Bangalore District Court
State By High Grounds P.S vs Sunil on 6 May, 2023
KABC010018782016
IN THE COURT OF XLV ADDL. CITY CIVIL & SESSIONS
JUDGE, BENGALURU CITY (CCH-46)
DATED THIS THE 6TH DAY OF MAY, 2023
PRESENT:
Sri Manjunatha, B. A., LL.B.,
XLV Addl. City Civil & Sessions Judge, Bengaluru.
SC No.94/2016
BETWEEN
Complainant State by High Grounds P.S.,
Bangalore.
(By the learned Public
Prosecutor)
AND
Accused 1.Sunil
S/o Mudduraju, a/a 20 Yrs.,
R/a No.110, 3rd Cross,
2nd Main,
Vrushabhavathinagara,
Bangalore.
2.Mohan Kumar
S/o Thimmaiah, a/a 27 Yrs.,
r/a No.69, 4th Main,
Kaveripuram,
Kamakshipalya, Bangalore.
(By Sri/Smt; VS, Adv.)
3.Vasanth
S/o Kumar, a/a 27 Yrs.,
r/a No.37, 3rd Cross,
2
SC No.94/2016
Kempamma Building,
Byraveshwara Circle,
T Dasarahalli, Bangalore City.
(By Sri/Smt; BKR, Adv.)
4.Manjunath(abated)
5.Khadar Vali(Split up)
******
Date of offence & time 26.01.2014 2.40 p.m. .
Date of report of offence 26.01.2014 16.25 hours
Date of arrest of the 27.01.2014
accused
Date of release on bail 29.01.2014
Total period of custody Three days
Name of the complainant Smt. G. Shobha
Date of commencement 27.10.2021
of recording of evidence
Date of closing of 22.02.2023
evidence
Offences complained of U/s.3, 4, 5 and 7 of ITP Act and
Sec.370 (2) and 370A(2) r/w Sec.34
of IPC
Opinion of the Judge Accused found not guilty
JUDGMENT
The Police Inspector, High Grounds P.S., Bangalore, has filed charge sheet against accused No.1 to 3 and other for the offences punishable U/s.3, 4, 5 and 7 of Immoral Traffic (Prevention) Act, 1956 in their Crime No.34/2014.
2. The factual matrix of the case is that :-
The accused No.1 to 3 and others running prostitution business in the auto rickshaw bearing registration No.KA_02_AC_1228 and registration No.KA-05_AB-9451 by keeping CW.4 and CW.5 in the parking place of situated near 3 SC No.94/2016 the compound of Golf Club, Crescent Road within the limits of High Grounds P.S., Bangalore, and on 26.01.2014 at 2.40 p.m. on credible information CW.1 along with panchas CW.2 and 3, and her subordinate staff CW.6 to 9 after confirming the information by sending CW.6 and 7 as decoy, and conducted raid, and found that accused No.1 to 3 and others by trafficking CW.4 and 5 on a false promise of providing job by importing and keeping them in the aforesaid auto rickshaws and induced them to indulge in indulging in prostitution business for wrongful gain and thereby accused persons have committed the offence punishable U/s.3, 4, 5 and 7 of IT P Act 370(2) and 370A(2) r/w Sec.34 of IPC.
3. The concerned police have submitted charge sheet against accused persons for the offences punishable U/s.3, 4, 5 and 7 of Immoral Traffic (Prevention) Act, 1956, before the jurisdictional VIII Addl.,CMM., Bangalore. By invoking the provisions of Sec.323 of Cr.P.C., and considering the offence U/s.370(2) and 370A(2) of IPC, the learned Magistrate has committed the case to the Sessions Court after furnishing charge sheet copies to the accused persons.
4.The charge was framed against the accused No.1 to 3 on 9.4.2021 and 2.1.2023 for the offences punishable U/s.370(2) and 370A(2) r/w Sec.34 of IPC and Sec.3, 4, 5 and 7 of Immoral Traffic (Prevention) Act, 1956. The accused No.1 to 3 pleaded not guilty and claimed to be tried.
4SC No.94/2016
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 4. The learned public prosecutor has given up witnesses CW.8 to CW.10, in view of available evidence of other witnesses. In spite of sufficient opportunities provided to the prosecution by issuing summons, warrant and proclamation for securing CW.4 and CW.5, but the concerned police failed to secure the said witnesses and in view of the same the evidence of CW.2, CW.3, CW.5 and CW.6 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 in view of the same dropping of evidence of CW.2 to CW.5 remained intact.
6.After closure of the evidence of prosecution, the case was posted for recording statement of accused persons as provided U/s.313 of Cr.P.C. on 09.03.2023 , and the same was duly recorded. The accused persons did not claim for defense evidence nor produce any documents to support 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 the accused No.1 to 3 on 26.01.2014 at 2.40 p.m. running prostitution business in the auto rickshaw bearing registration No.KA_02_AC_1228 and registration No.KA-05_AB-9451 by keeping 5 SC No.94/2016 CW.4 and CW.5 in the parking place situated near the compound of Golf Club, Crescent Road within the limits of High Grounds P.S., Bangalore by trafficking CW.4 and CW.5 with the false assurance of money induced and indulged them in prostitution business in the public vicinity and were leading their life out of the amount of illegal gain from the said business and thereby the accused No.1 to 3 have committed offences punishable U/s.3, 4, 5 and 7 of ITP Act?
2. Whether the prosecution proves beyond reasonable doubt that on 26.01.2014 at 2.40 p.m. the accused No.1 to 3 with common intention to run prostitution business by trafficking CW.4 and CW.5 forcibly induced them to indulge in prostitution business for wrongful gain, and thereby the accused No.1 to 3 have committed offence punishable U/s.370(2) and 370A(2) 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:-6
SC No.94/2016 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 to 3 and others running prostitution business in the auto rickshaw bearing registration No.KA_02_AC_1228 and registration No.KA-05_AB-9451 by keeping CW.4 and CW.5 in the parking place of situated near the compound of Golf Club, Crescent Road within the limits of High Grounds P.S., Bangalore, and on 26.01.2014 at 2.40 p.m. on credible information CW.1 along with panchas CW.2 and 3, and her subordinate staff CW.6 to 9 after confirming the information by sending CW.6 and 7 as decoy, and conducted raid, and found that accused No.1 to 3 and others by trafficking CW.4 and 5 on a false promise of providing job by importing and keeping them in the aforesaid auto rickshaws and induced them to indulge in prostitution business for wrongful gain and thereby accused persons have committed the offence punishable U/s.3, 4, 5 and 7 of IT P Act 370(2) and 370A(2) r/w Sec.34 of IPC.
12.In order to prove the said allegation the prosecution has examined the complainant- PW.1, PW.1 Smt. G. Shobha deposed that on 26.04.2014 at 2.00 p.m. while she was on patrolling duty received credible information regarding prostitution carried out in auto rickshaw, after securing with panchas she along with her staffs and after confirmation by sending CW.6 and CW.7 as decoy she conducted raid over the 7 SC No.94/2016 auto rickshaw bearing registration No.KA_02_AC_1228 and registration No.KA-05_AB-9451 by keeping CW.4 and CW.5 in the parking place situated near the compound of Golf Club, Crescent Road within the limits of High Grounds P.S., Bangalore, apprehended the accused No.1 to 4 and rescued CW.4 and 5, who were made to indulge in prostitution business by the accused persons. It is also the case of the PW.1 that she has drawn mahazar Ex.P1 regarding seizure of material objects No.1 to 4 and seized the autorickhaws. PW.1 has further deposed that she produced the accused pesons, victims and seized items before PSI of High Grounds P.S., and in that regard she lodged Ex.P2 complaint. It is pertinent to note that in the cross-examination PW.1 has admitted that the place that has been raided is thickly populated with the adjoining shops. It is equally important to note that before the raid she has not physically verified herself and her staff. This clearly indicates that PW.1 has never taken any steps before raid regarding the materials that has been carried by him and his staff at the time of raid. Further it is also the evidence of PW.1 that after conducting raid she has seized MOs1 to 4 from the possession of accused persons through panchanama Ex.P1 drawn in the presence of the panchas. The contents of Ex.P1 panchanama is not proved sufficiently and satisfactorily by the prosecution, as inspite of sufficient opportunities provided, the prosecution has failed to secure the presence of CW.2 and CW.3. It is vehemently argued by the learned counsel for accused persons that the complainant PW.1 in spite of densely populated area has not secured any of the female persons residing adjoining to 8 SC No.94/2016 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 panchas are the male persons. 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 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.1 has not complied the mandatory provisions of Sec.15(2) of ITP Act. It is equally important to note that though the place of occurence is a public place adjoining to commercial shops, non citing of the local persons as a witness by the Investigating Officer also creates a doubt in the prosecution case regarding the conduct of raid and and apprehending of the accused persons along with the victims/CW.4 and 5, induced them indulging in committing prostitution and failure to prove seizure of MOs1 to 4 is fatal to the case of the prosecution. PW.3 Harish and 9 SC No.94/2016 PW.4 Raveesh, who are the raiding party members, have deposed in similar way of PW.1 and deposed about conducting of raid, apprehension of accused persons, seizure of material objects and rescue of CW.4 and 5, and producing of accused persons before PW.2. The learned counsel for the accused cross-examined PW.3 and 4, and they have also denied the suggestions with regard to apprehension of accused pesons and their participation in the raid.
13.It is also very important to note that the prosecution in spite of issuing summons and warrants to the victims/CW.4 and CW.5 failed to secure the material witness before the Court, when the entire case rest on the evidence of victims/CW.4 and CW.5, who according to the prosecution, were indulging in prostitution business by trafficking and the accused persons were living on the wrongful gain from the said business. This is fatal for the case of the prosecution, wherein the material witnesses have not been examined, so as to prove the guilt against the accused persons.
14.PW.2 Shivarudraiah has deposed that while he was on duty on 26.01.2014 at 4.25 p.m. Cw.1 produced report, panchanama, seized articles, based on the said report he registered a case in Crime No.34/2014 and submitted Ex.P5 FIR to her higher officials and to the Court, and brought the seized articles in to PF. CW.1 has also produced the victims and accused persons, he send the victims to State Home and on the next day brought them back, after completion of arrest formalities, he recorded the statements of victims, and produced the accused persons and victims before the Court, as 10 SC No.94/2016 per the order of the Court he send the victims to State home, recorded voluntary statement of accused persons and the victims, he produced and medically examined the victims, recorded statements of panchas and raiding party members and sent the victims to the State Home for women, recorded the statements of Cw.6 to Cw.10 and he handed over further investigation to CW.12/PW.5, who has done part of investigation and after completing the investigation he has submitted charge sheet against the accused persons to the Court based on the statement and the investigation done by the PW.2. From this it is clear that PW.5 being the I.O., has done only part investigation, and the entire investigation was carried out by PW.2 and on the said investigation only charge sheet has been filed by PW.5. It is vehemently argued by the learned counsel for accused and brought to the notice of the Court the evidence of PW.2 that at the time of the incident she was working as Police Sub-inspector of High Grounds adivala P.S., and after registering the complaint, took up investigation, has investigated the entire case by recording the statement of witnesses, victim and handed over further investigation to PW.5, who has only filed charge sheet. It is vehemently argued that PW.2 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 investigation to PW.5, who filed charge sheet on the said investigation.
11SC No.94/2016
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 case and file charge sheet. In the instant case the PW.2 has not produced any document to show that she 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 recorded the statements of victims, panchas and the raiding party witnesses. It is the specific defense of the accused that the witness PW.2 who investigated the case has no authority as per the provisions of ITP Act to investigate the case since she 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 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 12 SC No.94/2016 manner only. In the instant case PW.2 PSI who has 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.
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 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.
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 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 clear that the prosecution has utterly failed to establish or prove the guilt against the accused persons beyond all reasonable doubt. Accordingly, I answer Points No. 1 to 3 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:-
13SC No.94/2016 ORDER Acting U/s.235(1) of Cr.P.C., the accused No.1 to 3 are hereby acquitted of the offenses punishable U/s.3, 4, 5 and 7 of the Immoral Traffic (Prevention) Act, 1956 and Sec.370(2) and 370A92) r/w Sec.34 of of Indian Penal Code, 1860.The bail and surety bonds of accused No.1 to 3
stand canceled.
MO1 to MO4 shall be preserved till the disposal of the case registered against accused No.5. (Typed to my dictation by the Stenographer directly on Computer, corrected by me and then pronounced in open Court on this the 6th day of May, 2023) (Manjunatha) XLV Addl. City Civil & Sessions Judge, Bengaluru.14
SC No.94/2016 ANNEXURE List of Witnesses examined on behalf of Prosecution:
P.W.1: Smt. G. Shobha P.W.2: Shivarudraiah P.W.3: Harish P.W.4: Raveesh P.W.5: E. B. Sridhara.
List of Documents exhibited on behalf of Prosecution:
Ex.P.1: Spot Mahazar Ex.P.2: Complaint Ex.P.3: Photograph Ex.P.4: Photograph Ex.P.5: 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 Mobile hone
MO2 Mobile phone
MO3 Condoms
MO4 Cash 500 X 2 = Rs.1,000/-.
(Manjunatha)
XLV Addl. City Civil & Sessions Judge,
Bengaluru.
15
SC No.94/2016
Accused No.1 to 3 present
The learned counsel for accused 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 to 3 are hereby acquitted of the offenses punishable U/s.3, 4, 5 and 7 of the Immoral Traffic (Prevention) Act, 1956 and Sec.370(2) and 370A92) r/w Sec.34 of of Indian Penal Code, 1860.
The bail and surety bonds of accused No.1 to 3 stand canceled. MO1 to MO4 shall be preserved till the disposal of the case registered against accused No.5.
For compliance of Sec.437(A) of Cr.P.C., call on (Manjunatha) XLV Addl. City Civil & Sessions Judge, Bengaluru.