Bangalore District Court
(By The Learned Public Prosecutor) vs Date Of Release On Bail A5 On 19.12.2013 on 5 January, 2023
KABC010165982018
IN THE COURT OF XLV ADDL. CITY CIVIL & SESSIONS
JUDGE, BENGALURU CITY (CCH-46)
DATED THIS THE 5TH DAY OF JANUARY, 2023
PRESENT:
Sri Manjunatha, B. A., LL.B.,
XLV Addl. City Civil & Sessions Judge, Bengaluru.
SC No.1013/2018
BETWEEN
State by JB Nagar P.S.,
Bangalore. .. COMPLAINANT
(By the learned Public Prosecutor)
AND
1.Jakir Hussain
S/o Azeez Hussain, a/a 38 Yrs.,
R/a No.69,
Patel Muniyappa Layout,
V Naganahalli, RT Nagar,
Bengaluru.
2.Shashidharan
S/o Chandran, a/a 41 Yrs.,
R/a No.9,
27th Main, 6th Cross, Venugopal Tempe Torad,
Viveknagara, Bengaluru.
(By Sri SRS, Advocate)
3.Vijay
S/o Orander, a/a 25 Yrs., (Split up)
2
SC No.1013/2018
4.Aditya Jeevan @ Poovappa
S/o Manjunatha, a/a 27 yrs., (Split up)
5.Vishwanatha
S/o Anjikumar, a/a 24 Yrs.,
R/a No.64, Ashrayanagara,
Behind SRS Compound,
Peenya, Bangalore.
(By Sri SM, Advocate) ..ACCUSED
******
Date of offence & time 19.11.2013 20.45 to 22.00 hours
Date of report of offence 19.11.2013 at 22.45 hours
Date of arrest of the A5 on 19.11.2013
accused
Date of release on bail A5 on 19.12.2013
Total period of custody one Month
Name of the complainant Sri K. P. Deepak,
Date of commencement 25.02.2020
of recording of evidence
Date of closing of 22.11.2022
evidence
Offences complained of U/s.3, 4, 5 and 7 of ITP Act and
Sec.370 r/w Sec.34 of IPC
Opinion of the Judge Accused found not guilty
JUDGMENT
The Police Inspector, JB Nagar P.S., Bangalore, has filed charge sheet against accused No.1 to 5 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.385/2013.
2. The factual matrix of the case is that :-
The accused No.1 to 5 were running prostitution business in a rented house under the name and style as Facelook Unisex Saloon and Spa Massage Parlour belongs to CW.5 bearing 3 SC No.1013/2018 No.51 situated at BDA Layout, HAL II Stage, within the limits of JB Nagar P.S., Bangalore, and on 19.11.2013 at 7.00 p.m. on credible information CW.1 along with panchas CW.2, CW.3, [email protected] CW.6 and his subordinate staff CW.15 to CW.19 conducted raid over the said house, and found that the accused persons by trafficking CW.7 to CW.13 with the false assurance of providing job, induced and indulged them in prostitution business in the public vicinity and leading their life from the amount of illegal gain from the said business. Victims were rescued by the complainant raiding party and seized articles from the spot through panchanama. Thereby the accused No.1 to 5 are alleged with the offences punishable U/s.3, 4, 5 and 7 of Immoral Traffic (Prevention) Act, 1956 and Sec.370 of IPC.
3. The concerned police have submitted charge sheet against the accused No.1 to 5 for the offences punishable U/s.3, 4, 5 and 7 of Immoral Traffic (Prevention) Act, 1956 and Sec.370 of IPC, before the jurisdictional X 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, 2 and 5 .
4.The charge was framed against the accused No.1, 2 and 5 on 16.12.2019 for the offences punishable U/s.3, 4, 5 and 7 of ITP Act and Sec.370 of IPC. The accused No.1, 2 and 5 have pleaded not guilty and claimed to be tried.
5.The prosecution has examined in all five witnesses as PW.1 to PW.5 and got marked documents at Ex.P.1 to P.5, and identified Mos1 to 6. The learned public prosecutor has given up witnesses CW.14, CW.16, CW.17 and CW.19, in view of 4 SC No.1013/2018 available evidence of other police official witnesses. In spite of sufficient opportunities provided to the prosecution by issuing summons, warrant and proclamation for securing CW.2, CW.3, CW.4, CW.7 to CW.13 and CW.15, but the concerned police failed to secure the said witnesses and the evidence of CW.2, CW.3, CW.4 CW.7 to CW.13 and CW.15 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.4 CW.7 to CW.13 and CW.15. Dropping of evidence of CW.2, CW.3, CW.4 CW.7 to CW.13 and CW.15 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 05.12.2022, and the same was duly recorded. The accused No.1, 2 and 5 did not claim for defense evidence nor produced any documents to support their case in spite of sufficient opportunities.
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 doubt that the accused No.1, 2 and 5 at house bearing No.51 situated at BDA Layout, HAL II Stage, within the limits of JB Nagar P.S., Bangalore running prostitution business by trafficking CW.7 to CW.13 with false assurance of providing job, induced and indulged them in prostitution business in the public vicinity and 5 SC No.1013/2018 leading their life out of the amount of illegal gain from the said business and thereby the accused No.1, 2 and 5 have committed offences punishable U/s.3, 4, 5 and 7 of ITP Act?
2. Whether the prosecution proves beyond reasonable doubt that the accused No.1, 2 and 5 with common intention by trafficking CW.7 to CW.13 with the false assurance of providing job, induced and indulged them in prostitution business in the public vicinity and leading their life out of the amount of illegal gain from the said business, and thereby the accused No.1, 2 and 5 have committed offence punishable U/s.370 r/w Sec.34 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 that the accused No.1, 2 and 5 along with two others were running prostitution business in a rented house under the name and style as Facelook Unisex Saloon and Spa Massage Parlour belongs to CW.5 bearing 6 SC No.1013/2018 No.51 situated at BDA Layout, HAL II Stage, within the limits of JB Nagar P.S., Bangalore, and on 19.11.2013 at 7.00 p.m. on credible information CW.1 along with panchas CW.2, CW.3, CW.4 CW.6 and his subordinate staff CW.15 to CW.19 conducted raid over the said house, and found that the accused persons by trafficking CW.7 to CW.13 with false assurance of providing job, induced and indulged them in prostitution business in the public vicinity and leading their life out of the amount of illegal gain from the said business. Victims were rescued by the complainant raiding party and seized articles from the spot through panchanama. Thereby the accused No.1, 2 and 5 are alleged with the offences punishable U/s.3, 4, 5 and 7 of Immoral Traffic (Prevention) Act, 1956 and Sec.370 of IPC
12.In order to prove the said allegation the prosecution has examined the complainant PW.2, PW.2 KP Deepak, Police Inspector, Women and Narcotics Squad, CCB, Bangalore, deposed that on 19.11.2013 at 7.00 p.m. he received an information that at HAL II Stage, BDA Layout within the jurisdiction of JB Nagar P.S., prostitution business is carrying out, therefore, after confirming the credibility of information obtained oral permission from his higher officer, and he along with his subordinate staff CW.15 to CW.19 prepared to conduct raid. Before that he requested CW.2 and CW.4 to act as panchas to the said raid by issuing notice Ex.P2, and prepared record of reasons marked as Ex.P3, and he called CW.4 to act as decoy, and instructed him to go to the place, where prostitution is going, he gave Rs.5,000/- to Cw.4, and send him 7 SC No.1013/2018 to the said place. And at about 8.45 p.m. he along with his subordinate staff and mahazar witnesses conducted raid to the house No.51 situated at BDA Layout, HAL II Stage, within the limits of JB Nagar P.S., Bangalore, and found that accused No.1, 2, 5 and others by trafficking CW.7 to CW.13 with false assurance of providing job, induced and indulged them in prostitution business in the public vicinity and leading their life out of the amount of illegal gain from the said business. He has drawn Ex.P4 Mahazar in the place of occurrence and seized MOs1 to 6 in the presence of mahazar witnesses. He returned to JB Nagar P.S., along with accused persons and seized articles, and the victims CW.7 to CW.13, and handed over the Material Objects to SHO of JB Nagar P.S., and filed complaint marked as Ex.P5. During cross-examination he denies all the suggestions of learned counsel for the accused as false. He has not remembered through which subordinate officials mahazar witnesses were secured before conducting raid. Before conducting raid physical verification were not conducted, he tried to get some women panchas in the vicinity, but he could not find women panchas, as the PI accompanied with him is a women. The boundaries of the house where raid was conducted, is not known to him. Conducting raid and seizure of material objects from the custody of accused persons denied by the learned counsel for the accused persons. No search warrant was obtained before conducting raid, as PW.2 himself is authorized to conduct raid under law.
13.PW.4 Smt. Bhadramma, Police Inspector, Women and Narcotics Squad, CCB, Bengaluru, has deposed that on 8 SC No.1013/2018 19.11.2013 at 7.00 p.m. CW.1 received an information that at HAL II Stage, BDA Layout within the jurisdiction of JB Nagar P.S., prostitution business is carrying out, therefore, after confirming the credibility of information obtained oral permission from his higher officer, and he and herself along with their subordinate staff CW.15 to CW.17 and CW.19 prepared to conduct raid. Before that CW.1 requested CW.2 and CW.4 to act as panchas to the said raid by issuing notice Ex.P2, and prepared record of reasons marked as Ex.P3, and he called CW.4 to act as decoy, instructed him to go to the place, where prostitution is going on, he gave Rs.5,000/- to CW.4, and send him to the said place, at about 8.45 p.m. CW.1, herself and along with their subordinate staffs and mahazar witnesses conducted raid to the house No.51 situated at BDA Layout, HAL II Stage, within the limits of JB Nagar P.S., Bangalore, and found that accused No.1, 2, 5 and others by trafficking CW.7 to CW.13 with false assurance of providing job, induced and indulged them in prostitution business in the public vicinity and leading their life out of the amount of illegal gain from the said business. CW.1 has drawn Ex.P4 Mahazar in the place of occurrence and seized MOs1 to 6 in the presence of mahazar witnesses. They returned to JB Nagar P.S., along with accused persons and seized articles, and the victims CW.7 to CW.13, and handed over the Material Objects to SHO of JB Nagar P.S., and CW.1 filed complaint marked as Ex.P5. During cross- examination she denies all the suggestions of learned counsel for the accused as false.
9SC No.1013/2018
14.At this juncture it is also very important to note that both the panchas CW.2 and CW.3, and decoy CW.4 in spite of sufficient summons and warrants were not secured before the Court, and their evidence was taken as nil. In the absence of material panch witnesses the contents of Ex.P4 panchanama is not proved sufficiently and satisfactorily by the prosecution. Further PW.3 Meenakshi, who is an NGO and pancha, has deposed about conducting of raid by CW.1 along with his subordinate staffs and seizure of MO1 to MO6 under Mahazar Ex.P4, apprehension of accused No.3 to 4, rescue of victims and and filing of Ex.P5 complaint. 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 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:10
SC No.1013/2018 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, and were not examined by the prosecution. From this fact it is clear that the complainant/PW.2 has not complied the mandatory provisions of Sec.15(2) of ITP Act. It is equally important to note that though the incident spot is a public place adjoining to commercial shops, non citing of the local persons as a witness by the Investigating Officer-PW.5 and PW.2 also creates a doubt in the prosecution case regarding the conduct of raid and apprehending of the accused No.5 and others, who were allegedly indulging in committing prostitution.
15.In order to prove the allegations against the accused persons the prosecution has examined the PW.1 Rajesh Shetty, owner of the premises where raid was conducted deposed that, the accused No.1 house on rental basis, and gave Rs.1,00,000/- towards advance, in the year 2013 and it was agreed to pay Rs.40,000/- rent per month. He was not aware as to whether the said rented premises was used for prostitution purpose. Tenant and landlord relationship between the accused persons and PW.1 has been denied. No documents marked to establish nexus between the premises where raid conducted and the accused persons.
16.PW.5 Shiva Reddy, deposed that on 19.11.2013, PW.2 appeared before him and produced victim girls, accused 11 SC No.1013/2018 persons, mahazar and material objects and filed a complaint marked as Ex.P5. He has registered the case, and forwarded FIR to the jurisdictional Magistrate marked as Ex.P6. He has brought seized articles into PF No.112/2013, recorded the voluntary statements of the accused persons, which is inadmissible in evidence. Recorded the statements of witnesses, produced the accused persons and victims before the jurisdictional magistrate and as per the order of the Court victims were handed over to the custody of State Women Reception Center and recorded statement of CW.5 and received Ex.P1 from CW.14, accused No.1 and 2 appeared before him by obtaining anticipatory bail, he arrested them and released on bail and after completion of investigation he has submitted charge sheet against the accused persons. The official act performed by PW.5 has been denied by the learned counsel for the accused during cross-examination.
17.The victims were not examined by the prosecution in spite of opportunity given by this Court. Mahazar witnesses and decoy are not turned up to give their respective evidence. CW.2, CW.3, CW.4 CW.7 to CW.13 and CW.15 were dropped due to non-execution of process issued by this Court. CW.14, CW.16, CW.17 and CW.19 are given up. The material witnesses have not been examined, so as to prove the guilt against the accused No.1, 2 and 5. 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 No.1, 2 and 5 beyond all reasonable doubt. Accordingly, I answer Points No. 1 and 2 in the negative.
12SC No.1013/2018
18.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, 2 and 5 are hereby acquitted of the offenses 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, 2
and 5 stand canceled.
MO1 to MO6 shall be preserved till the disposal of split up case as registered against accused No.3 and 4.
(Typed to my dictation by the Stenographer directly on Computer, corrected by me and then pronounced in open Court on this the 5th day of January, 2023) (Manjunatha) XLV Addl. City Civil & Sessions Judge, Bengaluru.13
SC No.1013/2018 ANNEXURE List of Witnesses examined on behalf of Prosecution:
P.W.1: Rajesh Shetty P.W.2: M.K. Deepak P.W.3: Meenakshi P.W.4: Bhadramma PW.5: Shivashankara Reddy.
List of Documents exhibited on behalf of Prosecution:
Ex.P.1: Letter dated 30.12.2013 Ex.P.2: Notice Ex.P.3: Record of reasons Ex.P.4: Mahazar Ex.P.5: Complaint Ex.P.6: 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 to 4: Mobile phone
MO5: Condoms
MO6: Cash Rs.2,100/-.
(Manjunatha)
XLV Addl. City Civil & Sessions Judge,
Bengaluru.
14
SC No.1013/2018
Accused No.1, 2 and 5 are present
The learned counsels for accused
present.
The learned 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, 2 and 5 are hereby acquitted of the offenses 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, 2 and 5 stand canceled.
MO1 to MO6 shall be preserved till the disposal of split up case as registered against accused No.3 and 4.
(Manjunatha) XLV Addl. City Civil & Sessions Judge, Bengaluru.
15 SC No.1013/2018