Criminal Writ Petition No.227 of 2011

17th June, 2011

Petitioner Counsel: Mr. P. N. MEHTA
Respondent Counsel: Mrs. K. D. DESHPANDE

Cases Cited:
Ms. Khushi Harkishan Vs. State of Maharashtra, 2006 Cri.L.J. 612 (Bom) [Para 4]
Prerna Vs. State of Maharashtra, 2003(2) Mah.L.J. 105 [Para 5]

JUDGMENT

JUDGMENT :- Rule. Rule made returnable forthwith. Heard by consent of the parties.

2. The petitioner questions the orders dated 26/11/2010 and 14/01/2011 passed by the learned Judicial Magistrate in Crime No.4280 of 2010, under Sections 3, 4, 5 and 7 of the Immoral Traffic (Prevention) Act, 1956 ("PITA" in short) and the order dated 14/02/2011 passed by the learned Sessions Judge, Nagpur in Criminal Appeal No.33 of 2011 under section 17(6) of PITA dismissing the Appeal.

3. The Lakadganj Police Station, Nagpur raided the infamous Red light area known as 'Ganga Jamuna' and rescued some girls from the alleged brothel on 25/11/2010. They were treated as victims and produced before the learned Judicial Magistrate, Court No.3, Nagpur, who directed the Investigating Officer to produce rescued victims under PITA before Child Welfare Board and to conduct their medical examination through Medical Officer by 08/12/2010 for carrying out age determination, and to determine whether they were suffering from any sexually transmitted diseases. The learned Magistrate rejected the Application by the petitioner-Munni seeking custody of the minor victim Kumari Mamta, on the ground that she is minor, aged about 15 years old and her rehabilitation is necessary through care and custody of the Child Welfare Board. Learned Sessions Judge who heard the parties in Appeal, on facts, considered the application for the custody by mother of the rescued minor victim from the Red-light area and the likelihood that she may thrown into same abominable flesh trade by their relatives. The fact is that the minor girls were given into the custody of the Child Welfare Committee. They have been treated as minor victims. They were considered as child in need of care and protection within the meaning of the Juvenile Justice Act and sent to Child Welfare Committee. They were not "Juvenile in conflict with law" and therefore were not sent to Juvenile Justice Board. The order of sending the rescued girls to Karuna Vasati Griha, Nagpur (a Government institution) was within the purview of Section 17(3) of PITA. Further procedure under the Juvenile Justice Act was contemplated. The petitioner had not claimed the custody before the girl Mamta was produced before the learned Magistrate and found to be minor and treated as "child in need of care and protection". The minor girls rescued under the PITA are required to be taken utmost care as they are likely to be driven to the same environment of red-light area and there is high risk that may be induced or coerced into unlawful sexual activity or flesh trade. Once the Magistrate had sent the girls to the Child Welfare Committee, his jurisdiction ended and further procedure under the Juvenile Justice Act comes into play. Thus, the petitioner is at liberty to approach the Child Welfare Committee who can take into consideration the request by the petitioner to release the victim minor girl Mamta.

4. To examine the legal position one may refer to the ruling in Ms. Khushi Harkishan Vs. State of Maharashtra : 2006 Cri.L.J. 612 (Bom.). Immoral Traffic (Prevention) Act (104 of 1956) PITA deals with trafficking in relation to prostitution that pertains to children below the age of 18. The Act defines child as any person who has not completed eighteen years of age. The first section of the Act has provisions that outline the illegality of prostitution and the punishment for owning a brothel or a similar establishment or for living on earnings of prostitution as is in the case of a pimp. Section 2 mentions about two institutions corrective and protective. Persons in need of correction are required to be detained in corrective institution. Persons who are needed to be taken care and protected are kept in protective institution. Sections 3 to 9 are penal provisions. Section 5 of the Act states that if a person procures, induces or takes a child for the purpose of prostitution then the prison sentence is a minimum of seven years but can be extended to life. To ensure that the people in the chain of trafficking are also held responsible the Act has a provision that states that any person involved in the recruiting, transporting, transferring, harboring, or receiving of persons for the purpose of prostitution if guilty of trafficking. In addition, any person attempting to commit trafficking or found in the brothel or visiting the brothel is punishable under this law. Section 10-A empowers the Court to detain female offender in corrective home in lieu of the sentence of imprisonment. Section 15 enables a Special Police Officer to search the premises when there is reasonable ground to believe that the offence has been committed or is being committed. Section 16 deals with the rescuing the persons from brothel. Section 17 deals with the intermediate custody of persons removed under Section 15 or rescued under section 16. The Magistrate issues order as he deems proper for safe custody after hearing and satisfying himself about the correctness of the information received regarding the age, character, antecedents of the person and the suitability of her parents, guardian, or husband for taking charge and prospects of her rehabilitation. Assistance from the Probation Officer may be obtained for to report upon inquiry in to circumstances as to rehabilitation of the person produced. Pending inquiry the Magistrate may pass order as he may deem fit. If person rescued is minor or child, an order may be passed for her/his safe custody in recognized or established institution for the period permissible under the law (not exceeding three weeks). No person shall be kept in custody of a person who may have harmful influence over her/him. Under section 17(4) of the Act if the information received is correct and the person rescued is in need of care and protection, the Magistrate may make an order for detention in protective home or in suitable safe custody for one year to three years. The procedure is needed to be followed scrupulously, with due precaution and with due adherence to law by the Magistrate concerned.

5. In Prerna Vs. State of Maharashtra : 2003(2) Mah.L.J. 105 the Division Bench of this Court gave following guidelines to ensure that the child in need of care and protection must be dealt with bearing in mind the possibility of their reformation and rehabilitation -

"37. We feel that the following directions may prevent recurrence of such events in future :

(A) No Magistrate can exercise jurisdiction over any person under 18 years of age whether that person is a juvenile in conflict with law or a child in need of care and protection, as defined by Sections 2(1) and 2(d) of the Juvenile Justice (Care and Protection of Children) Act, 2000. At the first possible instance, the Magistrates must take steps to ascertain the age of a person who seems to be under 18 years of age. When such a person is found to be under 18 years of age, the Magistrate must transfer the case to the Juvenile Justice Board if such person is a juvenile in conflict with law, or to the Child Welfare Committee if such a person is a child in need of care and protection.

(B) A Magistrate before whom persons rescued under the Immoral Traffic (Prevention) Act, 1956 or found soliciting in a public place are produced, should, under Section 17(2) of the said Act, have their ages ascertained the very first time they are produced before him. When such a person is found to be under 18 years of age, the Magistrate must transfer the case to the Juvenile Justice Board if such person is a Juvenile in conflict with law, or to the Child Welfare Committee if such person is a child in need of care and protection.

(C) Any juvenile rescued from a brothel under the Immoral Traffic (Prevention) Act, 1956 or found soliciting in a public place should only be released after an inquiry has been completed by the Probation Officer.

(D) The said juvenile should be released only to the care and custody of a parent/guardian after such parent/guardian has been found fit by the Child Welfare Committee to have the care and custody of the rescued juvenile.

(E) If the parent/guardian is found unfit to have the care and custody of the rescued juvenile, the procedure laid down under the Juvenile Justice (Care and Protection of Children) Act, 2000 should be followed for the rehabilitation of the rescued child.

(F) No advocate can appear before the Child Welfare Committee on behalf of a juvenile produced before the Child Welfare Committee after being rescued under the Immoral Traffic (Prevention) Act, 1956 or found soliciting in a public place. Only the parents/guardian of such juvenile should be permitted to make representations before the Child Welfare Committee through themselves or through an advocate appointed for such purpose.

(G) An advocate appearing for a pimp or brothel keeper is barred from appearing in the same case for the victims rescued under the Immoral Traffic (Prevention) Act, 1956."

6. The Juvenile Justice (Care and Protection of Children) Act, 2000 as amended in 2006 by Act 33 of 2006 is a special legislation for children and defines children as 'a person up to the age of 18 years'. The Juvenile Justice Act is intended to rehabilitate and take care of both types of children who need care and those who are in conflict with law. The provisions of the Juvenile Justice Act, 2000, as amended by the Amendment Act, 2006 and the Juvenile Justice Rules, 2007, lays down the scheme of the Act to give children, who have, for some reason or the other, gone astray, to rehabilitate them by providing vocational training and rebuild their lives and become useful citizens of society. The menace of sexual abuse by immoral trafficking of children to force them somehow to enter in the business of prostitution is age-old phenomenon and needs to be tackled by Central as well as State Government with utmost care and precaution. Poverty, illiteracy or helplessness of parents may make the minor girl vulnerable to sexual abuse/exploitation. Protecting children against any perceived or real danger/risk to their life, their person-hood and childhood is necessary. It is about reducing their vulnerability to any kind of harm or harmful situations. It is also about protecting children against social, psychological and emotional insecurity and distress. It must ensure that no child falls out of the social security and safety net and those who do, receive necessary care and protection to be brought back into the safety net by child-friendly measures.

7. Child Welfare Committee, constituted under the Act, can do commendable service to fight against child abuse and to protect children from child abuse of various forms. The decision as to protective custody of the child in need of care and protection with a view to rehabilitate the rescued minor child can be left best to be considered by the competent quasi-judicial authority like Child Welfare Committee created under the said Act as it can pass appropriate orders to protect the dignity of the child as well as it's best interest. Welfare of the child is paramount factor. Section 29 of the Act provides constituting five members District (Administrative unit in India) level quasi-judicial bodies "Child Welfare Committee". in which one of the members is designated as Chairperson and at least one of the members shall be woman. The Committee shall have the final authority to dispose of cases for the care, protection, treatment, development and rehabilitation of the 'Children in Need of Care and Protection' as well as to provide for their basic needs and protection of human rights. Child welfare Committees have the final say to dispose of the cases for the care, protection, treatment, development and rehabilitation of the children as well as to provide for their basic needs, protection and restoration to their family.

8. The petitioner, mother of minor girl Mamta has alternative and equally efficacious and effective remedy to approach the Child Welfare Committee and to request for the protective custody of the minor girl. No interference is necessary in the impugned orders as they were legal and proper in the facts and circumstances. The petition is dismissed, with no order as to costs under the circumstances. Rule is discharged accordingly.

Ordered accordingly.