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2015 DIGILAW 655 (TRI)

Jibesh Debnath @ Munna v. State of Tripura

2015-08-19

DEEPAK GUPTA

body2015
ORDER 1. This petition under Section 482 of the Code of Criminal Procedure (hereinafter referred to as Cr. P.C.) has been filed for setting aside the order dated 26.2.2013 passed by the learned Additional Sessions Judge, West Tripura, Agartala whereby, he decided to frame charges against the petitioner. 2. As many as 6(six) points have been raised before me. The first point raised is that only a Special Court can try such offences in terms of Section 22A of the Immoral Traffic (Prevention) Act, 1956 (hereinafter referred to as the Act). 3. Sub-Section 22A(1) reads as follows:- 22A. Power to establish special courts — (1) If the State Government is satisfied that it is necessary for the purpose of providing for speedy trial of offences under this Act in any district or metropolitan area, it may, by notification in the Official Gazette and after consultation with the High Court, establish one or more Courts of Judicial Magistrates of the first class, or as the case may be, Metropolitan Magistrates, in such district or metropolitan area. 4. There is no mandatory provision to establish a Special Court to try offences under the Act. It is only if the State Government feels that the number of cases is very high and the trial of such cases is being delayed in ordinary courts then the State Government may decide in consultation with the High Court to establish such courts. If such courts are established then obviously, these matters will have to go to that court, but there is no mandate of law that these courts must be established. If the courts are not established then ordinary criminal courts will have the jurisdiction to hear and try the matters under this Act in accordance with the Code of Criminal Procedure (hereinafter referred to as Cr. P.C). Therefore, the first submission is rejected. 5. The second submission is based on Section 6(2A) and according to Mr. B. Deb, learned counsel, if the person or child found inside the brothel is not medically examined then no offence is made out. I am in total disagreement with this submission. P.C). Therefore, the first submission is rejected. 5. The second submission is based on Section 6(2A) and according to Mr. B. Deb, learned counsel, if the person or child found inside the brothel is not medically examined then no offence is made out. I am in total disagreement with this submission. Section 6(2A) reads as follows:- “6.(2A) Where a child or minor found in a brothel, is on medical examination, detected to have been sexually abused, it shall be presumed, unless the contrary is proved, that the child or minor has been detained for purposes of prostitution or, as the case may be, has been sexually exploited for commercial purposes.” 6. This provision only makes it clear that if a child or a minor is found inside a brothel and thereafter, the child is medically examined and it is found on medical examination that the child has been sexually abused then a presumption shall arise that the child has been detained for purpose of prostitution. If the child is not medically examined the only benefit which the accused will get is that no presumption under Section 2A will be raised but the prosecution can still prove its case by leading other evidence to show that the child or minor had been detained for purpose of prostitution. 7. Coming to the objection raised with regard to Section 15(5A), the same reads as follows:- “15.(5A) Any person who is produced before a magistrate under sub-section (5), shall be examined by a registered medical practitioner for the purposes of determination of the age of such person, or for the detection of any injuries as a result of sexual abuse or for the presence of any sexually transmitted diseases.” 8. This provision has to be read with sub-section (5), which reads as follows:- “(5) The special police officer (or the trafficking police officer, as the case may be, after removing person) under sub-section (4) shall forthwith produce (him) before the appropriate magistrate.” 9. The empowered police officer after removing the person from the brothel should produce him before the appropriate magistrate. Once such person is produced before the magistrate that person is to be got examined from a registered medical practitioner for determining the age of the person and for detection of any injuries as a result of sexual abuse or for the presence of any sexually transmitted disease. 10. Once such person is produced before the magistrate that person is to be got examined from a registered medical practitioner for determining the age of the person and for detection of any injuries as a result of sexual abuse or for the presence of any sexually transmitted disease. 10. It is urged on behalf of the accused that since this provision has not been followed, the entire proceedings should be quashed because the victim has not been medically examined. The spirit of Section 5A is not to help the accused. It has nothing to do with the trial of the case. Section 5A, Section 6A and many other Sections were introduced in the year 1979. The purpose of these provisions is to protect the victims and not to give any extra benefit to the persons, who have allegedly committed the crime. The idea behind Section 5A is that the person who is found at a brothel should be medically examined by a medical practitioner to find out the age of that person, to find out whether that person is suffering from any sexually transmitted diseases or whether that person is injured or not. Non-compliance of such a provision cannot be used as a tool by the accused to say that the proceedings should be quashed. The Apex Court in a number of cases has held that merely because the police do not act in accordance with law is not a ground by itself to acquit the accused. I fail to understand what prejudice was caused to the accused by non-compliance of this provision. In case this provision has not been complied with, the prosecution will have to prove the age of the victim in accordance with law. It will have to prove the injuries, if any, suffered by the victim in accordance with law and if they are unable to produce such evidence then the accused may get benefit. However, this is not a ground to hold that the entire proceedings are vitiated at the stage of framing of charge. 11. The next point raised is that section 13 of the Act provides that the State Government shall appoint a Special police officer in each area for dealing with offences under this Act and such police officer should not be below the rank of Inspector of Police. 11. The next point raised is that section 13 of the Act provides that the State Government shall appoint a Special police officer in each area for dealing with offences under this Act and such police officer should not be below the rank of Inspector of Police. Admittedly, in the present case, the proceedings have been initiated by a Sub Inspector of Police and he is also not the designated Special police officer as mentioned in Section 13. 12. Section 15(2) reads as follows:- 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: Provided that the requirement as to the respectable inhabitants being from the locality in which the place to be searched is situate shall not apply to a woman required to attend and witness the search. This Section also provides that before making a search, the Special police officer or the trafficking police officer shall call two or more respectable inhabitants of the locality and associate them with the search. 13. It is urged by Mr. Deb, learned counsel that the raid was not conducted by Special police officer and furthermore, independent witnesses were not associated. 14. As far as the first part of the argument is concerned, I find that the Investigating Officer, Sri Samir Debbarma is a Sub Inspector of Police. He is, obviously, not an Inspector of Police. According to him, he received information at 11.30 p.m. on 24.11.2010 that the accused, who is the owner of Hotel Planet is running a brothel in his hotel. He entered the information in the General Diary and he along with his staff reached the hotel which was locked from inside. Thereafter, the staff surrounded the hotel and the hotel was only opened at about 6.30 a.m. in the morning when the search was conducted. 15. Firstly, I will deal with the issue as to whether due to the Special officer not having conducted the search, the entire proceeding should be quashed or not. This Court is not deciding the case on merits. 15. Firstly, I will deal with the issue as to whether due to the Special officer not having conducted the search, the entire proceeding should be quashed or not. This Court is not deciding the case on merits. It is not clear to me at this stage whether the State of Tripura has in fact appointed any Special officer under the Act or not. It is stated at the bar that at the time when this raid was conducted there was no Special officer appointed. If there was no Special officer appointed by the State does that mean that a person can break the law with impunity and state that he cannot be prosecuted because there is no Special officer appointed by the State. At this stage, I am not deciding this question and I leave it for the Trial Court to decide this question at the final stage. Various other questions will arise. The rights of the victims will have to be taken into consideration. The rights of the public will have to be taken into consideration. Whether due to the negligence of the State in not nominating a Special public officer should the law be set at naught? In my prima facie opinion, this can never be the interpretation of any law. If the search and seizure have been carried out by a person who is a police officer but not authorized under the Act, the question that will again arise is what prejudice has been caused to the accused. Is this defect such a defect that the entire proceeding should be quashed? In my opinion, the answer has to be an emphatic No. The proceedings cannot be quashed. The proceedings must go on. However, it is left to the discretion of the trial Court at the final stage of hearing to decide whether this is a defect which goes to the root of the matter and therefore, the accused have to be acquitted. I am not saying anything on the merits of this argument and I leave it to the trial Court to decide at the stage of final hearing. However, I am clearly of the view that at this stage it cannot be urged that the proceedings should be quashed on this ground. 16. Next coming to the second line of the arguments that two independent persons were not involved in the search. However, I am clearly of the view that at this stage it cannot be urged that the proceedings should be quashed on this ground. 16. Next coming to the second line of the arguments that two independent persons were not involved in the search. Even Section 100 of the Cr. P.C. provides that normally, whenever any search and seizure operations are carried out two respectable residents of the area should be associated with such search and seizure operations. Provisions of Section 15(2) are similar to the provisions of Section 100 Cr. P.C. in this regard. Non-compliance of the provisions of Section 100 has never been held fatal to the prosecution. It only gives a ground to test the prosecution evidence with greater care and caution but no person can be acquitted merely because the independent persons have not been associated with search and seizure operations. Furthermore, in this case, the raid was conducted at about 11.30 at night. According to the prosecution story, this hotel had to be surrounded from 11.30 p.m. to 6.30 a.m. because it was locked from inside. I am not going into this question whether this version of the prosecution is right or wrong. That will be decided during the trial. However, how can any Court expect independent persons to stand outside a hotel from 11.30 at night to 6.30 in the morning? The absence of independent person at these unearthly hours can easily be explained by the prosecution. Therefore, I find no merit in the submission. 17. The last submission made is that in terms of Section 4(2) of the Cr. P.C. the trial has to be conducted in accordance with the provisions of the Immoral Traffic (Prevention) Act, 1956. There can be no quarrel with this submission. 18. Section 4 of the Cr. P.C. reads as follows:- “4. Trial of offences under the Indian Penal Code and other laws - (1) All offences under the Indian Penal Code (45 of 1860) shall be investigated, inquired into, tried, and otherwise dealt with according to the provisions hereinafter contained. (2) All offences under any other law shall be investigated, inquired into, tried, and otherwise dealt with according to the same provisions, but subject to any enactment for the time being in force regulating the manner or place of investigating, inquiring into, trying or otherwise dealing with such offences.” 19. (2) All offences under any other law shall be investigated, inquired into, tried, and otherwise dealt with according to the same provisions, but subject to any enactment for the time being in force regulating the manner or place of investigating, inquiring into, trying or otherwise dealing with such offences.” 19. Where there is a special enactment providing the procedure for investigation, inquiry and trial then obviously, that procedure has to be followed but where the special enactment is silent with regard to the manner in which investigation, inquiry or trial has to be conducted then the police can always fall back on the Code of Criminal Procedure. The Special enactments are in that sense not complete laws themselves. Where the special enactment lays down specific procedure then obviously that procedure has to be followed but if the special enactment is silent with regard to many aspects then it is the Code of Criminal Procedure which will fill in the gaps and the investigation will have to be carried out in terms of the Code of Criminal Procedure. I therefore, fail to understand what is the argument based on Section 4. In the State there are no Special Courts and trial will have to be conducted in accordance with the Code of Criminal Procedure except in those matters where the Immoral Traffic (Prevention) Act, 1956 specifically lays down some different procedure. There also the Court will have to decide whether non-compliance of any provision of these the Immoral Traffic (Prevention) Act, 1956 has caused so much prejudice to the accused that it vitiates the trial. This can only be done after examining the witnesses and therefore, at this stage, the petition for quashing the criminal proceeding is dismissed. 20. The petitioner is directed to appear before the concerned Magistrate on 21st September, 2015. The Magistrate shall ensure that now the trial is conducted as quickly as possible and if necessary, on day to day basis and even ensure that the trial is completed by 31st March, 2016. 21. Send down the LCRs forthwith.