Bangalore District Court
She Has Executed The Ex.P3 Panchanama In vs No.1 And 2 on 7 April, 2022
KABC010328182018
IN THE COURT OF XLV ADDL. CITY CIVIL & SESSIONS
JUDGE, BENGALURU CITY (CCH-46)
DATED THIS THE 7TH 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.1915/2018
BETWEEN
State by Subramanyapura P.S.,
Bangalore. .. COMPLAINANT
(By the learned Public Prosecutor)
AND
1.Sachin.K. R
S/o Rathnakar,
A/a 23 yrs.,
R/a No.100, 2nd Cross,
Near Manjunath Bar,
Bidyapeeta Circle,
BSK III Stage,
Katriguppe,
Bengaluru-560 085.
2.Yashwantha
S/o Smashekar,
A/a 25 Yrs.,
R/a No.112, 9th Cross,
Depot Road, Hosakerehalli,
2 SC No.1915/18
Bengaluru City.
3.Raghu(absconding/ split up) ..ACCUSED
(By Sri MLM, Advocate)
******
Date of offence & time 28.06.2017 at 6.45 p.m.
Date of report of offence 28.06.2017 at 23.15 hours
Date of arrest of the accused 28.06.2017
Date of release on bail 18.07.2017
Total period of custody 20 days
Name of the complainant Ayeesha.S.
Date of commencement of 12.12.021
recording of evidence
Date of closing of evidence 14.02.2022
Offences complained of U/s.4, 5 and 6 of ITP Act and
Sec.370
Opinion of the Judge Accused found not guilty
JUDGMENT
The Police Sub-Inspector, Subramanyapura Police Station, Bangalore, has filed charge sheet against accused No.1 and 2 and another for the offences punishable U/s.3, 4, 5 and 6 of Immoral Traffic (Prevention) Act, 1956 and Sec.370(2) of IPC in Crime No.297/2017.
2. The factual matrix of the case is that :-
The accused No.1 and 2 along with accused No.3 were running the prostitution business at house bearing No.118 situated near Madhu Soundarya Women Beatuy saloon situated at 9th Main Road, Krishnaiah Layout, Poornaprajna Nagara, Uttarahalli, within the limits of Subramanyapura P.S., Bangalore by trafficking CW.2 with the false assurance of getting job at Bangalore, and indulged her in prostitution business in the 3 SC No.1915/18 public vicinity and were leading their life from the amount of illegal gain from the said business. On 28.06.2017 at 6.45 p.m. the complainant along with panchas and his staff CW.4 to 8 conducted raid after obtaining credible information and apprehended accused No.1 and 2, who were involved in the prostitution business, rescued CW.2 and at that time seized Mobile Phones, condoms and cash of Rs.2,000/- etc., from the spot through panchanama. Thereby the accused persons are alleged with the offences punishable U/s.370 of IPC and Sec.3, 4, 5 and 6 of Immoral Traffic (Prevention) Act, 1956.
3. The concerned police have submitted charge sheet against the accused No.1 to 3 by showing accused No.3 absconding for the offences punishable U/s.3, 4, 5 and 6 of Immoral Traffic (Prevention) Act, 1956 and Sec.370(2) of IPC, before the jurisdictional II 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 and 2. The same is numbered as SC No.1915/2018 in this Court. The case against No.3 has been split up.
4.The charge was framed against the accused No.1 and 2 on 2.3.2021 for the offenses punishable U/s.3, 4, 5 and 6 of ITP Act and Sec.370 of IPC. The accused No.1 and 2 have pleaded not guilty and claimed to be tried.
5.The prosecution has examined in all three witnesses as PW.1 to PW.3 and got marked documents at Ex.P.1 to P.5, and identified Mos1 to 6. The learned Public Prosecutor has given up the witnesses CW.3, CW.6 and CW.8 on 13.12.2020 and 4 SC No.1915/18 11.01.2021, 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.4 and CW.5, but the concerned police failed to secure the said witnesses and in view of the same on 29.11.2021 evidence of CW.2 and 09.03.2022 evidence of CW.4 and CW.5 was 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.5, in view of the same dropping of evidence of CW.3, CW.4 and CW.5 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 14.3.2022, and the same was duly recorded. The accused No.1 and 2 did not claim for defense evidence nor produced any documents to support their case in spite of sufficient opportunities. The accused No.1 and 2 have 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 and 2 along with accused No.3 were running prostitution business house bearing No.118 situated near Madhu Soundarya Women Beatuy saloon situated at 9th Main Road, Krishnaiah Layout, 5 SC No.1915/18 Poornaprajna Nagara, Uttarahalli, within the limits of Subramanyapura P.S., Bangalore, by trafficking CW.2 with the false assurance of getting job at Bangalore, 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.1 and 2 have committed an offences punishable U/s. 3, 4, 5 and 6 of ITP Act?
2. Whether the prosecution proves that the accused No.1 and 2 along with accused No.3 with an intention to run prostitution business by trafficking CW.2 forcibly induced her to indulge in prostitution business for wrongful gain, and thereby the accused No.1 and 2 have 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:-6 SC No.1915/18
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 against the accused No.1 and 2 along with accused No.3 were running the prostitution business at house bearing No.118 situated near Madhu Soundarya Women Beatuy saloon situated at 9th Main Road, Krishnaiah Layout, Poornaprajna Nagara, Uttarahalli, within the limits of Subramanyapura P.S., Bangalore by trafficking CW.2 with the false assurance of getting job at Bangalore, and indulged her in prostitution business in the public vicinity and were leading their life from the amount of illegal gain from the said business. On 28.06.2017 at 6.45 p.m. the complainant along with panchas and his staff CW.4 to 8 conducted raid after obtaining credible information and apprehended accused No.1 and 2, who were involved in the prostitution business, rescued CW.2 and at that time seized Mobile Phones, condoms and cash of Rs.2,000/- etc., from the spot through panchanama. Thereby the accused persons are alleged with the offences punishable U/s.370 of IPC and Sec.3, 4, 5 and 6 of Immoral Traffic (Prevention) Act, 1956.
12.In order to prove the said allegation the prosecution has examined the complainant/PW.1 Ayeesha who deposed that on 28.06.2017 after obtaining credible information regarding prostitution carried out secured the panch witnesses CW.4 and CW.5 and after issuing them Notice Ex.P.1 and preparing record of reasons Ex.P.2 proceeded towards the 7 SC No.1915/18 place of information and before conducting raid deputed the staff CW.7 as decoy by handing him Rs.2,000/- and directed him to approach the house to be raided and after ascertaining the fact regarding carrying of prostitution infrom through signal or missed call. It is the case of the Prosecution and evidence of PW.1 that accordingly after receiving the information from the decoy Cw.7 raided the spot along with panchas and staff members and found two persons by name Sachin and Yeshwanth, who stated that they were involved in prostitution business and permitted the decoy to carry out the said act along with a lady in a room situated in the said house. It is also the evidence of PW.1 that the said room was opened the decoy along with one lady who stated that her name as Salma Begum and one person by name Raghu has indulged her in prostitution with the help of Sachin and Yeshwantha, who is to procure customers for the said business and also get a share from the business. Further it is the case of the complainant/PW.1 that she conducted the panchanama Ex.P3 on the spot in the presence of panchas CW.4 and CW.5 and seized material objects MOs1 to 6. It is pertinent to note that in the cross- examination the complainant/PW.1 admitted that she has not enquired to whom the said house belongs and has not taken any efforts to collect the documents regarding the ownership of the house. Further it is also the evidence of PW.1 in the cross- examination that she has not enquired the identity of the girl/victim whom she has apprehended, who according to the prostitution indulging in committing the alleged offence. There is no evidence from the complainant/PW.1 as to the steps taken 8 SC No.1915/18 with regard to physical inspection of the decoy before permitting him to visit the house to be raided. It is equally important to note that according to PW.1 she has handed over an amount of Rs.2,000/- to the decoy, but the face value of the said amount is not mentioned in the panchanama nor in the complaint. In the evidence complainant/PW.1 has deposed that at the time of raid she has seized an amount of Rs.3,000/- from the possession of sachin i.e., accused no.1 and out of the said amount she has handed over Rs.2,000/- back to decoy which was used to trap the accused, but the said face value of the amount is not mentioned in the panchanama Ex.P.3. This evidence of PW.1 creates suspicion regarding the currency note of Rs.2,000/- that has been used by PW.1 in traping the accused through the decoy CW.7/PW.3. It is equally important to note that in the evidence of PW.3, he too has stated that no physical examination was conducted on him before permitting to to visit the house to be raided. It is very important to note that he is unable to say the face value of the amount that he has obtained from PW.1 and used to trap the accused. Further according to the decoy PW.3 after raid the panchanama Ex.P3 was executed by PW.1 from 6.45 p.m. to 8.00 p.m. but this evidence of PW.3 is contrary to the averments of panchanama Ex.P3 and the evidence of PW.1 since the time factor has been mentioned in the Ex.P3 panchanama from 6.45 p.m. to 9.30 p.m. This material evidence clearly creates suspicion regarding seizure of material objects MOs1 to 6 from the possession of accused persons in according to the Ex.P3 panchanama. Further it is also important to note that the panch witnesses to Ex.P3 9 SC No.1915/18 panchanama CW.4 and CW.5 were not secure before the Court in spite of proclamation and not examined to prove the averments of Ex.P3 panchanama regarding the seizure of MO1 to MO6 from the spot. Though according to the complainant/PW.1 she has executed the Ex.P3 panchanama in the presence of panhas CW.4 and CW.5, the same is not sufficiently and satisfactorily proved and the said panchanama has lost its evidentiary value.
13. As already discussed above, the police official witness PW.1 though given evidence about the raid and seizure of material objects MOs1 to 6 from the possession of accused No.1 and 2, but she has not called any women from the locality to be the pancha nor there is an evidence from PW.1 that in spite of her request no women panchas from the locality have denied to be the pancha. The pancha CW.4 and CW.5 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:10 SC No.1915/18
14.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 admitted that after taking the investigation of the case, he has not visitied the spot, nor he has recorded the statements of the witnesses to ascertain the act of accused persons who were indulging in carrying out prostitution business. 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 also equally important to note that the police officials PW.1, and the investigation Officer PW.2, who has filed the charge sheet, have admitted that in spite of dense locality and adjoining residential houses, near the place of raid, as witnesses for mahazar nor recorded the statements regarding the occurrence of the alleged offence against the accused. 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 also creates a doubt in the prosecution case regarding the conduct of raid and apprehending of the accused No.1 and 2 along with the victim CW.2 Salma Begum, is fatal to the case of the prosecution.
15.In order to prove the allegations against the accused persons the prosecution has examined the PW.2 the Police 11 SC No.1915/18 Official Vajramuni, who deposed that at the time of occurrence of the said incident he was working as a PSI at Subramanyapura P.S., and CW.1/PW.1 has produced the victims, seized properties and accused persons, along with complaint Ex.P1, which he has registered in crime No.297/2017 and submitted FIR Ex.P5 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.118/2017 MOs1 to 6. Further it is the evidence of PW.2 I.O., that he has recorded the statements of the victims, witnesses and the panchas CW.3, CW.6, CW.7 and CW.8. Further it is the evidence of PW.2 I.O., that after completing the investigation he has submitted charge sheet against the accused persons to the Court. In the cross- examination of PW.2 admitted that after obtaining the investigation he has never visited the spot and by enquiring secured the witnesses, who have present at the time of raid. It is also pertinent to note that the prime witnesses CW.4 and CW.5 were not secured by the prosecution in spite of sufficient warrants and proclamation. The non-examination of the material victim CW.2 and witnesses CW.4 and CW.5 is fatal for the prosecution case. It is vehemently argued by the accused No.1 and 2 counsel and brought to the notice of the Court the evidence of I.O.,/PW.2 who deposed that at the time of the incident he was working as Police Sub-inspector of Subramanyapura P.S., and after registering the complaint and after completion of investigation and has filed the charge sheet was not authorized not a Special Police Officer, as specified by 12 SC No.1915/18 the State Government or on behalf of the Government in investigating the cases pertaining to the ITP Act.
16.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.2 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.2 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 filed charge sheet. It is the specific defense of the accused No.1 that the witness PW.2 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 13 SC No.1915/18 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.2 PSI who registered the case and investigated by recording the statements of the witnesses, submitted charge sheet 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.
17.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 and file charge sheet under the above said provisions.
18.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.2 is vitiated by serious procedural irregularity and not curable in nature.
19.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 14 SC No.1915/18 reasonable doubt. Accordingly, I answer Points No. 1 and 2 in the negative.
20.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.1 and 2 are hereby acquitted of the offenses punishable U/s.3, 4, 5 and 6 of the Immoral Traffic (Prevention) Act, 1956 and Sec.370 of Indian Penal Code, 1860.The bail and surety bonds of accused No.1 and 2
stand canceled.
MOs1 to MOs6 shall be retained till the disposal of split up case as registered against accused No.3.
(Typed to my dictation by the Judgment Writer directly on Computer, corrected by me and then pronounced in open Court on this the 7th day of April, 2022) (Abdul Rahim Husain Shaikh) XLV Addl. City Civil & Sessions Judge, Bengaluru.15 SC No.1915/18
ANNEXURE List of Witnesses examined on behalf of Prosecution:
P.W.1: Ayeesha.S P.W.2: Vajramuni.K P.W.3: Rameshgowda.
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.3a: Signature of PW.1 Ex.P.4: Complaint. Ex.P.4a: Signature of PW.1 Ex.P.4b: Singature of PW.2 Ex.P.5: FIR No.297/2017 dated 28.06.2017 Ex.P.5a: Signature of PW.2.
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: Mobile Phone
MO3: Skore Condoms
MO4: Nokia Mobile Phone
MO5: Skore Condoms
MO6: Cash of Rs.2,000/-(Rs.1000/- each).
(Abdul Rahim Husain Shaikh)
XLV Addl. City Civil & Sessions Judge,
Bengaluru.
16 SC No.1915/18
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 2 are hereby acquitted of the offenses punishable U/s.3, 4, 5 and 6 of the 17 SC No.1915/18 Immoral Traffic (Prevention) Act, 1956 and Sec.370 of Indian Penal Code, 1860.
The bail and surety bonds of accused No.1 and 2 stand canceled.
MOs1 to MOs6 shall be retained till the disposal of split up case as registered against accused No.3.
(Abdul Rahim Husain Shaikh) XLV Addl. City Civil & Sessions Judge, Bengaluru.