Bangalore District Court
(By The Learned Public Prosecutor) vs Was Running Prostitution Business At on 8 April, 2022
KABC010017262018
IN THE COURT OF XLV ADDL. CITY CIVIL & SESSIONS
JUDGE, BENGALURU CITY (CCH-46)
DATED THIS THE 8TH 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.98/2018
BETWEEN
State by Girinagar P.S.,
Bangalore. .. COMPLAINANT
(By the learned Public Prosecutor)
AND
Smt. Lakshmi
W/o Sivalingaiah, A/a 28 Yrs.,
R/a No.318, 3rd Cross, I Main,
Hrushikeshanagara,
Bangalore. ..ACCUSED
(By Sri TS, Advocate)
******
Date of offence & time 21.07.2016 at 7.00 p.m. .
Date of report of offence 21.07.2016 at 20.45 hours
Date of arrest of the accused 22.07.2016
Date of release on bail 08.08.2016
Total period of custody 18 days
Name of the complainant Sri B. M. Kotresh.
Date of commencement of 27.01.2021
recording of evidence
Date of closing of evidence 10.03.2022
2 SC No.98/2018
Offences complained of U/s.3, 4, 5 and 7 of ITP Act and
Sec.370(A)(2) of IPC
Opinion of the Judge Accused found not guilty
JUDGMENT
The Police Inspector, Girinagar Police Station, Bangalore, has filed charge sheet against accused for the offences punishable U/s.3, 4, 5 and 7 of Immoral Traffic (Prevention) Act, 1956 and Sec.370(A)(2) of IPC in Crime No.182/2016.
2. The factual matrix of the case is that :-
The accused was running the prostitution business at house bearing No.318 situated at 3rd Cross, I Main, Hrushikeshanagara, Hosakerehalli, BSK III Stage, within the limits of Girinagar P.S., Bangalore by trafficking CW.12 and CW.13 with the false assurance of getting job at Bangalore, and indulged them in prostitution business in the public vicinity and was leading her life from the amount of illegal gain from the said business. On 21.07.2016 at 6.45 p.m. the complainant along with panchas and her staff conducted raid after obtaining credible information and apprehended accused, who was involved in the prostitution business, rescued CW.12 and CW.13 and at that time seized condoms and cash from the spot through panchanama. Thereby the accused is alleged with the offences punishable U/s.370(A)(2) 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 for the offences punishable U/s.3, 4, 5 and 7 of Immoral Traffic (Prevention) Act, 1956 and Sec.370(A)(2) of IPC, before the jurisdictional XXIV Addl.,CMM., Bangalore. The 3 SC No.98/2018 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. The same is numbered as SC No.98/2018 in this Court.
4.The charge was framed against the accused on 30.09.2019 for the offences punishable U/s.3, 4, 5 and 7 of ITP Act and Sec.370 of IPC. The accused has pleaded not guilty and claimed to be tried.
5.The prosecution has examined in all six witnesses as PW.1 to PW.6 and got marked documents at Ex.P.1 to P.5, and identified Mos1 and 2. The learned Public Prosecutor has given up the witnesses CW.4, CW.6, CW.7, CW.8 and CW.10 on 04.03.2020, 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, CW.3, CW.12 and CW.13, but the concerned police failed to secure the said witnesses and in view of the same on 17.03.2022 evidence of CW.2 and CW.3 and on 10.03.2022 the evidence of CW.12 and CW.13 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, CW.3, CW.12 and CW.13, in view of the same dropping of evidence of CW.2, CW.3, CW.12 and CW.13 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 30.3.2022, and the same was duly recorded. The accused did not claim for defense evidence nor 4 SC No.98/2018 produced any documents to support her case in spite of sufficient opportunities. The accused 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 was running prostitution business at house bearing No.318, situated No.318 situated at 3rd Cross, I Main, Hrushikeshanagara, Hosakerehalli, BSK III Stage near Madhu Soundarya Women Beatuy saloon situated at 9th Main Road, Krishnaiah Layout, Poornaprajna Nagara, Uttarahalli, within the limits of Girinagar P.S., Bangalore, by trafficking CW.12 and CW.13 with the false assurance of getting job at Bangalore, and indulged them in prostitution business in the public vicinity and were leading her life from the amount of illegal gain from the said business and thereby the accused has committed an offences punishable U/s. 3, 4, 5 and 7 of ITP Act?
2. Whether the prosecution proves that the accused with an intention to run prostitution business by trafficking CW.12 and CW.13 forcibly induced them to indulge in prostitution 5 SC No.98/2018 business for wrongful gain, and thereby the accused 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 that the she was running the prostitution business at house bearing No.318 situated at 3rd Cross, I Main, Hrushikeshanagara, Hosakerehalli, BSK III Stage, within the limits of Girinagar P.S., Bangalore by trafficking CW.12 and CW.13 with the false assurance of getting job at Bangalore, and indulged them in prostitution business in the public vicinity and was leading her life from the amount of illegal gain from the said business. On 21.07.2016 at 6.45 p.m. the complainant along with panchas and her staff conducted raid after obtaining credible information and apprehended accused, who was involved in the prostitution business, rescued CW.12 and CW.13 and at that time seized condoms and cash from the spot through panchanama. Thereby the accused is alleged with the offences 6 SC No.98/2018 punishable U/s.370(A)(2) 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 Ayeesha who deposed that on 21.7.2016 after obtaining credible information that the prostitution is carried out at house No.318 situated at 3rd Cross, I Main, Hrushikeshanagara, Hosakerehalli, BSK III Stage, within the limits of Girinagar P.S., Bangalore, by obtaining oral permission from the higher officials, secured the panchas, requested CW.5 to be decoy for the said raid and visited near the house to be raided. Further it is the evidence of PW.1 that she handed over Rs.500/- to decoy for trapping the accused and instructed to inform through signal regardng the illegal activities is carried out in the house to be raided. It is also the evidence of PW.1 after obtaining the information from the decoy they raided house and found accused along with one lady by name Kavitha, who stated that she and another girl have been trafficked by accused and were indulged in committing prostitution business. The accused admitted that she obtained the house on rent to carry out the illegal activing by indulging the Kavitha and another lady in prostitution business and leaving on their earnings. And on enquiry the accused showed the room provided for the decoy, and when the said room was opened and another girl by name Jyothi were in the room, who narrated before PW.1 her identity and her involvement by the accused in prostitution business. It is also the evidence of PW.1 that the material objects were seized from the possession of accused and a panchanama was drawn on the spot. It is 7 SC No.98/2018 pertinent to note that there is no mention in the panchanama Ex.P2 and the complaint Ex.P4 regarding the denomination and face value of the amount that has been used by the decoy by obtaining the same from the complainant/PW.1. It is also found from the evidence of PW.1 and also from the evidence of PW.3 decoy that before the raid the complainant/PW.1 has not conducted the physical examination of the decoy and also the staff along with her, who have participated in the raid along with her. Further the evidence of PW.1 does not corroborate with the evidence of PW.2 the police officials regarding the seizure of material objects from the possession of accused. According to PW.1 MO1 and 2 have been seized through panchanama as per Ex.P.2 in the presence of panchas CW.2 and CW.3. In the cross-examination PW.2 deposed that she has no knowledge regarding the seizure of material objects and the execution of seizure panchanama, though she is the member of the raiding party. Further it is equally important to note that in spite of sufficient warrants the panc witnesses Cw.2 and Cw.3 were not secured. Non-examination of the said panchas does not support the case of the complainant/PW.1 regarding seizure of MO1 and MO2 from the possession of accused. In view of the same though the panchana Ex.P2 is marked, but the same is not sufficiently and satisfactorily proved.
13.In the instant case the prosecution has though issued summons warrant and proclamation to the material witnesses the vicitims CW.12 and CW.13, but failed to secure them before Court, so as to prove the allegations against the accused person. The entire case rest upon the evidence of the victims 8 SC No.98/2018 CW.12 and CW.13, who according to the complainant/PW.1 and decoy PW.3 were resecued from the spot along with accused persons, while they were indulging in prostitution business, as alleged in the complaint Ex.P.4. This is fatal for the case of the prosecution.
14.The prosecution has examined the owner of the house PW.4/CW.11 who deposed that he rented the house that has been raided being owner to the accused person. It is also the evidence of PW.4 owner that before he was informed by the poice that the house belongs to him was used for prostitution, that he had no knowledge that the accused was carrying prostitution business in the said house. It is pertinent to note that the owner of the house admitted that he has not entered into any agreement of rent with the accused and in the cross- examination that he has not issued any receipts for obtaining rent to the accused. From this evidence of PW.4 it is very difficult to establish the fact that the accused was tenant in the house belongs to PW.4, where the raid has been conducted. In the absence of the same the evidence of PW.4 does not support the case of the prosecution regarding the accused possession as tenant in the raided house belongs to PW.4.
15. PW.5 official witness, who has deposed that he permitted PW.1 to conduct raid by issuing written permission and the said fact is supported in the evidence of PW.1 that she was permitted to conduct raid. But these evidence cannot be considered in proving the guilt against the accused person, when the prosecution has failed to establish that PW.1 had successfully conducted raid along with panchas and her staff, 9 SC No.98/2018 while the panchas and victims have not supported the case of the prosecution.
16.As already discussed above, the police official witness PW.1 though given evidence about the raid and seizure of material objects MOs1 and 2 from the possession of accused, but in the cross-examination the said witness has admitted that she has not called any women from the locality to be the pancha nor there is an evidence from the witness PW.1 and PW.3 decoy that in spite of their request no women panchas from the locality have co-operated. The panchas 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 10 SC No.98/2018 male persons, and were not examined by the prosecution. Even in the cross-examination of I.O., non-examination the local Women pancha in spite of admission from the witnesses that the raided spot is densely populated makes it crystal clear that the mandatory provision of Sec.15(2) of ITP Act is not complied. 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 along with the victims CW.12 and CW.13 who were forced to indulging committing prostitution and seizure of MOs1 and 2 is fatal to the case of the prosecution.
17.In order to prove the allegations against the accused persons the prosecution has examined the PW.6/CW.15 the Police Official Ramakrishna.G, 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.182/2016 and submitted FIR Ex.P5 to his higher officials and to the Court. Further it is the evidence of PW.5 that he has entered the property particulars in PF No.97/2016 MOs1 and 2. Further it is the evidence of PW.5 I.O., that he has recorded the statements of the witnesses and the panchas CW.2 to CW.11. Further it is the evidence of PW.5 is that he had handed over further investigation to PW.1, who in his evidence deposed that since the investigation is already completed by CW.15, for the said 11 SC No.98/2018 reason he has filed a charge sheet. From this evidence it is crystal clear that PW.1 has not investigated the case and the entire investigation is conducted by PW.6 PSI Ramakrishna, who according to the contention of counsel for accused, had not authority to investigate the case. It is vehemently argued by the accused counsel and brought to the notice of the Court the evidence of PW.6 who deposed that at the time of the incident he was working as Police Sub-inspector of Girinagar P.S., and after registering the complaint and after completion of investigation he has handed over further investigation to PW.1, and in turn PW.1 has filed the charge sheet only based on the investigation conduced by PW.6 PSI, who was 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.
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.6 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.6 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 handed over further investigation to PW.1, in 12 SC No.98/2018 turn he has filed charge sheet only based on the investigation of PW.6. It is the specific defense of the accused that the witness PW.6 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.6 PSI who registered the case and investigated 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 13 SC No.98/2018 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.
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 crystal clear that the investigation done by the Police-Sub-Inspector PW.6 is vitiated by serious procedural irregularity and not curable in nature.
20.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 beyond all reasonable doubt. Accordingly, I answer Points No. 1 and 2 in the negative.
21.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 is hereby acquitted of the offences 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 stand canceled.
MO1 shall be destroyed and MO2 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 8th day of April, 2022) (Abdul Rahim Husain Shaikh) XLV Addl. City Civil & Sessions Judge, Bengaluru.14 SC No.98/2018
ANNEXURE List of Witnesses examined on behalf of Prosecution:
P.W.1: Kotreshi P.W.2: Smt. Yashodamma P.W.3: Vishwanath P.W.4: Mahesh P.W.5 : M.H. Manjunatha Choudhary P.W.6: Ramakrishnaiah.
List of Documents exhibited on behalf of Prosecution:
Ex.P.1: Record of Reasons. Ex.P.1a: Signature of PW.1 Ex.P.2: Mahazar of reasons Ex.P.2a: Signature of PW.2 Ex.P.3: Search Warrant Ex.P.3a: Signature of PW.5 Ex.P.4: Complaint. Ex.P.4a: Signature of PW.6 Ex.P.4b: Singature of PW.1 Ex.P.5: FIR No.182/2016 dated 21.07.20167 Ex.P.5a: Signature of PW.6.
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: Condoms
MO2: Cash of Rs.1,000/-(Rs.500/- each).
(Abdul Rahim Husain Shaikh)
XLV Addl. City Civil & Sessions Judge,
Bengaluru.
15 SC No.98/2018
Judgment pronounced in the open Court
vide its separate order
ORDER
Acting U/s.235(1) of Cr.P.C., the accused is hereby acquitted of the offences 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 stand canceled. MO1 shall be destroyed and MO2 shall be confiscate to the State after appeal period is over.
(Abdul Rahim Husain Shaikh) XLV Addl. City Civil & Sessions Judge, Bengaluru.