The Bombay High Court propounded that willingness and the choice of the victims of prostitution shall be given due consideration while sending them to the protective homes under the Immoral Traffic (Prevention) Act, 1956.
Factual Matrix:
The petitioners are victims in connection with a crime registered by the Police under the Immoral Traffic (Prevention) Act, 1956 (hereinafter referred to as ‘the said Act’), who are alleged to have been compelled to involve themselves in prostitution. The Investigating Agency had conducted a raid using a decoy to arrest the Pimp and rescue the victims.
Under the provisions of the said Act, when victims of prostitution are ‘rescued’, certain measures are to be taken to provide for the safety and well-being of the victims till they are able to take care of themselves. The Probation Officer is responsible to assess the living conditions of the victim and to prepare a detailed report on the prospects of ‘rehabilitation’ of the victims. However, there is no such provision in the said Act which provides for the active involvement and choice of the victim with respect to their rehabilitation, even when the victims are major.
In this case, the victims (A, B, and C) belong to a community where women are ‘allowed’ by their parents/family to engage in prostitution as a profession as soon as they hit puberty. The learned Metropolitan Magistrate and the Additional Sessions Judge considering the customary practice of the ‘Bendya’ community to which the victims belong had remarked that, ‘it would not be safe to hand over the custody of the victims to their mothers’.
The Magistrate had observed:
“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. . .the victims need to be counseled and trained so that they can earn in a dignified manner after getting adequate vocational training.”
Accordingly, the Magistrate after perusing the facts and circumstances and Sections 17(1), (2), (3), (4), and (6) of the said Act, passed orders to detain the victims (A), (B) and (C) in a protective home/shelter home for one year for the care, counseling, protection, shelter and vocational training in the subject of their liking.
The present petition was filed by the victims-petitioners against the orders of the lower Courts which upheld their detention in the protective home against their will.
Arguments on behalf of the petitioner
The Counsel on behalf of the petitioner submitted that the victims herein are neither accused nor being prosecuted under Sections 3 to 9 of the said Act. The counsel contended that the victims are ‘major enough’ to take decisions in respect of their lives and therefore the impugned orders to detain the victims for a year interfered with their civil liberty.
The Counsel also submitted that the orders passed under Section 17(2) by the Magistrate is bad in law as the mandatory inquiry under the provisions of Section 17 of the said Act has not been duly conducted. As such, there seems to be a lack of application of judicial mind by both the Courts below as they failed to not only appreciate the factual matrix of the matter properly while passing the impugned orders but also adjudicated against the spirit of the statutory provisions.
It was also contended that during the alleged raid (conducted by the Investigating Agency) no customer was found with the victims-petitioners to involve the petitioners into any immoral activities like prostitution as defined in the said Act. Moreover, the ambit and scope of the said Act were ignored, more particularly Section 17, which is not a penal provision and since no penal charges were leveled against the victims, they could not be detained in the custody of a protective house against their will.
Arguments on behalf of the Public Prosecutor
Mrs. Mhatre, the learned APP, although supported the impugned orders, found substance in the arguments advanced by the Counsel on behalf of the petitioners and urged the Court to pass necessary orders as regards further detention of the victims.
Observation of the court
Whether the Court has the jurisdiction to try this case?
The Court observed that it can, under its supervisory as well as the jurisdiction under Section 482 of the Cr.P.C., entertain a petition and after examining the facts and the material placed on record, pass necessary orders or give directions.
With Respect to Section 17 of the said Act
The Court observed that under Section 17(4) of the Immoral Traffic(Prevention Act), 1956, if the magistrate is satisfied on the basis of the report submitted by the Probation Officer that the victims need care and protection, he may pass an order to have the victims ‘detained’ in a protective home/shelter where they could be trained, educated, given medical and psychiatric treatment, etc.
With respect to the provisions under Section 17(1), the court observed that neither the first order of the remand Court is produced on record nor there is any observation in the order by the Magistrate as to where the victims were placed from 28.09.2019 to 30.09.2019, which clearly manifests non-application of mind by the learned Magistrate as regards the necessary requirement of keeping the victims in safe custody until they are produced before the appropriate judicial authority. The court emphasized that the learned Magistrate passed an order under sub-section (2) of Section 17 of the said Act calling for a report from the District Probation Officer, whereas it is on the basis of such a report that an order can be passed under the concerned Section.
The Court observed,
“It is pertinent to note that that the provisions of Section 17(4) of the Act are subjected to the provision of subsection (5), which provides that the inquiry shall be conducted by the panel of at least 5 persons, to be appointed in the manner as contemplated in the said sub-section (5). No such inquiry as contemplated under the statute has been conducted.”
The Court reiterated the interpretation of the mandatory nature of the inquiry contemplated under Section 17 of the said Act. For the same, the court relied on Kumari Sangeeta Vs. State of Delhi and Ors., wherein the Delhi High Court had held that the word “may” and the word “shall” under Section 17 of the said Act are interchangeable terms. The Court in this regard observed,
“It cannot be deducted ipso facto from use of the word “may” in a particular statute that it has been used in the sense of directly conferring an ample discretion on the part of the Authority to take recourse to board intercourse of action are not, much will depend upon the context in which the word “may” has been used and the intention of the legislature which they intend to convey through a particular enactment.”
Whether prostitution is a criminal offense?
The Court further observed that the profession of prostitution, per se, is not a criminal offense nor is it a crime to indulge into prostitution 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, however, sexual exploitation or abuse of person for commercial purpose and to earn the bread thereby, has been recognised as an offense under the provisions of the said Act. Applying this settled law to the present case, the Court held that since the evidence on record shows that the petitioners were neither seducing any person publicly for the purpose of prostitution nor were they operating a brothel(which is punishable under the said Act), no charges can be levelled against the victims.
In light of the non-illegality of the prostitution, the Court also observed that since the petitioners victims are major, ‘have a right to reside at the place of their choice, to move freely throughout the territory of India and to choose their own vocation as enshrined in Part III of fundamental rights of the Constitution of India’. Furthermore, condemning the lower Courts’ order, the Court remarked that the willingness and consent of the victims ought to have considered before ordering their detention in the protective home.
The Court clarified that although the State Government acting within its power under the said Act, keeping in mind the interest of the victims, can seek appropriate directions from the Court to send the victims to ‘corrective institution’, the ‘fundamental rights of the citizens enshrined in the Constitution stand on the higher pedestal vis-a-vis statutory right or any other right conferred by the general law’.
The Court also stressed that there were no material on record suggesting that the victims are suffering from any disability or any diseases so that reasonable restrictions can be placed. Thus in view of the same, the Court held that the victims cannot be subjected to unnecessary detention contrary to their wish and should be asked to reside in the corrective institution.
On the report submitted by the Probation officer under the said Act
The Court, while strongly criticising the reports which were submitted by the Probation Officer, remarked that such a report was ‘not worth consideration since they appear to have been prepared at the eleventh hour only for the sake of fulfilling the formality of submitting the reports’. The Court held that the report only mentioned the victims’ indulgence into prostitution, and the lower court’s order based on this report, to send the victims to the protective home for a period of one year for training and counselling, was liable to be quashed.
Miscellaneous Observations
The Court also observed that the alleged two ‘panchas’ who had accompanied the raiding team, were not named anywhere in the investigation report or otherwise and also there was no record of any woman ‘panch witness’.
Further, the Court observed, that there was no statement of the ‘decoy’ who was involved in the alleged raid, indicating any conversation with the victim girl.
On perusing the facts and the circumstances of the present case, considering the pieces of evidence placed on record and interpreting the concerned provisions of the said Act, the Court quashed and set aside the orders of the lower courts. Furthermore, stressing the civil liberty and ‘choice’ of the victims as a part of their Fundamental Rights under the Constitution, the Court passed an order to set victims at liberty, unless they desire to continue to stay at the protective home for the remaining period of the one year.
CASE DETAILS
Case Name: Kajal Mukesh Singh and Ors. v. The State of Maharashtra (Through the Inspector-in-charge of Malad Police Station)
Date: 24th September, 2020
Coram: Justice Prithviraj K. Chavan
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