greater bombay sessions court

Greater Bombay Sessions Court: In an appeal by the victim under Section 397 of Criminal Procedure Code, 1973 (‘CrPC’) requesting to release her till final hearing of the said appeal, and for setting aside order of detention under Section 17(4) of Immoral Traffic (Prevention) Act, 1956 (PITA Act), Additional Sessions Judge C.V. Patil quashed and set aside the said order and allowed the instant appeal while upholding the appellant’s right to move freely and right to reside and settle anywhere in India.

The appellant was a witness/victim in a prosecution case. The police conducted a raid after receipt of information and therefore, First Information Report (‘FIR’) was registered against the accused and victims. The victims underwent the age verification process and the appellant’s intermediate custody was extended for one year of care who was disclosed as a major as per medical report, protection and shelter from the date of order, as the Magistrate noted that the appellant was a repeater who had already undertaken not to indulge in such activities but gave no regard to the Court orders or the law. The two other victims were released by the Magistrate and overall, three victims were rescued.

The Court pointed out that a final order u/s 17(4) of PITA Act had to be passed within 3 weeks, and there was a delay in passing the same by the Magistrate. The Court said that the Magistrate failed to consider the age of the victim (appellant in the instant case) while passing the mechanical order.

The Court expressed that “the victim has right to move anywhere and to reside anywhere under Article – 19 of the Constitution of India” while justifying her request for release, since her liberty was curtailed due to the order passed by the Magistrate on 15-3-2023.

The Court said that the instant one is not a case of harmful influence over the victim, but the case of custody during enquiry. The Court relied on Budhadev Karmaskar v. State of W.B., 2022 SCC OnLine SC 704 and further pointed at the discussion that “the victims were themselves involved in sex work in which they were receiving amount, and therefore, there is no case of forcefully involving them in the said work.”

The Court said that the offence is registered against the accused who was found running the said institution, and the appellant is a victim found indulged in sex work, not in public place, with their own wish for earning money.

The Court also took note of the appellant being a 34-year-old woman having 2 kids and that her husband also claimed custody but considering her age, she is at liberty to reside and move freely wherever she feels necessary, and that the victim has only been detained on the ground of antecedent.

The Court explained that “Under Article 19(1)(d), right to move freely throughout the territory of India and under Article 19(1)(e), right to reside and settle in any part of the territory of India are the fundamental rights of Indian citizen. The victim is major, she is a citizen of India, and therefore, possesses those rights and if she is detained without reason, it can be said that her right to move freely and right to reside and settle are infringed.”

The Court held the order passed by the Magistrate on 15-3-2023 as illegal and improper since the appellant was produced before the Magistrate on 19-2-2023 and detention could not be for more than 3 weeks from the date of enquiry as per law. It allowed the appeal while quashing and setting aside the said order by Magistrate.

[XXX v. State of Maharashtra, Criminal Appeal No. 223 of 2023, decided on 26-4-2023]

Judgment by: Additional Sessions Judge C.V. Patil

Advocates who appeared in this case :

For Appellant: Advocate Arjun;

For Respondent: Advocate S.V. Keknis.

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