Bangalore District Court
Nor By The Decoy Does Not Bear Any ... vs No.1. Though He Was Turned Hostile And ... on 22 April, 2022
KABC010009702019
IN THE COURT OF XLV ADDL. CITY CIVIL & SESSIONS
JUDGE, BENGALURU CITY (CCH-46)
DATED THIS THE 22ND DAY OF APRIL, 2022
PRESENT:
Sri. Abdul Rahim Husain Shaikh,
B.Sc., B.Ed., LL.B.(Spl.)
XLV Addl. City Civil & Sessions Judge,
Bengaluru.
SC No.53/2019
BETWEEN
State by JP Nagar P.S.,
Bangalore. .. COMPLAINANT
(By the learned Public Prosecutor)
AND
1.Prathap
S/o Kumaraswamy, 25 Yrs.,
R/o Tejur, Kasaba Hobli,
Hassan Taluq and District.
2.Kaushik (absconding/ split up) ..ACCUSED
(By Sri PJS, Advocate)
******
Date of offence & time 19.06.2016 at 19.10 hours
Date of report of offence 19.06.2016 at 21.00 hours
Date of arrest of the accused 20.06.2016
Date of release on bail 25.08.2016
Total period of custody Two months five days
2 SC No.53/2019
Name of the complainant Sri Sanjeev Kumar J Mahajan.
Date of commencement of 3.10.2019
recording of evidence
Date of closing of evidence 15.02.2022
Offences complained of U/s.3, 4, 5 and 7 of ITP Act and
Sec.370(3) and 370A(2) r/w
Sec.34 of IPC
Opinion of the Judge Accused found not guilty
JUDGMENT
The Police Sub-Inspector, JP Nagar P.S., Bangalore, has filed charge sheet against accused No.1 and others for the offences punishable U/s.3, 4, 5 and 7 of ITP Act and Sec.370(3) and 370A(2) r/w Sec.34 of IPC in Crime No.289/2016.
2. The factual matrix of the case is that :-
The accused No.1 along with accused No.2 was running the prostitution business in a house belongs to CW.11 bearing No.3/14/1 Ground Floor situated at 19th Cross, 22nd Main Road, Ayodhya Nagar, JP Nagar 5th Phase, within the limits of JP Nagar P.S., Bangalore by trafficking CW.9 and CW.10 with the assurance of getting job at Bangalore, induced and indulged them in prostitution business in the public vicinity and was leading his life from the amount of illegal gain from the said business. On 19.06.2016 at 6.30 p.m. the complainant along with panchas and his staff conducted raid after obtaining credible information and apprehended accused No.1, who was involved in the prostitution business, rescued CW.9 and CW.10 and at that time seized Mobile Phone, Condoms and cash of Rs.2,500/- etc., from the spot through panchanama. Thereby 3 SC No.53/2019 the accused No.1 is alleged with the offences punishable U/s.3, 4, 5 and 7 of ITP Act and Sec.370(3) and 370A(2) r/w Sec.34 of IPC.
3. The concerned police have submitted charge sheet against the accused No.1 by showing accused No.2 absconding for the offences punishable U/s.3, 4, 5 and 7 of ITP Act and Sec.370(3) and 370A(2) r/w Sec.34 of IPC , before the jurisdictional XLIV Addl.,CMM., Bangalore. The learned Magistrate has committed the case to the Sessions Court by complying Sec.207 of Cr.P.C. after furnishing charge sheet copies to the accused No.1 by split up the case against accused No.2.
4.The charge was framed against the accused No.1 on 31.08.2019 for the offences punishable U/s.3, 4, 5 and 7 of ITP Act and Sec.370 of IPC. The accused No.1 has pleaded not guilty and claimed to be tried.
5.The prosecution has examined in all seven witnesses has PW.1 to PW.7 and got marked documents at Ex.P.1 to P.15, and identified Mos1 to 13. The learned public prosecutor has given up witnesses CW.4. CW.6, CW.7, CW.12 and 13, in view of the evidence of other police official witnesses, as repetition witnesses. In spite of sufficient opportunities provided to the prosecution by issuing summons, warrant and proclamation for securing CW.3, CW.9 and CW.10, but the concerned police failed to secure the said witnesses and in view of the same the evidence of CW.3, CW.9 and CW.10 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.9 4 SC No.53/2019 and CW.10, in view of the same dropping of evidence of CW.3, CW.9 and CW.10 remained intact.
6.After closure of the evidence of prosecution, the case was posted for recording statement of accused as provided U/s.313 of Cr.P.C. on 20.4.2022, and the same was duly recorded. The accused No.1 did not claim for defense evidence nor produced any documents to support his case in spite of sufficient opportunities. The accused No.1 has complied provisions U/s.437A of Cr.P.C.,
7.Heard the arguments on both sides and perused the materials on record.
8.The following points that arises for consideration of this court:
1. Whether the prosecution proves that the accused No.1 in collusion with accused No.2 at house belongs to CW.13 bearing No.3/14/1 Ground Floor situated at 19th Cross, 22nd Main Road, Ayodhya Nagar, JP Nagar 5th Phase, within the limits of JP Nagar P.S.,Bangalore by trafficking CW.9 and CW.10 with the assurance of money, and induced and indulged them in prostitution business in the public vicinity and was leading his life from the amount of illegal gain from the said business and thereby the accused No.1 has committed an offences punishable U/s.3, 4, 5 and 7 of ITP Act?
2. Whether the prosecution proves that the accused No.1 in collusion with accused No.2 5 SC No.53/2019 with an intention to run prostitution business by trafficking CW.9 and CW.10 forcibly induced them to indulge in prostitution business for wrongful gain, and thereby the accused No.1 has committed an offence punishable U/s.370 of IPC?
3. What Order?
9.This Court has answered the above points are as hereunder:
Point No.1: In the Negative Point No.2: In the Negative Point No.3: As per final order for the following:-
REASONS
10. Points No.1 and 2: Both the points are taken up together for discussion as they are related to each other and to avoid repetition in the discussion.
11.It is the specific allegation against the accused No.1 that along with accused No.2 was running the prostitution business in a house belongs to CW.11 bearing No.3/14/1 Ground Floor situated at 19th Cross, 22nd Main Road, Ayodhya Nagar, JP Nagar 5th Phase, within the limits of JP Nagar P.S., Bangalore by trafficking CW.9 and CW.10 with the assurance of getting job at Bangalore, induced and indulged them in prostitution business in the public vicinity and was leading his life from the amount of illegal gain from the said business. On 19.06.2016 at 6.30 p.m. the complainant along with panchas and his staff conducted raid after obtaining credible information 6 SC No.53/2019 and apprehended accused No.1, who was involved in the prostitution business, rescued CW.9 and CW.10 and at that time seized Mobile Phone, Condoms and cash of Rs.2,500/- etc., from the spot through panchanama. Thereby the accused No.1 is alleged with the offences punishable U/s.3, 4, 5 and 7 of ITP Act and Sec.370(3) and 370A(2) r/w Sec.34 of IPC.
12.In order to prove the said allegation the prosecution has examined the complainant PW.1 Pramod Kumar Mahajan deposed that on 19.06.2016 after obtaining credible information regarding prostitution carried out at house bearing No.3/14/1 Ground Floor situated at 19th Cross, 22nd Main Road, Ayodhya Nagar, JP Nagar 5th Phase, within the limits of JP Nagar P.S., he along with his staff secured the panch witness and out of them appointed CW.5/PW.4 Kumaraswamy and requested to be decoy and instructed him to inform after ascertaining the involvement of the accused in prostitution business and handed over him Rs.500/-. Further it is the evidence of PW.1 that after receiving the signal from the decoy PW.4 he raided the spot along with his staff and panchas and apprehended the accused No.1 and rescued CW.9 and Cw.10, who were made to indulge in prostitution business by the accused persons. It is also the case of the complainant/PW.1 that he has executed mahazar Ex.P3 regarding seizure of material objects Mos1 to 3. It is pertinent to that in the cross-examination PW.1 has admitted that the place that has been raided is thickly populated with the adjoining residential houses. In the evidence of PW.1 he was not able to identify the denomination of the currency notes of Rs.500/- which he handed over to the decoy since he has not 7 SC No.53/2019 signed the said currency notes. It is equally important to note that the witness PW.1 has also deposed that before the raid he has not physically verified the decoy nor himself and his staff. It is equally important to note that decoy PW.4 also in his cross- examination admitted the said fact that there was no physical verification done by the complainant/PW.1 before sending him to the house to be raided. This clearly indicates that PW.1 has never taken any steps before the raid regarding the materials that has been carried by the staff and the decoy at the time of raid. In the evidence of of PW.4 decoy the prosecution has not elicited sufficient material regarding the denomination of the currency note and number of the said currency note, which has been handed over to him by the complainant/PW.1. Further on perusal of the panchanama Ex.P3 it never discloses regarding the description of the currency note that has been handed over to the decoy and seized at the time of raid. The evidence of PW.1 that he has seized Rs.2,500/- from the possession of accused No.1 as per MO3, which includes Rs.500/- that has been handed over by him to the decoy PW.4 This evidence is not sufficient and satisfactorily to prove that the amount that has been seized contains the amount of Rs.500/- that has been handed over the complainant to the decoy to trap the accused. Since the said Rs.500/- currency note is not signed by the complainant nor by the decoy does not bear any identification marks to prove the said amount was handed over to the decoy. In veiw of the same the contentions of the complainant/PW.1 and decoy/PW.4 that they used Rs.500/- to trap the accused and the same has been seized from the possession of accused 8 SC No.53/2019 No.1 along with other currency note cannot be considered. It is vehemently argued by the accused counsel that the complainant PW.1 in spite of densely populated area has not secured any of the female persons residing adjoining to the raided house to be one of the pancha to the panchanama Ex.P3 as mandated by the Act U/s.15(2) of the ITP Act. The panchas PW.2 and CW.3 are the male persons and out of them PW.2 has turned hostile to the case of prosecution by deposing that he has no knowledge regarding the execution of Ex.P3 panchanama and seizure of MOs1 to 3 from the possession of accused No.1. Though he was turned hostile and cross- examined at length, no material evidence was elicited to prove the panchanama Ex.P3. It is pertinent to note that the other pancha CW.3 was not secured by the prosecution, in spite of issuance of warrants and proclamation. Further it is clear admission by PW.1 and the decoy police official PW.4 that they have not secured any female persons residing adjoining to the house raided to be the pancha at the time of execution of the Ex.P3 mahazar and seizure of material objects MO1 to 3 from the possession of accused No.1. 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 9 SC No.53/2019 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 cited are male persons, and were not examined by the prosecution. Even in the cross-examination of I.O., PW.7 and PW.5 have admitted that after taking the investigation of the case, have not visited the spot, nor have recorded the statements of the witnesses, to ascertain whether the accused persons were involved in committing the alleged offence. From this fact it is crystal clear that the complainant/PW.1 has not complied the mandatory provisions of Sec.15(2) of ITP Act. It is equally important to note that though the incidental spot is a public place adjoining to residential houses, non citing of the local persons as a witness by the Investigating Officer_PW.7 and PW.5 also creates a doubt in the prosecution case regarding the conduct of raid and and apprehending of the accused No.1 along with the victims/CW.9 and CW.10, induced them to indulging in committing prostitution and seizure of MOs1 to 3 is fatal to the case of the prosecution.
13.In order to prove the allegations against the accused persons the prosecution has examined the PW.6, who is the owner of the house, has deposed that the raided house belongs to him and the said house was leased to accused by name 10 SC No.53/2019 Prathap, but no document has been executed regarding the lease of the property. In the cross-examination he admitted that the said house was not leased to accused but to his friend, who is name is not known to him. From this evidence it is crystal clear that the owner of the house PW.6 is not sure as to whom he has leased the house, where the raid was conducted. The I.Os., PW.7 and PW.5 though deposed that they have collected the documents regarding the ownership of the house, but they have not produced any documents to show that he was in possession as tenant under PW.6 owner of the house. In the absence of the same the evidence of PW.6 and also the evidence of PW.5 and PW.7 I.O., cannot be considered in proving that the accused No.1 was in possession of the raided house belongs to PW.6 and was carrying prostitution business by indulging the victims CW.9 and CW.10.
14.It is also very important to note that the prosecution in spite of issuing summons and warrants to the victims/Cw.9 and CW.10 failed to secure the material witness before the Court, when the entire case rest on the evidence of victims/Cw.9 and Cw.10, who according to the prosecution, were indulging in prostitution business by trafficking and the accused leaving on the wrongful gain from the said business. This is fatal for the case of the prosecution, wherein the material witnesses Cw.9 and CW.10 has not been examined, so as to prove the guilt against the accused persons.
14.The I.O., PW.5 has deposed that he was working as ASI at the time of registration of complaint at JP Nagar P.S., It is the evidence of PW.5 that while he was on duty on 11 SC No.53/2019 19.06.2016 CW.1/PW.1 has produced the victims, seized properties and accused person, along with complaint Ex.P4, which he has registered in crime No.289/2016 and submitted FIR Ex.P11 to his higher officials and to the Court. Further it is the evidence of PW.5 I.O., that he has recorded the statements of the witnesses CW.2 to CW.7 and handed over further investigation to PW.7 PSI, who recorded the statements of Victims/CW.9 and 10, statement of CW.11, who is the owner of the house and after completion of investigation submitted charge sheet against the accused persons. From this evidence it is clear that the entire investigation is carried out by ASI PW.5 and PSI PW.7. It is vehemently argued by the accused No.1 counsel and brought to the notice of the Court the evidence of I.O.,/PW.5 and PW.7 that the at the time of the incident they were working as Assistant Sub-Inspector and Police Sub- inspector of JP Nagar P.S., and after registering the complaint has investigated the entire case by recording the statement of witnesses, victim and handed over further investigation to PW.7, who has filed charge sheet. It is vehemently argued that PW.5 and PW.7 are being ASI and PSI not authorized and not a Special Police Officers, as specified by the State Government or on behalf of the Government in investigating the cases pertaining to the ITP Act.
15.At this juncture I would like to refer the provision of Sec.13(2) of the ITP Act, 1956, wherein it is mandatory that the investigation has to be done by Special Officer and an Advisory body i.e., the Special Police Officer, who shall not be, below the rank of Police Inspector, having authority to investigate the 12 SC No.53/2019 case and file charge sheet. In the instant case the I.O., PW.5 and PW.7 have not produced any document to show that they are appointed as a Special Officers and having the rank of Police Inspector in the Department having authority to investigate cases pertaining to ITP Act,, 1956 at the time of investigation of the case. The evidence of PW.5 and PW.7 clearly discloses that they being at the rank of Assistant Sub- Inspector and Police Sub-Inspector, have registered the case and recored the statements of the witnesses/victims during investigation It is the specific defense of the accused No.1 that the witness PW.5 and PW.7, had investigated the case have no authority as per the provisions of ITP Act to investigate the case since they were working under the rank of ASI and PSI, below the rank of Police Inspector. At this context it is worth to note a decision of Hon'ble High Court regarding the said mandate of the Act reported in Shankaregowda @ Shankara Vs. State by Madanayakanahalli Police Station, Bengaluru and others reported in ILR 2016 Kar 3067 , wherein it is held that:-
"Police Sub-Inspector cannot be a Special Officer, as per the mandate of Section 13 of the Act, it can only be the Inspector of Police or an Officer of above the rank of Police Inspector who can be appointed as Special 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.5 ASI and PW.7 PSI who registered the case and investigated by 13 SC No.53/2019 recording the statements of the witnesses, is not shown to be qualifying as "Subordinate Police Officer" notified by the State Government to assist the Special Officer.
Hence, the investigation is found to be defective without any compliance to Sec.13(2) of ITP Act, 1956.
16.It is equally important to note that the same point came up for consideration in Criminal Petition No.5497/2016 between G. S. Mallinath Vs. State of Karnataka and another , wherein this Court in the said petition also has categorically held that the Police Officer who is below the rank of the Police Inspector has no jurisdiction to investigate the matter under the above said provisions.
17.Relying upon the above said provision of Section 13(2) of the said Act and the dictum of law laid down in the above said ruling it is crystal clear that the investigation done by the ASI and PSI PW.5 and PW.7 is vitiated by serious procedural irregularity and not curable in nature.
18.Therefore, from the above reasons and discussions it is very crystal clear that the prosecution has utterly failed to establish or prove the guilt against the accused No.1 beyond all reasonable doubt. Accordingly, I answer Points No. 1 and 2 in the negative.
19.Point No.3: In view of answer of this court on points No.1 and 2, this court pass the following:-
14 SC No.53/2019ORDER Acting U/s.235(1) of Cr.P.C., the accused No.1 is hereby acquitted of the offenses punishable U/s.3, 4, 5 and 7 of the Immoral Traffic (Prevention) Act, 1956 and Sec.370 of Indian Penal Code, 1860.
The bail and surety bonds of accused No.1 stand canceled.
MOs1 to MOs13 shall be retained till the disposal of split up case as registered against accused No.2. (Typed to my dictation by the Judgment Writer directly on Computer, corrected by me and then pronounced in open Court on this the 22nd1st day of April, 2022) (Abdul Rahim Husain Shaikh) XLV Addl. City Civil & Sessions Judge, Bengaluru.
15 SC No.53/2019ANNEXURE List of Witnesses examined on behalf of Prosecution:
P.W.1: Sanjeev Kumar J Mahajan P.W.2: K. Muniraju, P.W.3: Smt. Savithri P.W.4: Kumaraswamy P.W.5: Cheluvaraju P.W.6: Smt. Chinnamma P.W.7: Renuka.
List of Documents exhibited on behalf of Prosecution:
Ex.P.1: Notice. Ex.P.2: Record of reasons Ex.P.3: Mahazar Ex.P.4: Complaint. Ex.P.4a: Signature of PW.1 Ex.P.5: Statement of PW.2 Ex.P.6 & P.7: MLC Extracts, Ex.P.8: Statement of PW.3 Ex.P.9 & P.10: Reports Ex.P.11: FIR Ex.P.12: PF Ex.P.13: Sale Deed Ex.P.14: Tax paid receipt Ex.P.15: Acknowledgement.
List of Witnesses examined on behalf of Accused:
NIL List of Documents exhibited on behalf of Accused:-
NIL List of Material Objects marked on behalf of Prosecution:-
MO1: MObile Phone MO2: Condoms MO3: Cash Rs.2,500/-
MOs4 to 13: Vaginal Slabs, Nail clippings, Pubic Hairs, Under garments with clothes etc., (Abdul Rahim Husain Shaikh) XLV Addl. City Civil & Sessions Judge, Bengaluru.16 SC No.53/2019
Judgment pronounced in the open Court vide its separate order ORDER Acting U/s.235(1) of Cr.P.C., the accused No.1 is hereby acquitted of the offenses punishable U/s.3, 4, 5 and 7 of the Immoral Traffic (Prevention) Act, 1956 and Sec.370 of Indian Penal Code, 1860.
The bail and surety bonds of accused No.1 stand canceled. MOs1 to MOs13 shall be retained till the disposal of split up case as registered against accused No.2.
(Abdul Rahim Husain Shaikh) XLV Addl. City Civil & Sessions Judge, Bengaluru.