Bangalore District Court
The State Of Karnataka vs Madhu on 29 April, 2019
IN THE COURT OF THE L ADDITIONAL CITY CIVIL
& SESSIONS JUDGE, BANGALORE
Dated this the 29th Day of April, 2019
- : PRESENT: -
SMT. SUSHEELA B.A. LL.B.
L Additional City Civil & Sessions Judge,
Bangalore
SPECIAL C.C. No.567/2014
COMPLAINANT The State of Karnataka
By Cotton Pete Police Station,
Bangalore.
[Public Prosecutor-Bangalore]
/ VERSUS /
ACCUSED 1 Madhu,
S/o.Mudde Gowda, 27 years,
R/at Honna Sheety Halli,
Channarayapatana Taluk,
Hasana District & also at
C/o. Srinivasa Delux Lodge,
Beli Matha Road, Cotton Pete,
Bengaluru.
2 Manju
S/o.Puttaswamy Gowda, 30 years,
R/at Honna Sheety Halli,
Channarayapatana Taluk,
Hasana District & also at
C/o. Srinivasa Delux Lodge,
Beli Matha Road,Cotton Pete,
Bengaluru.
2 Spl.C.C.No.567/2014
3 Nagaraj,
S/o. Sannappa, 37 years,
R/at Thondahalli Village,
Bellur Hobli, Nagamangala Taluk,
Mandya District and also at
C/o. Srinivasa Delux Lodge,
inny Mill Road, Bengaluru
4 Vinay,
S/o.Nagaraj, 26 years,
R/at Adaguru, Anegola Hobli,
Channarayapatana Taluk,
Hasana District & also at
C/o. Srinivasa Delux Lodge,
Binny Mill Road, Bengaluru.
5 Gajendra,
S/o.Shivane Gowda, 25 years,
R/at Jinnahalli Koppalu,
Channarayapatana Taluk,
Hasana District & also at
C/o. Srinivasa Delux Lodge,
Binny Mill Road, Bengaluru.
6 Shivalinge Gowda,
S/o.Govinde Gowda, 26 years,
R/at Annechennapura Village,
Nagamangala Taluk,
Mandya District and also at
C/o. Srinivasa Delux Lodge,
Binny Mill Road,Bengaluru
7 Kumar,
S/o. Raje Gowda, 22 years,
R/at Muttoli Village,
Channarayapatna Taluk,
Hasana District and also at
3 Spl.C.C.No.567/2014
C/o. Srinivasa Delux Lodge,
Binny Mill Road, Bengaluru
8 Rajesh,
S/o. Venkateshwara Rao, 25 years,
R/at No.15/46, Velupur Village,
Tanuku Taluk,
West Godavari District
Andhra Pradesh and also at
Behind Vasantha Nagar Mosque
In the house of M.A. Rehman,
Bengaluru
9 Renuka @ Divya......... abetted
Sri. V.K.-Advocate for A-1 to A8]
1 Date of commission of offence 28-07-2011
2 Date of report of occurrence 28-07-2011
3 Date of arrest of Accused No.1 &2
Date of release of Accused No.1& 2 ON Bail
Period undergone in custody
by Accused No.1 & 2
Date of arrest of Accused No.4 to 8 29-07-2011
Date of release of Accused No.4to8 25-08-2011
Period undergone in custody 26 days
by Accused No. 4 to 8
Date of arrest of Accused No.3 29-07-2011
Date of release of Accused No.3 08-09-2011
Period undergone in custody 9 days & 1 month
by Accused No.3
4 Date of commencement of 28-05-2014
evidence
5 Date of closing of evidence 15-10-2018
4 Spl.C.C.No.567/2014
6 Name of the complainant T.Khodandaram
Offences complained of Sec. 366, 366-A, 372, 373
r/w. 34- IPC & Sec.3, 4, 5
and 9-ITP Act.
8 Opinion of the Judge Accused No.1 to 8 are
acquitted
9 Order of Sentence As per the final order
JUDGMENT
The charge sheet filed by Police Inspector of Cotton Pete Police Station-Bengaluru against the accused No.1 to 9 for the offences punishable under Section 366, 366-A, 372, 373, read with section 34 of IPC and Section 3, 4, 5 and 9 of I.T.P. Act.
2. Since it is a case of prostitution of minor girl, as such the name of the victim girl is no where shown in the course of judgment as mandated under Section 227(A) of Cr.P.C. However her name is referred to as 'victim girl' wherever her name is necessary.
3. The case of the prosecution in brief, as per the prosecution papers, is stated as follows:
That on 28-07-2011 at about 09.40 p.m., within the jurisdiction of Cotton Pete Police Station, Bengaluru, at 5 Spl.C.C.No.567/2014 Srinivasa Lodge, No.66, Beli Mata Road, the accused No.1 and 2 with the assistance of the accused No.3 to 7, enticing Cw.6 to Cw.10 and minor girl-Cw.11 for the purpose of prostitution and also kept them in the said lodge by obtaining them with seduction for prostitution and let them for prostitution by maintaining the said premises as brothel home and depending on their earning from prostitution. As such the complainant-
Cw.1 with the assistance of Cw.2 to Cw.5 raided the said lodge, in front of Panchas and police personnel taken custody of the accused No.3 to 9 and also Cw.11-the minor victim girl. On enquiry with Cw.6 to Cw.11 they told the accused No.1 and 2 with the assistance of the accused No.3 to 7 influenced them that they are going to provide work to them, brought them and made them to involve in the prostitution. The accused No.8 and 9 also involved abetting Cw.6 to Cw.11 for prostitution and earning from prostitution. On the basis of complaint lodged by Cw.1, the complainant/police registered the case in Crime No.192/2011 for the offences punishable under Section 366-A, 372, 373 read with section 34 of IPC and Section 3, 4, 5, 6 and 9 of I.T.P. Act.6 Spl.C.C.No.567/2014
4. The Investigation Officer has investigated the same and filed charge sheet against accused No.1 to 9 for the offences punishable under Section 366, 366-A, 372, 373 read with section 34 of IPC and Section 3, 4, 5 and 9 of I.T.P. Act. Thereafter, the committal Court furnished copy of charge sheet to the accused No.1 to 9 as contemplated under Section 207 of Cr.P.C. Since the victim-Cw.11 is minor, the committal Court passed an order for committing the case to the Hon'ble Principal City Civil and Sessions Judge, Bengaluru, for further proceedings and the said case was made over to this Court for further proceedings.
5. After receiving record by this Court, as usual, this Court issued summons to the accused No.1 to 9, in view of non- appearing of accused No.9, before the Court, the case was splitted up against him and registered as Spl.C.C.No.565/2014. Thereafter, the learned advocate for the accused No.1 to 8 submitted no arguments before framing charge and requested to frame charge. As a result the charges framed the accused No.1 to 8 under Section 366, 366-A, 372, 373 read with section 34 of 7 Spl.C.C.No.567/2014 IPC and Section 3, 4, 5 and 9 I.T.P. Act. The contents of the charge read over and explained to the accused No.1 to 8 in Kannada. They pleaded not guilty and submit crime to be tried. Thereafter the case against the accused No.1 to 8 set down for recording of evidence of prosecution.
6. The prosecution in order to establish the guilt of the accused No.1 to 8 has examined in all 13 witnesses as Pw.1 to Pw.13, got marked 10 documents as Ex.P1 to Ex.P10 and 24 material objects as MO1 to MO24 and closed its side evidence. In view of incriminating evidence appeared against the accused No.1 to 8, they were examined under Section 313 of Cr.P.C., by recording their statement. They denied the alleged incriminating evidence appeared against them as false. Earlier to that they have complied the provisions of Section 437-A of Cr.P.C, by executing personal bond and surety bond. Thereafter arguments heard from both the sides and the matter is set down for judgment.
7. Having regard to the facts, circumstances and arguments submitted by both the sides, the following points that 8 Spl.C.C.No.567/2014 arise for my consideration are as under:-
1. ¢£ÁAPÀB28-07-2011 gÀAzÀÄ gÁwæ 09.40 UÀAmÉUÉ ¨ÉAUÀ¼ÀÆgÀÄ £ÀUg À À PÁl£ï¥ÉÃmÉ ¥Éǰøï oÁuÁ ¸Àgº À ¢À £ Ý À ¨Éð ªÀÄoÀzÀ £ÀA.66, ²æäªÁ¸À r®Pïì ¯ÁqïÓ£° À è ZÁ¸Á.1 vÀªÀÄä ¹§âA¢UÀ¼Æ É A¢UÉ zÁ½ ªÀiÁrzÁUÀ, DgÉÆæ-1 jAzÀ 9 gÀªg À ÀÄUÀ¼ÀÄ ¸ÀªÀiÁ£À GzÉÃÝ ±À¢AzÀ ZÁ¸Á.6 jAzÀ ZÁ¸Á.10 EªÀgÀÄUÀ¼£ À ÀÄß ªÉñÁåªÁnPÉAiÀÄ°è vÉÄÁqÀV¸ÀĪÀ GzÉÃÝ ±À¢AzÀ CªÀgÀÄUÀ¼£ À ÀÄß PÀgv É AÀ zÀÄ ¨sÁgÀwÃAiÀÄ zÀAqÀ ¸ÀA»vÉ PÀ®A.366 ¸Àºª À ÁZÀPÀ PÀ®A.34gÀ CrAiÀÄ°è ²PÁëºÀðªÁzÀ C¥ÀgÁzÀª s £ À ÀÄß J¸ÀVzÁÝgAÀÉ zÀÄ ¥Áæ¹PÀÆåµÀ£ï ¥ÀPÀëzÀªg À ÀÄ ¸ÀA±ÀAiÀiÁwÃvÀÀªÁV gÀÄdĪÁvÀÄ ¥Àr¸ÀÄvÁÛgA É iÉÄ?
2. DgÉÆæ-1 jAzÀ 8 ºÁUÀÆ 9£Éà CgÉÆæ ¸ÀªÀiÁ£À GzÉÃÝ ±À¢AzÀ ZÁ¸Á.11-C¥Áæ¥ÀÛ ªÀAiÀĹì£À ¨Á®Q CAvÀ UÉÆwÛzÀÄÝ CªÀ¼£ À ÄÀ ß ªÉñÁåªÁnPÉAiÀÄ°è vÉÆqÀV¸ÀĪÀ GzÉÃÝ ±À¢AzÀ CªÀ½UÉ PÉ®¸À PÉÆr¸ÀĪÀÅzÁV £ÀA©¹ zsÁgÀªÁqÀ¢AzÀ ªÉÄÃ¯É ºÉýzÀ ¯ÁqÀU Ó É PÀgÉ vÀAzÀÄ ¨sÁgÀwÃAiÀÄ zÀAqÀ ¸ÀA»vÉ PÀ®A.366-J ¸Àºª À ÁZÀPÀ PÀ®A.34gÀ CrAiÀÄ°è ²PÁëºÀðªÁzÀ C¥ÀgÁzÀª s £ À ÀÄß J¸ÀVzÁÝgAÀÉ zÀÄ ¥Áæ¹PÀÆåµÀ£ï ¥ÀPÀëzÀªg À ÀÄ ¸ÀA±ÀAiÀiÁwÃvÀª À ÁV gÀÄdĪÁvÀÄ ¥Àr¸ÀÄvÁÛgA É iÉÄ?
3. DgÉÆæ-9 EvÀgÀ CgÉÆævÀgÀ ¸ÀºÁAiÀÄ¢AzÀ ¢£ÁAPÀB28-07-2011 QÌAvÀ £Á®ÄÌ ¢£ÀU½ À VAvÀ ªÀÄÄAZÉ CPÉAiÀÄ ¸ÀA§A¢üP¼ À ÁzÀ ZÁ¸Á.11- C¥Áæ¥ÀÛ ªÀAiÀĹì£À ¨Á®QAiÀÄ£ÀÄß UÁæºÀPj À AzÀ ºÀt ¥Àqz É ÄÀ CªÀ¼£À ÄÀ ß ªÉñÁåªÁnPÉAiÀÄ°è vÉÆqÀV¸ÀĪÀ GzÉÃÝ ±À¢AzÀ zsÁgÀªÁqÀ¢AzÀ ¨ÉAUÀ¼ÀÆj£À ªÉÄÃ¯É ºÉýzÀ ¯ÁqïÓUÉ PÀgv É A À zÀÄ J¯Áè CgÉÆævÀgÀÄ ¸ÉÃj CªÀ¼£ À ÀÄß ªÉñÁåªÁnPÉAiÀÄ°è vÉÆqÀV¹ ¨sÁgÀwÃAiÀÄ zÀAqÀ ¸ÀA»vÉ PÀ®A.372 ¸Àºª À ÁZÀPÀ PÀ®A.34gÀ CrAiÀÄ°è ²PÁëºÀðªÁzÀ C¥ÀgÁzÀª s £ À ÀÄß J¸ÀVzÁÝgA ÀÉ zÀÄ ¥Áæ¹PÀÆåµÀ£ï ¥ÀPÀëzÀªg À ÀÄ ¸ÀA±ÀAiÀiÁwÃvÀÀªÁV gÀÄdĪÁvÀÄ ¥Àr¸ÀÄvÁÛgA É iÉÄ?
4. J¯Áè CgÉÆævÀgÀÄ ºÁUÀÆ 9£Éà CgÉÆæ ¸ÀªÀiÁ£À GzÉÃÝ ±À¢AzÀ ZÁ¸Á.11-C¥Áæ¥ÀÛ ªÀAiÀĹì£À ¨Á®Q CAvÀ UÉÆwÛzÀÄÝ CªÀ¼£ À ÄÀ ß ªÉñÁåªÁnPÉAiÀÄ°è vÉÆqÀV¸ÀĪÀ GzÉÃÝ ±À¢AzÀ ªÉÄÃ¯É ºÉýzÀ ¯ÁqÀ£Ó ° À è CªÀ¼£ À ÀÄß vÀªÀÄä ¸Áé¢Ãü £Àz° À l è ÄÖPÉÆAqÀÄ ¨sÁgÀwÃAiÀÄ zÀAqÀ ¸ÀA»vÉ PÀ®A.373 ¸Àºª À ÁZÀPÀ PÀ®A.34gÀ CrAiÀÄ°è ²PÁëºÀðªÁzÀ C¥ÀgÁzÀª s £ À ÀÄß J¸ÀVzÁÝgAÀÉ zÀÄ ¥Áæ¹PÀÆåµÀ£ï ¥ÀPÀëzÀªgÀ ÀÄ ¸ÀA±ÀAiÀiÁwÃvÀª À ÁV gÀÄdĪÁvÀÄ¥Àr¸ÀÄvÁÛgA É iÉÄ?
5. 1£Éà DgÉÆæ ªÉÄÃ¯É ºÉýzÀ ¯ÁqïÓUÉ ªÀiÁ°ÃPÀ£ÁVzÀÄÞ 2£Éà DgÉÆæ ¥Á®ÄzÁgÀ£ÁVzÀÄÞ ¸ÀzjÀ ¯ÁqïÓ£°À è ªÉñÁåªÁnPÉ £Àq¸ É ® À Ä C£ÀĪÀÄwAiÀÄ£ÀÄß ¤Ãr L.n.¦. PÁ¬ÄzÉ PÀ®A.3gÀ CrAiÀÄ°è ²PÁëºÀðªÁzÀ C¥ÀgÁzÀª s £ À ÀÄß J¸ÀVzÁÝgAÀÉ zÀÄ ¥Áæ¹PÀÆåµÀ£ï ¥ÀPÀëzÀªg À ÀÄ ¸ÀA±ÀAiÀiÁwÃvÀª À ÁV gÀÄdĪÁvÀÄ¥Àr¸ÀÄvÁÛgA É iÉÄ?9 Spl.C.C.No.567/2014
6. J¯Áè CgÉÆævÀgÀÄ ºÁUÀÆ 9£Éà CgÉÆæ vÀªÀÄä ¸ÀªÀiÁ£À GzÉÃÝ ±À¢AzÀ vÀªÀÄä fêÀ£ÉÆÃ¥ÁAiÀÄPÁÌV ºÀtªÀ£ÀÄß UÀ½¸ÀĪÀ GzÉÃÝ ±À¢AzÀ ZÁ¸Á.6 jAzÀ ZÁ.¸Á11gÀªg À £ À ÀÄß ªÉñÁåªÁnPÉAiÀÄ°è vÉÆqÀV¹ UÁæºÀPj À AzÀ ºÀtªÀ£ÀÄß ¥Àqz É ÀÄ ¸Àé®à ºÀtªÀ£ÀÄß CªÀjUÉ ¤Ãr G½zÀ ºÀtªÀ£ÄÀ ß vÁªÀÅ ¥Àqz É ÀÄPÉÄÁAqÀÄ L.n.¦. PÁ¬ÄzÉ PÀ®A.4gÀ CrAiÀÄ°è ²PÁëºÀðªÁzÀ C¥ÀgÁzÀª s £ À ÀÄß J¸ÀVzÁÝgA ÀÉ zÀÄ ¥Áæ¹PÀÆåµÀ£ï ¥ÀPÀëzÀªg À ÀÄ ¸ÀA±ÀAiÀiÁwÃvÀª À ÁV gÀÄdĪÁvÀÄ¥Àr¸ÀÄvÁÛgA É iÉÄ?
7. J¯Áè CgÉÆævÀgÀÄ ºÁUÀÆ 9£Éà CgÉÆæ vÀªÀÄä ¸ÀªÀiÁ£À GzÉÃÝ ±À¢AzÀ ZÁ¸Á.6 jAzÀ ZÁ.¸Á11gÀªg À £ À ÀÄß PÀgz É ÀÄPÉÆAqÀÄ §AzÀÄ CªÀjUÉ ªÉñÁåªÁnPÉAiÀÄ°è vÉÆqÀU® À Ä ¥ÀæZÉÆÃzÀ£É ªÀiÁr CªÀg£ À ÄÀ ß ªÉñÁåªÁnPÉAiÀÄ°è vÉÆqÀV¹ L.n.¦. PÁ¬ÄzÉ PÀ®A.5gÀ CrAiÀÄ°è ²PÁëºÀðªÁzÀ C¥ÀgÁzÀª s £ À ÀÄß J¸ÀVzÁÝgA ÀÉ zÀÄ ¥Áæ¹PÀÆåµÀ£ï ¥ÀPÀëzÀªgÀ ÀÄ ¸ÀA±ÀAiÀiÁwÃvÀª À ÁV gÀÄdĪÁvÀÄ¥Àr¸ÀÄvÁÛgA É iÉÄ?
8. J¯Áè CgÉÆævÀgÀÄ ºÁUÀÆ 9£Éà CgÉÆæ vÀªÀÄä ¸ÀªÀiÁ£À GzÉÃÝ ±À¢AzÀ ZÁ¸Á.6 jAzÀ ZÁ.¸Á11gÀªg À £ À ÀÄß vÀªÀÄä ¸Áé¢Ãü £ÀzÀ°l è ÄÖ PÉÆAqÀÄ CªÀgÀÄUÀ½UÉ ªÉñÁåªÁnPÉAiÀÄ°è vÉÆqÀU® À Ä ¸ÀºÁAiÀÄ ªÀiÁr L.n.¦.
PÁ¬ÄzÉ PÀ®A.9gÀ CrAiÀÄ°è ²PÁëºÀðªÁzÀ C¥ÀgÁzÀª s £ À ÀÄß J¸ÀVzÁÝgAÀÉ zÀÄ ¥Áæ¹PÀÆåµÀ£ï¥ÀPÀëzÀªgÀ ÀÄ ¸ÀA±ÀAiÀiÁwÃvÀª À ÁV gÀÄdĪÁvÀÄ ¥Àr¸ÀÄvÁÛgA É iÉÄ?
9. AiÀiÁªÀ DzÉñÀ?
8. My findings on the above points are as under:-
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: In the Negative.
Point No.7: In the Negative.
Point No.8: In the Negative.10 Spl.C.C.No.567/2014
Point No.9: As per the final orders for the following:
REASONS
9. Point No.1 to 8: As these points are inter-related one, hence I have taken up together for my consideration in order to avoid repetition of reasonings.
10. Perused the entire record, charge sheet, evidence produced both at oral and documentary and arguments canvassed from both the sides.
11. In order to prove the alleged offences against the accused No.1 to 8, the prosecution examined in all 13 witnesses as Pw.1 to Pw.13 , got marked 10 documents as Ex.P1 to Ex.P10 and 24 material object as MO1 to MO24 and this Court perused the same. As per prosecution case, Pw.3 is head of raiding team and complainant, Pw.1 is the decoy, Pw.2 is the victim girl, Pw.4, Pw.5, Pw.8 to Pw.10 are members of raiding team, Pw.6 is the doctor, Pw.7 is land lord of the building and Pw.11 to Pw.13 are the police personnel and Investigation Officer. Hence, this Court shall proceed to see whether the available evidence of said witnesses is sufficient for establishing the alleged offences 11 Spl.C.C.No.567/2014 against the accused No.1 to 8.
12. In order to establish the alleged offences against accused No.1 to 8, the prosecution is required to prove that on 28-07-2011 at about 09.40 p.m., within the jurisdiction of Cotton Pete Police Station, Bengaluru, at Srinivasa Lodge, No.66, Beli Mata Road, the accused No.1 and 2 with the assistance of the accused No.3 to 7, enticing Cw.6 to Cw.10 and minor girl-Cw.11 for the purpose of prostitution and also kept them in the said lodge by obtaining them with seduction for prostitution and let them for prostitution by maintaining the said premises as brothel home and depending on their earning from prostitution and thereby the accused No.1 to 8 committed offences punishable under Section 366, 366-A, 372, 373 read with section 34 of IPC and section 3, 4, 5 and 9 of I.T.P Act. Hence, this Court shall proceed to see whether the prosecution has succeeded in establishing the alleged offences against accused No.1 to 8 beyond all reasonable doubt.
13. Before venturing into scan, the available materials on record, it is necessary to mention whether the head of the 12 Spl.C.C.No.567/2014 raiding team or the Investigation Officer is competent authority to conduct raid under I.T.P Act, has to be considered. Further it is also to be looked into whether the prosecution placed authenticated documents to prove the head of the raiding team and the Investigation Officer is competent person to do under the said Act.
14. Here it is relevant to note the definition of Section 13 of I.T.P. Act, the relevant portion of statute in section 13(1) and 13(2) of the Act which defines that:
"Special police officer and advisory body.-(1)There shall be for each area to be specified by the State Government in this behalf a special police officer appointed by or on behalf of that Government for dealing with offences under this Act in that area.
(2) The special police officer shall not be below the rank of an Inspector or police.
(2A)................."
Further it is relevant to note that notifying Special Officers under the Act in the State, which is as below mentioned:
In exercise of the powers conferred by sub-section(1) of Section 13 of the Immoral Traffic (Prevention) Act, 1956 (Central Act 104 of 1956) read with Section 21 of the General Clauses Act, 1897 (Central Act X of 1897) and in super session of all the notifications issued earlier in this behalf the Government of Karnataka here by appoints the officers mentioned in column(2) of the Schedule below as Special Police Officer in respect of the areas specified in the 13 Spl.C.C.No.567/2014 corresponding entries within the jurisdiction mentioned in column (3) for the purpose of the said Act:
Sl.
Officers Area
No.
1 Superintendents of Police Within their respective
In charge of the Districts jurisdiction
2 Additional Superintendents Within their respective
of Police jurisdiction
3 Sub-Divisional Police Within their respective
Officers jurisdiction
4 Inspector of Police In Within their respective
Charge of Circles jurisdiction
5 Deputy Commissioners of Within their respective
Police, Law & Order East, jurisdiction
West & DCP Crime in
Bangalore City
6 Assistant Commissioners of Within their respective
Police of Divisions in jurisdiction
Bangalore City
7 Assistant Commissioners Within their respective
of Police, Special Squad, jurisdiction
Bangalore City
8 Police Inspectors in charge Within their respective
of Sub-Divisions in jurisdiction
Bangalore City
9 Police Inspector Speical Within their respective
Squad, Bangalore City jurisdiction
10 The Deputy Within their respective
Superintendent of Police of jurisdiction C.A. Squad, C.O.D. As per the said notification whether Cw.1-the complainant and also Head of the raiding team having power or not is to be looked into and whether the prosecution produces any authenticated documents to substantiate the said stand is to be considered herein.14 Spl.C.C.No.567/2014
15. By going through the evidence of Pw.3- T.Kodandarma-Dy.S.P. of A.C.B., he has deposed only in respect of conducting of raid as per the case of prosecution, but no such evidence produced by the prosecution through this witness in respect of whether this witness was notified as per Section 13 of I.T.P. Act, as Special Officer to deal with these cases as Special Police Officer appointed by Government or on behalf of Government. Even on perusal of Ex.P1 to Ex.P13, no such documents forthcoming to believe that this witness is having authenticated power to conduct raid as per Section 13 of I.T.P. Act.
16. On perusal of evidence of Pw.3.Kodandarama-A.C.B, and at that time he was the Police Inspector of Byatarayanapura Police station, he has also deposed only in respect of conducting investigation of the offences after receiving complaint and spot Panchanama from the complainant and no such evidence is forth coming of having authenticated power to investigate the offence under I.T.P. Act. Here no such permission letter produced by the prosecution, even no such details from him 15 Spl.C.C.No.567/2014 that he got oral permission to conduct raid. At the same time the Investigation Officer not made the hierarchy, who had issued oral permission as charge sheet witness. Further it is his evidence that at the time of raid he has conducted mahazar at the place itself at about 10.00 p.m., to 11.30 p.m., as per Ex.P1 and also prepared complaint as per Ex.P3 and produced the same at about 12.15 a.m., in the night on 28-07-2011 and 00.15 a.m., on 29-07-2015. If the above said oral evidence is taken into consideration, no such evidence is forth coming of having authenticated power to investigate the offence punishable under I.T.P. Act. At this stage, this Court feels to observe that the prosecution has not produced any authenticated documents to show the complainant/Pw.3/head of raiding team was designated as Special Officer by the Government under section 13 of I.T.P. Act and also Pw.3- T.Kodandarama-Police Inspector having authenticated power and he has been appointed as Special Officer to investigate under the Act of the offences involved in this case and offences under section I.T.P. Act. At this stage, this Court opines that the complainant/head of raiding team and the Investigation 16 Spl.C.C.No.567/2014 Officer having no authenticated power to enquire into the matter in dispute in this case in respect of the offences mentioned under I.T.P. Act and other Act is illegal and vitiated.
17. Further on perusal of charge sheet the Police Sub- Inspector has investigated the case and filed charge sheet. He has also not placed any authenticated documents stating that he was designated as Special Officer by the Government under section 13 of I.T.P. Act, and as such he has investigated the case on hand. At this stage, this Court also opines that the Investigation Officer also not having any authenticated power to enquire into the matter in dispute in this case in respect of the offences mentioned under I.T.P. Act and other Act and the same is illegal and vitiated.
18. Further, here in this case the trial already completed and the matter is set down for judgment, as such it is also just and proper to consider this case on merits by observing basic informalities in lodging complaint by the complainant. At this stage, it is worthless to emphasis on the order passed by the Hon'ble High Court of Karnataka in Criminal Petition No.8055/ 17 Spl.C.C.No.567/2014 2016 dated 31-03-2017 and Criminal Petition No.5330/2015 dated 03-02-2016 and the ratio of principle is also applicable to the present case on hand. Here also apart from the above said legal defect, the registration of the FIR is also seen to have been done after the commencement of the investigation by the complainant/Pw.3-T.Kodandarama has deposed that on 28-07- 2011 he was on Gastu duty near Gali Anjaneya Swamy Temple, at that time the Police Inspector of Cotton Pete Police station called him over phone at about 09.00 p.m., stating that in Srinivasa Deluxe Lodge, prostitution was taking place by involving minor girls and the said information received by him from one Manoj Gurani of Justice & Care Institution. Immediately he informed the same to his higher officer, obtained permission to conduct raid and also instructed the P.S.I.- Siddesh to come over Dr. Ambedkar Statue, along with police personnel and Panch witnesses and he has also raided the said place at about 09.15 p.m. At this stage this Court feels to observe that immediately after receiving the information from Police Inspector of Cotton Pete Police Station this witness proceeded to take action and obtained permission from the 18 Spl.C.C.No.567/2014 higher authority. At the same time he has not lodged any complaint before local jurisdictional police station.
19. Further it is his evidence that he has written record of reasons, also made self search of his body, given five notes of Rs.500/- each to Decoy-Chetan and sent him to Srinivasa Lodge for confirmation of the above said information and waited near the lodge along with the team, the decoy given information to Manjunath over mobile phone at about 09.40 p.m. Immediately after receiving the said information this witness along with his team raided Srinivasa Lodge, taken custody of one Nagaraj-a Hotel Cashier and enquired about the information and the said person revealed about the prostitution going on at 2nd and 3rd floor of the building. When the team went to 2nd floor, at that time a group of ladies ran away from that place, immediately they caught hold a person by name-Vinay, enquired him about the prostitution, he told that the prostitution taking place at Room No.112 to 114 and seized Rs.2,500/- from him which was received from the customers and in that amount the decoy amount was also found.
19 Spl.C.C.No.567/2014
20. Further it is his evidence that they went to Room No.113, wherein a male and a girl were sitting in half naked position, he has taken custody of said girl, on enquiry she has stated her name and age as 15 years, she also told that her aunt brought her to Bengaluru and made her to involve in prostitution and her native place was Davangere and in that room four unused condoms were seized. Again they went to Room No.112, wherein also they caught hold a male and a female, they revealed their names as Rajesh from Andhra Pradesh and Saniya from West Bengal. He has also seized an amount of Rs.1,500/- and one Spice Mobile from Rajesh and they have also seized two unused and four used condoms from that room. Again he along with his team went to Room No.114, wherein three persons were sitting, on enquiry they revealed their names as Gajendra, Kumar and Shivalinge Gowda. On further enquiry they revealed that the said lodge was taken on lease by one Madhu and Manju on contract basis to do prostitution in that lodge, immediately all the three persons were taken to custody. On further enquiry with Vinay about the ladies who ran away from the place, he told that they were in 20 Spl.C.C.No.567/2014 Room No.114 at secrete place, immediately the said secrete room was also got opened and taken custody of five females viz., Renuka, Swathi, Taniya and another one lady and they are from West Bengal.
21. Further it is his evidence that he has seized Rs.3,825/- from the Cashier, two mobiles and condom boxes and drawn mahazar as per Ex.P2 and his signature is Ex.P2(b). He has also brought the accused persons and rescued women and victim girl to the police station along with mahazar and produced before P.S.I. of the station. He has also prepared complaint as per Ex.P3 and his signature is Ex.P3(a). He has also identified MO1 to MO8. Here no doubt it is true this witness being the Head of the raiding team not lodged the complaint before proceeding for raid and at the same time he has admitted that he raided the spot and after that he has registered the case and then lodged the complaint. This piece of evidence crystallizes that the raid was taken place before registering the complaint in the concerned police station.
22. The accused persons tested the veracity of evidence 21 Spl.C.C.No.567/2014 of this witness by eliciting some commission and omission, except denial suggestion, nothing has been elicited favourable to the defense taken by them. Further he has also admitted that he has not secured any local persons as Panch witnesses, even though there is availability of independent local Panch witnesses at that time, on the other hand he has taken the Panch witnesses from the police station. He has also admitted that at that time he has not summoned any local persons to participate in Panchanama. He has also admitted that earlier to raid, he has not searched for himself and also not searched the other members of the team. Further he has also admitted that he has not mentioned about the timings taken by them in order to reach the spot. He has also not given any written notice to Panch witnesses. Here it is relevant to note that through this witness the prosecution has not placed any documents about obtaining of earlier permission from higher authority for raid, through this witness also no notification produced by the prosecution to believe that he was having Special Power to conduct raid in respect of offences under I.T.P. Act. Further earlier to the raid to the spot, this witness also not filed any 22 Spl.C.C.No.567/2014 complaint before the concerned police station and case was not registered, even while seizing MO1 to MO8, no such procedure followed in respect of seizing/sealing of said properties in accordance with law and obtaining of signatures of Panchas at the spot itself. It is also relevant to note that this witness at the time of conducting raid and drawing of mahazar as per Ex.P2, he has not secured any local persons as Panch witnesses to draw mahazar. With these observations now left with the available other material evidence produced by the prosecution to know whether the prosecution proved the alleged offences against accused No.1 to 8 beyond all reasonable doubt.
23. By going through the evidence of Pw.1-Chetan, the alleged decoy, in his chief examination he has supported to the case of prosecution and through him Ex.P1-record of reasonings, Ex.P2-Panchanama and MO1 to MO8 got marked and his signature is Ex.P2(a). In the cross-examination, the accused persons tested his veracity by eliciting some commission and omission, but except denial suggestion, nothing has been elicited favourable to the defense taken by them. At this stage, this Court feels to observe that in view of considering 23 Spl.C.C.No.567/2014 the charge sheet filed by the police and raid conducted by the Police Inspector without authority and the same is vitiated. The evidence of this witness is also a formal one.
24. By going through the evidence of Pw.4-Suchitra, an independent witness and also a private counselor, she has deposed in support of case of prosecution in her chief examination and admitted her signature as per Ex.P1(c) and Ex.P2(c). She has also identified MO1 to MO4 and MO8 and also deposed that she is going to identify MO5 to MO7. The accused persons tested her veracity by eliciting some commission and omission and also elicited that:
"£Á£ÀÄ ¸ÀĪÀiÁgÀÄ 7-8 zÁR¯ÉU½ À UÉ ¸À» ªÀiÁrzÉÃÝ £É. D J¯Áè ¸À»UÀ¼£À ÀÄß ¥Éǰøï oÁuÉAiÀÄ°è ªÀiÁrgÀÄvÉÃÛ £É. AiÀiÁªÀ zÁR¯ÉUÉ JµÀÄÖ PÀqÉ ¸À» ªÀiÁrgÀÄvÉÃÛ £ÉAzÀÄ ºÉüÀ®Ä §gÀĪÀÅ¢®è. D £ÉÆÃlÄUÀ¼À £ÀA§gï FUÀ £É£¦ À ®è."
Further she was elicited that:
"D ¯ÁqïÓ PÁ£Àðgï£À°z è ÀÄÝ ¸ÀÄvÀª Û ÀÄÄvÀÛ ªÀÄ£ÉU½ À ªÉ."
She has also deposed that:
"¥ÉÇðøÀgÀÄ D ¯ÁqïÓ£À CPÀÌ¥ÀPÀÌ EgÀĪÀ ªÀÄ£ÉU¼ À ª À g À À£ÄÀ ß ¯Áqï£À°è £ÀqA É iÀÄĪÀ ªÉñÁåªÁnPÉAiÀÄ §UÉÎ «ZÁgÀ ªÀiÁrzÀgÆ É Ã E®èªÉÇà UÉÆwÛ®.è "
The above said evidence crystallizes that there are residential houses in and around said lodge, but Pw.3 has not 24 Spl.C.C.No.567/2014 secured local persons as Panch witnesses for mahazar and they have not enquired with the local persons about carrying of prostitution in the said lodge, as such at this stage it is not safe to accept the evidence of this witness who is an interested witness.
25. By going through the evidence of Pw.8-Giriyappa- A.S.I., he is also one of the member of the raiding team, in his chief examination he has supported the case of prosecution in respect of Ex.P2 , seizing of MO1 to MO8, arresting of accused persons along with rescuing of women and victim girl. In the cross-examination, the accused persons tested the veracity of evidence of this witness by eliciting some commission and omission, except denial suggestion, nothing has been elicited favourable to the defense taken by them.
26. By going through the evidence of Pw.9-Srinivasa Sheety-retired A.S.I., he is also one of the member of the raiding team, in his chief examination he has deposed in support of the case of prosecution and he has also deposed in respect of arrest of some of the accused persons and rescuing of some women 25 Spl.C.C.No.567/2014 and the victim girl and also seizing of MO1 to MO8. The accused persons tested the veracity of evidence of this witness and elicited some commission and omission and also elicited that:
"zÁ½UÉ ºÉÆÃUÀĪÀ ªÀÄÄ£Àß £ÀªÉÄä®g è À CAUÀ±ÉÆÃzÀs£U É ¼ À À£ÀÄß ªÀiÁqÀ®Ä ZÁ.¸Á.25 gÀªg À ÀÄ £ÀªÀÄUÉ ºÉýgÀĪÀÅ¢®è. D ¯ÁqïÓ£À §½ ºÉÆÃzÁUÀ £ÁªÀÅUÀ¼ÁågÀÄ £ÀªÀÄä £ÀªÀÄä CAUÀ±ÉÆÃzÀ£ s U É ¼ À À£ÀÄß £ÁªÀÅ ªÀiÁrPÉƼÀî°®è. D ¸À¼ Ü P À ÉÌ MlÄÖ JµÀÄÖ d£À D ¸ÀªÀÄAiÀÄzÀ°è ºÉÆÃzɪÀÅ JAzÀÄ ºÉüÀ®Ä £À£U À É £É£¦ À ®è."
Further he was elicited that:
"zÁ½UÉ ¥ÀAZÀgÁV ¸ÀºP À j
À ¸À®Ä ²æäªÁ¸À r®Pïì ¯ÁqïÓ
EzÀAÝ vÀºÀ ¸À¼Ü z
À À CPÀÌ¥ÀPÀÌzÀ ¤ªÁ¹UÀ¼£ À ÀÄß PÀg¹
É gÀ°®è, oÁuɬÄAzÀ¯ÃÉ
PÀgz
É ÀÄPÉÆAqÀÄ ºÉÆÃVzɪ Ý ÀÅ."
Further he has admitted that:
"£ÀªÀÄä oÁuɬÄAzÀ PÀgz É ÀÄPÉÆAqÀÄ ºÉÆÃzÀ D¸Á«ÄUÀ¼¯
ÉÀ Áè
d¹Öøï CAqÀ PÉÃgï£À D¸Á«ÄUÀ¼ÀÄ JAzÀgÉ ¸Àj." He has also admitted that:
"D ¯ÁqïÓUÉ ªÀÄÄA¨ÁV°zÉ JAzÀgÉ ¸Àj. zÁ½ ¸ÀªÀÄAiÀÄzÀ°è zÁ½ ªÀiÁqÀĪÀ PÀlÖqÀPÉÌ MAzÉà ªÀÄÄA¨ÁV®Ä EgÀĪÀ PÁgÀt ªÀÄÄA¨ÁV® §½ £ÀªÀÄä ¹§âA¢UÀ¼£À ÀÄß £ÉëĹzÉÃÝ DVzÀg Ý É £Á£ÀÄ ªÀÄÄRå«ZÁgÀuA É iÀÄ°è ºÉýzÀ jÃwAiÀÄ°è LzÁgÀÄ d£À ºÉAUÀ¸g À ÀÄ NrºÉÆÃzÀgÄÀ JA§ÄzÀgÀ §UÉÎ D jÃw Nr ºÉÆÃUÀ®Ä ¸ÁzÀså«®è JAzÀgÉ ¸Àj."
If the above said evidence is taken into consideration, this Court feels to observe that even though there was availability of local independent witnesses, Pw.3 has not taken them as Panch witnesses and raiding team along taken the Panch witnesses who are interested witnesses. When such being the case, it is 26 Spl.C.C.No.567/2014 not safe to accept the alleged offences against accused No.1 to 8.
27. Further he was elicited that:
"¦LgÀªg À À eÉÆvÉ fæ£À ZÁ®PÀ£ÉƧâ£Éà §A¢zÁÝ£.É ¸À¼Ü z À ° À è gÉPÁqïð D¥sï jøÀ£ïì£ÀÄß ¦LgÀªg À ÀÄ ¹§âA¢AiÀÄ PÉÊAiÀÄ°è §gɹzÀgÀÄ DzÀgÉ D ¹§âA¢ ºÉ¸g À ÀÄ ºÉüÀ®Ä £À£V À ÃUÀ YõÁÕ¥P À « À ®è. gÉPÁqïðì D¥sï jøÀ£ïUÉ ¥ÀAZÀgÀÄ ¸À» ªÀiÁrgÀĪÀgÀÄ. 500 ªÀÄÄR¨É¯AÉ iÀÄ 5 £ÉÆÃlÄUÀ¼À £ÀA§gï ºÉüÀ®Ä £À£V À ÃUÀ DUÀĪÀÅ¢®è".
He has also admitted that:
"ZÉÃvÀ£ïgÀªg À ÀÄ rPÁ¬ÄAiÀiÁV ºÉÆÃV D ¯ÁqïÓ£À AiÀiÁªÀ gÀÆ«Ä£À°z è ÃÉÝ £É JA§ §UÉÎ DvÀ ºÉýgÀĪÀÅ¢®è JAzÀgÉ ¸Àj".
If the above said evidence is taken into consideration, there is a doubt of conducting raid by Pw.3 as per law. Further he was elicited that:
"gÀƪÀÄÄ £ÀA. 113 3£Éà ªÀĺÀrAiÀÄ AiÀiÁªÀ ¨sÁUÀzÀ°v è ÀÄÛ JAzÀÄ ºÉüÀ®Ä £À£V À ÃUÀ ¸ÁzÀså«®è".
He has also shown his ignorance stating that:
"D gÀÆ«£À §½ £ÁªÀÅ JµÀÄÖ d£À ºÉÆÃVzɪ Ý ÀÅ JA§ §UÉÎ ºÉ¼ÃÀ ®Ä £À£U À É YõÁÕ¥PÀ « À ®è. gÀƪÀÄÄ £ÀA. 112 gÀ°è gÀÆ. 500 ªÀÄÄR¨É¯A É iÀÄ 3 £ÉÆÃlÄUÀ¼£ À ÀÄß ªÀ±P À ÉÌ vÉUz É ÀÄPÉÆAqÀgÄÀ DzÀgÉ D £ÉÆÃlUÀ¼À £ÀA§gïUÀ¼£ À ÀÄß £À£V À ÃUÀ ºÉüÀ®Ä YõÁÕ¥P À «À ®è. zÁ½ ¸ÀªÀÄAiÀÄzÀ°è MlÄÖ JµÀÄÖ ªÀ¸ÀÄU Û ¼À £ À ÀÄß d¥sÀÅÛ ªÀiÁrPÉÆAqÀgA É zÀÄ £À£VÀ ÃUÀ YõÁÕ¥PÀ «À ®è. zÁ½ ªÀiÁrzÀ ¸ÀªÀÄAiÀÄzÀ°è ¸À¼ Ü À ¥ÀAZÀ£ÁªÉÄAiÀÄ£ÀÄß £ÀªÀÄä ¥ÉJÁÃ°Ã¸ï ¹§âA¢ §gÉ¢gÀÄvÁÛgÉ CªÀgÀ ºÉ¸g À ÀÄ ºÉüÀ®Ä YõÁÕ¥P À « À ®è".
If the above said evidence is taken into consideration, there is a doubt of participation of this witness at the time of alleged raid as per the case of prosecution. 27 Spl.C.C.No.567/2014
28. By going through the evidence of Pw.13- Siddesh.M.D.-P.S.I., he has also deposed in support of the case of prosecution in respect of alleged raid conducted by Pw.3 along with his team, taking custody of accused persons, rescuing some of women and the victim girl, drawing mahazar as per Ex.P2 and seizing of MO1 to MO8. Further he has also deposed that on receiving complaint from Pw.3 he has registered the case in Crime No.192/2011 for the offences punishable under Section 366-A, 372, 373 read with section 34 of IPC and section 3, 4, 5, 6 and 9 of I.T.P. Act. He made Shara on the complaint as per Ex.P4 and he has also prepared FIR as per Ex.P10 and his signature is Ex.P10(a). He has also made MO1 to MO8 subject to P.F.No.192/2011 and obtained permission from the Court.
29. In the cross-examination the accused No.1 to 8 tested the veracity of evidence of this witness by eliciting some commission and omission, except denial suggestion nothing has been elicited favourable to the defense taken by them. He has shown his ignorance about the denomination of MO5 to MO7 and name to the company of the condoms, nature of booking of 28 Spl.C.C.No.567/2014 the rooms by him and at what time and also admitted MO8 is available in medical shop and Government Hospital. At this stage, this Court feels to observe that this witness is also police Official, who is an interested witness, it is quite natural to support the case of prosecution in respect of conducting of raid by Pw.3 along with his team and drawing of mahazar as per Ex.P2, seizure of MO1 to MO8 and submitted complaint as per Ex.P3 and this Court feels to observe the evidence of this witness is a formal one.
30. Now left with the available evidence of independent witnesses coupled with victim girl's evidence to consider whether the prosecution establishes the alleged offences against accused No.1 to 8 through their evidence beyond all reasonable doubt. By going through the evidence of Pw.2-the victim girl she has deposed in her chief examination in support of case of prosecution, but she was not subjected to cross-examination, inspite of several opportunities given to the prosecution, even to produce the said witness through video conference opportunity given to the prosecution, but it failed to secure the presence of Pw.2, as such this Court discarded the evidence of Pw.2. At this 29 Spl.C.C.No.567/2014 stage, this Court feels to observe that through the evidence of Pw.2 also the prosecution fails to establish the alleged offences against accused No.1 to 8.
31. By going through the evidence of Pw.5-Manoj Gurani-a social worker, according to the prosecution, he has given information to the police hierarchy about prostitution taking place in Srinivasa Lodge and in turn the police hierarchy informed the same to Pw.3-the head of raiding team, accordingly the raid was taken place. He has given his evidence in chief in support of the case of prosecution, but at the same time he failed to tender himself for cross-examination inspite of several opportunities given to him, the prosecution also failed to secure him before the Court and made him subject to cross- examination. Under these circumstances this Court discarded his evidence, as such through the evidence of this witness, the prosecution fails to establish the alleged offences against accused No.1 to 8.
32. The only eye witness-the boy who was supplying Tea to the rooms in the said lodge viz., Shashi Kuar-Pw.10 he has 30 Spl.C.C.No.567/2014 deposed that he is resident of Rajapura, studied up to 9th standard, in search of work he came to Bengaluru about 6-7 years back, when he was standing near Cotton Pete bus stop, the police taken him to the station and enquired as to from where he came and for what purpose and also received the mobile number of his father, summoned his father and sent him along with his father, except that he doesn't know anything about the alleged incident and he doesn't know the accused No.1 to 8. He has not given any statement before police. He doesn't know where Srinivasa Lodge is situated, he has not worked as room boy in that lodge. This witness turned hostile to the case of prosecution and the prosecution by treating him as hostile witness suggested each and every word of Ex.P7, for that he has denied the same. Through the only independent eye witness-Pw.10, the prosecution fails to establish the alleged offences against accused No.1 to 8 beyond all reasonable doubt.
33. By going through the evidence of Pw.11-Revanna, he has deposed that about 8 years back his son-Shashi Kumar came to Bengaluru without giving any information. He has searched every where for him, but he was not traced. One day 31 Spl.C.C.No.567/2014 the Cotton Pete Police called him over phone and informed about his son, immediately he came to Bengaluru Cotton Pete Police Station, taken custody of his son by executing bond, except that he doesn't know anything about the incident. Through the evidence of this witness also the prosecution fails to establish the alleged offences against accused beyond all reasonable doubt.
34. By going through the evidence of Pw.8-Dr.Malathi- Scientific Officer-FSL-Madiwala, she has deposed that on 01-10- 2011 she has received 16 sealed articles sent by Cotton Pete Police through H.C. 3457, she has examined the said articles, subjected them to chemical examination and given scientific opinion as per Ex.P4 and Ex.P5. Further she has also opined that presence of seminal stains was not detected in Item No.1, 4, 5, 8, 9, 12, 13 and 16 and presence of spermatozoa was not detected in Item No.2, 3, 6, 7, 10, 11, 14 and 15. The evidence of this witness remains unassailed. At this stage, this Court opined the evidence of this witness is a formal one.
35. Now left with the available evidence of Pw.12- 32 Spl.C.C.No.567/2014 V.Balaji- Police Inspector, he has deposed during the year of 2011-2013 he worked as P.S.I in Cotton Pete Police Station. On 29-07-2011 he has received record of this case along with the arrested accused persons, rescued women and the victim girl from Cw.25 and proceeded further investigation. He has recorded statement of Cw.6 to Cw.11, since Cw.11 was minor girl he made her subject to medical examination and thereafter sent her to CWC for safe custody. He has also recorded statement of Nagaraj, Vinay, Ganjendra, Shivalinge Gowda, Kumar, Rajesh and Renuka in respect of supply of girls by the owner of the lodge viz., Madhu and Manjunath stating that after those persons after receiving the girls and women, involving them in prostitution, earning money and in that amount taking 50% of the said amount and other 50% was given to the prostitutes. He has also sent Cw.6 to Cw.10 for medical examination and sent them to Mahila Swikar Kendra for safe custody.
36. Further he has deposed that he has also sent Cw.12- Shashikumar to CWC for safe custody. He has recorded statement of Cw.2 to Cw.5 and also the owner of the said 33 Spl.C.C.No.567/2014 building-Cw.14, who has given statement as per Ex.P7. Here on perusal of evidence of Pw.7-Janaki, she has admitted that she is the owner of Srinvasa Lodge, she has given the same in rent to the accused No.1, but she doesn't know the accused No.1 using the said building for prostitution as brothel home, after the incident she got vacated the accused No.1 and taken the said building to her custody. She has also produced agreement as per Ex.P6 to the police. At this stage there is no dispute that she is owner of the said building, but at the same time she is not an eye-witness to give evidence about the alleged incident. On the other hand she came to know about the alleged incident only after summoning her by the police, but not earlier to that, as such the evidence of this witness is in no way helpful to believe the alleged offences against accused No.1 to 8.
37. Further Pw.12 deposed that on 30-07-2011 he has given custody of Cw.12-Shashi Kumar to his father. He has also recorded the statement of Cw.17 to Cw.23, he has also subjected the victim women to medical examination at Victoria Hospital on 13-08-2011. He has also collected the articles from the hospital pertaining to Cw.6 to Cw.10 on 18-08-2011, made 34 Spl.C.C.No.567/2014 them subject to P.F.No.111/2012 and also obtained permission from the Court. He has also sent the articles for chemical examination to FSL-Madiwala and received acknowledgement as per Ex.P8. He has also identified MO9 to MO24 which are stated as 16 articles. He has also received age estimation certificate of Cw.11 on 19-08-2011 as per Ex.P9 and as per the said certificate the age of Cw.11 at that time was 16 to 17 years. He has also obtained Ex.P6-copy of rental agreement from the owner of the building on 31-08-2011. He has released the accused No.1 and 2 on bail as per the anticipatory bail order on 01-11-2011. He has received the FSL report on 14-11-2011 as per Ex.P4 and Ex.P5 and after completion of investigation filed charge sheet against accused No.1 to 9.
38. The accused persons tested the veracity of evidence of this witness and also elicited that on the very same day the victim women and the victim girl he has not subjected them to medical examination. He has also admitted that Cw.2 to Cw.5 are members of NGO. He has also admitted that he has not enquired with the local persons about the incident. He has also not collected any information to what date the accused No.1 to 8 35 Spl.C.C.No.567/2014 worked in the said lodge. Further the accused No.1 to 8 denied the evidence given by this witness by denial suggestion and nothing has been elicited favourable to the defence taken by them.
39. At this stage it is worth while to emphasize on the material facts that this witness being P.S.I., has not obtained any permission from the competent authority to investigate the offences under section I.T.P. Act. Moreover the Government also not notified him as Special Officer to investigate the offence under I.T.P. Act. The head of raiding team-Pw.3 also not produced any notification in order to comply the provisions of Section 13 of I.T.P. Act. When such being the case, question of considering registering complaint and preparing FIR by this witness becomes vitiated. Further Section 154 of Cr.P.C., not complied while conducting raid in this case before the complaint is registered, it is registered only after conducting raid and conducting of mahazar as per Ex.P2 and at this stage also there is violation of section 154 of Cr.P.C. Further on merits of the case, the victim woman Cw.6 to Cw.11 not stepped into the witness box to give their evidence in support of the case of the 36 Spl.C.C.No.567/2014 prosecution and the victim girl-Cw.11 who stepped into the witness box and given evidence in support of the case of the prosecution in her chief examination, but she failed to tender herself for cross-examination, as such her evidence is discarded. The person who has given information to the police also not subjected himself for cross-examination inspite of opportunities given to him and as such his evidence is also discarded. Under these circumstances whatever the investigation made by this witness is in no way helpful to the case of the prosecution to believe the alleged offences against accused No.1 to 8. Moreover the case against accused No.19 was abated due to his death in Special C.C.No.565/2014.
40. At this stage it is worthwhile to emphasis on the order passed by the Hon'ble High Court of Karnataka, in Criminal Petition No.5931/2012 dated 18-02-2013, wherein his lordship observed that:
"The principles laid-down in the aforesaid decisions clearly apples to the facts of this case, since the search and seizure were conducted without registering FIR as required under Section 154 of Cr.P.C and based on the alleged search and seizure, subsequently, the FIR has been registered. In this view of the matter, the FIR registered by the respondent-police is illegal and contrary to law, as such liable to be quashed."37 Spl.C.C.No.567/2014
Here also the complainant without registering the FIR as required under section 154 of Cr.P.C., and this witness based on the alleged search and seizure subsequently the case registered and FIR prepared. As such though the facts and circumstances of the above case decision and the facts and circumstances of the case on hand are different one, but the ratio of principle is clearly applicable to the present case on hand.
41. Further in Criminal petition No.3213/2012, 2142, 2877, 2910 and 2942/2012 dated 03-09-2012, the Hon'ble High Court of Karnataka also stated that it is mandatory upon the police officer that he has to register the complaint of the information at first and then proceed further. Here in the case on hand, the said mandatory provisions not followed by either by the complainant or by the Investigation Officer. The complainant directly proceeded to the spot by way of raid, conducted Panchanama, seized the articles and thereafter he has lodged complaint before the jurisdictional police, as such at this stage, this Court feels to observe that the mandatory required of under Section 154 of Cr.P.C, is not followed in the 38 Spl.C.C.No.567/2014 instant case and the FIR is quashed on the said section alone.
42. Further in 2002 Cri.L.J. Page 3205, wherein it had been observed that:
"Immoral Traffic (Prevention) Act, S.14-Arrest- Sanction given by Special Police Officer before raiding house of accused-Not sufficient for effecting arrest."
"Immoral Traffic (Prevention) Act, S.15-Search without warrant-Conducted by Sub-Inspector of Police- Invalid-Sub-Inspector of police is not an officer competent to conduct search-Proceedings liable to be quashed."
"Immoral Traffic (Prevention) Act, S.15(2)-Search-Two women inhabitant of locality present to attend and witness search-Requirement of sub-section(2) of S.15, not complied with-Entire proceedings and trial, however, not liable to be quashed."
Here also in the case on hand filed against accused the prosecution not produced evidence to prove that the complainant or the Investigation Officer was competent to conduct the search and investigation and at the time of conducting raid two women inhabitant of locality also not present and as such the provisions as contemplated under Section 15 of I.T.P. Act is not followed in the instant case. As such though the facts and circumstances of the above case decision and the facts and circumstances of the case on hand are different one, but the ratio of principle is clearly applicable 39 Spl.C.C.No.567/2014 to the present case on hand.
43. Further it is worth while to emphasize on the decision reported in 2016(3) AKR 561- wherein it is pertinent to observe that:
"Evidence Act, Ss.3, 24-Circumstantial evidence- Recovery of gold ornaments of deceased at instance of accused-No proper slips containing signature of police as well as Panchyatdars affixed on material objects seized- Process of seizure being improper, can led to inference that material objects were planted by prosecution to suit purpose of case-Moreover, though it was prosecution case that face and neck of deceased were crushed by throwing stone on face of deceased however, no bloodstains found on seized ornaments-Also non-mention in mahazar as to weighing and valuing of seized ornaments on spot itself- Circumstance of recovery, not reliable.
Here also seizing of MO1 to MO24 by the complainant, he has not seized the same in accordance with law, simply he has produced before this witness and in turn this witness seized MO1 to MO7 with white cloth and sealed, even the panch witnesses signature also not obtained on the paper slips. As such though the facts and circumstances of the above case decision and the facts and circumstances of the case on hand are different one, but the ratio of principle is clearly applicable to the present case on hand. Further the evidence of Pw.3 also crystallizes non-compliance of mandatory provisions at the time 40 Spl.C.C.No.567/2014 of sizing of MO1 to MO24 at the spot.
44. At this stage it is worthwhile to emphasis on the decision reported in 2014 Cri.L.J. Page 2261, wherein it had been observed that:
"Criminal P.C.(2 of 1974), S.482-Immoral Traffic (Prevention) Act (104 of 1956), Ss.3, 4, 5, 7, 13, 14- Quashing of criminal proceedings-Offence of immoral trafficking-No evidence to attract offence under S.7 of Act that person who carrying on prostitution-No case for prosecution that incident happened from notified area as mentioned under S.7 of Act-Investigation done and final report filed by inferior officer in rank who was not even empowered officer to conduct investigation of such cases- Thus procedure adopted by officials in filing final report was itself against law-Criminal proceedings liable to be quashed."
Further in 2014 Cri.L.J. Page 2936, wherein it had been observed that:
"Criminal P.C.(2 of 1974), S.482-Immoral Traffic (Prevention) Act (104 of 1956), Ss.3, 4, 5, 7, 13, 14-Final report and order taking cognizance-Quashing of-Offence punishable under provisions of 1956 Act-Act empowering only special officer to deal with offences under Act- Investigation, conducted by S.I. of police, not proper according to Act-Final report submitted by him, not in accordance with law-Final Report and order taking cognizance, liable to be quashed."
Her also, the Act empowering to file case in respect of ITP Act only Special Officer is empowered to deal with the offences under the said Act, but no such notification or special power empowered either to Pw.3-the complainant or to Pw.12-the 41 Spl.C.C.No.567/2014 Investigation Officer produced by the prosecution. As such though the facts and circumstances of the above case decision and the facts and circumstances of the case on hand are different one, but the ratio of principle is clearly applicable to the present case on hand.
45. Further it is worthwhile to emphasize on the decision reported in Criminal Petition No.10442/2013, wherein the Hon'ble High Court of Karnataka, observed in respect of Section 154 of Cr.P.C., and held that the raid and mahazar was not preceded by registering FIR as per Section 154 of the Cr.P.C, and quashed the said FIR. Here, also the complainant conducted raid and mahazar as per Ex.P2 without registering FIR as per Section 154 of Cr.P.C., as such the ratio of principle is clearly applicable to the present case on hand. Further it is worthwhile to emphasize on the decision reported in Criminal Petition No.15941/2012 clubbed with Criminal Petition No. 15852/2012, wherein the Hon'ble High Court of Karnataka, observed that:
"With regard to the question whether registration of FIR should precede the investigation or that FIR could be registered under the midst of the process of investigation would always depend upon the facts and circumstances of each case. In a situation where an offence is committed right in the presence of a police officer, it would be 42 Spl.C.C.No.567/2014 imprudent to insist that he should rush to the police station to record the FIR. The police officer should immediately act, like apprehending the accused, sending the victim to medical treatment etc., and thereafter registration of FIR would be an ideal investigation procedure. Otherwise, in all other types of cases, registration of FIR is mandatory since an FIR is to be sent to the Court at the earliest stage, so that no manipulating and tampering of facts would be possible. If the FIR is sent to the Court, all further investigation should necessary be consistent with the FIR."
Here also Pw.3-Police Inspector conducted raid and drawn mahazar without registering the FIR as per section 154 of Cr.P.C, and also seized MO1 to MO24, as such the ratio of principle is clearly applicable to the present case on hand.
46. The oral and documentary evidence placed on record by the prosecution is not sufficient to prove the alleged offences against the accused No.1 to 8 beyond all reasonable doubt. The defense of the accused persons and the facts and circumstances of the case including materials on record discussed above probablise the defense of the accused persons rather than the case of the prosecution.
47. In view of aforesaid reasons, I hold that the evidence of Pw.1 to Pw.13, got marked 10 documents as Ex.P1 to Ex.P10 and 24 material objects as MO1 to MO24, placed on record in 43 Spl.C.C.No.567/2014 respect of alleged offences is insufficient to prove that on 28-07- 2011 at about 09.40 p.m., within the jurisdiction of Cotton Pete Police Station, Bengaluru, at Srinivasa Lodge, No.66, Beli Mata Road, the accused No.1 and 2 with the assistance of the accused No.3 to 7, enticing Cw.6 to Cw.10 and minor girl-Cw.11 for the purpose of prostitution and also kept them in the said lodge by obtaining them with seduction for prostitution and let them for prostitution by maintaining the said premises as brothel home and depending on their earning from prostitution and thereby the accused No.1 to 8 committed offences punishable under section 366, 366-A, 372 read with section 34 of IPC and section 3, 4, 5 and 9 of I.T.P. Act. Consequently I hold Point No.1 to 8 in the "Negative".
48. Point No.9:- For the above said reasons and discussions on Point No.1 to 8, I hold that the accused No.1 to 8 are entitled for an order of acquittal. Hence, in the final result, I proceed to pass the following:
ORDER Acting under Section 235(1) of Cr.P.C., the accused No.1 to 8 are hereby acquitted for the 44 Spl.C.C.No.567/2014 offences punishable under section 366, 366-A, 372, 373 read with section 34 of IPC and section 3, 4, 5 and 9 of I.T.P. Act. Their bail bond and surety bond stands cancelled.
MO1 to MO7 are treated as worth properties.
Office is directed to forfeit MO1 to MO7 to the Government in accordance with law, after appeal period is over and if an appeal is preferred, after disposal of said appeal.
MO8 to MO24 are treated as worthless properties. Office is directed to destroy MO8 to MO24 in accordance with law and if an appeal is preferred, after disposal of said appeal and its result.
(Dictated to the Judgment Writer, transcribed and typed by her. It is then corrected, signed and pronounced by me in open Court on this the 29th Day of April, 2019) (SUSHEELA) L ADDL.CITY CIVIL & SESSIONS JUDGE, BANGALORE ANNEXURE LIST OF WITNESSES EXAMINED ON BEHALF OF PROSECUTION Pw.1 Chetan Cw.4 28-05-2014 45 Spl.C.C.No.567/2014 Pw.2 Victim Cw.11 24-07-2015 Pw.3 T.Kodandarama Cw.1 17-01-2017 Pw.4 Suchitra Cw.2 08-03-2017 Pw.5 Manoj Gurani Cw.5 18-12-2017 Pw.6 Dr.Malathi Cw.15 08-01-2018 Pw.7 Janaki Cw.14 22-01-2018 Pw.8 Giriyappa Cw.19 04-04-2018 Pw.9 Srinivasa Shetty Cw.23 06-06-2018 Pw.10 Shashi Kumar Cw.12 06-06-2018 Pw.11 Revanna Cw.13 06-06-2018 Pw.12 V.Balaji Cw.26 24-09-2018 Pw.13 Siddesh.M.D. Cw.25 15-10-2018 LIST OF DOCUMENTS MARKED ON BEHALF OF PROSECUTION Ex.P 1 Record of reasons Pw.1 28-05-2014 Ex.P 1a Signature of Pw.1 Pw.1 28-05-2014 Ex.P 1b Signature of Pw.3 Pw.3 17-01-2017 Ex.P 2c Signature of Pw.4 Pw.4 08-03-2017 Ex.P 2 Mahazar Pw.1 28-05-2014 Ex.P 2a Signature of Pw.1 Pw.1 28-05-2014 Ex.P 2b Signature of Pw.3 Pw.3 17-01-2017 Ex.P 2c Signature of Pw.4 Pw.4 08-03-2017 Ex.P 3 Complaint Pw.3 17-01-2017 Ex.P 3a Signature of Pw.3 Pw.3 17-01-2017 Ex.P 4 FSL Report Pw.6 06-01-2018 Ex.P 4a Signature of Pw.6 Pw.6 06-01-2018 Ex.P 4b Signature of Pw.12 Pw.12 24-09-2018 Ex.P 5 Model seal Pw.6 06-01-2018 46 Spl.C.C.No.567/2014 Ex.P 5a Signature of Pw.6 Pw.6 06-01-2018 Ex.P 6 Rental agreement Pw.7 22-01-2018 copy Ex.P 6a Signature of Pw.12 Pw.12 24-09-2018 Ex.P 7 Statement of Pw.10 Pw.10 06-06-2018 Ex.P 8 Acknowledgment Pw.12 24-09-2018 Ex.P 8a Signature of Pw.12 Pw.12 24-09-2018 Ex.P 9 Age estimation Pw.12 24-09-2018 certificate of victim Ex.P 9a Signature of Pw.12 Pw.12 24-09-2018 Ex.P 10 FIR Pw.13 15-10-2018 Ex.P 10a Signature of Pw.13 Pw.13 15-10-2018 LIST OF MATERIAL OBJECTS MARKED ON BEHALF OF PROSECUTION MO1 to Three Nokia Mobiles Pw.1 05-11-2016 MO3 MO4 Spice Mobile Pw.1 05-11-2016 MO5 Cash amount of Pw.1 05-11-2016 Rs.2,500/-
MO6 Cash amount of Pw.1 05-11-2016
Rs.3,825/-
MO7 Cash amount of Pw.1 05-11-2016
Rs.1,500/-
MO8 Condoms Pw.1 05-11-2016
MO9 to Articles collected from Pw.12 24-09-2018
MO24 Cw.6 to Cw.10
47 Spl.C.C.No.567/2014
LIST OF WITNESSES EXAMINED, DOCUMENTS MARKED & MATERIAL OBJECTS MARKED ON BEHALF OF DEFENCE NIL L ADDL. CITY CIVIL & SESSIONS JUDGE BANGALORE