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2019 Supreme(Bom) 967
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
S.S. SHINDE, J.
Asiya Anwar Shaikh - Appellant
Versus
State Of Maharashtra - Respondent
Criminal Writ Petition No. 2050 of 2019
Decided On : 11-07-2019
Satyavrat Joshi, Adv., A.R. Patil, Adv.
The fundamental rights of a major victim under the Constitution, including the right to choose residence and vocation, prevail over statutory rights or general law.
Headnote:
Immoral Traffic (Prevention) Act - Custody of Victim - Sections 16, 17 - Summary of Acts and Sections: The court discussed the Immoral Traffic (Prevention) Act, 1956, focusing on Sections 16 and 17, which provide for the rescue and mechanism for the care and protection of victims. The court emphasized the reformatory nature of the mechanism and the immunity of victims from prosecution under the Act. It also highlighted the importance of considering the victim's age, social and economic conditions, and the need for legal assistance and psychological evaluation.
Fact of the Case:
The Petitioner challenged the order sending the victim to a Corrective Institution for care and protection. The court found that the Petitioner misrepresented herself as the victim's mother and failed to disclose the true facts. Despite this, the court considered the interest of the victim and the contentions of the parties on merits.
Finding of the Court:
The court found that the victim, being a major, cannot be compelled to reside in the Corrective Institution against her wishes. It emphasized the victim's fundamental rights to choose her residence and vocation. The court also noted the absence of evidence to restrict the victim's freedom of movement.
Issues: Misrepresentation by the Petitioner, custody of the victim, and the victim's fundamental rights were the key issues.
Ratio Decidendi: The court held that the victim, being a major, cannot be compelled to stay in the Corrective Institution against her wishes and should be set at liberty. It emphasized the importance of considering the victim's fundamental rights and the absence of evidence to restrict her freedom of movement.
Final Decision: The court modified the order, curtailing the victim's stay in the Corrective Institution to the period already spent and directed her release, allowing her to decide whether to continue her stay or be set at liberty. The Petitioner's prayer for custody was rejected, and the Writ Petition was disposed of.
JUDGMENT :
S.S. Shinde, J.
1. Rule, with the consent of the learned counsel appearing for the parties made returnable forthwith and heard.
2. At the outset it is required to be noted that since the crime registered by the Police is under the Immoral Traffic (Prevention) Act, 1956 so also under the Indian Penal Code and Respondent No.2 Victim XYZ is alleged to have been compelled to involve herself in prostitution, the identity of Respondent No.2 herein needs to be concealed, and hence she is referred to as XYZ. The Registry is directed to maintain the record accordingly.
3. By this Writ Petition, the Petitioner takes exception to the order dated 20/03/2019 passed by the learned Additional Sessions Judge, Pandharpur by which order the Criminal Appeal No.17 of 2019 filed by the Petitioner herein came to be rejected and resultantly the order dated 23/01/2019 passed by the learned 2nd Joint Judicial Magistrate First Class, Pandharpur, District Solapur, in Crime No.19 of 2019 sending Respondent No.2 herein i.e. Victim XYZ in the aforesaid crime for a period of one year for her care and protection in Corrective Institution i.e. Shaskiya Mahila Rajya Gruh, Prerana Mahila Wasti Gruh, Baramati, Dist. Pune came to be confirmed.
4. Brief facts leading to filing of the present Writ Petition are as under:-
It is the case of the prosecution that Respondent No.2 herein was found in a lodge in a raid effected by the Sub Divisional Police Officer, Pandharpur. FIR bearing CR No.19 of 2019 came to be registered with Pandharpur Taluka Police Station against 11 accused persons. Respondent No.2 XYZ being victim of the crime was rescued and was temporarily kept in the custody of a social worker. The Pandharpur Taluka Police filed an application before the learned JMFC, Pandharpur praying therein to issue directions to keep Respondent No.2 XYZ in the Corrective Institution i.e. Mahila Sudhargruh, Solapur for her care and protection. Thereafter the Petitioner and Respondent No.2 have filed their respective applications before the learned JMFC, Pandharpur praying for granting custody of Respondent No.2 to the Petitioner, who is the believed mother (ekuy syh vkbZ) of Respondent No.2 - XYZ. The learned JMFC has recorded the statements of both the Petitioner and Respondent No.2. The learned JMFC also directed the Probation Officer to make an inquiry as contemplated by Section 17(2) of the Immoral Traffic (Prevention) Act, 1956 (for short "the said Act"). Accordingly the probation officer after making inquiry submitted his report to the learned JMFC. As indicated herein above, the learned JMFC rejected the applications of the Petitioner and Respondent No.2 by the impugned order dated 23/01/2019 thereby sending Respondent No.-XYZ to the above mentioned Corrective Institution i.e. Shaskiya Mahila Rajya Gruh, Prerana Mahila Wasti Gruh, Baramati, Dist. Pune for her care and protection for a period of one year.
5. Being aggrieved by the said order dated 23/01/2019 passed by the learned JMFC, the Petitioner herein has filed Criminal Appeal No.17 of 2019 before the learned Additional Sessions Judge, Pandharpur. The Petitioner has also filed application for interim custody of Respondent No.2. The Petitioner as well as the Prosecution have filed their written arguments in the said Appeal before the learned Additional Sessions Judge, Pandharpur. After hearing both the parties, the learned Additional Sessions Judge, Pandharpur has dismissed the Appeal by the impugned judgment and order dated 20/03/2019. It is the said order dated 20/03/2019 passed by the learned Additional Sessions Judge, Pandharpur, rejecting the Appeal of the Petitioner which is taken exception to by way of the present Writ Petition.
6. Heard the learned counsel for the parties. The learned counsel for the Petitioner Mr. Satyavrat Joshi submitted that The Immoral Traffic (Prevention) Act is enacted by the Parliament of India in the year 1956 and the statement of Objects and Reasons, as was originally incor
