It is interesting to note the relevant provisions of the said
Act, which go to show that the purpose and the object of the Act is
not to abolish the prostitution or the prostitute. There is no
provision under the law which makes prostitution per se a criminal offence or punishes a person because he indulges in prostitution.
What is punishable under the Act is sexual exploitation or abuse of person for commercial purpose and to earn the bread thereby,
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. The
record does not reveal nor there is a charge against the victims –
petitioners that they were indulged in prostitution as defined in
Section 2(f) of the said Act. There is nothing on record to show
that the petitioners were seducing any person for the purpose of
prostitution nor there is any material to show that they were
running a brothel. It seems that the learned Magistrate has been
swayed away while passing the impugned order by the fact that
the petitioners belong to a particular caste. It is equally important
to note that the petitioners victims are major and, therefore, 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. The learned Magistrate, before passing the impugned order
ought to have considered the willingness and consent of the
victims before ordering their detention in the protective home.
The orders impugned dated 19.10.2019 by the Metropolitan
Magistrate, Mazgaon and the order dated 22.11.2019 passed by
the Additional Sessions Judge, Dindoshi therefore, need to be
quashed as the same are bad in law.
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION
RIT PETITION NO. 6065 OF 2020
Petitioners Vs. The State of Maharashtra (Through the Inspector-in-charge of Malad Police Station)
CORAM : PRITHVIRAJ K. CHAVAN, J.
PRONOUNCED ON : 24th SEPTEMBER, 2020.
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