Bangalore District Court
Along With Panchas And His Staff ... vs No.2 And 3 on 21 April, 2022
KABC010117142021
IN THE COURT OF XLV ADDL. CITY CIVIL & SESSIONS
JUDGE, BENGALURU CITY (CCH-46)
DATED THIS THE 21ST 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.636/2021
BETWEEN
State by Parappana Agrahara P.S.,
Bangalore. .. COMPLAINANT
(By the learned Public Prosecutor)
AND
1.Daya @ Dayananda @ Harish
S/O Siddalingaiah,
A/a 21 Yrs.,
R/o Gollarhatti Village,
Kasaba Hirisave Post,
Channarayapatna Taluq,
Hassan District.
2.Babu
3.Gangadhar (absconding/ split up) ..ACCUSED
(By Sri PJS, Advocate)
******
Date of offence & time 09.12.2016 at 6.45 p.m.
2 SC No.636/21
Date of report of offence 09.12.2016 at 21.15 hours
Date of arrest of the 10.12.2016
accused
Date of release on bail 2.1.2017
Total period of custody 22 days
Name of the complainant Sri Narayana Gowda.
Date of commencement 28.01.2022
of recording of evidence
Date of closing of 01.04.2022
evidence
Offences complained of U/s.3, 4, 5, 6 and 7 of ITP Act and
Sec.370 of IPC
Opinion of the Judge Accused found not guilty
JUDGMENT
The Police Inspector, Parappana Agrahara P.S., Bangalore, has filed charge sheet against accused No.1 and others for the offences punishable U/s.3, 4, 5, 6 and 7 of Immoral Traffic (Prevention) Act, 1956 and Sec.370 of IPC in Crime No.567/2016.
2. The factual matrix of the case is that :-
The accused No.1 was running the prostitution business in a rented house belongs to CW.4 bearing No.20/2A. 20/2B, fourth floor situated Near Shiva Temple, Maruthinagar, Kudlu, within the limits of Parappana Agrahara P.S., Bangalore by trafficking CW.5 with the assurance of earning of money easily, 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. On 9.12.2016 at 6.45 p.m. the complainant along with panchas and his staff conducted raid after obtaining credible information and apprehended accused No.1, who was involved in the prostitution business, rescued 3 SC No.636/21 CW.5 and at that time seized condoms, cash, mobile and motorcycle etc., from the spot through panchanama. Thereby the accused No.1 is alleged with the offences punishable U/s.370 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.1 by showing accused No.2 and 3 absconding for the offences punishable U/s.370 of IPC and U/s.3, 4, 5, 6 and 7 of Immoral Traffic (Prevention) Act, 1956 of IPC, before the jurisdictional IX 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.1 by split up the case against accused No.2 and 3.
4.The charge was framed against the accused No.1 on 10.11..2021 for the offences punishable U/s.3, 4, 5, 6 and 7 of ITP Act and Sec.370 of IPC. The accused No.1 has pleaded not guilty and claimed to be tried.
5.The prosecution has examined in all five witnesses has PW.1 to PW.5 and got marked documents at Ex.P.1 to P.9, and identified Mos1 to 3. The learned public prosecutor has given up witnesses CW.8 to CW.12 on 1.4.2022, 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, CW.5, CW.6 and CW.7, but the concerned police failed to secure the said witnesses and in view of the same on 3.3.2022 the evidence of CW.5 was taken 4 SC No.636/21 as nil and on 1.4.2022, the evidence of CW.2, CW.3, CW.6 and CW.7 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, CW.5 CW.6 and CW.7, in view of the same dropping of evidence of CW.2 CW.3, CW.5, CW.6 and CW.7 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 6.4.2022, 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.1 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.1 at house bearing bearing No.20/2A. 20/2B, fourth floor situated Near Shiva Temple, Maruthinagar, Kudlu, within the limits of Parappana Agrahara P.S., Bangalore by trafficking CW.5 with the assurance of earning money easily, 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 and thereby the 5 SC No.636/21 accused No.1 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.1 with an intention to run prostitution business by trafficking CW.5 forcibly induced her to indulge in prostitution business for wrongful gain, and thereby the accused No.1 has committed an offence punishable U/s.370 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 allegation that the accused No.1 was running the prostitution business in a rented house belongs to CW.4 bearing No.20/2A. 20/2B, fourth floor situated Near Shiva Temple, Maruthinagar, Kudlu, within the limits of Parappana Agrahara P.S., Bangalore by trafficking CW.5 with the assurance of earning of money easily, 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. On 6 SC No.636/21 9.12.2016 at 6.45 p.m. the complainant along with panchas and his staff conducted raid after obtaining credible information and apprehended accused No.1, who was involved in the prostitution business, rescued CW.5 and at that time seized condoms, cash, mobile and motorcycle etc., from the spot through panchanama. Thereby the accused No.1 is alleged with the offences punishable U/s.370 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 Narayanagowda, who deposed that after obtaining credible information information regarding prostitution carried out at house bearing No.20/2A. 20/2B, fourth floor situated Near Shiva Temple, Maruthinagar, Kudlu, within the limits of Parappana Agrahara P.S., Bangalore he along with his staff CW.10 to 12 secured the panch witness CW.2 and CW.3 and among the said appointed CW.13 as the decoy and by handing over Rs.3,000/- instructed to visit the house to be raided and after settlement of prostitution business with the accused and ascertaining their involvement in prostitution business sent information. It is also the evidence of PW.1 that after receiving the signal from the decoy CW.13 he raided the spot along with his staff and panchas and apprehended the accused No.1 and rescued CW.5, who was made to indulge in prostitution business along with the decoy by the accused persons. It is also the case of the complainant/PW.1 that he 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 7 SC No.636/21 place that has been raided is thickly populated with the adjoining residential houses. It is also admitted by PW.1 that he is not able to identify the denomination of the currency notes, which he had handed over to the decoy since 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 he has not physically verified the decoy nor himself and his staff. This clearly indicates that PW.1 has never taken any steps before the raid regarding the materials that has been carried by the staff and the decoy at the time of raid. Further it is also admitted by PW.1 in his cross-examination that he has not mentioned in the panchanama Ex.P3 as to the denomination of the currency notes, which he has handed over to the decoy. It is the evidence of PW.1 that after conducting the raid he has seized MO1 Rs.3,400/- from the possession of accused No.1 and out of the said amount returned Rs.3,000/- to the decoy and seized Rs.400/- as MO1 through the panchanama Ex.P3 drawn in the presence of the panchas CW.2 and CW.3. From this evidence it is crystal clear that there is no identification of the denomination of the currency notes of Rs.3,400/- that has been seized from the possession of accused No.1. The evidence of PW.1 is also not crystal clear as to whether the amount of Rs.3,000/- seized and returned to the decoy was the same amount that has been handed over by PW.1 to the decoy to trap the accused persons. This creates suspicion regarding the payment of amount of Rs.3,000/- to the decoy and seizing the same from the possession of accused without mentioning the said details in the mahazar Ex.P3. At this juncture it is also 8 SC No.636/21 very important to note that both the panchas CW.2 and CW.3, in spite of sufficient summons and warrants were not secured before the Court, and their evidence was taken as nil. In the absence of material panch witnesses the contents of Ex.P3 panchanama is also not proved sufficiently and satisfactorily by the prosecution. 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 were not examined to prove the contents of Ex.P3 panchanama. 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. 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 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 9 SC No.636/21 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.4 and PW.5 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 persoms 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 commercial shops, non citing of the local persons as a witness by the Investigating Officer_PW.4 and PW.5 also creates a doubt in the prosecution case regarding the conduct of raid and and apprehending of the accused No.1 along with the victim/CW.5 Geetha, induced her to indulging in committing prostitution and seizure of MOs1 to 3 is fatal to the case of the prosecution.
13.In order to prove the allegations against the accused persons the prosecution has examined the PW.2, who is the owner of the house, who deposed that the raided house belongs to him and the said house was leased to one person by name Gangadhar, and has not executed any lease deed regarding the tenancy of the property. It is also admitted in the cross-examination by the witness PW.2 that he has no knowledge, as to whom his mother as owner of the house leased the property. Further the I.O., PW.4 and PW.5 have also 10 SC No.636/21 admitted that during the investigation they have not collected any document to ascertain the ownership of the building that has been raided and also to show that the said house was leased in favour of accused. In the absence of the same the contention of the prosecution that the owner of the propert has leased the house to the accused persons, who were involved in committing the prostitution business indulging CW.5 and leaving on the wrongful gain from the said business, cannot be taken into consideration. It is also very important to note that the prosecution in spite of issuing summons and warrants to the victims/Cw.5 failed to secure the material witness before the Court, when the entire case rest on the evidence of victim/Cw.5, who according to the prosecution, was indulging in prostitution business by trafficking and the accused leaving the wrongful gain from the said business. This is fatal for the case of the prosecution, wherein the material witness CW.5 has not been examined, so as to prove the guilt against the accused person.
14.The I.O., PW.4 has deposed that he was working as PSI at the time of registration of complaint at Parappana Agrahara P.S., It is the evidence of PW.4 that while he was on duty on 9.12.2016 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.567/2016 and submitted FIR Ex.P7 to his higher officials and to the Court. Further it is the evidence of PW.2 that he has entered the property particulars in PF No.135/2016 MOs1 to 3. Further it is the evidence of PW.4 I.O., that he has recorded the statements of the witnesses CW.10 to CW.13 and also recorded the 11 SC No.636/21 statement of CW.5. Further it is the evidence of PW.4 that he has handed over further investigation to PW.5, who has done part investigation. In the evidence of PW.5 I.O., deposed after obtaining further investigation from PW.4 he has obtained the FSL report and after completing the investigation he has submitted charge sheet against the accused person to the Court based on the statement and the investigation done by the I.O., PW.4. From this evidence of PW.5 it is crystal clear that the I.O., PW.5 has done only part investigation, and the entire investigation was carried out by PSI PW.4 and on the said investigation only charge sheet has been filed by PW.5. It is vehemently argued by the accused No.1 counsel and brought to the notice of the Court the evidence of I.O.,/PW.4 that the at the time of the incident he was working as Police Sub-inspector of Parappana Agrahara 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.5, who has only filed charge sheet. It is vehemently argued that PW.4 being PSI not authorized not 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 12 SC No.636/21 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 during investigation and recorded the statement of victim/CW.5 and the raiding party witnesses. It is the specific defense of the accused No.1 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 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 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 13 SC No.636/21 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 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.
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 crystal clear that the investigation done by the Police-Sub-Inspector PW.4 is vitiated by serious procedural irregularity and not curable in nature.
18.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.
19.Point No.3: In view of answer of this court on points No.1 and 2, this court pass the following:-14 SC No.636/21
ORDER Acting U/s.235(1) of Cr.P.C., the accused No.1 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 of Indian Penal Code, 1860.
The bail and surety bonds of accused No.1 stand canceled.
MOs1 to MOs4 shall be retained till the disposal of split up case as registered against accused No.2 and 3.
(Typed to my dictation by the Judgment Writer directly on Computer, corrected by me and then pronounced in open Court on this the 21st day of April, 2022) (Abdul Rahim Husain Shaikh) XLV Addl. City Civil & Sessions Judge, Bengaluru.15 SC No.636/21
ANNEXURE List of Witnesses examined on behalf of Prosecution:
P.W.1: Narayan Gowda P.W.2: Vinay P.W.3: Nandeesh P.W.4: S. Babu PW.5: B.K. Kishore Kumar.
List of Documents exhibited on behalf of Prosecution:
Ex.P.1: Notice. Ex.P.1a: Signature of PW.1 Ex.P.2: Record of reasons Ex.P.2a: Signature of PW.1 Ex.P.3: Mahazar Ex.P.3: Signature of PW.1 Ex.P.4: Complaint. Ex.P.4a: Signature of PW.1 Ex.P.5 and P.6: photographs Ex.P.7: FIR No.567/2016 dated 9.12.2016 Ex.P.7a: Signature of PW.4 Ex.P.8: FSL report Ex.P.8b: Signature of PW.5 Ex.P.9: Medical Examination report.
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: Cash Rs.400/-
MO2: Condoms
MO3: Lava Mobile.
(Abdul Rahim Husain Shaikh)
XLV Addl. City Civil & Sessions Judge,
Bengaluru.
16 SC No.636/21
Judgment pronounced in the open Court
vide its separate order
ORDER
Acting U/s.235(1) of Cr.P.C., the accused No.1 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 of Indian Penal Code, 1860.
The bail and surety bonds of accused No.1 stand canceled.
MOs1 to MOs4 shall be retained till the disposal of split up case as registered against accused No.2 and 3.
(Abdul Rahim Husain Shaikh) XLV Addl. City Civil & Sessions Judge, Bengaluru.