Friday, 22 January 2021

Bombay HC: Prostitution, not an offence, the court can not permit detention of Adult woman in the protective home without her consent

  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.


1. Rule. Rule made returnable forthwith. Heard finally with

the consent of the learned Counsel for the petitioners and the

learned APP for the State.

2. At the outset, it is worthwhile to mention herein that the

petitioners are victims in connection with a crime registered by the

Police under the Immoral Traffic (Prevention) Act, 1956 (for short

“the said Act”), who are alleged to have been compelled to involve

themselves in prostitution, their identity, therefore, needs to be

concealed. The petitioners, therefore, shall be referred to as

“victims (A), (B) and (C)”. The Registry is directed to maintain

the record accordingly.

3. This petition takes exception to an order dated

19.10.2019 passed by the Metropolitan Magistrate, Mazgaon

under Section 17(2) of the said Act as well as an order dated

22.11.2019 passed by the Additional Sessions Judge, Dindoshi in

Criminal Appeal No. 284 of 2019 which upheld the order dated

19.10.2019.


4. The facts in brief can be summarized as follows.

5. The complainant-Rupesh Ramchandra More, Police

Constable attached to Social Service Branch, approached the office

of the Social Service Branch, Mumbai where he was informed by

P.I. Mr. Revle about the secrete information that a person by name

Mr. Nijamuddin Khan, a pimp (for short “pimp Nijamuddin”)

having mobile provides women for prostitution

at a guest house in Malad.

6. One Mr. Shahbaz Shoukat Mapari was summoned to act as a

decoy. He was supposed to call pimp Nijamuddin from his mobile

no. Accordingly, two panchas were summoned. The

decoyer called pimp Nijamuddin from his mobile number, upon

which pimp Nijamuddin informed the decoyer that it would cost

Rs.7,000/- for a victim girl inter alia directing the decoyer to come

near Chincholi Bandar signal, Malad (W), Mumbai where the

victims would be shown to the decoyer from amongst whom he

was supposed to select one victim girl and pimp Nijamuddin will

thereafter book a room in a nearby guest house.


7. Accordingly, a trap was arranged and the raiding team left

for the spot. A rickshaw came and stopped near the decoy and

panch no.1. The rickshaw driver spoke to the decoy. The decoy

had paid money to rickshaw driver for prostitution. Thereafter,

two victim girls came out of the rickshaw. The decoy along with

one victim girl and panch no.1 left in the same rickshaw.

8. P.I. Revle, asked other pancha and few officers of the team to

keep a watch on the remaining two victim girls; whereas he along

with rest of the members of the raiding team followed the

rickshaw carrying the first victim and the decoy. The rickshaw

stopped in front of a metal gate of a building near

The rickshaw driver,

victim girl and panch no.1 went inside the building. After some

time, the driver came out and went back towards Chincholi

Bandar, Malad (W) to bring remaining two victims. As per the

direction of P.I. Revle, members of the raiding team who were

keeping vigil over the two victims, arrested the rickshaw driver

and the victims and took them in their custody.


9. P.I. Revle, entered into 1st floor of the building named as

‘Madhuban’. There was one “Yatri Guest House”. The first panch

was standing near the cash counter. When a raid was conducted

the decoy and the victim girl were found in room no.7. The

victim was taken into custody from room no.7 of “Yatri Guest

House”. The accused and the other two victims were also

arrested and taken into custody.

10. The victim (A), (B) and (C) were produced before the

Metropolitan Magistrate on 13.09.2019. There were no complaints

of ill-treatment at the hands of Police. The learned Magistrate, for

the purpose of verification of the age of the victims as well as to

ascertain as to whether they are infected with any sexually

transmitted disease, referred them for medical examination. The

learned Magistrate, inter alia, called for a report from the

Probation Officer in respect of antecedents, character and

suitability of relatives of the Victims (A), (B) and (C) for taking

their charge. The Probation Officer has been directed to submit a

report on or before 07.10.2019. Intermediate custody of victims

(A), (B) and (C) had been given to Navjeevan Mahila Vasti Griha,

Deonar, Mumbai. The learned Magistrate had allowed victim

girls to contact their family members/parents. The learned

Magistrate also thought it fit to direct a NGO, Justice and Care to

give primary education to victims (A), (B) and (C) during their

stay in “Navjeevan Mahila Vasatigruha” as well as “Kshamata

NGO” to make an inquiry in respect of victims and submit a report

by 07.10.2019.

11. Subsequently, victims (A), (B) and (C) were produced before

the learned Magistrate on 19.10.2019 along with their medical

reports. No sexual transmitted disease has been detected in

respect of any of the victims. The learned Magistrate, it appears,

had also personally inquired with victims (A), (B) and (C). The

Magistrate declined custody of the victims to their mothers as the

victims were found involved into sex work having age group of 20

to 22 years.

12. It revealed from the report of the Probation Officer, the

concerned police personnel as well as from the inquiry by the

learned Magistrate that the victims (A), (B) and (C) belong to

“Bediya” community. A custom prevails in the community wherein

a girl, after attaining puberty is sent for prostitution. The parents

of the victims were aware that the victims are engaged in

prostitution, meaning thereby, the parents themselves are allowing

to indulge in prostitution as a profession for their daughters’ and,

therefore, the learned Magistrate observed that it would not be

safe to hand over the custody of the victims to their mothers. The

learned Magistrate, having perused the report of the Probation

Officer, NGO and the Medical Officer, observed that the victims

need care and protection.

13. 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. It is further observed by the learned Magistrate

that the victims need to be counseled and trained so that they can

earn in a dignified manner after getting adequate vocational

training.


14. The learned Magistrate had observed that victims (A), (B)

and (C) are originally from Kanpur, Uttar Pradesh and, therefore,

they need to be sent to their original place of native.

15. Having taken into consideration all the facts and

circumstances and after going through Sections 17(1), (2), (3), (4)

and (6) of the said Act, the victims (A), (B) and (C) were detained

for a period of one year from 19th October, 2019. The victims

were directed to be sent to “Nari Niketan Prayag Vastigruha,

Fultabad, Ilahabad, UP or any State run institution of Uttar

Pradesh for one year for the care, protection, shelter and

vocational training in the subject of their liking.

16. The Superintendent of Navjeevan Mahila Vasahatigruha has

been directed to take necessary steps in shifting the victims (A),

(B) and (C) to “Nari Niketan Prayag Vasahatigruha, Khultabad,

Dist. Ilahabad, Uttar Pradesh or any other State institution of Uttar

Pradesh at the earliest, in the escort that would be provided by

Malad Police Station.


17. The said order was challenged by way of an appeal bearing

No. 284 of 2019 in the Court of Sessions Judge at Dindhoshi. The

learned Additional Sessions Judge dismissed the appeal by

confirming the order passed by the learned Magistrate on

19.10.2019.

18. I heard Mr. Saraogi, the learned Counsel for the petitioners.

He contends that both the Courts below have ignored the ambit

and scope of the said Act, more particularly Section 17, which is

not a penal provision, as the victims herein are not accused nor

being prosecuted under Sections 3 to 9 of the said Act. He

submits that both the Courts below have failed to appreciate the

factual matrix of the matter, which they took it in a very casual,

cavalier and mechanical manner while passing the impugned

orders.

19. Thus, according to him, the impugned orders came to be

passed without application of mind. According to the learned

Counsel, the victims are major enough to take their own decision

in respect of their lives. My attention is drawn by the learned

Counsel to the impugned order passed by the learned Magistrate

under Section 17(2) of the said Act, which according to him, is

void ab initio as well as bad in law as the mandate created by the

statute has not been followed by both the Courts below. Sections

15 and 16 of the said Act are always subjected to the provision of

an inquiry under the provision of Section 17 of the Act. He drew

my attention to the fact that during the alleged raid conducted by

the Investigating Agency, no customer was found with the victimspetitioners

in order to involve the petitioners into any immoral

activities like prostitution as defined in the said Act.

20. Since the victims, according to the learned Counsel, are not

being prosecuted, there is no question of continuing their

detention in the custody of Navjeevan Mahila Vastigruha, Deonar,

Mumbai or with any other institution. Even otherwise, the said

Act does not empower the Magistrate to hold the custody of the

victims beyond the period of 3 weeks without their being any final

order to that effect after following due process of law.


21. The learned Counsel has, therefore, strenuously urged to

quash the impugned orders passed by the Metropolitan Magistrate,

54th Court, Mazgaon, Mumbai and the Additional Sessions Judge,

Dindoshi.

22. Mrs. Mhatre, the learned APP though supported the

impugned orders, submitted that in view of the arguments

advanced by the learned Counsel for the petitioners, necessary

orders can be passed as regards further detention of the victims.

23. Inherent jurisdiction of this Court under Section 482 of the

Criminal Procedure Code as well as jurisdiction under Article 227

of the Constitution of India has been invoked by the petitioners to

meet the ends of justice. This Court in its supervisory jurisdiction

as well as under Section 482 of the Cr.P.C. can entertain a petition

and after examining the facts and the material placed on record,

pass necessary orders or give directions. There are certain glaring

discrepancies in the impugned orders. The first order of the

learned Metropolitan Magistrate, 54th Court, Mazgaon, Mumbai

under the said Act dated 30.09.2019 indicates that as per order of

holiday remand Court dated 28.09.2019, the victims were

produced before her on 30.09.2019. Neither the first order of the

remand Court dated 28.09.2019 is produced on record nor there is

any observation in the order dated 30.09.2019 by the Magistrate

as to where the victims were placed from 28.09.2019 to

30.09.2019. Perusal of this order clearly manifests nonapplication

of mind by the learned Magistrate as regards necessity

or requirement of keeping the victims in safe custody. In fact, the

learned Magistrate passed an order under sub-section (2) of

Section 17 calling for a report from the District Probation Officer.

The serious lacuna in not ascertaining the custody of the victims

from 28.09.2019 to 30.09.2019 would go to the root of the matter.

The learned Magistrate seems to have not ascertained from the

victims as to where they were kept from 28.09.2019 to

30.09.2019, meaning thereby whether the victims were placed in

a safer custody as provided in sub-Section (1) of Section 17 of the

said Act. There are no charges qua the victims that they were

carrying prostitution in public. The inquiry as contemplated

under Section 17(2) of the said Act appears to have been carried

in a very casual manner. The impugned orders, therefore, can be

quashed only on this ground itself.

24. Be that as it may. Section 17(4) of the said Act provides that

after completion of such inquiry, if the Magistrate is satisfied, he

may subject to the provisions of sub-section (5) make an order that

the victims be detained for such period, being not less than one

year and not more than three years, as may be specified in the

order, in a protective home for which the Magistrate shall give

reasons in writing. 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

interpretation of the provisions of Section 17(2) and Section

17(5) of the said Act have been considered by the High Court of

Delhi in the decision reported in the case of Kumari Sangeeta Vs.

State of Delhi and Ors. 1996, Criminal Reporter, P-129, (Delhi).

The relevant extract of the said judgment is reproduced herein

below :-

“15. It thus as a corollary whereof rendered nugatory the

entire proceedings before the learned Magistrate since a duty

has been cast on the shoulders of the Magistrate to have the

assistance of the panel of respectable persons while

discharging his functions under Sub-section (2) of Section 17.

Thus, the learned Magistrate was left with no option but to

seek the assistance of the said panel comprised of five persons

as provided under Section 17 (5) while discharging his

functions under the said Section. The learned PPs, on the

other hand, have contended that it was not incumbent on the

Magistrate to seek the assistance of a panel of five persons as

spoken of under Section 17 (5) of the Act inasmuch as the

word used therein is ‘may’ which gave an ample option and

latitude to the Magistrate and left to his judicious discretion

to have the services of those five persons or to ignore the

same. Since we are concerned with the construction of

Section 17 of the Act it would be just and proper to examine

the provisions of the said Section before embarking upon a

detailed discussion. In view of the above I am inclined to

reproduce Section 17 of the Act in extensor. It is in the

following words:- “17. (1) When the Special police officer

removing a person under sub-section (4) of Section 15 or a

Police Officer rescuing a person under Sub-section (1) of

Section 16, is for any reason unable to produce him before

the appropriate Magistrate as required by Sub-section (5) of

Section 15, or before the Magistrate issuing the order under

Sub-section (2) of Section 16, he shall forthwith produce him

before the nearest Magistrate of any class, who shall pass

such orders as he deems proper for his safe custody until he is

produced before the appropriate Magistrate, or, as the case

may be, the Magistrate issuing the order: Provided ….. (i)….

(ii) ….. (2). when the person is produced before the

appropriate Magistrate under Sub-section (5) of Section 15 or

the Magistrate under Sub-section (2) of Section 16, he shall,

after giving him 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, he may direct a Probation Officer appointed

under the Probation of Offenders Act, 1958, (20 of 1958), to

inquire into the above circumstances and into the personality

of the person and the prospects of his rehabilitation. (3)…

Provided...Provided (4) Where the Magistrate is satisfied,

after making an inquiry as required under Sub-section (2) (a)

that the information received is correct; and (b) that he is in

need of care and protection, he 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, as may be specified in the order, in a

protective home, on in such other custody as he shall, for

reasons to be recorded in writing, consider suitable: Provided

that such custody shall not be that of a person or body of

persons of a religious persuasion different from that of the

person and that those entrusted with the custody of the

person including the persons in charge of a protective home,

may be required to enter into a bond which may, where

necessary and feasible, contain undertakings based on

directions relating to the proper care, guardianship,

education, training and medical and psychiatric treatment of

the person as well as supervision by a person appointed by

the Court, which will be in force for a period not exceeding

three years. (5) In discharging his functions under Subsection

(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,

particularly women social welfare workers, in the field of

suppression of immoral traffic in persons. (6)….”.

25. Mr. Saraogi, the learned Counsel for the petitioners would

argue that the interpretation of the word “may” used in sub-section

(5) of Section 17 shall be construed as “shall” insofar as

summoning a panel of 5 respectable persons is concerned, 3 of

whom shall, wherever practicable, be women to assist him and

may for this purpose keep a list of experienced social welfare

workers. In view of the judgment in case of Kumari Sangeeta

(supra), the word “may” and the word “shall” are interchangeable

terms. It cannot be deducted ipso facto from use of 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.

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 subsection

(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.

27. 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.

28. Clause (1) of Article 19 of the Constitution of India

contemplates that all citizens shall have following rights, which

read as under :-

“(a) to freedom of speech and expression;

(b) to assemble peaceably and without arms;

(c) to form association or unions (or co-operative societies);

(d) to move freely throughout the territory of India;

(e) to reside and settle in any part of the territory of India,

and

(g) to practice any profession, or to carry on any occupation,

trade or business.”


29. There is no doubt that the State Government 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. However, it cannot be lost sight

of the fact 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 citizens enshrined in this part of the Constitution stand on the

higher pedestal vis-a-vis statutory right or any other right

conferred by the general law.

30. In view of this position of law, the victims being major, their

fundamental rights to move from one place to another 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.

31. As regards the reports of the Probation Officer, which were

sent in a sealed cover to this Court, it is noticed that the reports in

respect of the victims (A), (B) and (C) are stereotype, of which

two reports are undated while one report in case of victim (A) is

dated 30.07.2020. The reports are so casual and cryptic which

simply indicate that in view of indulgence of the victims in

prostitution, they need to be sent to Naariniketan Prayag Mahila

Vasahatigruha, Uttar Pradesh for a period of one year for training

and counseling. These reports, according to me, 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.

32. There is one more glaring discrepancy which is apparent

from the face of the record that the alleged two panchas said to

have accompanied the raiding team, have not been named

anywhere. There is even no mention of name of woman panch

witness in the record. A reasonable doubt, therefore, creeps in

one’s mind whether any such persons were in fact called and had

acted as panch witnesses. At least the record submitted before

this Court does not reveal anything in that regard.

33. The second glaring discrepancy is that no inquiry qua pimp

Nijamuddin with the victims appears to have been made by the

learned Magistrate as to whether the said pimp–Nijamuddin was

running a brothel or was responsible for procuring the victims or

inducing them for the purpose of prostitution. There is even no

statement of the decoy indicating any conversation with the victim

girl. Admittedly, pimp Nijamuddin is being prosecuted under

Section 370(3) of the Indian Penal Code and Sections 4 and 5 of

the said Act.

34. Having considered the entire facts of the case and submissions

made by the learned Counsel for the petitioners and the learned APP,

the impugned orders need to be quashed and set aside.


35. Consequently, to secure the ends of justice, following order is

expedient :-

ORDER

(i) The impugned order dated 19.10.2019 passed by the

learned Metropolitan Magistrate, Special Court for ITPA, 54th

Court at Mazgaon, Mumbai and confirmed by the Additional

Sessions Judge, Dindoshi in Criminal Appeal No. 248 of

2019 are quashed and set aside.

(ii) The petitioners be enlarged and set at liberty from

Navjeevan Mahila Vastigruha, Deonar, Mumbai forthwith.

(iii) Before setting the petitioners at liberty, their wishes be

ascertained whether they desire to continue their stay in

Navjeevan Mahila Vastigruha, Deonar, Mumbai for remaining

period or otherwise.

If they do not wish to continue their stay in Navjeevan

Mahila Vastigruha, Deonar, they be released forthwith.

(iv) The petitioners shall remain present before the trial

Court during the course of trial at the time of recording their

evidence, if summoned.

(v) The Special Magistrate shall ensure that the victims are

given adequate protection and are not influenced by any one

at the time of recording their evidence.

(vi) The petitioners shall furnish their permanent address

to the Investigating Officer as well as their mobile numbers,

if any.

36. With the aforesaid directions, the Petition stands disposed of.

37. Rule is made absolute in the aforesaid terms.

38. This order shall be digitally signed by the Private Secretary

of this Court. All concerned shall act on production by fax or email

of a digitally signed copy of this order.

(PRITHVIRAJ K. CHAVAN, J.)


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