Raja S/O Hiralal Kol And Another vs State Of Mah. Thr. Pso Ps Parshioni
2023 Latest Caselaw 5301 Bom

                                                    1                     crwp76.23.odt


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

             CRIMINAL WRIT PETITION NO.76 OF 2023

  1. Raja S/o Hiralal Kol
     Aged about 45 years, Occu: Private Work

  2. Riya Raja Kol
     Aged about 19 years, Occ: Bislery Water
     Work, Both R/o. At Hanuman Nagar, New
     Basti, Ranji Monegaon, Jabalpur, Madhya
     Pradesh                                 ...PETITIONERS
            ---VERSUS---

      State of Maharashtra,
      PSO, Parshioni, Police Station, Parsioni,
      Dist. Nagpur.                                            ...RESPONDENT

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 Shri A.A. Mardikar, Advocate for the petitioner.
 Shri A.R. Chutke, APP for respondent.
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                                  CORAM              : G.A. SANAP, J.

                                  DATED             : JUNE 8, 2023.

 ORAL JUDGMENT :

 .             Rule. Rule made returnable forthwith. Heard finally by

consent of the learned advocates for the parties.

2. In this writ petition filed under Articles 226 and 227 of

the Constitution of India, the petitioners have questioned

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correctness of the order dated 16.11.2022 passed by the learned

Additional Sessions Judge-16, Nagpur in Criminal Revision

No.247/2022, whereby the learned Additional Sessions Judge

dismissed the revision application filed by the petitioners and

confirmed the order dated 14.09.2022 passed by the learned

Judicial Magistrate First Class, Parseoni in Criminal M.A.

No.72/2022. The learned Judicial Magistrate First Class, Parseoni

by order dated 14.09.2022 was pleased to reject the application filed

by the petitioners for handing over the custody of the petitioner

no.2 to the petitioner no.1.

The facts necessary for the decision of the writ petition

are as follows:

3. The Police Station Officer, Parseoni Police Station, at

about 6:35 pm on 23.08.2022, received a secrete information with

regard to the prostitution activity carried out by one Ramdas, who is

sole accused in the crime, at his premises. Pursuant to this

information, raid was conducted at the said premises and the

accused was arrested. Petitioner no.2, who is a victim, was rescued

from the said place. After raid, a crime bearing Crime No.252/2022

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under Sections 3, 4, 5 and 7 of the Immoral Traffic (Prevention)

Act, 1956 (for short, 'PITA Act') was registered.

4. It is the case of the prosecution that the victim was forced

to indulge in prostitution. Alongwith the victim, six more girls were

found at the said premises. The victim girls were produced before

the learned Magistrate on 24.08.2022. The learned Magistrate

handed over custody of the victim girls to Karuna Mahila Vasti-

Gruha, Nagpur till completion of the enquiry. Learned Magistrate,

in the process of enquiry, recorded the statement of the victim. The

learned Magistrate called report of the Probation Officer, report of

Police Officer as well as report from one NGO. Father and sister of

the victim applied before the learned Magistrate for handing over

custody of the victim. According to them, the victim is major and

they are capable to take care of the victim and the victim would be

safe in their custody.

5. Learned Magistrate after hearing the parties, found that

considering the tender age and nature of the crime, the possibility of

of indulgence in prostitution by the victim, cannot be ruled out, and

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therefore, the stage was not safe to hand over custody of the victim

to her father. The father and the victim challenged the said order

before the Sessions Court. The learned Additional Sessions Judge

recorded his agreement with the view taken by the learned

Magistrate and dismissed the revision. The petitioners are, therefore,

before this Court against this order.

6. I have heard learned advocate for the petitioners and

learned Additional Public Prosecutor for the respondent-State.

Perused the record and proceedings.

7. It is seen on perusal of the order passed by the learned

Magistrate that in the process of enquiry, in order to ascertain the

age of the victim, apart from placing reliance on document of the

birth date of the victim, medical officer was directed to conduct

ossification test of the victim. As per report of the ossification test,

the victim was found between the age group of 16 to 17 years old

including error of margin. On the basis of this documentary

evidence, learned Magistrate opined that the victim was not minor.

The learned Magistrate, on the basis of material, found that though

the victim is not minor, handing over of custody of the victim to her

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father would not be in the interest of the victim. On the basis of the

material, learned Magistrate found that the possibility of the victim

indulging in prostitution could not be ruled out. The learned

Magistrate further found that in order to protect the interest of the

victim in all respect, the custody of the victim for 12 months should

remain with Karuna Mahila Vasti-Gruha, Nagpur, a Government of

Maharashtra institution.

8. Learned advocate for the petitioners placing heavy

reliance on a decision in the case of Kajal Mukesh Singh and

another Vs. State of Maharashtra (Criminal Writ Petition

No.6065/2019, judgment and order dated 24.09.2020, Principal

Seat of Bombay High Court), submitted that in this case the learned

Magistrate did not ensure compliance of mandatory provisions of

Sections 17(4) and 17(5) of the PITA Act. The learned advocate,

relying upon the decision, submitted that without compliance of

mandatory provisions of sub-section 5 of Section 17, the

fundamental right of life and liberty enshrined in the Constitution

of India has been violated. The learned advocate pointed out that

the Coordinate Bench of this Court in the case of Kajal Singh

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(supra) has considered the decision of the Delhi High Court in the

case of Kumari Sangeeta Vs. State of Delhi and others reported in

Criminal Report,P-129 (Delhi). The learned advocate further

submitted that the victim is major. The father of the victim has

come forward and established bonafides. The learned advocate,

therefore, submitted that, in the facts and circumstances, no fruitful

purpose would be served by continuing custody of the victim with

Karuna Mahila Vasti-Gruha, Nagpur.

9. The learned APP submitted that on the basis of the

available material on record, keeping in mind the paramount aspect

with regard to the care and protection of the victim, in the fact

situation the learned Magistrate opined that the custody of the

victim should be with the institution. Learned APP, in all fairness,

submitted that the learned Magistrate did not obtain assistance of

the panel of five respectable persons for passing the order. Infact,

learned APP drew my attention to the decision of the Coordinate

Bench of this Court in the case of Khushi Harkishan Malhotra Vs.

State of Maharashtra reported 2006 ALL MR (Cri) 443 and the

decision rendered by learned Single Judge of the Madras High

Court in the case of Pavithra Vs. The Inspector of Police reported in

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MANU/TN/1010/2012, wherein it is held that keeping the woman

in a protective home without any concrete material curtails free

movement of the victim and as such amounts to infringement of the

fundamental right guaranteed under Article 21 of the Constitution

of India. It is also held that the fundamental right of life and liberty

cannot be curtailed without following the due process and

procedure provided under the law.

10. In this case, admittedly, there was no compliance of sub-

section 5 of section 17 of the PITA Act. The Coordinate Bench, in

the similar set of facts, has held in Kajal Singh's case (supra) that

such non-compliance vitiates the enquiry, which ultimately leads to

passing of the order of custody. It is also held that failure to follow

the procedure, contemplated under the Act in the process of passing

the order of custody, vitiates the order.

11. It needs to be stated that if the victim is minor and there

is evidence of commission of offence against minor victim, the

learned Magistrate, in terms of sub-section 3 of section 17 of the

PITA Act and more particularly in respect of child or minor rescued

under section 16 of the PITA Act, can place such child or minor in

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any institution established or recognized under the Children Act,

for the safe custody of the child. It is to be noted that as far as major

victim is concerned, an order has to be passed depending upon the

material placed on record during the course of enquiry. In order to

warrant the detention, the Magistrate must be satisfied that for the

care and protection of the victim, in all respect, release of the victim

would not be proper. Therefore, in such cases the Magistrate can

order the detention. The period for detention has been provided. It

is to be noted that the material placed on record before the learned

Magistrate during the course of enquiry must be such to satisfy the

learned Magistrate that the victim, in case of her release, might

indulge in commission of the offence under the Act.

12. In this case, the victim is major. Her father has come

forward to take her custody. The victim has been ordered to be kept

in the institution for a period of 12 months. So far 8 months have

been passed from the date of the order. The father of the victim,

who is required to take care of the victim, for well being of the

victim in all respect in future life, has been knocking the doors of

the Court for her custody. The victim has also stated in this petition

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that her father is capable in all respect to take her care. It is stated

that the apprehension placed on record that the victim might

indulge in such crime in future is ill-founded. In my view, therefore,

keeping in mind the mandate of the law, as has been considered in

the ruling cited supra, the Court has to balance the interest of the

victim as well as fundamental right of life and liberty of the victim.

It is to be noted that unless and until there is cogent and concrete

material to curtail such fundamental right, detention cannot be

ordered and continued. In the facts and circumstances, I am of the

view that the father of the victim, who is capable in all respect, to

take care of well-being of the victim, can be allowed to take custody

of the victim. Accordingly, the orders passed by learned Additional

Sessions Judge-16, Nagpur and the learned Judicial Magistrate First

Class, Parseoni, are quashed and set aside. The application made by

petitioner no.1 is allowed. Petitioner no.2 be enlarged and set at

liberty from Karuna Mahila Vasti-Gruha, Nagpur.

13. Petitioner no.2 - victim be handed over in the custody of

her father petitioner no.1. The petitioners shall furnish their

permanent address in the Court of the learned Magistrate as well as

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to the Investigating Officer with their mobile numbers, if any.

Petitioner no.2- victim shall remain present before the trial Court

during the course of the trial for the purpose of recording her

evidence, if summoned.

Criminal Writ Petition is allowed and disposed of in

above terms. Rule is made absolute in above terms.

Pending civil application (s), if any, stand disposed of.

JUDGE

Wagh