The Single Bench of Justice Prithviraj K. Chavan of the Bombay High Court set free 3 sex workers from Corrective Institution, while observing that prostitution has not been made an offence under Immoral Traffic (Prevention) Act, 1956 and that an adult woman has the right to choose her vocation and cannot be detained without her consent.
The bench heard the plea of 3 sex workers challenging the 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.
A Trap was laid (to catch women traffickers) by complainant-Rupesh Ramchandra More, Police Constable on the secret information received that that a person by name Mr. Nijamuddin Khan, a pimp provides women for prostitution at a guest house in Malad. The victim (A), (B) and (C) were produced before the Metropolitan Magistrate on 13.09.2019.
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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. Intermediate custody of victims (A), (B) and (C) had been given to Navjeevan Mahila Vasti Griha, Deonar, Mumbai. The learned Magistrate also thought it fit to direct a NGO, Justice and Care to give a primary education to victims (A), (B) and (C) during their stay in “Navjeevan Mahila Vasatigruha”.
The Magistrate also declined custody of the victims to their mothers as the victims were found involved in sex work for Prostitution having age group of 20 to 22 years. Having taken into consideration all the facts and circumstances and after going through Sections 17(1), (2), (3), (4) and (6) of the 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, Allahabad, 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.
The Court said the said Act [Immoral Traffic (Prevention) Act, 1956] does not empower the Magistrate to hold the custody of the victims in Prostitution beyond the period of 3 weeks without there being any final order to that effect after following due process of law.
The Court observed 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 was conducted in this case. The Court also noted that Section 17(4) implies that an order under the said Section can only be passed, subject to the provision of sub-section (5) Section 17 of the said Act.
Notably, 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.
The Court relied on the Judgment of Kumari Sangeeta Vs. State of Delhi and Ors. 1996, Criminal Reporter, P-129, (Delhi) to justify the point. The Court found nothing on record to show that the petitioners were seducing any person for the purpose of prostitution nor there was any material to show that they were running a brothel.
The court said the magistrate ought to have considered the willingness and consent of the women before ordering their detention. It added that the magistrate appeared to be swayed by the fact that the petitioners belong to a particular caste and it had long history of initiating girls of the community into prostitution.
The single judge bench in this case of Prostitution added that keeping in mind the interest of the women, the state government can, under PITA, seek directions from the court to send them to corrective homes. institution, but their fundamental rights stand on a higher pedestal vis a vis the statutory right or any other right conferred by a generallaw.