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1. Whether the prosecution proves that the accused running prostitution business at house bearing No.48, V Cross, I Main Road, Malleshpalya, within the limits of Byappanahalli P.S., Bangalore, running the prostitution business by trafficking CW.4 to CW.6 with the false assurance of getting job at Bangalore, and wrongfully confined them in the said house, and induced them to indulge in the prostitution in the public vicinity and leading his life from the amount of illegal gain and thereby the accused has committed an offences punishable U/s. 3, 4, 5 and 7 of ITP Act?

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 that he was running prostitution business at house bearing No.48, V Cross, I Main Road, Malleshpalya, within the limits of Byappanahalli P.S., Bangalore, by trafficking CW.4 Smt. Sartaj, CW.5 Smt. Sandhya and CW.6 Kumari Taj. The Assistant Commissioner of Police has conducted raid on obtaining the credible information regarding running of prostitution business and apprehended the accused along with Cw.4 to Cw.6 involved in committing the offences U/s. 3, 4, 5 and 7 of ITP Act and Sec.370 of IPC and seized Mos 1 to 3 from the spot under seizure panchanama in the presence of panchas.

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 situate 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 I.O., PW.6 and PW.7 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.6 and the investigation Officer PW.7, who has filed the charge sheet, have admitted that in spite of dense locality and adjoining residential houses, near the place of raid they have not secured any local neighbor of the adjoining raid residential building as witness 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 residential locality and building surrounded by the adjoining residential 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 and apprehending of the accused along with the victims CW.4 to CW.6 who were forced to indulging committing prostitution.

At this juncture I would like to refer the provision of Sec.13(2) of the ITP Act, 1956, wherein it is mandatory that the investigation has to be done by Special Officer and an Advisory body i.e., the Special Police Officer, who shall not be, below the rank of Police Inspector, having authority to investigate the case and file charge sheet. In the instant case the I.O., PW.7 has not produced any document to show that she is appointed as a Special Officer and having the rank of Police Inspector in the Department having authority to investigate cases pertaining to ITP Act,, 1956. The evidence of PW.7 clearly discloses that she being in the rank of Police Sub­Inspector, and after completing the investigation has filed charge sheet. It is the specific defense of the accused that the witness PW.7 has no authority to investigate the case since she is working under the rank of WPSI and below the rank of Police Inspector as per the provisions of ITP Act. 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 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 manner, it should be carried out in that manner only. In the instant case Police Sub­Inspector­PW.7 Ramadevi, who had registered the FIR, produced the accused before the Court, and completed the investigation, after 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.