"Prostitution Not An Offence; Adult Woman Has Right To Choose Her Vocation": Bombay HC Orders Release of 3 Sex Workers From Corrective Institution [Read Judgment]

While observing that prostitution has not been made an offence under Immoral Traffic (Prevention) Act, 1956 and that an adult woman has the right to choose her vocation and cannot be detained without her consent, the Bombay High Court on Thursday (24th September) set free 3 sex workers from the Corrective Institution.The Single Bench of Justice Prithviraj K. Chavan was hearing the plea of 3 sex workers challenging the order dated 19.10.2019 passed by the Metropolitan Magistrate, Mazgaon under Section 17(2) of the said Act as well as an order dated 22.11.2019 passed by the Additional Sessions Judge, Dindoshi in Criminal Appeal No. 284 of 2019 which upheld the order dated 19.10.2019.Facts in briefA Trap was laid (to catch women traffickers) by complainant-Rupesh Ramchandra More, Police Constable on the secret information received that that a person by name Mr. Nijamuddin Khan, a pimp provides women for prostitution at a guest house in Malad.The victim was taken into custody from room no.7 of "one Yatri Guest House". The accused and the other two victims were also arrested and taken into custody.The victim (A), (B) and (C) were produced before the Metropolitan Magistrate on 13.09.2019.The learned Magistrate, inter alia, called for a report from the Probation Officer in respect of antecedents, character and suitability of relatives of the Victims (A), (B) and (C) for taking their charge.Intermediate custody of victims (A), (B) and (C) had been given to Navjeevan Mahila Vasti Griha, Deonar, Mumbai. The learned Magistrate also thought it fit to direct a NGO, Justice and Care to give a primary education to victims (A), (B) and (C) during their stay in "Navjeevan Mahila Vasatigruha".Further, the Magistrate declined custody of the victims to their mothers as the victims were found involved in sex work having age group of 20 to 22 years.It revealed from the report of the Probation Officer, the concerned police personnel as well as from the inquiry by the learned Magistrate that the victims (A), (B) and (C) belong to "Bediya" community.A custom prevails in the community wherein a girl, after attaining puberty is sent for prostitution. The parents of the victims were aware that the victims are engaged in prostitution, meaning thereby, the parents themselves are allowing to indulge in prostitution as a profession for their daughters' and, therefore, the learned Magistrate observed that it would not be safe to hand over the custody of the victims to their mothers.Having taken into consideration all the facts and circumstances and after going through Sections 17(1), (2), (3), (4) and (6) of the Act, the victims (A), (B) and (C) were detained for a period of one year from 19th October, 2019.The victims were directed to be sent to "Nari Niketan Prayag Vastigruha, Fultabad, Allahabad, UP or any State-run institution of Uttar Pradesh for one year for the care, protection, shelter and vocational training in the subject of their liking.The said order was challenged by way of an appeal bearing No. 284 of 2019 in the Court of Sessions Judge at Dindhoshi. The learned Additional Sessions Judge dismissed the appeal by confirming the order passed by the learned Magistrate on 19.10.2019.Court's Analysis and DecisionThe Court observed that since the victims, according to the learned Counsel, are not being prosecuted, there is no question of continuing their detention in the custody of Navjeevan Mahila Vastigruha, Deonar, Mumbai or with any other institution.Even otherwise, the Court said the said Act [Immoral Traffic (Prevention) Act, 1956] does not empower the Magistrate to hold the custody of the victims beyond the period of 3 weeks without there being any final order to that effect after following due process of law.The Court then observed that section 17(4) of the said Act provides that after completion of the inquiry, if the Magistrate is satisfied, he may, subject to the provisions of sub-section (5) make an order that the victims be detained for such period, being not less than one year and not more than three years, as may be specified in the order, in a protective home for which the Magistrate shall give reasons in writing.It is pertinent to note that the Court observed that that the provisions of Section 17(4) of the Act are subjected to the provision of subsection (5), which provides that the inquiry shall be conducted by the panel of at least 5 persons, to be appointed in the manner as contemplated in the said sub-section (5). No such inquiry as contemplated under the statute was conducted in this case.The Court also noted that Section 17(4) implies that an order under the said Section can only be passed, subject to the provision of sub-section (5) Section 17 of the said Act.Notably, sub-section (5) contemplates that while discharging the function under subsection (2), the Magistrate will have to summon a panel of 5 respectable persons, 3 of whom shall wherever practicable, be women to assist him in that regard.It can,...

"Prostitution Not An Offence; Adult Woman Has Right To Choose Her Vocation": Bombay HC Orders Release of 3 Sex Workers From Corrective Institution [Read Judgment]

Sparsh Upadhyay

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