulging in prostitution in the public vicinity and were leading their life out of the amount of illegal gain from the said business and thereby the accused has committed offences punishable U/s.3, 4, 5 and 7 of ITP Act?
2. Whether the prosecution proves beyond reasonable doubt that on 27.04.2016 at 17.15 hours . prostitution business is carried out by the accused No.1, 3, 6 and others in a rented building under the name and style as Balaji Deluxe Comforts Lodge bearing No.47 situated at Srigandada Kavalu, Magadi Main Road, Sunkadakatte, within the limits of Kamakshipalya P.S., Bangalore, by providing rooms and by trafficking CW.10 to CW.14 with the promise of providing job, induced them indulging in prostitution in the public vicinity for wrongful gain and thereby the accused No.1, 3 and 6 have committed offence punishable U/s.370 r/w Sec.34 of IPC?
3. What Order?
6SC No.1359/2019
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 that on 27.04.2016 at 17.15 hours CW.1 received information that prostitution business is carried out by accused persons in a rented building under the name and style as Balaji Deluxe Comforts Lodge bearing No.47 situated at Srigandada Kavalu, Magadi Main Road, Sunkadakatte, within the limits of Kamakshipalya P.S., Bangalore, by providing rooms and by trafficking girls with the promise of providing job, induced them indulging in prostitution for wrongful gain. CW.1 along with panchas CW.2 and CW.3 and her subordinate staffs CW.4 to CW.6 after confirmation of the information conducted raid and apprehended accused No. 1and 3 to 7 and found that the accused persons by trafficking CW.10 to CW.15 with the false assurance of providing job, induced them indulging in prostitution business in the public vicinity and leading their life out of the amount of wrongful gain from the said business, rescued CW.10 to CW.15 and at that time seized the articles from the spot through panchanama.
7SC No.1359/2019 Thereby the accused persons are alleged with the offences punishable U/s.370 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.2 Ayesha, Police Inspector, CCB, Bangalore, who deposed that on 27.04.20106 at 2.00 p.m. she received credible information from informant that prostitution business is carried out by accused persons in a rented building under the name and style as Balaji Deluxe Comforts Lodge bearing No.47 situated at Srigandada Kavalu, Magadi Main Road, Sunkadakatte, within the limits of Kamakshipalya P.S., Bangalore, by providing rooms and by trafficking girls with the promise of providing job, induced them indulging in prostitution for wrongful gain. And at 4.00 p.m. securing panchas CW.2 and CW.3 by issuing notices, preparing record of reasons along with her sub-ordinate staffs CW.4 to CW.6 went near the spot, and after confirmation of information through decoy CW.4, conducted raid over the said lodge and apprehended accused No.1 and 3 to 7 and found that the accused persons by trafficking CW.10 to CW.14 with the false assurance of providing job, induced them er indulging in prostitution business in the public vicinity and leading their life out of the amount of wrongful gain from the said business. It is also the case of the PW.2 that she has drawn mahazar Ex.P4 regarding seizure of MOs1 to No.6 and appeared before the SHO along with accused persons, CW.10 to CW.14 and seized articles, and lodged Ex.P5 complaint. It is pertinent to note that in the cross-examination PW.2 has admitted that the place that 8 SC No.1359/2019 has been raided is thickly populated with the adjoining residential houses/shops. It is equally important to note that before the raid he has not physically verified herself and her staff. This clearly indicates that PW.2 has never taken any steps before raid regarding the materials that has been carried by herm and her staffs at the time of raid. Further it is also the evidence of PW.2 that after conducting raid she has seized MOs1 to 6 from the possession of accused through panchanama Ex.P4 drawn in the presence of the panchas CW.2 and CW.3. It is also very important to note that panchas CW.2 and CW.3, in spite of sufficient summons and warrants were not secured before the Court, and their evidence was taken as nil. In the absence of CW.2 and CW.3 the contents of Ex.P4 panchanama is also not proved sufficiently and satisfactorily by the prosecution. It is vehemently argued by the learned counsel for accused that the complainant PW.2 in spite of densely populated area has not secured any of the female persons residing adjoining to the raided house to be one of the pancha to the panchanama Ex.P4 as mandated by the Act U/s.15(2) of the ITP Act. The pancha CW.2 and CW.3 are the male persons. At this juncture I would like to reproduce the provisions of Sec.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 9 SC No.1359/2019 witness the search, and may issue an order in writing to them or any of them so to do:
It is clear from the provisions of Sec.15(2) of ITP Act, 1956 that it mandates 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. From this fact it is clear that the PW.2 has not complied the mandatory provisions of Sec.15(2) of ITP Act. It is equally important to note that though the place of occurrence is a public place adjoining to commercial shops, non citing of the local persons as a witness by the Investigating Officer-PW.6 also creates a doubt in the prosecution case regarding the conduct of raid and and apprehending of the accused No.1 and 3 to 7 along with the victims/CW.10 to CW.14, induced them indulging in committing prostitution and failure to prove seizure of MOs1 to 6 is fatal to the case of the prosecution.
13.In order to prove the allegations against the accused the prosecution has examined PW.3 H.M. Mohan, Police Constable, who is the the raiding party member, has deposed in similar way of PW.2 and deposed about conducting of raid, apprehension of accused, seizure of material objects and rescue of CW.10 to CW.14, and producing of accused persons before SHO. The learned counsel for the accused cross- examined PW.3, PW.3 denies suggestions with regard to apprehension of accused and his participation in the raid. It is also very important to note that the prosecution in spite of 10 SC No.1359/2019 issuing summons and warrants to the victim/CW.11 to CW.14, failed to secure the material witness before the Court, when the entire case rest on the evidence of victims/CW.11 to CW.14, who according to the prosecution, were indulging in prostitution business by trafficking and the accused persons were living out of the amount of wrongful gain from the said business. This is fatal for the case of the prosecution, wherein the material witnesses CW.11 to CW.14 have not been examined, so as to prove the guilt against the accused No.1, 3 and 6.
14.Further in order to prove the allegations against the accused persons the prosecution has examined PW.1 Ganga Mandal, who is the victim, who turned hostile to the case of the prosecution by deposing that the police have not enquire and the accused No.7 has not induced her indulging in prostitution with the false promise of providing job.
15.PW.4 Dr. Vijaykumar, who deposed that Kamakshipalya police have submitted a requsition to certify the age of CW.10, and after examination of CW.1 he has issued Ex.P7 by confirming the age of CW.10 is in between 18 and 20 yrs., The learned counsel for the accused cross-examined PW.4 and he denies the said suggestions.
16.It is also very important to note that the prosecution in spite of issuing summons and warrants the material witness CW.8, who is the owner of the building, has not been examined, so as to prove the guilt against the accused. This is fatal for the case of the prosecution.
17.PW.5 Mahadevaiah has deposed that on 28.04.2016 at 1.00 a.m. CW.1 appeared before him, he received written 11 SC No.1359/2019 complaint of CW.1, registered a case in Crime No.178/2016, and forwarded FIR to the Court and his higher officials, marked as Ex.P8. Along with report Ex.P4 Cw.1 produced Ex.P1 to Ex.P3 documents, and brought the same into record, and MO1 to 6 were brought into PF No.58/2016, he recorded statements of panchas, victim and raiding party members. By following arrest formalities of accused, recorded their voluntary statements, produced them before the Court, he handed further investigation to PW.6, in turn PW.6 submitted charge sheet to the Court. PW.6 submitted charge sheet against the accused to the Court based on the statement and the investigation done by the PW.5. From this it is clear that PW.6 being the I.O., has done only part investigation, and the entire investigation was carried out by PW.5 and on the said investigation only charge sheet has been filed by PW.6. It is vehemently argued by the learned counsel for accused and brought to the notice of the Court the evidence of PW.5 that at the time of the incident he was working as Police Sub-inspector of Kamakshipalya P.S., and after registering the complaint, took up investigation, has investigated the entire case by recording the statement of witnesses, victim and arrested the accused, recorded their voluntary statements, and handed over further investigation to PW.6, who has only filed charge sheet. It is vehemently argued that PW.5 being PSI not authorized as 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, as investigated the entire case and handed over further 12 SC No.1359/2019 investigation to PW.6, who filed charge sheet on the said investigation.
18.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 PW.5 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. The evidence of PW.5 clearly discloses that he being in the rank of Police Sub-Inspector, who had registered the case and recorded the statements of the witnesses during investigation, recorded the voluntary statement of accused, statement of victims and the raiding party witnesses. It is the specific defense of the accused that the witness PW.5 who 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 of Karnataka 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 13 SC No.1359/2019 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.5 PSI who has registered the case and investigated the case by recording the statements of the witnesses, 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.
19.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 the Hon'ble High Court of Karnataka 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 under the above said provisions.
20.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 clear that the investigation done by the Police Sub-Inspector PW.5 is vitiated by serious procedural irregularity and not curable in nature.
21.Therefore, from the above reasons and discussions it is very clear that the prosecution has utterly failed to establish or prove the guilt against the accused beyond all reasonable 14 SC No.1359/2019 doubt. Accordingly, I answer Points No. 1 and 2 in the negative.
22.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 No.1, 3 and 6 are hereby acquitted of the offences punishable U/s.3, 4, 5 and 7 of the Immoral Traffic (Prevention) Act, 1956 and Sec.370 r/w Sec.34 of Indian Penal Code, 1860.The bail and surety bonds of accused No.1, 3
and 6 stand canceled.
MOs1 to 6 shall be preserved till the disposal of the split up case registered against accused No.2, 4, 5 and 7.
(Typed to my dictation by the Stenographer directly on Computer, corrected by me and then pronounced in open Court on this the 28th day of March, 2024) (Manjunatha) XLV Addl. City Civil & Sessions Judge, Bengaluru.
Digitally signed by MANJUNATH RAMA MANJUNATH NAIK
RAMA NAIK Date: 2024.04.04
13:41:05 +0530
15
SC No.1359/2019
ANNEXURE
List of Witnesses examined on behalf of Prosecution:
P.W.1: Gangamandal P.W.2: Ayesha P.W.3: H. M. Mohan P.W.4: Dr. Vijaykumar P.W.5: Mahadevaiah P.W.6: M. R. Harish.
List of Documents exhibited on behalf of Prosecution:
Ex.P.1: Notice Ex.P.2: Notice Ex.P.3: Record of reasons Ex.P.4: Mahazar Ex.P.5: complaint Ex.P.6: Register Ex.P.7: Medical Report Ex.P.8: FIR.
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: Condom packets
MO2 to 6: Mobile Phones.
(Manjunatha)
XLV Addl. City Civil & Sessions Judge,
Bengaluru.
Digitally signed
by MANJUNATH
MANJUNATH RAMA NAIK
RAMA NAIK Date:
2024.04.04
13:41:16 +0530
16
SC No.1359/2019
17
SC No.1359/2019
18
SC No.1359/2019
A1, 3 & 6 and learned counsel for accused present.
Lrd., Public Prosecutor present.
Judgment pronounced in the open Court vide its separate order ORDER Acting U/s.235(1) of Cr.P.C., the accused No.1, 3 and 6 are hereby acquitted of the offences punishable U/s.3, 4, 5 and 7 of the Immoral Traffic (Prevention) Act, 1956 and Sec.370 r/w Sec.34 of Indian Penal Code, 1860.
The bail and surety bonds of accused No.1, 3 and 6 stand canceled.
MOs1 to 6 shall be preserved till the disposal of the split up case registered against accused No.2, 4, 5 and 7.
(Manjunatha) XLV Addl. City Civil & Sessions Judge, 19 SC No.1359/2019 Bengaluru.