Bangalore District Court
Along With Panchas Cw.2 To Cw.4 And Her vs Who Was In The Prostitution Business on 11 January, 2023
KABC010317552019
IN THE COURT OF XLV ADDL. CITY CIVIL & SESSIONS
JUDGE, BENGALURU CITY (CCH-46)
DATED THIS THE 11TH DAY OF JANUARY, 2023
PRESENT:
Sri Manjunatha, B. A., LL.B.,
XLV Addl. City Civil & Sessions Judge, Bengaluru.
SC No.1530/2019
BETWEEN
State by Indiranagar P.S.,
Bangalore. .. COMPLAINANT
(By the learned Public Prosecutor)
AND
Varalakshmi
C/o jayaraj, a/a 45 Yrs.,
R/a No.417, 2nd Main,
Yellamma Temple Street,
Halasuru, Bengaluru City. ..ACCUSED
(By Sri SG, Advocate)
*****
Date of offence & time 29.07.2018 at 4.15 p.m.
Date of report of offence 29.07.2018 at 19.30 hours
Date of arrest of the 30.07.2018
accused
Date of release on bail 21.08.2018
Total period of custody 22 days
Name of the complainant Smt. Ayesha
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Date of commencement 22.02.2022
of recording of evidence
Date of closing of 23.11.2022
evidence
Offences complained of U/s.5(B) of ITP Act and Sec.370 of
IPC
Opinion of the Judge Accused found not guilty
JUDGMENT
The Police Inspector, Indiranagar P.S., Bangalore, has filed charge sheet against accused for the offences punishable U/s.5(B) of Immoral Traffic (Prevention) Act, 1956 and Sec.370 of IPC in their Crime No.189/2018.
2. The factual matrix of the case is that :-
The accused under the name and style as Vspa by obtaining license to run the spa, and by violating the terms and conditions of license, in the name of massage, illegally by violating the law was running prostitution in the name of body massage and hand job at No.3570 I Floor, situated at 4th Cross, 13th B Main, HAL II Stage within the limits of Indiranagar P.S., Bangalore, by trafficking CW.5 to CW.7 with the assurance of financial help induced and indulged them in prostitution business. On 29.07.2018 at 16.15 hours the complainant along with panchas CW.2 to CW.4 and her subordinate officials CW.8 to CW.10 conducted raid over the said VSpa after obtaining credible information and apprehended accused, who was in the prostitution business, rescued CW.5 to CW.7 and at that time seized the articles from the spot through panchanama. Thereby the accused is alleged with the offences punishable U/s.370 of IPC and Sec.5(B) of Immoral Traffic (Prevention) Act, 1956.3
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3. The concerned police have submitted charge sheet against accused for the offences punishable U/s.370 of IPC and U/s.5(B) of Immoral Traffic (Prevention) Act, 1956 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.
4.The charge was framed against the accused on 10.11.2021 for the offences punishable U/s.5(B) of ITP Act and Sec.370 of IPC. The accused pleaded not guilty and claims 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 5. The learned public prosecutor has given up witnesses CW.9 and CW.11, 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.5 to CW.7, but the concerned police failed to secure the said witnesses and in view of the same on 4.3.2022 the evidence of CW.5 to CW.7 taken as nil by rejecting the prayer of the prosecution. Further the prosecution has not taken any steps to secure the witnesses, CW.3, 4 and 8 in view of the the same dropping of evidence of CW.3, 4 and 8 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 7.12.2022, and the same was duly 4 SC No.1530/2019 recorded. The accused did not claim for defense evidence nor produce any documents to support her 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 29.07.2018 at 16.15 hours the accused under the name and style as Vspa by obtaining license to run the spa, and by violating the terms and conditions of license, in the name of massage, illegally by violating the law was running prostitution in the name of body massage and hand job at No.3570 I Floor, situated at 4th Cross, 13th B Main, HAL II Stage within the limits of Indiranagar P.S., Bangalore, by trafficking CW.5 to CW.7 with the assurance of financial help induced and indulged them in prostitution business and thereby the accused has committed offences punishable U/s.5(B) of ITP Act?
2. Whether the prosecution proves beyond reasonable doubt that on 29.07.2018 at 16.15 hours the accused to run prostitution business by trafficking CW.5 to CW.7 forcibly induced her to indulge in prostitution business for wrongful gain, and thereby the accused has committed offence punishable U/s.370 of IPC?5
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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 under the name and style as Vspa by obtaining license to run the spa, by violating the terms and conditions of license, in the name of massage, illegally by violating the law was running prostitution in the name of body massage and hand job at No.3570 I Floor, situated at 4th Cross, 13th B Main, HAL II Stage within the limits of Indiranagar P.S., Bangalore, by trafficking CW.5 to CW.7 with the assurance of financial help induced and indulged them in prostitution business. On 29.07.2018 at 16.15 hours the complainant along with panchas CW.2 to CW.4 and her subordinate officials CW.8 to CW.10 conducted raid over the said VSpa after obtaining credible information and apprehended accused, who was in the prostitution business, rescued CW.5 to CW.7 and at that time seized the articles from the spot through panchanama. Thereby the accused is alleged with the offences 6 SC No.1530/2019 punishable U/s.370 of IPC and Sec.5(B) of Immoral Traffic (Prevention) Act, 1956.
12.In order to prove the said allegation the prosecution has examined the complainant PW.1, who deposed that on 29.07.2018 she received credible information regarding prostitution carried out at Vspa No.3570 I Floor, situated at 4th Cross, 13th B Main, HAL II Stage within the limits of Indiranagar P.S., Bangalore, she along with her staff CW.8 to CW.10 and secured the panch witness CW.2 to CW.4 and issued notice Ex.P1, prepared record of reasons, deputed CW.4 as decoy, and after confirmation she conducted raid over the spa at 16.15 hours along with her staff and panchas, apprehended the accused and rescued CW.5 to CW.7, who were made to indulge in prostitution business by the accused. It is also the case of the PW.1 that she has drawn mahazar Ex.P3 regarding seizure of material objects No.1 to 5. 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 residential houses and 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 her and her staff at the time of raid. Further it is also the evidence of PW.1 that after conducting raid she has seized MOs1 to 5 from the possession of accused through panchanama Ex.P3 drawn in the presence of the panchas CW.2 and 3. PW.2 is the pancha, who has turned hostile and not supported the case of the prosecution. At this juncture it is also very important to note 7 SC No.1530/2019 that pancha CW.3, in spite of sufficient summons and warrants was not secured before the Court, and his evidence was taken as nil. In the absence of CW.3 the contents of Ex.P3 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.1 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.P3 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 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 8 SC No.1530/2019 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.5 also creates a doubt in the prosecution case regarding the conduct of raid and and apprehending of the accused along with the victims/CW.5 to CW.7, induced them indulging in committing prostitution and failure to prove seizure of MOs1 to 5 is fatal to the case of the prosecution. PW.3 Nandeesha, Police Head Constable, who is one of the raiding party member, has deposed in similar way of PW.1 and deposed about conducting of raid, apprehension of accused, seizure of material objects and rescue of CW.5 to CW.7, and producing of accused before PW.4. The learned counsel for the accused cross-examined PW.3 and he also denies the suggestions with regard to apprehension of accused and his participation in the raid.
13.In order to prove the allegations against the accused the prosecution has failed to examine CW.8 the owner of the house and CW.4 decoy. It is also very important to note that decoy CW.4 and C.8, the owner of the house, in spite of sufficient summons and warrants were not secured before the Court, and their evidence was taken as nil. It is also very important to note that the prosecution in spite of issuing summons and warrants to the victims/CW.5 to Cw.7 failed to secure the material witness before the Court, when the entire case rest on the evidence of victims/CW.5 to CW.7, who according to the prosecution, was indulging in prostitution business by trafficking. This is fatal for the case of the 9 SC No.1530/2019 prosecution, wherein the material witnesses CW.4 CW.8 and CW.5 to 7 have not been examined, so as to prove the guilt against the accused.
14.PW.4 Amaresh has deposed that while he was on duty on 29.07.2018 at 7.30 p.m. CW.1 appeared before him along with his staff and produced the victim, seized properties and accused along with complaint Ex.P4, he has registered the case and submitted FIR to her higher officials and to the Court, and brought the seized articles in to PF, recorded voluntary statement of accused and the victim, and medically examined the victim, recorded statement of CW.2 to CW.4 and 5 to 7, and produced the accused before the court and produced the accused before Reception Center and handed over further investigation to CW.13/PW.5, who has done part of investigation by recording statement CW.8, receipt of rental agreement, and after completing the investigation he has submitted charge sheet against the accused to the Court based on the statement and the investigation done by the PW.4. From this it is clear that PW.5 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.5. It is vehemently argued by the learned counsel for accused and brought to the notice of the Court the evidence of PW.4 that at the time of the incident he was working as Police Sub-inspector of Indiranagar 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 10 SC No.1530/2019 charge sheet. It is vehemently argued that PW.4 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.
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.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 during investigation, recorded the statement of victims and the raiding party witnesses. It is the specific defense of the accused that the witness PW.4 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:-11
SC No.1530/2019 "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.4 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.4 is vitiated by serious procedural irregularity and not curable in nature.12
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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 beyond all reasonable doubt. Accordingly, I answer Points No. 1 and 2 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:-
ORDER Acting U/s.235(1) of Cr.P.C., the accused is hereby acquitted of the offenses punishable U/s.5(B) of the Immoral Traffic (Prevention) Act, 1956 and Sec.370 of of Indian Penal Code, 1860.
The bail and surety bonds of accused stand canceled.
MOs1 to 5 shall be confiscate to the state after appeal period is over.
(Typed to my dictation by the Stenographer directly on Computer, corrected by me and then pronounced in open Court on this the s11th day of January, 2023) (Manjunatha) XLV Addl. City Civil & Sessions Judge, Bengaluru.13
SC No.1530/2019 ANNEXURE List of Witnesses examined on behalf of Prosecution:
P.W.1: Smt. Ayesha P.W.2: Naveen P.W.3: Nandeesh P.W.4: Amaresh P.W.5: Ravi P
List of Documents exhibited on behalf of Prosecution:
Ex.P.1: Notice Ex.P.2: Record of reasons Ex.P.3: Mahazar 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 to 3: Mobile Phones
MO4: Swiping Machine
MO5 Cash Rs.3,500/-.
(Manjunatha)
XLV Addl. City Civil & Sessions Judge,
Bengaluru.
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Accused 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 is hereby acquitted of the offenses punishable U/s.5(B) of the Immoral Traffic (Prevention) Act, 1956 and Sec.370 of of Indian Penal Code, 1860.
The bail and surety bonds of accused stand canceled. MOs1 to 5 shall be confiscate to the state after appeal period is over.
For compliance of Sec.437(A) of Cr.P.C., call on (Manjunatha) XLV Addl. City Civil & Sessions Judge, Bengaluru.
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