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2019 Supreme(Bom) 1300
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
S.S. SHINDE, J.
Asiya Anwar Shaikh - Appellant
Versus
State Of Maharashtra and Ors. - Respondent
Criminal Writ Petition No. 2050 of 2019
Decided on : 11-07-2019
Advocate Appeared:
For the Appellant : Satyavrat Joshi, adv
For the Respondent: A.R. Patil, Adv
Headnote:
Constitution of India, 1950 - Articles 23, 19 - Immoral Traffic Act, 1956 - Sections 17, 16, 14, 15, 5, 6, 7 - Indian Penal Code, 1860 - Sections 370, 343 - Suffering - Inquiry - He further submitted that traffic in human being is prohibited and any contravention of prohibition is an offence punishable by law - He also submitted that said Act has been amended further in year wherein an additional Statement of Objects and Reasons was incorporated and in year again said Act was amended wherein further Statement of Objects and Reasons was incorporated - He further submitted that in view of objects and reasons of Act certain amendments were made to said Act - Learned counsel for Petitioner relying upon scope and ambit of said Act which provides for certain penal provisions in relation to exploitation of women running owing occupying brothels living on earning of prostitutes submitted that under Scheme of said Act neither victims nor customers are liable to be prosecuted - Held, It is pertinent to mention at this stage that 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 and setting her free would cause danger to society - It is also required to be noted that nothing is placed on record by police which would show that her right to move from one place to another place or reside at place of her choice is hampered due to restrictions imposed - However it needs to be mentioned at this stage that during inquiry by learned JMFC it is found that Petitioner is not real mother of Respondent No - 2 - Victim XYZ and Respondent No - 2 Victim is major and therefore no restrictions can be put upon Respondent No - 2 Victim by issuing direction to give her custody to Petitioner - Since Respondent No - 2 - Victim XYZ is major after her release she is free to move as per her wish - Petition is disposed of.
JUDGMENT :
S.S. Shinde, J.
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 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 i
