Case Note & Summary
The petitioners, Soni Lalima Tamang (sister of the victim) and the victim herself (referred to as XYZ to conceal identity), filed a criminal writ petition challenging the order dated 25.03.2019 passed by the District Judge-4, Sangli in Criminal Appeal No. 32 of 2019, which upheld the order dated 02.02.2019 of the Judicial Magistrate First Class, Sangli in Criminal Misc. No. 622 of 2018 rejecting their application for custody of the victim. The victim was one of four girls rescued from a brothel in Sangli during a police raid under the Immoral Traffic (Prevention) Act, 1956 and the Indian Penal Code. The girls were from Bangladesh and were allegedly forced into prostitution. After rescue, the victim was sent to Bhagini Nivedita Protection Home, Sangli. The petitioner No.1, being the victim's sister, sought custody of the victim. The Magistrate rejected the application, and the appellate court dismissed the appeal without considering the victim's statement under Section 164 CrPC wherein she expressed willingness to go with her sister. The High Court, after hearing the parties, noted that the victim's welfare was paramount and that her wishes had not been considered by the lower courts. The court set aside the impugned orders and directed that the victim be released in the custody of her sister on conditions including that the sister would produce the victim before the trial court as and when required and would not allow the victim to be trafficked again. The court also directed the trial court to record the victim's statement under Section 164 CrPC afresh if necessary.
Headnote
A) Criminal Law - Immoral Trafficking - Custody of Victim - Sections 17, 18 Immoral Traffic (Prevention) Act, 1956 - The court considered the application for custody of a victim of immoral trafficking by her sister. The victim expressed willingness to go with her sister. The lower courts had rejected the application without considering the victim's wishes. The High Court held that the welfare of the victim is paramount and that the victim's consent and willingness must be given due weight. The impugned orders were set aside and the victim was directed to be released in the custody of her sister on certain conditions. (Paras 6-9) B) Criminal Law - Appellate Court's Duty - Consideration of Victim's Wishes - The appellate court failed to consider the victim's statement recorded under Section 164 CrPC wherein she expressed willingness to go with her sister. The High Court held that such omission vitiated the order and remanded the matter for fresh consideration. (Paras 7-8)
Issue of Consideration
Whether the victim of immoral trafficking should be released in the custody of her sister pending trial, and whether the lower courts erred in rejecting the custody application without considering the victim's wishes and welfare.
Final Decision
The impugned orders dated 25.03.2019 and 02.02.2019 are set aside. The victim XYZ is directed to be released in the custody of her sister Petitioner No.1 on conditions: (i) Petitioner No.1 shall produce the victim before the trial court as and when required; (ii) Petitioner No.1 shall not allow the victim to be involved in any trafficking; (iii) The trial court may record victim's statement under Section 164 CrPC afresh if necessary.
Law Points
- Welfare of victim is paramount
- custody of victim under Immoral Traffic (Prevention) Act
- 1956
- Sections 17 and 18
- victim's consent and willingness relevant
- appellate court's order set aside for non-consideration of victim's wishes
