Bangalore District Court
State By Commercial Street P.S vs A1: Nagappa B Nayak @ Nagaraj on 3 May, 2023
KABC010198752017
IN THE COURT OF XLV ADDL. CITY CIVIL & SESSIONS
JUDGE, BENGALURU CITY (CCH-46)
DATED THIS THE 3RD DAY OF MAY, 2023
PRESENT:
Sri Manjunatha, B. A., LL.B.,
XLV Addl. City Civil & Sessions Judge, Bengaluru.
SC No.1017/2017
BETWEEN
Complainant State by Commercial Street P.S.,
(By the learned Public Prosecutor)
AND
Accused A1: Nagappa B Nayak @ Nagaraj
@ Naganna
S/o Govindappa, a/a 34 Yrs.,
R/a No.290, 6th Cross, 8th Main Road,
Pramod Layout, Hosakerehalli,
Bangalore City.
And also at House No.459,
Belaki Grama and Post,
Bhatkal Taluk,
Uttara Kannada District.
A2: Venkatesh Nayak(Abated)
A3: Shivu @ Eshwar
S/o Late Prashuram, a/a 22 Yrs.,
R/o Ganeshanagara, Sirasi Town,
Uttara Kannada District.
A4 to A6: Split up.
(By Sri UMV, Advocate)
*****
2
SC No.1017/2017
Date of offence & time 25.02.2013 at 2.30 p.m.
Date of report of offence 25.02.203 at 21.20 hours
Date of arrest of the A1:
accused A3:26.02.2013
Date of release on bail A3: 04.04/2013
Total period of custody 36 days
Name of the complainant Smt. Anil Kumar G. S,
Date of commencement 16.11.2022
of recording of evidence
Date of closing of 17.02.2023
evidence
Offences complained of U/s.3, 4, 5, 6, 7 and 9 of ITP Act and
Sec.366B, 420, 120B and 506 of IPC
Opinion of the Judge Accused found not guilty
JUDGMENT
The Police Inspector, Commercial Street P.S., Bangalore, has filed charge sheet against accused No.1 and 3 for the offences punishable U/s.3, 4, 5, 6, 7 and 9 of ITP Act and Sec.366B, 420, 120B and 506 of IPC in their Crime No.22/2013.
2. The factual matrix of the case is that :-
The accused No.1 and 3 by obtaining first floor building on rent from CW.19 were running prostitution business under the name and style as Hotel Athithi Residency, Boarding Lodging bearing No.43/2, First Floor situated near Shivajinagar Bus Stand, Hospital Road, within the limits of commercial Street P.S., Bangalore by importing/trafficking CW.5 to 8 through accused No.4 to 6with the assurance of providing 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. On 25.02.2013 at 2.30 p.m. the complainant along with panchas CW.2 to 4, and his staff CW.9 to CW.18 3 SC No.1017/2017 conducted raid over the said lodge after obtaining credible information and apprehended accused, who were involved in the prostitution business, rescued CW.5 to 8 and at that time seized th articles from the spot through panchanama. Thereby the accused persons are alleged with the offences punishable U/s.3, 4, 5, 6, 7 and 9 of ITP Act and Sec.366B, 420, 120B and 506 of IPC.
3. The concerned police have submitted charge sheet against the accused persons for the offences punishable U/s.3, 4, 5, 6, 7 and 9 of ITP Act and Sec.366B, 420, 120B and 506 of IPC, before the jurisdictional XI 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.
4.The charge was framed against the accused No.1 and 3 on 17.40.2023 for the offences punishable U/s.3, 4, 5, 6, 7 and 9 of ITP Act and Sec.366B, 420, 120B and 506 of IPC. The accused persons have pleaded not guilty and claimed to be tried.
5.The prosecution has examined in all six witnesses as PW.1 to PW.6 and got marked documents at Ex.P.1 to P.7, and identified Mos1 and 2. The learned public prosecutor has given up witnesses CW.9, CW.11, CW.12, CW.13, CW.16 to CW.20, and CW.23, in view of the 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.5 to CW.18, the concerned police failed to secure the said witnesses and in view of the same the 4 SC No.1017/2017 evidence of CW.5 to CW.8 taken as nil by rejecting the prayer of the prosecution. Further the prosecution has not taken any steps to secure the witnesses CW.3, CW.4 and CW.15, in view of the same dropping of evidence of CW.3, CW.4 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 7.3.2023, 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 25.02.2013 at 2.30 p.m. found that the accused No.1 and 2 are being the proprietor and cashier along with other accused persons running prostitution business in a rented building belongs to CW.19 under the name and style as Hotel Athithi Residency, Boarding and Lodging bearing No.43/2, situated near Shivajinagar Bus Stand, Hospital Road, within the limits of Commercial Street P.S., Bangalore,by hatching a criminal conspiracy with accused No.4 to 6 by importing CW.5 Kumari Shantha Kathoon citizen of Bangaldesh, 5 SC No.1017/2017 and by trafficking CW.6 to CW.8 from Maharashtra through phone with false assurance of visiting of Bangalore,, 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 accused No.1 and 3 have committed the offences punishable U/s. 3, 4, 5, 6, 7 and 9 of ITP Act ?
2. Whether the prosecution proves beyond reasonable doubt that accused No.1, 3 and along with other accused persons with common object to run prostitution business by importing CW.5 from Bagladesh and by trafficking CW.6 to CW.8 from Maharashtra through phone on a false promise of providing job and keeping them in the aforesaid lodge and induced them in indulging in prostitution business for wrongful gain, and thereby accused No.1 and 3 have committed the offence punishable U/s.366B r/w Sec.149 of IPC?
3. Whether the prosecution proves beyond reasonable doubt that accused No.1, 3 and along with other accused persons with common object to run prostitution business by importing CW.5 from Bagladesh and by trafficking CW.6 to CW.8 from Maharashtra through phone on a false promise of providing job and keeping them 6 SC No.1017/2017 in the aforesaid lodge and induced them in indulging in prostitution business for wrongful gain by cheating them and thereby accused No.1 and 3 have committed the offence punishable U/s.420 r/w Sec.149 of IPC?
4. Whether the prosecution proves beyond reasonable doubt that accused No.1, 3 and along with other accused persons with common object to run prostitution business by importing CW.5 from Bagladesh and by trafficking CW.6 to CW.8 from Maharashtra through phone on a false promise of providing job and keeping them in the aforesaid lodge and induced them in indulging in prostitution business for wrongful gain by threatening them with life and thereby accused No.1 and 3 have committed the offence punishable U/s.506 r/w Sec.149 of IPC?
5. Whether the prosecution proves beyond reasonable doubt that the accused No.1, 3 and along with other accused persons with common object to run prostitution business hatched a criminal conspiracy by importing CW.5 from Bagladesh and by trafficking CW.6 to CW.8 from Maharashtra trafficking over phone on a false promise of providing job and keeping them in the aforesaid lodge and induced them in indulging in prostitution business for wrongful gain, and 7 SC No.1017/2017 thereby accused No.1 and 3 have committed the offence punishable U/s.120B r/w Sec.149 IPC?
6. 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: In the Negative Point No.4: In the Negative Point No.5: In the Negative Point No.6: As per final order for the following:-
REASONS
10. Points No.1 to 5: All these 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 and 3 by obtaining first floor building on rent from CW.19 were running prostitution business under the name and style as Hotel Athithi Residency, Boarding Lodging bearing No.43/2, First Floor situated near Shivajinagar Bus Stand, Hospital Road, within the limits of commercial Street P.S., Bangalore by importing/trafficking CW.5 to 8 through accused No.4 to 6with the assurance of providing 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. On 25.02.2013 at 2.30 p.m. the complainant along with panchas CW.2 to 4, and his staff CW.9 to CW.18 conducted raid over the 8 SC No.1017/2017 said lodge after obtaining credible information and apprehended accused, who were involved in the prostitution business, rescued CW.5 to 8 and at that time seized th articles from the spot through panchanama. Thereby the accused persons are alleged with the offences punishable U/s.3, 4, 5, 6, 7 and 9 of ITP Act and Sec.366B, 420, 120B and 506 of IPC.
12.In order to prove the said allegation the prosecution has examined the complainant-G. S. Anilkumar, PW.1 being the informant deposed that since 2012 to 2014 he was working in Anti Human Trafficking wing, CID, Bengaluru, and on 25.02.2013 the Superintendent of Police told that he received information about running of prostitution business At Thithi Lodge, and instructed him to conduct raid. Thereafter he along with CW.10 to 14, and CW.2 to CW.4 as mahazar witnesses, CW.5 as decoy and rushed to the place where prostitution is running. CW.5 with cash of Rs.500/- entered into the premises along with Anand, and thereby confirmed that prostitution is running in the premises. He found men and women were involved in prostitution. The accused persons were running the said brothel, he has seized mobile phones, cash, , condoms, and drawn the mahazar marked as Ex.P1 in the presence of mahazar witnesses. Before conducting raid she gave notice to decoy and copy of notice issued to CW.2 and CW.3 mahazar witnesses marked as Ex.P3 to P4. Thereafter by producing CW.5 to 8 and accused No.3, he lodged Ex.P2 complaint along with seized articles Mobile and condoms are marked as MO1 and MO2, during the course of his evidence. The learned counsel for the accused subjected PW.1 for cross-examination 9 SC No.1017/2017 and denied the alleged offences committed by the accused persons. PW.1 had not obtained any search warrant before conducting raid, his staffs were orally informed regarding proposed raid. The neighbouring tentnats.residents, particularly women were not called as mahazar witnesses, as mandated under Immoral Traffic Act. The explanation offered by PW.1 that neighboring residents not co-operated while drawing the mahazar in a busy locality is not acceptable one. Admittedly before sending the decoy, 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.
13.PW.3 is the decoy, who has deposed about conducting of raid seizure of materials objects and drawing of spot mahazar in his presence. The contents of Ex.P1 panchanama is not proved sufficiently and satisfactorily by the prosecution, in spite of sufficient opportunities provided to the prosecution failed to secure the mahazar witnesses CW.3 and CW.4 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 the raided house to be one of the pancha to the panchanama Ex.P1 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 10 SC No.1017/2017 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 occurrence 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 along with the victims/CW.5 to 8, induced them indulging in committing prostitution and failure to prove seizure of MOs1 and 2 is fatal to the case of the prosecution. PW.2 D.V. Shivanna, the then Dy.S.P., PW.4 Chandrakala, the then Police Inspector, 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.5 to 8, and producing of accused before PW.6. The learned counsel for the accused cross-examined PW.2 and 11 SC No.1017/2017 PW.4 and they denied the suggestions with regard to apprehension of accused and their participation in the raid.
14.It is also very important to note that the prosecution in spite of issuing summons and warrants to the victims/CW.5 to CW.8 failed to secure the material witness before the Court, when the entire case rest on the evidence of victims/CW.5 to CW.8, who according to the prosecution, were indulging in prostitution business by trafficking and the accused persons were living out of 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.
15.In order to prove the allegations against the accused persons the prosecution has examined PW.5 Rajeev Shetty deposed in his evidence that he is the owner of the premises. He gave the said premises to accused No.1, vide GPA executed by his wife, and Police told him that the said premises being used for unlawful purposes. He handed copy of agreement to the police and gave his statement.
16.PW.6 ABdul Sattar Dhananjaya, Police Inspector of Commercial Street P.S., deposed on 25.02.2013 at 9.20 p.m. Cw.1 appeared before him and lodged written Ex.P2 complaint, he registered the case forwarded the FIR to the jurisdictional Magistrate as Ex.P7. CW.1 produced the victims along with accused and seized materials objects. He has received material objects and submitted PF to the jurisdictional Magistrate, identifies MO1 and 2 submitted by PW.1 along with Ex.P1 Mahazar. He sent the victims to state home for women, 12 SC No.1017/2017 arrested accused No.3, and on 26.02.2013 he recorded statements of raiding party members, and victims, and volutnary statement of accused No.3. produced the vcitims before the Court, accused No.3 appeared before him, and enquired CW.21, recorded his statement, and he handed over further investigation to CW.23, who in turn submitted charge sheet. The learned counsel for the accused subjected PW.6 for cross- examination and denied the alleged offences committed by the accused persons. PW.6 during cross-examination admitted that he had not participated in the raid conducted by PW.1, personally he did not visit the place of occurrence in the course of investigation. The official act performed by PW.2 has been denied by the learned counsel for the accused during cross- examination.
17.The victims CW.5 to 8 were not examined by the prosecution in spite of opportunity given by this Court. The material witnesses CW.3 and CW.4 have not been examined, so as to prove the guilt against the accused No.1 and 3 . Therefore, from the above reasons and discussions it is very clear that the prosecution has failed to establish the guilt against the accused No.1 and 3 beyond all reasonable doubt. Accordingly, I answer Points No. 1 to 5 in the negative.
18.Point No.6: In view of answer of this court on points No.1 and 2, this court pass the following:-
13SC No.1017/2017 ORDER Acting U/s.235(1) of Cr.P.C., the accused No.1 and 3 are hereby acquitted of the offenses punishable U/s.3, 4, 5, 6, 7 and 9 of ITP Act and Sec.366B, 420, 120B and 506 r/w Sec.149 of IPC.The bail and surety bonds of accused No.1 and 3
stand canceled.
MOs1 and 2 shall be preserved till the disposal of the split up case registered against accused No.4 to 6.
(Typed to my dictation by the Stenographer directly on Computer, corrected by me and then pronounced in open Court on this the 3rd day of May, 2023 ) (Manjunatha) XLV Addl. City Civil & Sessions Judge, Bengaluru.14
SC No.1017/2017 ANNEXURE List of Witnesses examined on behalf of Prosecution:
P.W.1: G. S. Anil Kumar P.W.2: D.V. Shivanna P.W.3: Anand P.W.4: Smt. Chandrakala P.W.5: K. Rajesh Shetty P.W.6: Abdul Sattar.
List of Documents exhibited on behalf of Prosecution:
Ex.P.1: Mahazar Ex.P.2: Complaint Ex.P.3: Notice Ex.P.4: Notice Ex.P.5: Notice Ex.P.6: Mahazar Ex.P.7: 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: 120 Condoms.
(Manjunatha)
XLV Addl. City Civil & Sessions Judge, Bengaluru.15
SC No.1017/2017 Accused No.1 and 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 and 3 are hereby acquitted of the offenses punishable U/s.3, 4, 5, 6, 7 and 9 of ITP Act and Sec.366B, 420, 120B and 506 r/w Sec.149 of IPC.
The bail and surety bonds of accused No.1 and 3 stand canceled.
MOs1 and 2 shall be preserved till the disposal of the split up case registered against accused No.4 to 6.
(Manjunatha) XLV Addl. City Civil & Sessions Judge, Bengaluru.