Bangalore District Court
(By The Learned Public Prosecutor) vs No.1 And 2 For The Offences Punishable on 14 December, 2021
IN THE COURT OF XLV ADDL. CITY CIVIL &
SESSIONS JUDGE, BENGALURU CITY (CCH46)
DATED THIS THE 14TH DAY OF DECEMBER, 2021
PRESENT:
Sri. Abdul Rahim Husain Shaikh,
B.Sc., B.Ed., LL.B.(Spl.)
XLV Addl. City Civil & Sessions Judge,
Bengaluru.
SC No.382/2017
BETWEEN
State by Subramanyanagar Police Station,
Bengaluru. .... COMPLAINANT
(By the learned Public Prosecutor)
AND
1.Suresh
S/o Nanjappa,
A/a 28 Yrs.,
r/o Ramachandra Agrahara,
Bindiganavile Hobli,
Nagamangala Taluk,
Mandya District.
Presently r/o
Near Mahadeshwarawamy Temple,
Ranganahapura,
Kamakshipalya,
Bengaluru.
2 S.C.No.382/2017
(By Sri BNS, Advocate)
2.Chikaswamy
S/o Ganganarasaiah,
A/a 20 Yrs.,
R/o Doddamalalawadi Grama,
Bhaktharahalli Post,
Kunigal Taluk
Tumkur District.
..... ACCUSED
(By Sri RE, Advocate)
*****
JUDGMENT
The Police Inspector, Subramanyanagar P.S., Bangalore City, has filed charge sheet against accused No.1 and 2 for the offences punishable U/s.370(1) of IPC and Sec.4, 5 and 6 of Immoral Traffic (Prevention) Act, 1956.
2. The factual matrix of the case is that : On 5.3.2014 at 6.00 p.m. CW.1 had received credible information about running of prostitution business on the footpath near Devaiah Park, 3 S.C.No.382/2017 Kuvempu Road, within the limits of Subramanyanagar P.S., Bengaluru by parking auto rickshaw bearing No.KA01AB2032, by the accused No.1 and 2 by trafficking Cw.2 and 3 with an false assurance of getting job at beauty parlour and induced them to indulge in prostitution business with the customers secured by them for wrongful gain. As such Cw.1 along with CWs.6 to 10 and panchas CW.4 and CW.5 conducted raid and rescued CW.2 and CW.3 and seized the cash, mobile phones and Auto Rickshaw etc., and thereby the accused persons have committed the offences as alleged against them.
3.The concerned police have submitted charge sheet before the jurisdictional VII Addl., CMM., Bangalore. The learned Magistrate has committed the case to the Sessions Court by complying Sec.207 of 4 S.C.No.382/2017 Cr.P.C. after furnishing charge sheet copies to the accused No.1 and 2. The same was numbered as SC No.382/2017.
4.The charge was framed against the accused No.1 and 2 on 16.09.2019 for the offences punishable U/s.370 of IPC and Sec.4, 5 and 6 of Immoral Traffic (Prevention) Act, 1956. The accused No.1 and 2 have pleaded not guilty and claims to be tried.
5.The prosecution has examined in all three witnesses as PW.1 to 3 and got marked documents at Ex.P.1 to P.5, and identified MO1. The learned Public Prosecutor has given up the witnesses CW.6 to CW.8 and CW.10, 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 5 S.C.No.382/2017 securing CW.2 to CW.5, but the concerned police failed to secure the said witnesses and in view of the same on 21.09.2021 and 25.10.2021 the evidence of said witnesses was taken as nil by rejecting the prayer of the prosecution. Further the prosecution has not taken any steps to secure the witnesses CW.6 and 8 to 10.
6.After closure of the evidence of prosecution, the case was posted for recording statement of accused No.1 and 2 as provided U/s.313 of Cr.P.C. on 7.12.2021, 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., 6 S.C.No.382/2017
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 reasonable doubt that the accused No.1 and 2 indulging in prostitution business on the footpath near Devaiah Park, Kuvempu Road, within the limits of Subramanyanagar P.S., Bengaluru by parking auto rickshaw bearing No.KA 01AB2032, by trafficking Cw.2 and 3 with an false assurance of getting job at beauty parlour and induced them to indulge in prostitution business with customers provided them for wrongful gain and thereby the accused No.1 and 2 have committed an offences punishable U/s. 4, 5 and 6 of ITP Act?
2. Whether the prosecution proves beyond reasonable doubt that the accused No.1 7 S.C.No.382/2017 and 2 with an intention to run prostitution business by trafficking CW.2 and CW.3 with an false assurance and thereafter induced them 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 under:
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 these points are taken up together as they are related to each other and to avoid repetition in the discussion. 8 S.C.No.382/2017 It is the specific allegation that on 5.3.2014 at 6.00 p.m. CW.1 had received credible information about running of prostitution business on the footpath near Devaiah Park, Kuvempu Road, within the limits of Subramanyanagar P.S., Bengaluru by parking auto rickshaw bearing No.KA01AB2032, by the accused No.1 and 2 by trafficking Cw.2 and 3 with an false assurance of getting job at beauty parlour and induced them to indulge in prostitution business with the customers secured by them for wrongful gain. As such Cw.1 along with CWs.6 to 10 and panchas CW.4 and CW.5 conducted raid and rescued CW.2 and CW.3 and seized the cash, mobile phones and Auto Rickshaw etc.,
11.In order to establish the guilt against the accused No.1 and 2, the prosecution has succeeded to examine CW.1/PW.1 K. R. Bhadramma and 9 S.C.No.382/2017 CW.9/PW.2 Chandrashekar, who has participated in the raid. Both the witnesses deposed that they were accompanied by the staff and panchas CW.6 to CW.8 and CW.10. It is pertinent to note that victims CW.2 and CW.3, independent mahazar witnesses CW.4 and 5 were not examined by the prosecution in spite of sufficient time granted by the Court due to failure of the concerned police in securing the said witnesses in spite of issue of NBW and proclamation.
12.In the evidence both PW.1 and PW.2 deposed that on on 5.3.2014 at 6.00 p.m. they had received credible information about running of prostitution business on the footpath near Devaiah Park, Kuvempu Road, within the limits of Subramanyanagar P.S., Bengaluru by parking auto rickshaw bearing No.KA01AB2032 and when they reached the said spot they found the accused No.1 10 S.C.No.382/2017 and 2 along with trafficking womens' Cw.2 and 3 with an false assurance of getting job at beauty parlour and induced them to indulge in prostitution business for earning more money by contacting the customers provided by the accused No.1 and 2. It is the further evidence of PW.1 and 2 that they apprehended the accused No.1 and 2 along with victims CW.2 and CW.3 and rescued them by seizing cash, mobile phones and Auto Rickshaw etc.,
13.It is very important to note in the cross examination it is admitted by PW.1 that she has not mentioned the name of the decoy/informant in his complaint nor she has cited him as a witness, which is fatal to the case of the prosecution, since the entire case rest upon the information given by the said informer, who according to PW.1 and 2 showed them the spot and the Auto Rickshaw while accused No.1 11 S.C.No.382/2017 and 2 indulging in committing the alleged offence of prostitution through CW.2 and CW.3/victims. Further it is equally important to note that in the crossexamination of PW.1 and 2 admitted that they have never cited any of the person, as witness and panchas from the incident spot. In the instant case the witnesses and panchas CW.4 and CW.5 have not been examined by the prosecution to prove the execution of the spot and seizure panchanama Ex.P2 regarding seizure of Auto rickshaw bearing No.KA01 AB2032 and the mobiles with cash. The non examination of CW.4 and CW.5 is fatal to the case of the prosecution though according to the evidence PW.1 and PW.2 the accused No.1 and 2 were apprehended along with victims CW.2 and 3 and Ex.P2 Panchanama was executed in the presence of the panch witnesses CW.4 and CW.5. Further in the 12 S.C.No.382/2017 crossexamination. As already discussed above, the police official witnesses PW.1 and PW.2 though given evidence about the raid, but in the crossexamination the said witnesses have admitted that they have not called any women from the locality to be the pancha nor there is an evidence from the witness that in spite of their request no women panchas from the locality have cooperated and the action taken by them against the said panchas as per the provisions of law. The pancha CW.4 and CW.5 are the male persons, who have not been examined by the prosecution.. 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 13 S.C.No.382/2017 least one of whom shall be a woman) of the locality in which the lace 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 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 examined are male persons, have turned hostile to the case of the prosecution. From this fact it is crystal clear that the complainant/PW.1 and the I.O., PW.3 and CW.11 have 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, PW.2 and the investigation Officer PW.3, who 14 S.C.No.382/2017 has filed the charge sheet, have admitted that in spite of dense locality on the footpath, near the place of raid they have not secured any local witnesses of the adjoining raided spot, 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 footpath near densely located area surrounded by the adjoining shops houses, 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 apprehending of the accused No.1 and 2 along with the victim CW.2 and CW.3 who were forced to indulging committing prostitution and seizure of MOs1 to 5.15 S.C.No.382/2017
14.The witness CW.11/PW.3 Muniraju who being the Police SubInspector, has deposed that he has registered crime No.45/2014 on the basis of compliant lodged by the Police Inspector i.e., CW.1/PW.1, submitted FIR to the Court, and copies to his higher officers. Further he deposed that after receipt of seized properties produced before the Court through PF No.18/2014, and after medical examination, recording their statement produced the victims CW.2 and CW.3 before concerned Court. It is also the evidence of PW.3 that he recorded statements of CW.4 to 10, and handed over further investigation to CW.12 Police Inspector, who had filed the charge sheet against the accused persons . It is pertinent to note that in the evidence of PW.3 has deposed that he has handed over further investigation to Cw.12, who has has filed the charge 16 S.C.No.382/2017 sheet against the accused No.1 and 2 , which clearly discloses that the entire investigation of the case has been carried out by PW.3, and only charge sheet is submitted by CW.12, who is not examined before the Court. In the crossexamination of PW.3 it is specifically suggested and vehemently argued by the counsel for accused contending that a false case has been lodged for statistics purpose against the accused No.1 and 2 on the pressure of higher officer without complying the mandatory provisions of law that the case has to be investigated exclusively by the Special Officer specified by the special law. Though the suggestion was denied by the I.O., PW.3 the said fact that the PW.3/I.O., is 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 has to be taken into 17 S.C.No.382/2017 consideration by appreciating the evidence and dictum of law.
15.At this juncture I would like to recapitulate the provision of law on the subject. On analyzing the the fact and circumstances of the case with the existing law it is found that in Sec.13(2) of the ITP Act, 1956, 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 has not produced any document or lead any evidence 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. On carefully scrutinizing the evidence of PW.3 it clearly 18 S.C.No.382/2017 discloses that at the time of investigation PW.3 was working as an Police SubInspector at Subramanyanagar P.S., and not as a special officer as enumerated in the special act. The evidence deposed by PW.3 is crystal clear that without he being the special officer as registered the case, recorded statements of witnesses and the victims, and after investigating the case has handed over further investigation to CW.12, who in turn has only filed charge sheet without conducting any investigation. It is the specific defense of the accused No.1 and 2 that the witness PW.3 has no authority to investigate the case since he was working under the rank of PSI at the time of incident, and below the rank of Police Inspector. On appreciating the entire evidence, recapitulating the law on the subject and applying to the present facts and circumstances of 19 S.C.No.382/2017 the case it is clearly establishes that PW.3 has investigated the case without any authority in contrary to the dictum of law laid by the ITP Act. At this juncture it would be worth to place reliance on the 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 SubInspector 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 20 S.C.No.382/2017 manner, it should be carried out in that manner only. In the instant case, Police SubInspectorPW.3 Muniraju, who has completed the investigation without being qualified 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 21 S.C.No.382/2017 matter and file charge sheet 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 PoliceSub Inspector PW.3 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 and 2 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: 22 S.C.No.382/2017 ORDER U/s.235(1) of Cr.P.C., the accused No.1 and 2 are hereby acquitted of the offences punishable U/s.4, 5 and 6 of the Immoral Traffic (Prevention) Act, 1956 and Sec.370 of Indian Penal Code.
The bail and surety bonds of accused No.1 and 2 shall stand canceled.
MO1 to MO5 shall preserve, till the disposal of split up case against accused No.3.
(Typed to my dictation by the Stenographer directly on Computer, corrected by me and then pronounced in open Court on this the 14th day of December, 2021) (Abdul Rahim Husain Shaikh) XLV Addl. City Civil & Sessions Judge, Bengaluru.
23 S.C.No.382/2017ANNEXURE List of Witnesses examined on behalf of Prosecution:
P.W.1: K. R. Bhadramma P.W.2: Chandrashekar P.W.3: Muniraju.
List of Documents exhibited on behalf of Prosecution:
Ex.P.1: Notice Ex.P.2: Mahazar Ex.P.3: Photographs Ex.P.4: Complaint Ex.P.5: FIR No.45/2014 dated 5.3.2014.
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 to MOs3 : Mobile PHones MO4 : Auto Rickshaw MO5 : Cash Rs.2,900/.
(Abdul Rahim Husain Shaikh) XLV Addl. City Civil & Sessions Judge, Bengaluru.24 S.C.No.382/2017
Order pronounced in the open Court vide its separate order ORDER U/s.235(1) of Cr.P.C., the accused No.1 and 2 are hereby acquitted of the offences punishable U/s.4, 5 and 6 of the Immoral Traffic (Prevention) Act, 1956 and Sec.370 of Indian Penal Code.
The bail and surety bonds of accused No.1 and 2 shall stand canceled.
MO1 to MO5 shall preserve, till the disposal of split up case against accused No.3. 25 S.C.No.382/2017 (Abdul Rahim Husain Shaikh) XLV Addl. City Civil & Sessions Judge, Bengaluru.