Bangalore District Court
State By Mico Layout P.S vs 8.Sachin Bomzai on 13 January, 2023
KABC010038612018
IN THE COURT OF XLV ADDL. CITY CIVIL & SESSIONS
JUDGE, BENGALURU CITY (CCH-46)
DATED THIS THE 13TH DAY OF JANUARY, 2023
PRESENT:
Sri Manjunatha, B.A., LL.B.,
XLV Addl. City Civil & Sessions Judge, Bengaluru.
SC No.236/2018
Complainant State by Mico Layout P.S.,
(Rep. by Learned Public Prosecutor)
AND
Accused 8.Sachin Bomzai
S/o Roshanlal Bomza,
A/a 38 Yrs.,
R/a Flat No.305, Balaji lakshmi Nilaya,
Green Huse Layout, Doddathoguru,
Near Lakshminarasimha Swamy
Temple, Electronic City,
Bangalore.
(By Sri/Smt: K.P.N., Adv.,)
9.Prabhakar
S/o Mayakrishna
A/a 24 yrs.,
R/a No.U-11, 7th B Main Road,
Swathantrapalya,
Sriramapura,
Bangalore-21.
(By Sri/Smt: T. R. M., Adv.,)
10.Rohan Kulakarni
S/o Udaya, A/a 26 Yrs.,
R/o Lotus PG, Opp. to Janani PG, Opp.
2 SC No.236/2018
to Season otel, Electronic City II Stage,
Bangalore.
And also r/o Akshaya Apartment,
Bhavaninagara, Hubbali-Dharwad.
(By Sri/Smt: M.S., Adv.,)
*****
Date of offence & time 03.12.2024 at 19.00 hours
Date of report of offence 03.12.2014 at 00.30 hours
Date of arrest of the 04.12.2014
accused
Date of release on bail A8 & A9 22.12.2014
A10 on 20.12.2014
Total period of custody A8 & A9 18 days
A10 16 days
Name of the complainant Sri M. H. Sathish
Date of commencement 11.01.2023
of recording of evidence
Date of closing of 11.01.2023
evidence
Offences complained of U/s.3, 4, 5 and 7 of ITP Act and
Sec.370(1)(2)(3) and 370A(2) r/w
Sec.34 of IPC
Opinion of the Judge Accused found not guilty
JUDGMENT
The Police Inspector, Mico Layout Police Station, Bangalore, has filed charge sheet against accused No.8 to 10, and others for the offences punishable U/s.3, 4, 5 and 7 of Immoral Traffic (Prevention) Act, 1956 and Sec.370(1)(2)(3) and 370A(2) r/w Sec.34 of IPC.
2. The factual matrix of the case is that :-
The accused persons were running prostitution business in a rented house bearing No.24, I Floor situated at Ashraya Residency, 9th main Road, NS Palya, Rashtra Kavi Kuvempu Road, BTM II Stage, within the limits of Mico Layout P.S., 3 SC No.236/2018 Bangalore, by trafficking CW.4 and CW.5 with the assurance of getting job and money, 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. The complainant along with panchas CW.2 and CW.3, his staff CW.7 to 9 on 03.12.2014 at 7.00 p.m. conducted raid over the said house after obtaining credible information and apprehended accused No.6 to 10, who were involved in the prostitution business, rescued CW.4 and 5 and at that time seized the articles from the spot through panchanama. Thereby the accused persons are alleged with the offences punishable U/s.3, 4, 5 and 7 of Immoral Traffic (Prevention) Act, 1956 and Sec.370(1)(2)(3) and 370A(2) r/w Sec.34 of IPC.
3. The concerned police have submitted charge sheet against accused No.8 to 10 and others for the offences punishable U/s.3, 4, 5 and 7 of Immoral Traffic (Prevention) Act, 1956 and Sec.370(1)(2)(3) and 370A(2) r/w Sec.34 of IPC. of IPC, before the jurisdictional VI 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 No.8 to 10 on 14.11.2019 for the offences punishable U/s.3, 4, 5 and 7 of Immoral Traffic (Prevention) Act, 1956 and Sec.370(1)(2)(3) and 370A(2) r/w Sec.34 of IPC. The accused persons pleaded not guilty and claimed to be tried.
5.The prosecution has examined CW.1 as PW.1 and got marked documents at Ex.P.1 to P.4, and identified Mos1 and 2.
4 SC No.236/2018The charge sheet against accused No.8 to 10 as customers apprehended when CW.1 was conducted raid. Hon'ble High Court of Karnataka in number of decisions held that the provisions of ITP Act as well as Sec.379(1)(2)(3) and Sec.370A(2) of IPC not applicable to the customers. Therefore, the witnesses cited as CW.2, CW.3 and CW.6 to CW.12 ordered to be dropped by this Court as per the order sheet dated 11.01.2023 on the ground that the examination of such witnesses do not serve any purpose so far as accused No.8 to 10 concerned. 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 CW.4 and CW.5 and in view of the same on 24.03.2022 the evidence of CW.4 and CW.5 taken as nil by rejecting the prayer of the prosecution.
6.After closure of the evidence of prosecution, the statement of accused No.8 to 10 has been dispensed with, as there is no incriminating evidence against them.
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 03.12.2014 at 7.00 p.m. the accused No.8 to 10 at house bearing No.24, I Floor situated at Ashraya Residency, 9th main Road, NS Palya, Rashtra Kavi Kuvempu Road, BTM II Stage, within the limits of Mico Layout 5 SC No.236/2018 P.S., Bangalore, by trafficking CW.4 and CW.5 with the assurance of getting job and money 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 and thereby the accused No.8 to 10 have committed offences punishable U/s.3, 4, 5 and 7 of ITP Act?
2. Whether the prosecution proves beyond reasonable doubt that on 03.12.2014 at 7.00 p.m. the accused No.8 to 10 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.8 to 10 have committed offence punishable U/s.Sec.370(1)(2)(3) 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.236/2018
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 case of the prosecution that the accused No.1 to 6 were running prostitution business in a rented house bearing No.24, I Floor situated at Ashraya Residency, 9th main Road, NS Palya, Rashtra Kavi Kuvempu Road, BTM II Stage, within the limits of Mico Layout P.S., Bangalore, by trafficking CW.4 and CW.5 with the assurance of getting job and money, 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. The complainant along with panchas CW.2 and CW.3, his staff CW.7 to CW.9 on 03.12.2014 at 7.00 p.m. conducted raid over the said house after obtaining credible information and apprehended accused No.6 to 10, who were involved in the prostitution business, rescued CW.4 and 5 and at that time seized the articles from the spot through panchanama. Thereby the accused persons are alleged with the offences punishable U/s.3, 4, 5 and 7 of Immoral Traffic (Prevention) Act, 1956 and Sec.370(1)(2)(3) 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, who deposed that on 03.12.2014 at 7.00 p.m. after obtaining credible information regarding prostitution carried out at house bearing No.24, I Floor situated at Ashraya Residency, 9th main Road, NS Palya, Rashtra Kavi Kuvempu Road, BTM II Stage, within the limits of 7 SC No.236/2018 Mico Layout P.S., Bangalore, and after obtaining oral permission from his higher officers, he along with his staff CW.7 to 9 and secured the panch witnesses CW.2 and 3, and issued notice Ex.P1, prepared record of reasons, deputed CW.6 as decoy, and after confirmation he conducted raid over the house at 7.00 p.m. along with his staff and panchas, apprehended the accused persons and rescued CW.4 and CW.5, who were made to indulge in prostitution business by the accused persons. It is also the case of the PW.1 that he has drawn mahazar Ex.P3 regarding seizure of material objects No.1 and
2. 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. It is equally important to note that before the raid he has not physically verified himself and his 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 he has seized MOs1 and 2 from the possession of accused persons through panchanama Ex.P3 drawn in the presence of the panchas CW.2 and 3. 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:-
8 SC No.236/2018Sec.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:
13.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 No.8 to 10 along with the victim/CW.4 and CW.5, induced them indulging in committing prostitution and failure to prove seizure of MOs1 and 2 is fatal to the case of the prosecution.
14.On careful reading of the above provisions of the Act, none of the section are attracted so far as to the customers of a brothel home is concerned. The allegations made against the 9 SC No.236/2018 accused No.8 to 10 will not come within the ambit of above referred provisions of the Acts.
15. Hon'ble High Court of Karnataka in Crl. Pet., No.1757 of 2022 dated 24.03.2022(Bharath SP Vs. State of Karnataka) , has held that Sec..3, 4, 5 and 7 of Immoral Traffic (Prevention) Act, 1956 and Sec.370(1)(2)(3) and 370A(2) r/w Sec.34 of IPC are not attracted so for as to customers are concerned. In Criminal Petition No.388/2020 dated 18.03.2020 between Amarnath Vs., State of Karnataka has also held that customers cannot be prosecuted for the offences punishable U/s.3, 4, 5 and 7 of ITP Act and Sec.370(1)(2)(3) and 370-A(2) of IPC and the proceedings against the customers has been quashed.
16.In view of the above discussions, by applying the ratio laid down by the Hon'ble High Court as referred above, it is clear that the accused No.8 to 10 are being the customers as per the available materials on record and none of the offences as mentioned in the charge sheet attract to proceed against these accused No.8 to 10. A person who visits brothel house only as customer is not covered by any of the above provisions of ITP Act 1956 In the present case the allegations made against accused No.8 to 10 and the material collected against the accused No.8 to 10 do not show commission of any of the offences alleged against them in the charge sheet Accordingly, examination of other witnesses cited in the charge sheet dropped by this Court. Therefore, from the above reasons and discussions it is clear that the prosecution has failed to establish or prove the guilt against the accused No.8 to 10 10 SC No.236/2018 beyond all reasonable doubt. Accordingly, I answer Points No. 1 and 2 in the negative.
17.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.8 to 10 are hereby acquitted of the offences punishable U/s.3, 4, 5 and 7 of the Immoral Traffic (Prevention) Act, 1956 and Sec.370(1)(2)(3) and 370A(2) r/w Sec.34 of Indian Penal Code, 1860.The bail and surety bonds of accused No.8 to 10
stand canceled.
MOs.1 and 2 shall preserve, till the disposal of split up case registered against accused No.1 to 7. (Typed to my dictation by the Stenographer directly on Computer, corrected by me and then pronounced in open Court on this the 13th day of January, 2023) (Manjunatha) XLV Addl. CC & SJ, Bengaluru.11 SC No.236/2018
ANNEXURE List of Witnesses examined on behalf of Prosecution:
P.W.1: M. H. Sathish List of Documents exhibited on behalf of Prosecution:
Ex.P.1: Notice Ex.P.2: Record of reasons Ex.P.3: Spot Mahazar Ex.P4: Complaint.
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: Condom packets
(Manjunatha)
XLV Addl. City Civil & Sessions Judge,
Bengaluru.
12 SC No.236/2018
Order pronounced in the open Court
vide its separate order
ORDER
Acting U/s.235(1) of Cr.P.C., the accused No.8 to 10 are hereby acquitted of the offences punishable U/s.3, 4, 5 and 7 of the Immoral Traffic (Prevention) Act, 1956 and Sec.370(1)(2)(3) and 370A(2) r/w Sec.34 of Indian Penal Code, 1860.
The bail and surety bonds of accused No.8 to 10 stand canceled.
MOs.1 and 2 shall preserve, till the disposal of split up case registered against accused No.1 to 7.
(Manjunatha) XLV Addl. City Civil & Sessions Judge, Bengaluru.13 SC No.236/2018