Bangalore District Court
That She Has Executed Mahazar Ex.P3 vs Persons And After Settling The Same He ... on 22 April, 2022
KABC010045252020
IN THE COURT OF XLV ADDL. CITY CIVIL & SESSIONS
JUDGE, BENGALURU CITY (CCH-46)
DATED THIS THE 22ND DAY OF APRIL, 2022
PRESENT:
Sri. Abdul Rahim Husain Shaikh,
B.Sc., B.Ed., LL.B.(Spl.)
XLV Addl. City Civil & Sessions Judge,
Bengaluru.
SC No.272/2020
BETWEEN
State by Sanjaynagar .S.,
Bangalore. .. COMPLAINANT
(By the learned Public Prosecutor)
AND
3.Yashwanth
S/o Rangegowda,
A/a 20 Yrs.,
R/a No.17, Kallanakere,
Kikkeri Hobli, KR Pete Taluq,
Mandya District.
1.Sukesh @ Santhosh @ Sagar
2.Raju (absconding/ split up) ..ACCUSED
(By Sri PJS, Advocate)
******
Date of offence & time 26.06.2014 at 21.25 hours
Date of report of offence 26.06.214 at 23.50 hours
Date of arrest of the accused 20.09.2019(A3)
2 SC No.272/20
Date of release on bail 03.10.2019
Total period of custody 13 days
Name of the complainant Smt. K. Bhadramma,.
Date of commencement of 11.03.2021
recording of evidence
Date of closing of evidence 18.04.2022
Offences complained of U/s.3, 4, 5, 6 and 7 of ITP Act and
Sec.370, 370A and 366B of
IPC
Opinion of the Judge Accused found not guilty
JUDGMENT
The Police Sub-Inspector, Sanjaynagar P.S., Bangalore, has filed charge sheet against accused No.3 and others for the offences punishable U/s.3, 4, 5, 6 and 7 of Immoral Traffic (Prevention) Act, 1956 and Sec.370, 370A and 366B of IPC in Crime No.140/2014.
2. The factual matrix of the case is that :-
The accused No.3 and others were running prostitution business at house bearing No.1/1, Ground Floor Situated at Vinayaka Layout, Boopasandra, RMV II Stage, within the limits of Sanjaynagar P.S., Bangalore by trafficking CW.8 with the assurance of getting job, induced and indulged her in prostitution business in the public vicinity and was leading his life from the amount of illegal gain from the said business by wrongfully confining her in a house. On 26.06.2014 at 9.00 p.m. the complainant along with panchas and her staff conducted raid after obtaining credible information and apprehended accused No.3, who was involved in the prostitution business, rescued CW.8 and at that time seized condoms, cash, mobile etc., from the spot through panchanama. Thereby the accused 3 SC No.272/20 No.3 is alleged with the offences punishable U/s.370, 370A and 366B of IPC and Sec.3, 4, 5, 6 and 7 of Immoral Traffic (Prevention) Act, 1956.
3. The concerned police have submitted charge sheet against the accused No.3 by showing accused No.1 and 2 absconding for the offences punishable U/s.370, 370A and 366B of IPC and U/s.3, 4, 5, 6 and 7 of Immoral Traffic (Prevention) Act, 1956 of IPC, before the jurisdictional VIII 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 No.3 by split up the case against accused No.1 and 2.
4.The charge was framed against the accused No.3 on 23.12.2021 for the offences punishable U/s.3, 4, 5, 6 and 7 of ITP Act and Sec.370 and 366B of IPC. The accused No.3 has pleaded not guilty and claimed to be tried.
5.The prosecution has examined in all four witnesses has PW.1 to PW.4 and got marked documents at Ex.P.1 to P.6, and identified Mos1 to 3. The learned public prosecutor has given up witnesses CW.4 to CW.7 and CW.13, in view of the evidence of other police official witnesses, as repetition witnesses. In spite of sufficient opportunities provided to the prosecution by issuing summons, warrant and proclamation for securing CW.2, CW.3 and CW.8, but the concerned police failed to secure the said witnesses and in view of the same the evidence of CW.2, CW.3 and CW.8 was 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 and CW.8, in view of the 4 SC No.272/20 same dropping of evidence of CW.2, CW.3 and CW.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 20.04.2022, and the same was duly recorded. The accused No.1 did not claim for defense evidence nor produced any documents to support his case in spite of sufficient opportunities. The accused No.3 has complied provisions U/s.437A of Cr.P.C.,
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 that the accused No.3 at house No.1/1, Ground Floor Situated at Vinayaka Layout, Boopasandra, RMV II Stage, within the limits of Sanjaynagar P.S., Bangalore by trafficking CW.8 with the assurance of money, and indulged her in prostitution business in the public vicinity and was leading his life from the amount of illegal gain from the said business and thereby the accused No.3 has committed an offences punishable U/s.3, 4, 5. 6 and 7 of ITP Act?
2. Whether the prosecution proves that the accused No.3 with an intention to run prostitution business by trafficking CW.8 forcibly induced her to indulge in prostitution business 5 SC No.272/20 for wrongful gain by confining her in a house, and thereby the accused No.3 has committed an offence punishable U/s.370 and 366B 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.
11.It is the specific case of the prosecution that the accused No.3 and others were running prostitution business at house bearing No.1/1, Ground Floor Situated at Vinayaka Layout, Boopasandra, RMV II Stage, within the limits of Sanjaynagar P.S., Bangalore by trafficking CW.8 with the assurance of getting job, and by confining induced and indulged her in prostitution business in the public vicinity and was leading his life from the amount of illegal gain from the said business by wrongfully confining her in a house. On 26.06.2014 at 9.00 p.m. the complainant along with panchas and her staff conducted raid after obtaining credible information and apprehended accused No.3, who was involved in the prostitution business, rescued CW.8 and at that time seized condoms, cash, mobile etc., from the spot through panchanama. Thereby the accused 6 SC No.272/20 No.3 is alleged with the offences punishable U/s.370, 370A and 366B of IPC and Sec.3, 4, 5, 6 and 7 of Immoral Traffic (Prevention) Act, 1956.
12.In order to prove the said allegation the prosecution has examined the complainant PW.1 Bhadramma deposed that on On 26.06.2014 at 9.00 p.m. after obtaining credible information regarding prostitution carried out at house No.1/1, Ground Floor Situated at Vinayaka Layout, Boopasandra, RMV II Stage, within the limits of Sanjaynagar P.S., Bangalore, she along with her staff secured the panch witness and out of them appointed Shamugham and requested to be decoy and instructed him to inform after ascertaining the involvement of the accused in prostitution business and handed over him Rs.3,000/-. Further it is the evidence of PW.1 that after receiving the signal from the decoy she raided the spot along with her staff and panchas and apprehended the accused No.3 and rescued CW.8, who was made to indulge in prostitution business by the accused persons. It is also the case of the complainant/PW.1 that she has executed mahazar Ex.P3 regarding seizure of material objects Mos1 to 3. It is pertinent to that in the cross-examination PW.1 has admitted that the place that has been raided is thickly populated with the adjoining residential houses. In the evidence of PW.1 she was not able to identify the denomination of the currency notes of Rs.3,000/- which he handed over to the decoy sinces he has not signed the said currency notes. It is equally important to note that the witness PW.1 has also deposed that before the raid she has not physically verified the decoy nor herself and 7 SC No.272/20 her staff. It is equally important to note that decoy Shanmugham is cited as charge sheet witness by the prosecution nor examined him as an independent witness to prove the fact that he was appointed as decoy PW.1 and has handed over Rs.3,000/- to settle the prostitution deal with the accused persons and after settling the same he has sent signal to PW.1 to conduct the raid and accodingly the raid was conducted and an amount Rs.3,270/- was seized from the possession of accused No.3 through Ex.P3 panchanama and CW.8 was rescued from the spot. It is very pertinent to note that non-citing of decoy as witness and non examining him as independent witness by the prosecution to prove the guilt against the accused No.3 is fatal for the prosecution case. Further it is equally important to note that PW.1 has clearly admitted that there is no endorsement regarding the denomination of currency notes of Rs.3,000/- in the panchanama Ex.P3, which has been handed over to the decoy Shanmugham to settle the deal and to trap the accused persons. Non-mentioning of the physical verification of the decoy and not mentioning the denomination of the currency notes in the seizure panchanama is fatal for the prosecution case when there is clear evidence from the complainant that after seizing the amount of Rs.3,270/- from the possession of accused No.3 and an amount of Rs.3,000/- was returned to decoy and only Rs.270/- has been seized as MO3 from the possession of accused No.3. The involvement of currency notes in the entire case is not proved sufficiently and satisfactorily by the prosecution creating a suspicion of the case 8 SC No.272/20 of the prosecution while the decoy Shanmugham is not cited as witness nor examined as independent witnss.
13.It is vehemently argued by the accused counsel 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 panchas CW.2 and CW.3 are the male persons and have not been examined by the prosecution to prove the seizure of MOs1 to 3 from the possession of accused No.3 and execution of seizure panchanama Ex.P3. Further it is clear from the records that the decoy Shanmugham is not cited as witness to prove the settlement by the decoy with the accused and seizing of amount as per the panchanama Ex.P3 from the possession of the accused No.3. It is important to note that the male panchas have not been examined by the prosecution nor the complainant PW.1 has taken efforts to secure the female pancha from the adjoining house where the raid was conducted. 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:9 SC No.272/20
It is crystal clear from the provisions of Sec.15(2) of ITP Act, 1956 that it mandates that 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, and were not examined by the prosecution. Even in the cross-examination of I.O., PW.2 and 3 have admitted that after taking the investigation of the case, have 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 crystal clear that the complainant/PW.1 has not complied the mandatory provisions of Sec.15(2) of ITP Act. It is equally important to note that though the incidental spot is a public place adjoining to residential houses, non citing of the local persons as a witness by the Investigating Officer_PW.2 and PW.3 also creates a doubt in the prosecution case regarding the conduct of raid and and apprehending of the accused No.3 along with the victim/CW.8, induced her in committing prostitution and seizure of MOs1 to 3 is fatal to the case of the prosecution.
14.In order to prove the allegations against the accused persons the prosecution has examined the PW.2, who is the owner of the house, has deposed that the raided house belongs to him and the said house was rented the house to one person by name Sandesh, and later learned that the said house was used for prostitution by the accused persons. It is the evidence 10 SC No.272/20 of PW.4 that there was no document has been executed regarding the lease of the property to Sandesh. In the instant case the prosecution has failed to prove that the witness has leased the property to Sandesh in the absence of relevant document of lease deed, and the said house was used by accused No.3 to carry prostitution business by trafficking CW.8. In view of the same the evidence of PW.4 the owner of the house cannot be considered in proving the guilt against accused, when there is no evidence and document to prove that the accused No.3 was in possession of the said house as tenant under the owner PW.4 The I.Os., PW.2 and PW.3 though deposed that they have collected the documents regarding the ownership of the house, and have not produced any documents to show that the accused No.3 was in possession as tenant under PW.4 owner of the house. In the absence of the same the evidence of PW.4 and also the evidence of PW.2 and PW.3 I.O., cannot be considered in proving that the accused No.3 was in possession of the raided house belongs to PW.4 and was carrying prostitution business by indulging the victim CW.8.
15.It is also very important to note that the prosecution in spite of issuing summons and warrants to the victim/Cw.8 failed to secure the material witness before the Court, when the entire case rest on the evidence of victim/Cw.8, who according to the prosecution, was indulging in prostitution business by trafficking and the accused leaving on the wrongful gain from the said business. This is fatal for the case of the prosecution, wherein 11 SC No.272/20 the material witnesses Cw.8 has not been examined, so as to prove the guilt against the accused person.
16.The I.O., PW.3 has deposed that he was working as ASI at the time of registration of complaint at Sanjaynagar P.S., It is the evidence of PW.5 that while he was on duty on 26.06.2014 CW.1/PW.1 has produced the victims, seized properties and accused person, along with complaint Ex.P4, which he has registered in crime No.140/2014 and submitted FIR Ex.P6 to his higher officials and to the Court. Further it is the evidence of PW.3 I.O., that he has recorded the statements of the witnesses Victim/CW.8 and CW.2 to CW.7 and handed over further investigation to PW.2 PSI, who after collecting medical report and birth certificate of the victim and relying on the statement recorded by the I.O., PW.3 filed charge sheet against the accused. From this evidence it is clear that the entire investigation is carried out by ASI PW.3 and PSI PW.2. It is vehemently argued by the accused No.3 counsel and brought to the notice of the Court the evidence of I.O.,/PW.3 and PW.2 that the at the time of the incident they were working as Assistant Sub-Inspector and Police Sub-inspector of Sanjaynagar 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.3 and PW.2 are being ASI and PSI not authorized and not a Special Police Officers, as specified by the State Government or on behalf of the Government in investigating the cases pertaining to the ITP Act.
12 SC No.272/2017.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 I.O., PW.3 and PW.2 have not produced any document to show that they are appointed as a Special Officers and having the rank of Police Inspector in the Department having authority to investigate cases pertaining to ITP Act,, 1956 at the time of investigation of the case. The evidence of PW.3 and PW.2 clearly discloses that they being at the rank of Assistant Sub- Inspector and Police Sub-Inspector, have registered the case and recored the statements of the witnesses/victims during investigation It is the specific defense of the accused No.3 that the witness PW.3 and PW.2, had investigated the case have no authority as per the provisions of ITP Act to investigate the case since they were working under the rank of ASI and PSI, below the rank of Police Inspector. At this context it is worth to note a decision of Hon'ble High Court 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 13 SC No.272/20 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.3 ASI and PW.2 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 any compliance to Sec.13(2) of ITP Act, 1956.
18.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 this Court 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.
19.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 crystal clear that the investigation done by the ASI and PSI PW.3 and PW.2 is vitiated by serious procedural irregularity and not curable in nature. It is admitted by the complainant PW.1 that the case against accused No.1 is already deposed in SC No.1120/2018 dated 19.10.2021 and the present case is only accused No.3, against whom the prosecution has failed to establish the alleged offence.
14 SC No.272/2020.Therefore, from the above reasons and discussions it is very crystal clear that the prosecution has utterly failed to establish or prove the guilt against the accused No.1 beyond all reasonable doubt. Accordingly, I answer Points No. 1 and 2 in the negative.
21.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.3 is hereby acquitted of the offenses punishable U/s.3, 4, 5, 6 and 7 of the Immoral Traffic (Prevention) Act, 1956 and Sec.370 and 366B of Indian Penal Code, 1860.
The bail and surety bonds of accused No.3 stand canceled.
MOs1 to MOs3 shall be retained till the disposal of split up case as registered against accused No.2.
(Typed to my dictation by the Judgment Writer directly on Computer, corrected by me and then pronounced in open Court on this the 22nd day of April, 2022) (Abdul Rahim Husain Shaikh) XLV Addl. City Civil & Sessions Judge, Bengaluru.15 SC No.272/20
ANNEXURE List of Witnesses examined on behalf of Prosecution:
P.W.1: K. R. Bhadramma P.W.2: Narasimhaiah P.W.3: Chandrahas P.W.4: Fayaz.
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: Report Ex.P.6; 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: Cash Rs.270/-.
(Abdul Rahim Husain Shaikh)
XLV Addl. City Civil & Sessions Judge,
Bengaluru.
16 SC No.272/20
Judgment pronounced in the open Court
vide its separate order
ORDER
Acting U/s.235(1) of Cr.P.C., the accused No.3 is hereby acquitted of the offenses punishable U/s.3, 4, 5, 6 and 7 of the Immoral Traffic (Prevention) Act, 1956 and Sec.370 and 366B of Indian Penal Code, 1860.
The bail and surety bonds of accused No.3 stand canceled. MOs1 to MOs3 shall be retained till the disposal of split up case as registered against accused No.2.
(Abdul Rahim Husain Shaikh) XLV Addl. City Civil & Sessions Judge, Bengaluru.17 SC No.272/20