Bangalore District Court
Balegowda vs Mangala on 16 August, 2025
KABC030411952013
Presented on : 29-06-2013
Registered on : 29-06-2013
Decided on : 16-08-2025
Duration : 12 years, 1 months, 17 days
IN THE COURT OF THE 30TH ADDL.CHIEF
JUDICIAL MAGISTRATE, BENGALURU
Dated: This the16th day of August-2025
:Present: Sri. Thimmaiah.G B.A., LL.B.
30th ACJM, Bengaluru
C.C.No.9728/2013
(Judgment U/s.355 of Cr.P.C.)
Date of Offence 15.06.2023
Complainant State by Subramanyapura Police
Station.
R/by. Learned Senior APP
V/s.
Accused A1. Smt. Mangala
W/o. Umesh,
Aged about 30 years,
Judgment 2 C.C.No.9728/2013
A2. Umesh
S/o. Basavaraju,
Aged about 35 years,
Both are R/at. No.58, 2nd Main,
Maruthi Nagar, J.P.Nagar,
7th Phase, Bengaluru City.
A3. Smt. Geeta
W/o. Kumar,
Aged about 30 years,
R/at.C/o. Sadananda,
1st Cross, Near Anjineya Temple
Chuchaghatta,
Bengaluru City.
Offences U/s. 3,4 5, 7 of ITP Act.
Plea/Charge Recorded on 22.01.2021 and the
accused persons are Pleaded not
guilty.
Examination U/sec., 313 of 16.08.2025
Cr.P.C recorded on:
Final Oder Accused No.1 to 3 are Acquitted
Date of Order 16.08.2025
(Thimmaiah.G)
30th Addl.C.J.M., B'lore.
Judgment 3 C.C.No.9728/2013
JUDGMENT
The PSI of Subramanyapura Police Station has filed
charge sheet against accused persons for the offences
punishable U/s. 3,4,5,7 of ITP Act.
2. The brief facts of the prosecution case are as follows:
The case of the prosecution is that, on 15.06.2013 at
about 08.30 pm, on receipt of credible information, C.W.1 to 9,
raided the house of the accused persons, situated within the
jurisdiction of Subramanyapura police station, House No.58,
2nd Main Road, Maruthi Nagar, J.P.Nagar, 7 th Phase, where the
accused No.1 and 2 were the brokers and the accused No. 3
and 4 were the prostitutes and called the accused No.5 and 6
were the customers and were doing the prosecution business
in order to make an unlawful gain and thereby the accused
persons have committed the above said alleged offence which
is punishable U/s. 3,4,5,7 of the ITP Act.
Judgment 4 C.C.No.9728/2013
3. During the pendency of the case, the case against
the accused No.4 to 6 are Split up in CC.No.23942/2022. After
filing the charge sheet, cognizance taken for the offences
punishable U/s. 3,4,5,7 of the ITP Act against the accused
No.1 to 3. The accused No.1 to 3 were released on bail. Copy of
the prosecution papers furnished to the accused No.1 to 3 as
required U/Sec.207 of Cr.P.C. Heard before charge. Charge has
been framed and read over to the accused No.1 to 3 language
known to them, wherein they have denied the same and claim
to be tried. Hence, the prosecution is called upon to prove its
case.
4. During the pendency of the case, the Cw.1 is reported
dead, by the concerned police, who was the IO/complainant
in this case, In order to secure the Cw.2 to 5 witnesses this
court issued so many times, Summons, NBW and
Proclamation, even taken the sufficient time, the concerned
police failed to secure these witnesses. Moreover this case is
Judgment 5 C.C.No.9728/201314 years old. Hence, the above said witnesses are dropped
after taking sufficient time. In this regard this court, relied on
the following Hon’ble High Court, full bench Judgment of the
Madras High Court, passed in The State ( Tamil Nadu) V/s
Veerappan and Others, on 24 March 1980, AIR 1980
MAD260-ILR 3 MAD 245 where in it held as below:
2. Of the two questions which have been
referred to this Full Bench, the first one, namely,
whether under Section 255(1) Cr. P. C., a
Magistrate can acquit the accused if the
prosecution fails to apply for the issue of
summons to any witness and does not produce
the witness for several hearings and does not
serve summons on the witnesses despite
having been granted sufficient opportunity to
serve the summons or to produce the witnesses,
is the one that directly arises for determination
in these appeals. The second question which
arises for determination by us incidentally is
whether a Magistrate can acquit the accused
under Section 248(1) Cr. P. C., if the prosecution
does not apply for the issue of summons to any
of the witnesses and does not produce the
witness for several hearings and does not serve
the summons on the witnesses despite having
Judgment 6 C.C.No.9728/2013been granted sufficient opportunities to serve
the summons on the witnesses or to produce
the witnesses.
3. In all these appeals, the learned
Magistrate acquitted the accused under Section
255(1) Cr. P. C., on the ground that even though
the cases had been posted for hearing on
various dates and summons had been issued
to the witnesses for all the hearings, the
witnesses were not produced on any of the
hearing dates and in spite of a notice issued
that the case would be disposed of without
examining the witnesses if they are not
produced the prosecution did not choose to let
in any evidence and as such the Magistrate
found that the prosecution had no evidence to
let in.
15. In State of Madh. Pra. v. Kaluthawar,
1972 Cri LJ 1639, a Division Bench of the
Madhya Pradesh High Court observed as
follows: “It was the duty of the prosecution to
make necessary arrangements for the
production of its witnesses…. The Police must
always remember that it has got a duty to the
court and they cannot just send a challan and
think that the rest will be done by the court.
When nobody appeared in t he court to inform
what the reason was for non-appearance of the
witnesses, the court could legitimately come to
the conclusion that the police was not very
Judgment 7 C.C.No.9728/2013
serious in prosecuting the offence which was a
minor one. Under Section 245, the Magistrate
can record an order of acquittal if there is no
evidence to hold the accused guilty. If the
prosecution did not take proper steps to
produce the witnesses, or ask the court to give
them time to do the same, or to issue fresh
summons, the court was not bound to fix
another date. The police has a duty towards
the citizen. When the accused is brought before
the court and the prosecuting department does
not take any steps it will be an abuse of the
process of the court to continue the trial.
Bringing a person before the court accusing him
of some offence is a serious matter and
however petty the offence may be, the
prosecuting department, must do its duty
towards the accused as well as the court. When
once the accused is challaned there is no
privilege given to the police to remain absent”.
16. There are quite a number of decisions in
which it had been held that an acquittal of the
accused on the failure of the prosecution to
produce the witnesses is not legal. (Vide State
v. Kaliram Nandlal, ), the State of Mysore v.
Ramu, 1973 Mad LJ (Crl.) 116: (1973 Cri LJ
1257) (Mys); State of Mysore v. Kalilulla Ahmed
Sheriff. AIR 1971 Mys 60; Kanduri Misra v.
Sabadev Kunda, (1962) 2 Cri LJ 295; State of
Judgment 8 C.C.No.9728/2013
Orissa v. Sibcharan Singh, ; State of Mysore v.
Somala, 1972 Mad LJ (Cri) 476: (1972 Cri LJ
1478) (Mys); State of Mysore v. Shanta, 1972
Mad LJ (Cri) 589 (Mys); State v. Nagappa, 1973
Cri LJ 548 (Mad); Public Prosecutor v.
Sambangi Mudaliar, ; State of Kerala v.
Kunhiaraman, 1964 Mad LJ (Cri) 330 (Ker);
State of Mysore v. Narasimha Gowda, AIR 1965
Mys 167; State of Gujarat v. Thakorbhai
Sukhabhai, , State of U.P. v. Ramjani, All LJ
1126; Lakshmiamma Kochukuttiamma v.
Raman Pillai, AIR 1952 Trav-Co 268; State v.
Madhavan Nair, 1959 Mad LJ (Cri) 633 (Ker);
Emperor v. Varadarajulu Naidu, AIR 1932 Mad
25 (2); State of Kerala v. Desan Mary, 1960
Mad LJ (Cri) 378 (Ker); Kesar Singh v. State of
Jammu and Kashmir, 1963-1 Cri LJ 765: (AIR
1963 J & K 23); R. K. V. Motors and Timbers
Ltd. v. Regional Transport Authority,
Trivandrum, ; K. K. Subbier v. K. M. S.
Lakshmana Iyer, 1942 Mad WN (Cri) 64: (AIR
1942 Mad 452 (1)); State of Tripura v. Niranjan
Deb Barma, 1973 Cri LJ 108 (Tripura); Apren
Joseph v. State of Kerala, 1972 Mad LJ (Cri)
10: (1972 Cri LJ 1162) (Ker). As against these
decisions, there are the following decisions in
which it has been held that acquittal on the
ground of non-production of witnesses by the
prosecution was proper.
Judgment 9 C.C.No.9728/2013
23. On the question as to whether the
Magistrate can acquit an accused at all under
Section 251A (11), Cr. P. C., if the prosecution
failed to produce their witnesses, a Division
Bench of the Gujarat High Court observed in
State of Gujarat v. Bava Bhadya (1962)’2 Cri
LJ 537 (2), as follows: “Where a charge Is
framed In a warrant case on police report, if
owing to the failure of the prosecution to
produce their witnesses and owing also to the
failure of the prosecution to make full
endeavour to serve the summonses according
to the provisions contained in Sections 69, 70
and 71, Cr. P. C., 1890, there is no evidence
before the Magistrate, the Magistrate can acquit
the accused under Section 251A (11).”
” In State of Karnataka v. Subramania Setti
1980 Mad LJ 138: (1980 CA LJ NOC 129), a
Division Bench of the Karnataka High Court
referring to the decisions in State of Mysore v.
Narasimha Gowda (1964) 2 Mys LJ 241: (AIR
1965 Mys 167) and the State of Mysore v.
Abdul Hameed Khan (1969) 1 Mys LJ 4: (1970
Cri LJ 112 (Mys)), observed that the real
distinction between the two decisions is as to
whether there was remissness and want of
diligence on the part of the prosecuting agency
in producing the witnesses before the Court
and therefore the principle laid down in Abdul
Judgment 10 C.C.No.9728/2013Hameed Khan’s case applied to the facts of the
case with which the Division Bench was
concerned. We may riots here that in Abdul
Hameed Khan’s case, it was found on the facts
that the prosecution was not at all diligent as
the non-bailable warrants issued to the
witnesses had neither been served nor
returned to the court by the concerned police
and it was therefore held that where the
prosecution was not diligent in producing its
witnesses and had failed to serve the bailable
warrants on the witnesses and return the
same the Magistrate would be justified in
refusing to grant an adjournment and to
proceed to acquit the accused on the material
on record. We may note here that in State of
Karnataka v. Subramania Setti 1980 MLJ 138
the Division Bench was dealing with a24. After
carefully considering all the aforesaid
decisions and the views expressed therein, we
are of the view that if the prosecution had
made an application for the issue of summons
to its witnesses either under Section 242(2) or
254(2) of the Criminal Procedural Code it is the
duty of the court to issue summons to the
prosecution witnesses and to secure the
witnesses by exercising all the powers given to
it under the Criminal Procedure Code, as
already indicated by us and if still the
presence of the witnesses could not be secured
Judgment 11 C.C.No.9728/2013and the prosecution also either on account of
pronounced negligence or recalcitrance does
not produce the witnesses after the Court had
given it sufficient time and opportunities to do
so, then the Court, being left with no other
alternative would be justified in acquitting the
accused for want of evidence to prove the
prosecution case, under Section 248, Cr. P. C.,
in the case of warrant cases instituted on a
police report and under Section 255(1), Cr. P. C.
in summons cases, and we answer the two
questions referred to us in the above terms.
Hence, considering the present case on hand, the Cw.2 to 5
are dropped. Further, the Cw.6 is given up as prayed by the
Ld.Sr.APP. In order to prove the guilt of the accused persons,
the prosecution has examined 02 witnesses as PW.1 & PW.2
and got marked 04 documents as Ex.P1 to P.4 and Mo.1 to 6.
5. Thereafter examination of the accused persons
U/sec.313 of Cr.P.C. is recorded, the accused persons have
denied the incriminating evidence in the prosecution case and
Judgment 12 C.C.No.9728/2013not chosen to lead their side evidence. No documents are got
marked on their behalf..
6. Heard both the side and perused the material
evidence on record.
7. The following points would arise for my
consideration:
POINTS
1. Whether the prosecution proves
beyond all reasonable doubt that, on
15.06.2013 at about 08.30 pm, on receipt
of credible information, C.W.1 to 9, raided
the house of the accused persons,
situated within the jurisdiction of
Subramanyapura police station, House
No.58, 2nd Main Road, Maruthi Nagar,
J.P.Nagar, 7th Phase, where the accused
No.1 and 2 were the brokers and the
accused No. 3 and 4 were the prostitutes
and called the accused No.5 and 6 were
the customers and were doing the
Judgment 13 C.C.No.9728/2013prosecution business in order to make
an unlawful gain and thereby the accused
persons committed an offence punishable
under Section 3,4,5, 7 of the ITP Act?
2. What order.?
8. My findings on the above points are as
follows:
Point No.1 : In The Negative
Point No.2 : As per final order
REASONS
9. Points No.1: I am of the opinion that, I need not
repeat the entire case of the complaint here also, since I have
already narrated the same at the inception of this judgment.
10. In the present case the material witness such as i.e
Cw.1/Pw.1, has given his chief evidence on 05.04.2021 and
later for cross examination he has not turned up to rendered
his cross examination and this court issued proclamation
Judgment 14 C.C.No.9728/2013several times but, the concerned police have failed to secure
the said witness. Hence, the Cw.1/Pw.1 evidence has been
discarded.
11. The Cw.10, Shivanna, is examined as Pw.2 and who
further IO in this case, he has deposed in his evidence before
the court that, on 15.06.2013, he received the requisition of
Cw.1 and continue the investigation. Further arrested the
accused No.1 to 5 and taken their self statement and further
recorded the statements of Cw.2 to 8. Further, on 16.06.2013
collected the documents from Cw.4, where the accused
persons were doing the prostitution business. Further, during
the pendency of the case, the Cw.1 is dead and after the
investigation of the case, since the prima facie case is proven
against the accused persons submitted the charge sheet before
the court against the accused persons.
12. It is the paramount duty of the prosecution to
establish the guilt of the accused No.1 to 3 beyond all
Judgment 15 C.C.No.9728/2013reasonable doubt. Unless the guilt is established beyond all
reasonable doubt, the accused No.1 to 3 can not be held guilty
of the alleged offenses.
13. In order to secure the Cw.2 to 5 witnesses this court
issued so many times, Summons, NBW and Proclamation,
even taken the sufficient time, the concerned police failed to
secure these witnesses. Moreover this case is 14 years old.
Hence, the above said witnesses are dropped, they are not
secured since long time. Further the Cw.1/Pw.1 is reported to
be dead during the pendency of the case, hence his evidence is
discarded. Further, Pw.2 who is the police official evidence is
not proved with cogent and believable evidence to prove the
guilt of the accused No.1 to 3 wherein they deposed in the
interest of their department. Moreover, non examination of the
material witness is fatal to the prosecution case. As such the
accused No.1 to 3 are certainly would be entitled to benefit of
Judgment 16 C.C.No.9728/2013
the doubt at the initial stage itself. Regarding this I relied on
the following Judgment.
On this point held in, (2016) 10 SCC 519 – AIR 2016
SC 4581 in para 56, Hon’ble Apex held thus hereunder:
”56. It is a trite proposition of law,
that suspicion however grave, it cannot take
the place of proof and that the prosecution
in order to succeed on a criminal charge
cannot afford to lodge its case in the realm
of ”may be true”’ but has to essentially
elevate it to the grade of ”must be true”. In a
criminal prosecution, the court has a duty to
ensure that mere conjectures or suspicion do
not take the place of legal proof and in a
situation where a reasonable doubt is
entertained in the backdrop of the evidence
available, to prevent miscarriage of justice,
benefit of doubt is to be extended to the
accused. Such a doubt essentially has to be
reasonable and not imaginary, fanciful,
intangible or non-existent but as
entertainable by an impartial, prudent and
analytical mind, judged on the touchstone of
reason and common sense. It is also a
primary postulation in criminal
jurisprudence that if two views are possible
on the evidence available one pointing to
the guilt of the accused and the other to his
innocence, the one favourable to the
accused ought to be adopted.”
Judgment 17 C.C.No.9728/2013
14. Thus, the above Hon’ble Apex Court decision has
opt to the present case on hand and the accused persons are
entitled to the benefit of the reasonable doubt. Moreover, the
material witness ie., Cw.1 is dead and non examination of the
material witness is fatal to the prosecuting case. The
prosecution has not able to prove the alleged offences against
the accused No.1 to 3 beyond all reasonable doubt.
Therefore, I Answer to the Point No.1 in the Negative.
15. Point No.2: In view of the Negative findings on the
above points No.1, I proceed to pass the following:-
ORDER
The Powers confirmed upon me
U/s.248(1) of Cr.P.C. The Accused is
Acquitted No.1 to 3 are for the alleged
offences punishable U/s. 3,4,5 & 7 of the
ITP Act.
The bail bond of Accused No.1 to 3
and surety extended for further 6 months in
order to comply Sec.437A of Cr.P.C.
Judgment 18 C.C.No.9728/2013
Thereafter, this bail bond automatically
stands cancelled.
The Properties seized by the IO in
P.F.No.96/2013, Item No.1 total of Rs.
2,500/- and Item No.3, 06 mobile phones
are hereby orders to be confiscate to the
state, after the appeal period is over, in
accordance with law, further Item No.2 04
condom packets are worthless are hereby
directed to destroy the same, after the
appel period is over in accordance with law.
(Dictated to the Stenographer directly on computer and after corrections made by
me and then pronounced by me in the Open Court on this the 16th day of August-2025.
(Thimmaiah.G)
30 A.C.J.M., B’lore.
th
ANNEXURE
1. LIST OF THE WITNESS EXAMINED FOR THE PROSECUTION:
P.W.1 : Sri. Gnanamurthy
P.W.2 : Sri. Shivanna
Judgment 19 C.C.No.9728/2013
2. LIST OF THE DOCUMENTS MARKED FOR THE
PROSECUTION:
Ex.P1 : Rental Agreement
Ex.P2 : Requisition
Ex.P3 : FIR
Ex.P4 : Spot Mahazar
3. LIST OF THE WITNESS EXAMINED AND DOCUMENTS
MARKED FOR THE DEFENCE:
NIL
4. LIST OF THE MATERIAL OBJECTS MARKED FOR THE
PROSECUTION:
Mo.1 : Rs. 2,500/- cash
Mo.2 : 4 packets Condoms Digitally
signed by
Mo.3 : 6 Mobile phones THIMMAIAH
THIMMAIAH G
G Date:
2025.08.18
17:24:30
+0530
(Thimmaiah.G)
30th Addl.C.J.M., B'lore.
Judgment 20 C.C.No.9728/2013
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