Ramsingh @ Raisaheb S/O. ... vs State Of Maharashtra Thr. P.S.O. ...
2018 Latest Caselaw 332 Bom

        J-cwp1134.17.odt                                                                                                1/4  


                    IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                                           NAGPUR BENCH, NAGPUR


                         CRIMINAL WRIT PETITION No.1134 OF 2017


        Ramsingh @ Raisaheb s/o. Chananiya Guddawat,
        Aged about 55 years,
        Occupation : Cultivator,
        R/o. Shankarpura,
        Bhawanipura, Tah. Hindoli,
        Distt Bundi (Rajanshtan).                 :      PETITIONER

                           ...VERSUS...

        1.    State of Maharashtra,
               through P.S.O. , P.S. Lakadganj,
               Nagpur.

        2.    Superintendent, 
               Government Karuna Mahila Wasatigruha,
               Patankar Chowk, Nagpur.                :      RESPONDENTS


        =-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-
        Shri Shashibhusan Wahane, Advocate for the Petitioner.
        Shri A.V. Palshikar, Addl. Public Prosecutor for the Respondent No.1.
        =-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-


                                                      CORAM  :   S.B. SHUKRE, J.

th DATE : 11 JANUARY, 2018.

ORAL JUDGMENT :

1. Heard.

2. Rule. Rule made returnable forthwith.

3. Heard finally by consent.

J-cwp1134.17.odt 2/4

4. It is seen from the impugned order that the procedure as

prescribed under Section 17, in particular sub-Section (2) thereof has not

been followed completely. Sub-Section (2) of Section 17 of the Immoral

Traffic (Prevention) Act, 1956 requires that when a person is produced

before the appropriate Magistrate under sub-Section (5) of Section 15 or

the Magistrate under sub-Section (2) of Section 16, the appropriate or

the concerned Magistrate shall cause an enquiry to be made as to the

correctness of the information received under Section 16 only after

giving the person produced before him an opportunity of being heard. In

the present case, while report of the Probation Officer was called in

respect of age, character and antecedents of the person and also the

suitability of the person claiming custody and the nature of the influence

that person or condition of his house will have on the person rescued, the

opportunity of being heard was never granted to the victim. It is pointed

out by the learned A.P.P. from the impugned order that the victim was

indeed heard by the Court, but I am of the view that hearing of the victim

after the Court had already made up its mind, as appears to have been

done in the present case, is no compliance with the procedure prescribed

in Section 17(2) of the Immoral Traffic (Prevention) Act, 1956. The

procedure prescribed in this Section is mandatory and no departure from

it can be made. The reason being that the Court being in the position of

parens patrae, can decide the question of well being and welfare of the

J-cwp1134.17.odt 3/4

victim only after giving sufficient opportunity of prior hearing to the

victim herself and then the Court can appropriately decide about further

course of enquiry to be made by it. If the Court does not give such an

opportunity first and foremost to the victim, the Court would never know

as to what more is required to be enquired into, in addition to what is

stipulated in sub-Section (2) of Section 17 of the Immoral Traffic

(Prevention) Act, 1956.

5. Prior hearing of the victim before an enquiry as contemplated

under this provision of law is not an empty formality. It serves a

particular purpose about which I have already expressed myself just now.

This has not been done in the present case and there is no dispute about

it. Hearing granted to the victim after the enquiry was already made, as

has been done in the present case, would not meet the mandatory

requirement of law and, therefore, the impugned order cannot be

sustained in the eye of law. A fresh enquiry strictly in accordance with

the procedure prescribed under Section 17 of the Immoral Traffic

(Prevention) Act, 1956 is necessary and for this purpose the matter

deserves to be remanded back to the Court below.

6. In the result, the criminal writ petition is allowed.

7. The impugned order is hereby quashed and set aside.

8 The matter is remanded back to the Court of Additional

Sessions Judge-10, Nagpur for a fresh enquiry in accordance with Section

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17 of the Immoral Traffic (Prevention) Act, 1956 and decide the issue of

custody afresh. This shall be decided by the learned Sessions Judge

within 15 days from the date on which the victim is produced before it.

9. Rule is made absolute in the above terms.

JUDGE okMksns