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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 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 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 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 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.

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.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:-