Non-compliance with certain provisions of the Immoral Traffic (Prevention) Act, 1956 does not automatically vitiate the proceedings.

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.

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 pers