[Cites 13, Cited by 0]
Bombay High Court
Xyz vs The State Of Maharashtra on 16 January, 2026
Author: N.J.Jamadar
Bench: N.J.Jamadar
2026:BHC-AS:1926
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION
WRIT PETITION NO.4726 OF 2025
XYZ ... Petitioner
versus
State of Maharashtra ... Respondent
Mr. Abhijeet V. Jangale with Ms. Nikita Bordepatil, for Petitioner.
Mrs. R.S.Tendulkar, APP for State.
CORAM: N.J.JAMADAR, J.
RESERVED ON : 13 JANUARY 2026
PRONOUNCED ON : 16 JANUARY 2026
JUDGMENT :
1. Rule. Rule made returnable forthwith, and, with the consent of the
learned Counsel for the parties, heard finally.
2. The Petitioner (hereinafter referred to as the Victim No.3) takes
exception to a judgment and order dated 24 June 2025 passed by the learned
Additional Sessions Judge, Yeola, in Criminal Revision Application No.11 of
2025, whereby the application preferred by the Victim No.3 and other victims
against an order dated 19 April 2025 passed by the learned Magistrate, Yeola
under Section 17(4) of the Immoral Traffic (Prevention) Act, 1956 (PITA 1956),
thereby ordering the detention of Victim No.3 and other victims in a protective
home for a period of one year, came to be dismissed by affirming the said
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order passed by the learned Magistrate.
3. Shorn of unnecessary details, the background facts can be stated, in
brief, as under :
3.1 Pursuant to an information, Yeola Police conducted a raid at Hotel Vijay
Lodging, Yeola. In the said raid, victim No.3 and other four victims were
rescued. Two persons were arrested and a crime, vide C.R.No.116 of 2025 for
the offences punishable under Sections 3, 4, 5 and 6 of the PITA, 1956, came
to be registered against those persons.
3.2 The learned Magistrate, Yeola, conducted an inquiry under Section
17(2) of the PITA, 1956. After appraisal of the report submitted by the
Probation Officer, medical examination report of the victims and the
statements of the victims, learned Magistrate was persuaded to direct that
Victim No.3 be kept in Vatsalya Mahila Vastigrah, Ashok Stambh, Nashik, for
a period of one year.
3.3 Noting the facts that Victim No.3 had no relatives, who could take care
of the Victim No.3, and, she had no source of income, learned Magistrate
reasoned that, if the Victim No.3 was enlarged on personal bond, there was a
strong possibility of the Victim No.3 again indulging in immoral activities.
Thus, Victim No.3 was directed to be kept in the protective home i.e. Vatsalya
Mahila Vastigrah, Nashik, for a period of one year. Victim Nos.1 and 2 were
also directed to be kept in the protective home.
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3.4 Being aggrieved, Victim Nos.1 to 3 preferred a Revision before the
learned Sessions Judge, being Revision Application No.11 of 2025. By the
impugned order, learned Additional Sessions Judge dismissed the Revision
Application, holding, inter alia, that the victims were subjected to exploitation
for commercial sex work, and having regard to the situation in life of the
victims, the order passed by the learned Magistrate was sustainable.
3.5 Being further aggrieved, Victim No.3 has invoked the writ jurisdiction.
4. I have heard Mr. Jangale, learned Counsel for the Petitioner, and, Mrs.
Tendulkar, learned APP for the State. Learned Counsel took the Court through
the documents and the material on record.
5. Mr. Jangale, learned Counsel for the Petitioner, would submit that the
impugned orders suffer from multiple infirmities. Firstly, the Courts below
have lost sight of the fact that the Petitioner is not an accused, but the victim.
Secondly, the Petitioner is a major. Thirdly, the Courts below have declined to
release her on a tenuous premise that the victim may again relapse into
commercial sex work. In the process, the cherished fundamental rights of the
Victim No.3, who was a major, have been trampled upon. As the Courts
below have not appreciated the distinction between the victim of exploitation
and the preparator of the offences under the PITA, 1956, the impugned orders
are unsustainable.
6. Mr. Jangale would further submit that, there is a clear breach of the
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provisions contained in Section 17 of the PITA, 1956, in as much as the
learned Magistrate had not had the assistance of the Panel of five respectable
persons. Though, sub-section (5) of Section 17 uses the term 'may', yet, in
the context of the legislative object, the term 'may' is required to be construed
as 'shall".
7. Per contra, Mrs. Tendulkar, learned APP, stoutly supported the
impugned orders. It was submitted that, as the Petitioner had no relatives,
who could vouch for her safety, the learned Magistrate was justified in
ordering the detention of the Petitioner in a protective home, as there was an
imminent risk of the Petitioner being again forced to indulge in commercial
sex work. Learned APP laid stress on the facts that the victim was allegedly
residing alone, since her parents had separated, and the economic condition
of the victim was extremely poor.
8. A pivotal question as to whether the victim, who is a major, can be
ordered to be detained in a protective home, against her wish, when there are
allegations that the victim had engaged in commercial sex work, arises for
consideration.
9. PITA 1956 was enacted to provide for the prevention of immoral traffic.
The principal object of the Suppression of Immoral Traffic in Women and Girls
Act, 1956, which was substituted by the Act No.44 of 1986, was to prevent
commercialisation of the vice and trafficking among women and girls. By the
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subsequent amendments, the scope of the PITA, 1956, 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.
10. PITA 1956 contains a fasciculus of provisions. Under Section 2(f) of the
PITA, 1956, 'Prostitution' means the sexual exploitation or abuse of persons
for commercial purpose, and the expression 'prostitute' shall be construed
accordingly. In addition to the punishments for the offences defined under
PITA 1956, provisions have been made for protection of the victims of
trafficking.
11. Sub-section (1) of Section 17 of the PITA, 1956, provides that when the
special police officer removes a person under Section 15 or a person is
rescued under Section 16, such person is required to be produced before the
nearest Magistrate. Thereafter, the nearest Magistrate is enjoined to pass
such order as he deems fit for the safe custody of such person for a stipulated
period. Sub-section (2) of Section 17 provides that the appropriate Magistrate
shall after giving the person an opportunity of being heard, cause an inquiry to
be made as to the correctness of the information received under sub-section
(1) of Section 16, the age, character and antecedents of the person and the
suitability of his parents, guardian or husband for taking charge of him and the
nature of the influence which the conditions in his home are likely to have on
him if he is sent home, and, for this purpose, the Magistrate may direct a
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probation officer to inquire into the above circumstances and into the
personality of the person and the prospects of his rehabilitation.
12. Where the Magistrate is satisfied after making an inquiry as required
under sub-section (2) that the information received is correct and that such
person is in need of care and protection, the Magistrate may, subject to the
provisions of sub-section (5), make an order that such person be detained for
such period, being not less than one year and not more than three years, in a
protective home or in such other custody as he shall, for reasons to be
recorded in writing, consider suitable. Sub-section (5) of Section 17 provides
that, in discharging his functions under sub-section (2), a Magistrate may
summon a panel of five respectable persons, three of whom shall wherever
practicable, be women, to assist him, and, may for this purpose, keep a list of
experienced social welfare workers in the field of suppression of immoral
traffic in persons.
13. In the case of Kumari Sangeeta V/s. State and Anr. 1, learned Single
Judge of the Delhi High Court, clarified the object of PITA 1956. It was, inter
alia, held that the object of the PITA, 1956 was not to abolish the prostitute or
the prostitution. There is no provision under the Act which makes the
prostitution per se a criminal offence or punishes a person because he is
indulging in prostitution. What is punishable under the PITA 1956 is sexual
1 1995 Cri.L.J. 3923
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exploitation or abuse of persons for commercial purposes and to earn the
bread thereby except where a person is carrying on prostitution in the vicinity
of a public place (vide S. 7) or when a person is found soliciting or seducing
another person (vide S. 8).
14. In the case of Asiya Anwar Shaikh V/s. The State of Maharashtra
and Anr.2, a learned Single Judge of this Court delved into the question as to
whether a major victim can be detained in the protective home against her
wish on the apprehension that such person may again indulge into
commercial sex work. In the facts of the said case, the learned Single Judge
tested the justifiability of the impugned action of detention on the touchstone
of the constitutional guarantee of freedom under Article 19 of the Constitution.
The relevant observations read as under :
"12. Indisputably Respondent No.2 Victim XYZ is major,
therefore it is imperative to consider her wishes. There is no
doubt that the State Government within its power under the
said Act, keeping in view of the interest of the victim, can
seek appropriate directions from the Court to send the victim
to Corrective Institution. It is true that the fundamental rights
conferred upon the citizen of India in Part III of the
Constitution of India are with reasonable restrictions
mentioned in each Article. The fundamental rights of the
citizen enshrined in Part III of the Constitution of India stand
on higher pedestal vis-a-vis statutory right or any other rights
conferred by the general law. Therefore I find considerable
2 2019 ALL MR (Cri) 5006
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force in the submission made by the learned counsel for the
Petitioner that the victim being major, her fundamental right to
move from one place to another place, reside at the place of
her choice and to chose her vocation has to be considered,
and contrary to her wishes she cannot be asked to reside in
the said Corrective Institution i.e. Shaskiya Mahila Rajya
Gruh, Prerana Mahila Wasti Gruh, Baramati, Dist. Pune.
13. It is pertinent to mention at this stage that the police
machinery has not brought on record any material
suggesting that Respondent No.2 Victim XYZ is suffering
from disability or her case is covered by reasonable
restrictions under Article 19 of the Constitution of India, and
setting her free would cause danger to the society. It is also
required to be noted that nothing is placed on record by the
police which would show that her right to move from one
place to another place or reside at the place of her choice is
hampered due to restrictions imposed in Article 19 of the
Constitution of India." (emphasis supplied)
15. Following the aforesaid pronouncement, in the case of Kajal Mukesh
Singh V/s. State of Maharashtra3, another learned Single Judge enunciated
that the 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 observations in paragraph 30
read as under :
"30. In view of this position of law, the victims being major,
their fundamental rights to move from one place to another
3 2021(1) Abr (Cri) 534
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place or to reside at a place of their choice and choose their
vocation has to be considered. They cannot be subjected to
unnecessary detention contrary to their wish and should be
asked to reside in the corrective institution. There is no
material on record suggesting that the victims are suffering
from any disability or any diseases so that reasonable
restrictions can be placed. It is not the case of the Police that
setting the victims free would cause some danger to the
society. It is nearly one year that the victims have been
detained in the corrective home against their wish and,
therefore, for the reasons stated herein, they need to be
released forthwith." (emphasis supplied)
16. Laying emphasis on the imperativeness of soliciting assistance of the
Panel of respectable persons in exercising the power under Section 17(4) of
the PITA 1956, learned Single Judge observed, as under :
"26. Section 17(4) implies that an order under
the said Section can only be passed subject to the
provision of sub-section (5) of section 17 of the said
Act. AS already stated, sub-section (5) contemplates
that while discharging the function under sub-section
(2), the Magistrate will have to summon a panel of 5
respectable persons, 3 of whom shall, wherever
practicable, be women to assist him in that regard. It
can, therefore, be safely inferred that the legislature
while using the word "may" wanted to use it in a
mandatory sense otherwise they would not have
subjected to exercise powers under Sections 17(2) to
17(5) of the said Act."
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17. In the light of the aforesaid position in law, re-adverting to the facts of
the case, it is imperative to note that, two of the co-victims i.e. victim Nos.4
and 5, were released by the learned Magistrate, primarily on the ground that
those victims had a family and they had undertaken to take proper care of the
victims and ensure that they do not indulge in identical acts. The custody of
victim No.4 was given to her brother and the custody of victim No.5 was given
to her mother.
18. The learned Magistrate was of the view that since the victim No.3 was
residing alone and her parents had separated, the economic condition of the
victim would force the victim to again indulge in the immoral acts. Learned
Magistrate did not record that the victim was suffering from any sexually
transmitted diseases and the release of the victim posed threat to public
safety on the said count. The only difference between victim Nos.4 and 5 who
were ordered to be released from protective custody and the victim No.3 was
that there was no relative of the victim to whom the custody of the victim could
be entrusted.
19. The justifiability of the aforesaid view is required to be examined in the
light of the nature and object of the PITA 1956. PITA 1956 was not meant to
punish a victim of the sexual exploitation. In the absence of material to show
that the role attributed to the victim would fall within the dragnet of any of the
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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.
20. A profitable reference in this context can be made to a Division Bench
judgment of the Gujarat High Court in the case of Sahyog Manila Mandal
and Anr. V/s. State of Gujarat and Ors. 4, wherein it was enunciated that the
provisions of Section 17(4) of the PITA 1956, indicate that the victims of
trafficking and offences committed by others under the PITA, 1956, Act
deserve to be rescued and rehabilitated and not punished as criminals.
21. In the case at hand, as noted above, the controversy boils down to the
question as to 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. This court is 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 victim No.3 could be entrusted. In the view of this Court, the necessity of
detention of victim No.3 in a protective home ought to have been determined
on the touchstone of the constitutional rights of personal liberty and
fundamental freedom. In the absence of material which would justify the
restriction on personal liberty and fundamental freedom, in the nature of
detention of the victim, learned Magistrate could not have directed the
4 2004 SCC Online Guj 269
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detention of victim No.3 for the reason that there was nobody to take care of
Victim No.3, who was a major, and, thus, there were chances of victim No.3
again indulging in commercial sex work, if she was released without providing
her necessary counseling and training. The mere fact that Victim No.3 was
alone, by itself, could not have been a justifiable ground to detain Victim No.3
in a protective home.
22. As noted above, it was not the case of the prosecution that, Victim No.3
was found indulging in offences punishable under the PITA 1956. Nor there
was material to show that the release of victim No.3 posed threat to the
society. In the absence of any material to justify an inference that the interest
of the society and the victim could only be protected by detaining her in a
protective home, the impugned orders cannot be sustained.
23. Hence, the following order :
ORDER
(i) The Writ Petition stands allowed.
(ii) The impugned order dated 24 June 2025 and the order dated 19
April 2025 passed by the learned Magistrate directing detention of the
Petitioner - Victim No.3 in a protective home, stand quashed and set aside.
(iii) The Petitioner - victim No.3 be released forthwith, if not required
to be detained in any other case.
(iv) The Petitioner - Victim No.3 shall not indulge in any activity
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identical to one which led to the rescue of victim No.3 and her detention in a
protective home.
(v) Rule made absolute in the aforesaid terms.
(vi) No costs.
( N.J.JAMADAR, J. )
Signed by: S.S.Phadke
Designation: PS To Honourable Judge
Date: 16/01/2026 21:32:24
