Patna High Court: While addressing the plight of a minor girl who was first trafficked by her own maternal uncle and was later on thrown into prostitution for monetary gains, Rajeev Ranjan Prasad, J., emphasised on need for sensitization of Judicial Officers with regard to statutory provisions of POCSO Act, JJ Act and Immoral Traffic (Prevention) Act.
A raid was conducted by Begusarai Police in the house of the accused (maternal uncle of the victim) from where a girl child aged about 15 years was rescued, the victim girl was found inside the room with an unknown person, two empty bottles of wine, medicine of Aids, pregnancy test kits, eleven used condoms and 100 unused condoms were found from there and the victim girl herself admitted before police that she was being subjected to prostitution forcibly and her maternal uncle and aunt were taking away the money. The victim disclosed that she did not remember name of her parents and on refusal to get involved in prostitution she was being beaten by the accused persons.
At this stage, the respondent 2 did not claim that she happened to be the mother of the victim. Though, at the time of making her statement under Section 164 CrPC, which was recorded ten days after she was produced before the Magistrate after her recovery from the brothel, the victim claimed that her mother was living with her for last one month.
Non-compliance of Statutory Safeguards
The prosecution case was that the Special Judge (POCSO) had erroneously directed release of the minor victim of alleged sexual offences in favour of respondent 2 who claimed herself to be the mother of the victim. The prosecution alleged that the impugned order was passed in non-compliances with the mandatory provisions of the Immoral Traffic (Prevention) Act, 1956, the provisions of Juvenile Justice Act, 2015 and the provisions of Protection of Children from Sexual Offences Act, 2012.
Analysis by the Court
After about four days when the statement of the victim was recorded under S. 164 of CrPC, the respondent 2 filed an application before the Special Judge to allow her to meet the victim girl in the Balika Grih which was allowed subject to proper identification. Later on, the Superintendent, Balika Grih, informed the Special Judge that respondent 2 could not be identified in CCTV Camera by the victim girl. Opining that the letter of the Superintendent should have been an eye opener for the Special Judge, the Bench stated that by that time the victim girl had not been approached, she could not be tutored and therefore she had not recognized respondent 2. However, the Special Judge allowed the respondent 2 to meet the victim.
“After six days, if the victim girl had disclosed the name of her mother as (respondent 2), there was a possibility that during these six days the accused persons would have been able to influence her to make statements favourable to the accused.”
Later on, the application for custody was taken up for consideration and on the same day the victim girl was handed over to (respondent 2) by just taking note of the fact that the victim had desired in her statement under Section 164 CrPC that she wanted to go with her mother.
Considering the prosecution case that no inquiry was made by the Special Judge to find out the genuineness of the claim of respondent 2 that she happened to be the mother of the victim and the order was passed in complete violation of the mandatory provision to make inquiry in respect of her age, parentage etc. in terms of sub-section (2) of Section 17 of the Act of 1956, the Bench opined that the Special Judge had acted in hot haste in passing the order of release of the victim minor girl in favour of respondent 2.
Opining that the identity of respondent 2 as mother of the victim girl was still shrouded by mystery, the Bench was of the view that the Special Judge had completely erred in abiding by the mandatory provisions and by not appreciating that the child who was being placed in the hand of respondent 2 was victim of alleged immoral trafficking as she had categorically stated before Police that she was being subjected to prostitution forcibly. While it was the duty of the Court to treat the victim girl as a child in need of care and protection and she should have been ordered to be produced before the Child Welfare Committee.
Conclusion and Directions
In the backdrop of above, the Bench held that the impugned order suffered from illegalities and infirmities rendering the order illegal and bad in law as also against the interest of the victim child. Accordingly, setting aside the order, the Bench remarked,
“The fact that victim child had been recovered again from the house of the accused persons and the report of social worker saying that at this stage of her life she being subjected to perform dance and stage shows to earn her livelihood and also the livelihood of her mother further shows that she is in need of care and protection.”
Further, noticing that presently the victim girl was with the Balika Grih and the medical Board had assessed her age between 16- 17 years, the Bench directed that until she attains majority, she would continue to stay in the Balika Grih itself and being major her release should be considered in terms of Section 46 of the J.J. Act with financial support in order to facilitate her reintegration into the mainstream of the society. Additionally, the Court directed the following:
- The Trial Court shall ensure that the accused persons and their pairvikar do not get access to the victim girl.
- Proper inquiry in accordance with law as to the genuineness of the claim of respondent 2 should be held as early as possible.
- With the view to sensitize all the stake holders the Bench directed the State through its Chief Secretary, the Home Secretary and the Director General of Police, as also the judicial officers across the State, Bihar State Legal Services Authority and the District Legal Services Authority to ensure that they look into the mandatory provisions of the aforesaid statutes whose aim and objects are to protect the child from all kinds of exploitations.
- The areas of these provisions which are required to be addressed be clearly identified, minuted and a monitoring cell be constituted to duly address and comply with the mandate of these legislations.
- Bihar State Legal Services Authority was directed to examine as to what extent the directions issued Apne Aap Women Worldwide Trust India v. State of Bihar, 2014 SCC OnLine Pat 5013, have not been complied with and bring it to the notice of the Chief Justice of the Court to consider registering an appropriate proceeding to monitor the implementation of those directions.
- Lastly, the Bench directed to circulate the copy of instant judgment to all the District Judges in Bihar with request to organize a workshop in their respective Judgeship with all the judicial officers and Members of the J.J. Board and the Child Welfare Committee to discuss the laws on the subject and ensure compliances therewith.
[Hanif Ur Rahman v. State of Bihar, 2021 SCC OnLine Pat 2775, decided on 4-12-2021]
Kamini Sharma, Editorial Assistant has reported this brief.
For the Petitioner: Kriti Awasthi, Advocate, Sambhav Gupta, Advocate, Navnit Kumar, Advocate and Shyam Kumar, Advocate
For the Respondents: Mr.Nadim Seraj, G.P.5
For the Respondent 2: Archana Sinha, Advocate
For the Respondent 4: Prabhu Narain Sharma, Advocate