The Supreme Court bench of Justice J Chelameswar and Justice Sanjay Kishan Kaul on Friday, hearing a special leave petition arising out of the judgment dated August 24 of Bombay High Court where-under minor victims of Nandurbar sex trafficking were handed over to the Child Welfare Committee (CWC) under the Juvenile Justice (Care and Protection of Children) Act of 2015, directed that the 18 children be placed in the custody of the petitioner, NGO Rescue Foundation, pending final inquiry into the question regarding the appropriate final arrangement as to their custody.
The bench noted that the petitioner-organisation is carrying on some good work and taking care of the children in need of protection and care, as mentioned in the Act of 2015.
On January 10, on receiving a tip from the present petitioner before the Supreme Court, police conducted a raid on a brothel in Shahada, Nandurbar, whereby seven girls, of which five were minor, were retrieved.
By the orders of the Judicial Magistrate First Class, Shahada, the minor girls were sent to the CWC, Nandurbar.
On the same day, 61 women were arrested from the same area for obscene behaviour and activities in a public place and were convicted under Section 110 read with Section 117 of the Maharashtra Police Act. Later, they were treated as victims and were sent to protection homes. Out of these 68 women, 18 were found to be minor on medical examination.
The magistrate issued orders to the CWC as well as the protection homes to release the minors to the persons who had filed applications claiming to be their parents or guardians.
The Bombay High Court opined that the proceedings conducted by the magistrate were in breach of the provisions of the Immoral Traffic (Prevention) Act of 1956 and the Juvenile Justice (Care and Protection of Children) Act of 2015. Section 17 of the Act of 1956 mandates that while issuing orders, the magistrate shall ensure that no person shall be restored to or placed in custody of a person who may exercise harmful influence on him. Also, the magistrate overstepped the mandate of Section 9 of the Act of 2015 and the jurisdiction of the Juvenile Justice Board in so much as he himself proceeded to issue directions for release of the minor victims to the so-called parents or guardians, thereof who applied for their custody without ascertaining the relationship between the victims and the persons claiming custody and without verifying the fitness of such persons to hold custody of the victims.
By the final order and judgment dated August 24, the high court had set aside the order of the magistrate, holding, “In view of the serious miscarriage of justice, it is necessary for us to invoke the inherent powers and set aside the orders passed by learned Judicial Magistrate, First Class, Shahada, with regard to all 18 minor girls, including the present 9 minor girls produced before us, with respect to identity of parents guardianships and delivery of their custody to the guardians who had applied for the custody and we hereby do so. We also set aside the convictions awarded by learned Judicial Magistrate, First Class, Shahada, to the minor girls under Sections 110/117 of the Maharashtra Police Act.”
Further, the ruling that it is only the CWC, Nandurbar, which has the authority to deal with these minor girls, who were ‘children in need of care and protection’ as defined under the Act of 2015, the high court directed that, “these nine girls should be directly produced before CWC which shall follow the provisions of Section 31, 32 and 37 of the Act of 2015 and take decisions regarding their safe custody as well as delivery of their custody to the parents – guardians.”
On September 15, the top court observed that the CWC had hurriedly handed over the custody of nine minor girls to their so-called parents or guardians and that the petitioner had reasonable apprehension that the so-called parents or guardians are the ones responsible for trafficking and selling the nine minor girls to unknown persons.
In view of the same, the apex court directed “the Principal District and Sessions Judge, Aurangabad, to enquire from the 18 minor girls about the particulars of their family, their place of residence and whether they are residing with their parents etc and submit a report to this court”.
On Friday, the Supreme Court reiterated that “there appears to be some doubt regarding the welfare of the minor children if their custody is given to persons claiming to be their custodian. Therefore, we deem it appropriate to direct that a further enquiry be conducted into the aspect of the matter by the Principal District Judge, Aurangabad.”
Further, the court requested the Bombay High Court to counsel Anirudh Pathak, Judicial Magistrate First Class Court, Shahada, regarding his obligations and duties under the Act of 2015.
The matter is next listed for further hearing on January 4, 2018.