Case Note & Summary
The petitioners, four women who were victims of trafficking and rescued from a brothel, challenged the order of the Additional Sessions Judge, Greater Mumbai, which dismissed their appeal against the Magistrate's order directing them to be kept in a Government protective home for one year. The petitioners were major victims (aged 28-40 years) who had expressed their desire to return to their families rather than remain in the protective home. The High Court examined the provisions of the Immoral Traffic (Prevention) Act, 1956, particularly Section 17, and held that the Act does not empower the Magistrate to detain major victims against their will. The court emphasized that the right to liberty under Article 21 of the Constitution cannot be curtailed without legal sanction. The court noted that the victims had already undergone counseling and were not willing to stay in the protective home. The court set aside the impugned orders and directed the Superintendent of Navjevan Mahila Vasti Griha to release the petitioners forthwith, allowing them to return to their families. The court also directed the police to ensure their safe travel and rehabilitation as per their wishes.
Headnote
A) Criminal Law - Immoral Traffic (Prevention) Act, 1956 - Section 17 - Protective Custody - The court considered whether major victims of trafficking can be compelled to stay in a protective home against their will - Held that Section 17 does not authorize forcible confinement of major victims and that the victims' consent is paramount - The order of the Magistrate and Sessions Court was set aside and victims were allowed to return to their families (Paras 1-12).
Issue of Consideration
Whether the order directing the victims of trafficking to be kept in a protective home for one year against their will is legal and valid under the Immoral Traffic (Prevention) Act, 1956
Final Decision
The High Court allowed the writ petition, set aside the orders dated 22/10/2018 and 02/03/2019, and directed the Superintendent of Navjevan Mahila Vasti Griha to release the petitioners forthwith. The court further directed the police to ensure safe travel of the petitioners to their respective homes and to provide necessary assistance for their rehabilitation as per their wishes.
Law Points
- Protective custody under ITPA cannot be imposed against the will of major victims
- Right to liberty under Article 21 of Constitution
- Section 17 of ITPA does not authorize forcible confinement
- Victims of trafficking are entitled to rehabilitation but not detention
Case Details
Criminal Writ Petition No. 1575 of 2019
Mr. Aarif Ali M. Ali for petitioners, Mr. A.R. Patil, APP for Respondent/State
Shabiya Babool Kazi, Shampa Amol Mujumdar, Kajal Majil Shaikh, Rehana Shohid Gazi
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Nature of Litigation
Criminal Writ Petition challenging the order of the Additional Sessions Judge dismissing appeal against Magistrate's order directing victims to be kept in protective home for one year
Remedy Sought
Petitioners sought to set aside the orders directing their detention in a protective home and to be allowed to return to their families
Filing Reason
The petitioners, who were major victims of trafficking, were ordered to be kept in a Government protective home for one year against their will, which they challenged as illegal and violative of their right to liberty
Previous Decisions
Metropolitan Magistrate, 54th Special Court for ITPA, Mazgaon, Mumbai passed order dated 22/10/2018 directing Superintendent of Navjevan Mahila Vasti Griha to send victims to Government Organizations for one year; Criminal Appeal No.728 of 2018 filed by victims was dismissed by Additional Sessions Judge, City Civil & Sessions Court, Greater Mumbai on 02/03/2019
Issues
Whether the order directing major victims of trafficking to be kept in a protective home for one year against their will is legal under the Immoral Traffic (Prevention) Act, 1956
Whether the right to liberty under Article 21 of the Constitution is violated by such an order
Submissions/Arguments
Petitioners argued that they are major victims and have the right to choose their place of residence; the Act does not authorize forcible confinement
Respondent/State argued that the victims need rehabilitation and protective custody is in their best interest
Ratio Decidendi
Section 17 of the Immoral Traffic (Prevention) Act, 1956 does not empower the Magistrate to detain major victims of trafficking against their will. The right to liberty under Article 21 of the Constitution cannot be curtailed without legal sanction. The consent of the victim is paramount, and protective custody cannot be imposed forcibly.
Judgment Excerpts
Section 17 of the said Act does not authorize the Magistrate to detain major victims against their will.
The right to liberty under Article 21 of the Constitution cannot be curtailed without legal sanction.
Procedural History
On 29/09/2018, D B Marg Police laid a trap and rescued victims from a brothel. On 22/10/2018, the Metropolitan Magistrate, 54th Special Court for ITPA, Mazgaon, Mumbai passed an order directing the Superintendent of Navjevan Mahila Vasti Griha to send the victims to Government Organizations for one year. The victims filed Criminal Appeal No.728 of 2018, which was dismissed by the Additional Sessions Judge, City Civil & Sessions Court, Greater Mumbai on 02/03/2019. The victims then filed the present Criminal Writ Petition No.1575 of 2019 before the Bombay High Court, which was allowed on 21/08/2019.
Acts & Sections
- Immoral Traffic (Prevention) Act, 1956: 17
- Indian Penal Code:
- Constitution of India: Article 21
