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4.The charge was framed against the accused No.1 on 10.11..2021 for the offences punishable U/s.3, 4, 5, 6 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 five witnesses has PW.1 to PW.5 and got marked documents at Ex.P.1 to P.9, and identified Mos1 to 3. The learned public prosecutor has given up witnesses CW.8 to CW.12 on 1.4.2022, in view of the evidence of other police official witnesses, as repetition witnesses. In spite of sufficient opportunities provided to the prosecution by issuing summons, warrant and proclamation for securing CW.2, CW.3, CW.5, CW.6 and CW.7, but the concerned police failed to secure the said witnesses and in view of the same on 3.3.2022 the evidence of CW.5 was taken as nil and on 1.4.2022, the evidence of CW.2, CW.3, CW.6 and CW.7 was taken as nil by rejecting the prayer of the prosecution. Further the prosecution has not taken any steps to secure the witnesses CW.2, CW.3, CW.5 CW.6 and CW.7, in view of the same dropping of evidence of CW.2 CW.3, CW.5, CW.6 and CW.7 remained intact.

12.In order to prove the said allegation the prosecution has examined the complainant PW.1 Narayanagowda, who deposed that after obtaining credible information information regarding prostitution carried out at house bearing No.20/2A. 20/2B, fourth floor situated Near Shiva Temple, Maruthinagar, Kudlu, within the limits of Parappana Agrahara P.S., Bangalore he along with his staff CW.10 to 12 secured the panch witness CW.2 and CW.3 and among the said appointed CW.13 as the decoy and by handing over Rs.3,000/- instructed to visit the house to be raided and after settlement of prostitution business with the accused and ascertaining their involvement in prostitution business sent information. It is also the evidence of PW.1 that after receiving the signal from the decoy CW.13 he raided the spot along with his staff and panchas and apprehended the accused No.1 and rescued CW.5, who was made to indulge in prostitution business along with the decoy 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. It is also admitted by PW.1 that he is not able to identify the denomination of the currency notes, which he had handed over to the decoy since he has not 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. 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. Further it is also admitted by PW.1 in his cross-examination that he has not mentioned in the panchanama Ex.P3 as to the denomination of the currency notes, which he has handed over to the decoy. It is the evidence of PW.1 that after conducting the raid he has seized MO1 Rs.3,400/- from the possession of accused No.1 and out of the said amount returned Rs.3,000/- to the decoy and seized Rs.400/- as MO1 through the panchanama Ex.P3 drawn in the presence of the panchas CW.2 and CW.3. From this evidence it is crystal clear that there is no identification of the denomination of the currency notes of Rs.3,400/- that has been seized from the possession of accused No.1. The evidence of PW.1 is also not crystal clear as to whether the amount of Rs.3,000/- seized and returned to the decoy was the same amount that has been handed over by PW.1 to the decoy to trap the accused persons. This creates suspicion regarding the payment of amount of Rs.3,000/- to the decoy and seizing the same from the possession of accused without mentioning the said details in the mahazar Ex.P3. At this juncture it is also very important to note that both the panchas CW.2 and CW.3, in spite of sufficient summons and warrants were not secured before the Court, and their evidence was taken as nil. In the absence of material panch witnesses the contents of Ex.P3 panchanama is also not proved sufficiently and satisfactorily by the prosecution. 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 Cw.2 and Cw.3 are the male persons and were not examined to prove the contents of Ex.P3 panchanama. The pancha CW.2 and CW.3 are the male persons were not secured by the prosecution, in spite of issuance of warrants and proclamation. At this juncture I would like to reproduce the provisions of Se.15(2) of ITP Act, which reads as follows:-

Sec.15(2) before making a search under sub- section(1), the special police officer(or the trafficking police officer, as the case may be) shall call upon two or more respectable inhabitants(at least one of whom shall be a woman) of the locality in which the place to be searched is situate, to attend and witness the search, and may issue an order in writing to them or any of them so to do:
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.4 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 persoms 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 commercial shops, non citing of the local persons as a witness by the Investigating Officer_PW.4 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 victim/CW.5 Geetha, induced her to indulging in committing prostitution and seizure of MOs1 to 3 is fatal to the case of the prosecution.

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 case and file charge sheet. In the instant case the I.O., PW.4 has not produced any document to show that he is appointed as a Special Officer and having the rank of Police Inspector in the Department having authority to investigate cases pertaining to ITP Act,, 1956. The evidence of PW.4 clearly discloses that he being in the rank of Police Sub-Inspector, who had registered the case and recored the statements of the witnesses during investigation and recorded the statement of victim/CW.5 and the raiding party witnesses. It is the specific defense of the accused No.1 that the witness PW.4 who had investigated the case has no authority as per the provisions of ITP Act to investigate the case since he was working under the rank of PSI, below the rank of Police Inspector. At this context it is worth to note a decision of Hon'ble High Court regarding the said mandate of the Act reported in Shankaregowda @ Shankara Vs. State by Madanayakanahalli Police Station, Bengaluru and others reported in ILR 2016 Kar 3067 , wherein it is held that:-