Bombay High Court: Prithviraj K. Chavan, J., while addressing the present matter throws light on the aspect of indulging in prostitution and the purpose and object of the Immoral Traffic (Prevention) Act, 1956.
Petitioners are victims of a crime registered by the Police under the Immoral Traffic (Prevention) Act, 1956, alleged to have been compelled to involve themselves in prostitution, their identity, therefore, needs to be concealed. Hence the petitioners are to be referred to as “victims (A), (B) and (C)”.
A police constable approached the office of Social Service Branch, Mumbai informing that he was informed by P.I. Mr Revle that a person by the name of Nijamuddin Khan, a pimp provides women for prostitution at a gues house in Malad.
On receiving the above-stated information, a trap was arranged and the raiding team left for the spot after which victim girls were arrested and taken into custody.
The victim girls were produced before the Metropolitan Magistrate. Intermediate custody of the girls was given to Navjeevan Mahila Vasti Griha, Deonar, Mumbai, and were allowed to contact their family members/parents.
In the report filed by the Probation officer, it was revealed that the victim girls belonged to the “Bediya” community.
A custom prevails in the community wherein a girl, after attaining puberty is sent for prostitution.
The parents of the victims were aware that the victims are engaged in prostitution, meaning thereby, the parents themselves are allowing to indulge in prostitution as a profession for their daughters’ and, therefore, the learned Magistrate observed that it would not be safe to hand over the custody of the victims to their mothers.
Since the victims were not safe with their parents as the parents have no objection for the victim girls to live their life as prostitutes, the victims were directed to be detained in the shelter home wherein the Counsellor would counsel the victims to restrain from prostitution.
Magistrate observed that the victim girls need to sent to their native place Kanpur.
Magistrate had passed a detaining order for a period of one year for the care, protection, shelter and vocational training in the subject of their liking, in the Navjeevan Mahila Vastigruha, Deonar, Mumbai or with any other institution, which has been challenged in the present petition.
ANALYSIS & DECISION
Bench observed that, there were no charges qua the victims that they were carrying prostitution in public.
The inquiry as contemplated under Section 17(2) of the said Act appeared to have been carried in a very casual manner.
Section 17(4) implies that an order under the said Section can only be passed subject to the provision of sub-section (5) of Section 17 of the said Act. Sub-section (5) contemplates that while discharging the function under sub-section (2), the Magistrate will have to summon a panel of 5 respectable persons, 3 of whom shall, wherever practicable, be women to assist him in that regard.
Purpose and Object of the Act is not to abolish the prostitution or the prostitute.
There is no provision under the law which makes prostitution per se a criminal offence or punishes a person because he indulges in prostitution.
What is punishable under the Act is sexual exploitation or abuse of person for commercial purpose and to earn the bread thereby, except where a person is carrying on prostitution in a public place as provided in Section 7 or when a person is found soliciting or seducing another person in view of Section 8 of the said Act.
Bench added in regard to the present matter that there is nothing on record to show that the petitioners were seducing any person for the purpose of prostitution nor there is any material to show that they were running a brothel.
Magistrate has been swayed away while passing the impugned order by the fact that the petitioners belong to a particular caste.
Hence before passing the impugned order magistrate ought to have considered the willingness and consent of the victims before ordering their detention in the protective home.
Therefore, the same needs to be quashed.
“…victims being major, their fundamental rights to move from one place to another place or to reside at a place of their choice and choose their vocation has to be considered. They cannot be subjected to unnecessary detention contrary to their wish.”
The present matter is also not something where setting the victim free would cause some danger to society. It is nearly one year that the victims have been detained in the corrective home against their wish and, therefore, for the reasons stated herein, they need to be released. [Kajal Mukesh Singh v. State of Maharashtra, 2020 SCC OnLine Bom 954, decided on 24-09-2020]