Bangalore District Court
Along With Panchas And His Staff ... vs Persons Are Alleged With The Offences ... on 14 November, 2022
KABC010249392017
IN THE COURT OF XLV ADDL. CITY CIVIL & SESSIONS
JUDGE, BENGALURU CITY (CCH-46)
DATED THIS THE 14TH DAY OF NOVEMBER, 2022
PRESENT:
Sri Manjunatha, B. A., LL.B.,
XLV Addl. City Civil & Sessions Judge, Bengaluru.
SC No.1233/2017
BETWEEN
State by Ramamurthynagar P.S.,
Bangalore. .. COMPLAINANT
(By the learned Public Prosecutor)
AND
2.Khaza Mohiddin Alias Chand Pasha
S/o Johny Ahmed,
A/a 38 Yrs.,
R/a No.140. Thomas Town,
Kacharakanahalli Post,
Kadugondanahalli,
Bangalore City.
(By Sri SMH, Advocate)
3.Iqbal Sharif
S/o Rasool Sharif, A/a 42 Yrs.,
R/a No.1427, 13th Cross,
Ramakrishna Hegdenagar,
Bangalore City.
(By Sri PCN, Advocate)
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SC No.1233/2017
4.Devaraj.R
S/o Ramakrishnappa, A/a 30 Yrs.,
R/a No.54, Yellamma Temple,
Belathoor, Kadugodi Post,
Hosakote Taluk, Bangalore District. ..ACCUSED No.2 to 4.
(By Sri ND, Advocate)
*****
Date of offence & time 1.3.2015 at 16.00 hours
Date of report of offence 1.3.2015 at 18.35 hours
Date of arrest of the A2 to A4 on 2.3.2015
accused
Date of release on bail A2 to A4 on 19.03.2015
Total period of custody 17 days
Name of the complainant Sri V. L. Ramesh,
Date of commencement 14.12.2021
of recording of evidence
Date of closing of 07.11.2022
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, Ramamurthynagar P.S., Bangalore, has filed charge sheet against accused No.2 to 4 for the offences punishable U/s.3, 4, 5 and 7 of Immoral Traffic (Prevention) Act, 1956 and and Sec.370 of IPC in their Crime No.138/2015.
2. The factual matrix of the case is that :-
The accused No.1 to 5 were running prostitution business at house bearing No.41, I Floor situated at I Cross, Manjunath Nagar, Kalkere within the limits of Ramamurthynagar P.S., Bangalore, by trafficking CW.4 to 6 with the assurance of 3 SC No.1233/2017 getting job, induced and indulged her in prostitution business in the public vicinity and were leading their life from the amount of illegal gain from the said business. 1.3.2015 at 16.00 hours the complainant along with panchas and his staff conducted raid over the said house after obtaining credible information and apprehended accused No.1 to 4, who were involved in the prostitution business, rescued CW4 to 6 and at that time seized th 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 and 7 of Immoral Traffic (Prevention) Act, 1956.
3. The concerned police have submitted charge sheet against the accused persons for the offences punishable U/s.370 IPC and U/s.3, 4, 5 and 7 of Immoral Traffic (Prevention) Act, 1956, 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 persons. The same was numbered as SC No.1233/2017.
4.The charge was framed against the accused No.2 to 4 on 05.04.2021 for the offences punishable U/s.3, 4, 5 and 7 of ITP Act and Sec.370 of IPC. The accused persons have pleaded not guilty and claimed to be tried.
5.The prosecution has examined in all four witnesses as PW.1 to PW.4 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.5 and CW.6 on 23.2.2022, in view of the available evidence of other police official witnesses. In spite of 4 SC No.1233/2017 sufficient opportunities provided to the prosecution by issuing summons, warrant and proclamation for securing CW.2, CW.3, CW.7, CW.8, CW.10 and CW.11, the concerned police failed to secure the said witness and in view of the same the evidence of CW.2, CW.3, CW.7, CW.8, CW.10 and CW.11 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.7, CW.8, CW.10 and CW.11, in view of the same dropping of evidence of CW.2, CW.3, CW.7, CW.8, CW.10 and CW.11 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 08.11.2022, and the same was duly recorded. The accused persons 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 that on 1.3.2015 at 16.00 hours found that the accused No.2 to 5 along with others at House No.41, situated at I Cross, Manjunathnagar, Kalkere, within the limits of Ramamurthynagar P.S., Bangalore, by trafficking CW.4 to CW.6 with the assurance of getting job, induced and indulged them in 5 SC No.1233/2017 prostitution business in the public vicinity and were leading their life from the amount of illegal gain from the said business and thereby the accused No.2 to 4 have committed an offences punishable U/s.3, 4, 5 and 7 of ITP Act?
2. Whether the prosecution proves beyond reasonable doubt that on 1.3.2015 at 16.00 hours found that the accused No.2 to 5 along with others at House No.41, situated at I Cross, Manjunathnagar, Kalkere, within the limits of Ramamurthynagar P.S., Bangalore, by trafficking CW.4 to CW.6 with the assurance of getting job, induced and indulged them in prostitution business for wrongful gain and the accused No.2 to 4 have committed an 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.
6SC No.1233/2017
11.It is the specific allegation that the accused No.1 to 5 and were running prostitution business at house bearing No.41, I Floor situated at I Cross, Manjunath Nagar, Kalkere within the limits of Ramamurthynagar P.S., Bangalore, by trafficking CW.4 to 6 with the assurance of getting job, induced and indulged them in prostitution business in the public vicinity and were leading their life from the amount of illegal gain from the said business. 1.3.2015 at 16.00 hours the complainant along with panchas and his staff conducted raid over the said house after obtaining credible information and apprehended accused No.1 to 4, who were involved in the prostitution business, rescued CW4 to 6 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 and 7 of Immoral Traffic (Prevention) Act, 1956.
12.In order to prove the said allegation the prosecution has examined the complainant-PW.2 A.L. Ramesh being the Police Inspector of Ramamurthynagar P.S.., deposed in evidence that on 1.3.2015 at 3.30 p.m. received reliable information that in Manjunathanagar, Kalkere, House No.41, prostitution being carried out, therefore, he along with CW.2 and CW.3 mahazar witnesses, CW.7 to CW.10 his subordinate staffs conducted raid on the said premises and found the accused persons indulged in prostitution business. In fact PW.2 took investigation materials with him while conducting raid and seized cash, mobile phones and condom packets from the custody of the accused persons and drawn mahazar marked as Ex.P2 in the presence of mahazar witnesses. PW.2 also found 7 SC No.1233/2017 CW.4 to CW.6 Smt. Nagarathna, Smt. Anusha and Smt. Yasmin, who are cited as Victim/witnesses in the charge sheet. Before conducting raid he has prepared record of reasons and issued notices to CW.2 and CW.3 to assist as mahazar witnesses as per Ex.P3, the seized properties produced and marked as MO1 to MO6 and identifies the accused persons during the course of his evidence. PW.2 further deposed that he received further investigation from CW.2, recorded statement of CW.1, and received copy of sale deed, and after completion of investigation he submitted charge sheet against the accused persons. The learned counsel for the accused subjected PW.2 for cross-examination and denied the alleged offences committed by the accused persons. No documents produced before the Court to show that the mobile phones seized belongs to the accused persons. The accused persons have not claimed properties alleged to have been seized from their custody. PW.2 filed complaint before the SHO of Ramamurthy Nagar P.S., marked as Ex.P4. PW.2 had not obtained any search warrant before conducting raid, his staffs were orally informed regarding proposed raid. The neighbouring residents, particularly women were not called as mahazar witnesses, as mandated under Immoral Traffic Act. The explanation offered by PW.2 that neighboring residents not co-operated while drawing the mahazar in a busy locality is not acceptable one. Admittedly before conducting raid , inside the premises physical search was not carried out. Seizure of material objects from the custody of accused persons denied by the learned counsel for the accused persons.
8SC No.1233/2017
13.PW.1 Nagarathna reported to be Victim turned hostile and not supported the case of the prosecution raid conducted by PW.2 and seizure of material objects from the custody of the accused persons. Nothing has been elicited from the mouth of PW.2 to establish seizure of material objects from the custody of accused persons under mahazar marked as Ex.P2. She denied the statement given before the I.O., marked as Ex.P1 and others victim witnesses cited as CW.5 and CW.6 have not been been examined by the prosecution due to non-execution of process issued by this Court.
14.PW.3 Deepika, Police Constable of Ramamurthynagar P.S., deposed that on 1.3.2015 at 3.30 p.m. PW.2 received reliable information and conducted raid with his subordinate staffs and mahazar witnesses on House No.41, Kalkere, Manjunathanagar, Bangalore. Before conducting raid PW.2 prepared record of reasons and obtained signature of mahazar witnesses. She further deposed that the accused persons were indulged in prostitution business and the victim witnesses i.e., CW.4 and CW.5 were found in the place of occurrence. PW.2 prepared Ex.P2 Mahazar and seized Mos1 to 6 in her presence and thereafter filed a complaint before the SHO of Ramamurthynagar P.S., as per Ex.P4. The learned counsel for the accused subjected PW.3 for cross-examination and denied drawing of mahazar and seizure of material objects in the presence of PW.3.
9SC No.1233/2017
15.At this juncture it is also very important to note that both the panchas CW.3 and CW.4, in spite of issuance of summons and warrants were not secured before the Court, and their evidence was taken as nil. In the absence of material panch witnesses, as the contents of Ex.P2 panchanama is 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. One of the panchas to the panchanama Ex.P2 to be women, 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. Sec..15(2) of ITP Act, 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 law that it mandates that two or more respectable inhabitants of the locality to be called 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. Even in the cross-10
SC No.1233/2017 examination of PW.4 has admitted that after taking the investigation of the case, has not visited the spot, nor have recorded the statements of the witnesses, to ascertain whether the accused persons were involved in committing the alleged offence. From this fact it is clear that the complainant/PW.2 has not complied the mandatory provisions of law. It is equally important to note that though the spot is a public place adjoining to commercial shops, non citing of the local persons as a witness by the Investigating Officer-PW.2 and PW.4 also creates a doubt in the prosecution case regarding the conduct of raid and and apprehending of the accused persons, who were allegedly indulging in committing prostitution and failure to prove seizure of MOs1 to 6 is fatal to the case of the prosecution. In order to prove the allegations against the accused persons the prosecution has not examined CW.11 who is the the owner of the premises due to non execution of process issued by this Court.
16.PW.4 Nagaraja, Police Sub-Inspector of Ramamurthynagar P.S., deposed on 1.3.2015, when he was SHO, PW.2 appeared before him and filed complaint marked as Ex.P4. He has registered the case forwarded the FIR to the jurisdictional Magistrate as Ex.P5. He has received material objects and submitted PF to the jurisdictional Magistrate, identifies MO1 to 6 submitted by PW.1 along with Ex.P2 Mahazar. PW.4 has further deposed he took up the custody of the accused persons and sent the victims to State Women Reception center. He recorded statements of raiding party members and mahazar witnesses and he handed over further 11 SC No.1233/2017 investigation to CW.1. The learned counsel for the accused subjected PW.4 for cross-examination and denied the alleged offences committed by the accused persons. PW.4 during cross-examination admitted that he had not participated in the raid conducted by PW.2, personally he did not visit the place of occurrence in the course of investigation. The official act performed by PW.4 has been denied by the learned counsel for the accused during cross-examination. Mahazar witnesses are not turned up to give their respective evidence. CW.2, CW.3, CW.5 and CW.6 were dropped due to non-execution of process issued by this Court.
17.Further it is the evidence of PW.4 that he has handed over further investigation to PW.2, PW.2 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 I.O., PW.4. From this it is clear that PW.2 the I.O., has done only part investigation, and the entire investigation was carried out by PW.4 and on the said investigation only charge sheet has been filed by PW.2. It is vehemently argued by the learned counsel for accused and brought to the notice of the Court the evidence of I.O.,/PW.4 that at the time of the incident he was working as Police Sub-inspector of Ramamurthynagar P.S., and after registering the complaint has investigated the entire case by recording the statement of witnesses, victim and handed over further investigation to PW.2, who has filed charge sheet. It is vehemently argued that PW.4 being PSI not authorized as Special Police Officer, as specified by the State Government or 12 SC No.1233/2017 on behalf of the Government in investigating the cases pertaining to the ITP Act. PW.2 to PW.4 examined on behalf of the prosecution are police officers/officials. Except one of the victim, no independent witnesses were examined on behalf of the prosecution.
18.Under 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 I.O., PW.4 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.4 clearly discloses that he being in the rank of Police Sub- Inspector, who had registered the case and recored the statements of the witnesses. It is the specific defense of the accused persons that the witness PW.4 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 of Karnataka 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 13 SC No.1233/2017 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.4 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 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, it is clear that the investigation done by the Police Sub-Inspector PW.4 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 failed to establish the guilt against the accused No.2 to 4 beyond all reasonable doubt. Accordingly, I answer Points No.1 and 2 in the negative.14
SC No.1233/2017
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.2 to 4 are hereby acquitted of the offenses 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 No.2 to 4
stand canceled.
MOs1 to 6 shall be retained till the disposal of split up case, as registered against accused No.1 and
5. (Typed to my dictation by the Stenographer directly on Computer, corrected by me and then pronounced in open Court on this the 14th day of November,2022) (Manjunatha) XLV Addl. City Civil & Sessions Judge, Bengaluru.
15SC No.1233/2017 ANNEXURE List of Witnesses examined on behalf of Prosecution:
P.W.1: Nagarathna P.W.2: V. L. Ramesh P.W.3: Deepika P.W.4: Eregowda PW.5: Nagaraj.
List of Documents exhibited on behalf of Prosecution:
Ex.P.1: Statement of PW.1 Ex.P.2: Mahazar Ex.P.3: Record of Reasons Ex.P.4: Complaint 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 phone
MO2: Condoms
MO3: Mobile phone
MO4: Condoms
MO5: Mobile Phone, and
MO6: Condoms.
(Manjunatha)
XLV Addl. City Civil & Sessions Judge,
Bengaluru.
16
SC No.1233/2017
Accused No.2 to 4 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.2 to 4 are hereby acquitted of the offenses 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 No.2 to 4
stand canceled.
MOs1 to 6 shall be retained till the disposal of split up case, as registered against accused No.1 and 5.
(Manjunatha) XLV Addl. City Civil & Sessions Judge, Bengaluru.
1 SC No.1233/2017