Bombay High Court: While hearing a writ petition under Articles 226 and 227 of the Constitution, a Single Judge Bench of N.J. Jamadar, J., held that detention of a major victim in a protective home under Section 17(4) of the Immoral Traffic (Prevention) Act, 1956 (‘PITA’) is impermissible when justified solely on the grounds of absence of relatives or financial support. The Court emphasised that prostitution per se is not a criminal offence under the Act, and victims cannot be punished or confined against their wishes. Accordingly, the writ petition was allowed, the orders of the Magistrate and Sessions Judge were quashed, and the victim’s immediate release was directed.
Background:
The case arose from a police raid at a lodging house, which led to rescue of several victims and registration of offences under Sections 3, 4, 5, and 6 of PITA. After inquiry under Section 17(2) of PITA, the Magistrate ordered detention of one victim in a protective home for one year, reasoning that she had no relatives, no source of income, and there was strong possibility of relapse into immoral activities. A revision application filed by the victims was dismissed by the Sessions Judge, who held that they were subjected to exploitation for commercial sex work and detention was justified.
However, the victim argued that the orders suffered from infirmities: the victim was not an accused but a victim, she was a major, and her fundamental rights had been trampled upon. It was further contended that Section 17(5) of PITA requires assistance of a panel of respectable persons, which was not followed. In response, the State contended that detention was justified as the victim had no relatives, was economically weak, and there was imminent risk of her being forced again into commercial sex work.
Analysis and Decision:
The Court observed that PITA was enacted to provide for the prevention of immoral traffic. The Court noted that the principal object of the Suppression of Immoral Traffic in Women and Girls Act, 1956, which was substituted by Act No. 44 of 1986, was to prevent commercialisation of the vice and trafficking among women and girls. The Court further emphasised that by the subsequent amendments, the scope of PITA has been widened to cover all persons, whether male or female, who are exploited sexually for commercial purposes, and to make adequate provisions in that regard.
The Court referred to Kumari Sangeeta v. State, 1995 SCC OnLine Del 337 wherein it was held that the object of the PITA was not to abolish the prostitute or the prostitution, as there is no provision under the Act which makes prostitution per se a criminal offence or punishes a person merely because he is indulging in prostitution. What is punishable under the PITA is sexual exploitation or abuse of persons for commercial purposes and to earn bread thereby, except where a person is carrying on prostitution in the vicinity of a public place or when a person is found soliciting or seducing another person.
The Court further relied on Asiya Anwar shaikh v. State of Maharashtra, 2019 SCC OnLine Bom 1235, where it was considered that the fundamental rights of the citizen enshrined in Part III of the Constitution stand on a higher pedestal vis-à-vis statutory rights or any other rights conferred by general law, therefore, the submission that the victim being a major, her fundamental right to move from one place to another, reside at the place of her choice, and choose her vocation has to be considered, and contrary to her wishes she cannot be asked to reside in the Corrective Institution.
In addition, the Court referred to Kajal Mukesh Singh v. State of Maharashtra, 2020 SCC OnLine Bom 954, where it was held that victims being major, their fundamental rights to move from one place to another cannot be curtailed. The victims cannot be subjected to unnecessary detention against their wish.
The Court examined the nature and object of the PITA and observed that PITA was not meant to punish a victim of sexual exploitation. The Court noted that in the absence of material to show that the role attributed to the victim would fall within the dragnet of any of the penal provisions, the victim cannot be subjected to unreasonable restrictions on the basis of a bald assertion that the victim may again indulge in immoral acts.
The Court emphasised that in the case at hand, the question was whether the victim, who is a major, can be detained against her wish for the only reason that she has no family of her own. The Court was of the considered view that the courts below approached the issue from a wrong perspective and got swayed by the absence of a relative to whom the custody of the victim could be entrusted. The Court noted that the necessity of detention of the victim in a protective home ought to have been determined on the touchstone of the constitutional rights of personal liberty and fundamental freedom.
It was further observed that in the absence of material which would justify the restriction on personal liberty and fundamental freedom, in the nature of detention of the victim, the Magistrate could not have directed the detention of the victim for the reason that there was nobody to take care of her, who was a major, and thus, there were chances of her again indulging in commercial sex work if she was released without providing necessary counselling and training. The Court held that the mere fact that the victim was alone, by itself, could not have been a justifiable ground to detain her in a protective home.
The Court concluded that since the victim was not found indulging in offences under PITA and no material suggested that her release posed any threat to society, the detention orders could not be sustained. Accordingly, the writ petition was allowed, the impugned orders quashed, and the victim directed to be released forthwith, with a caution against engaging in similar activities.
[XYZ v. State of Maharashtra, Writ Petition No. 4726 of 2025, decided on 16-01-2026]
Advocates who appeared in this case:
For the Petitioner: Abhijeet V. Jangale with Nikita Bordepatil
For the State: R.S. Tendulkar, APP
Buy Constitution of India HERE
