Case Note & Summary
The petitioner, Lekhraj Omprakash Jhanjawat, brother of the victim XYZ, filed a writ petition challenging the orders of the Magistrate and Additional Sessions Judge, Sangli, which rejected his application for custody of his sister and sent her to a Corrective Institution for one year. The victim, aged 30, was rescued from a brothel during a raid on 11/10/2018. The petitioner argued that the victim was taken into custody without any illegal act on her part and that she was willing to return to her family. The court noted that the victim had given a statement before the Magistrate expressing her desire to go with her brother. The court held that under Section 17 of the Immoral Traffic (Prevention) Act, 1956, a victim above 18 years cannot be sent to a Corrective Institution without her consent. Since the victim was 30 years old and had consented to go with her brother, the orders of the lower courts were set aside, and the victim was directed to be handed over to the petitioner. The court also directed the petitioner to produce the victim before the trial court as and when required.
Headnote
A) Immoral Traffic (Prevention) Act, 1956 - Section 17 - Custody of Victim - Victim's Consent - The court held that a victim above 18 years cannot be sent to a Corrective Institution without her consent, and the Magistrate must ascertain her wishes before passing any order. The victim, aged 30, expressed willingness to go with her brother, and thus custody was granted to him. (Paras 6-12) B) Criminal Procedure Code, 1973 - Section 451 - Custody of Victim - The court held that the Magistrate has discretion to release the victim to a suitable person, and the brother being the natural guardian is entitled to custody unless there are adverse circumstances. (Paras 8-10) C) Immoral Traffic (Prevention) Act, 1956 - Section 17 - Corrective Institution - The court held that sending a victim to a Corrective Institution for one year without her consent is illegal and against the scheme of the Act, as the victim is not a minor and has the right to choose her residence. (Paras 11-12)
Issue of Consideration
Whether the victim, aged 30 years, can be sent to a Corrective Institution without her consent, and whether custody should be granted to her brother
Final Decision
The court allowed the writ petition, set aside the orders of the Magistrate and Additional Sessions Judge, and directed that the victim be handed over to the petitioner (her brother) on his executing a bond to produce her before the trial court as and when required.
Law Points
- Victim's age and consent are crucial for custody decisions under Section 17 of ITP Act
- Corrective Institution placement requires victim's consent if above 18 years
- Magistrate must consider victim's wishes
