Judgment :- 1. Poverty is no sin. It is agonising that the haves, at times, sin the poor by turning their nelson's eye to their miseries. The story of the petitioner is an illustration of the latter. This young woman, born to poor parents, married at an young age, but deserted by her husband, having a child, under the guise of offering a decent domestic job, was taken to Chennai and attempted to be pushed into immoral trafficking, but, fortunately, rescued by the police. She has been in Protective Home for the past 34 months on the repeated orders of the Magistrate. Seeking to set aside the proceedings of the learned Judicial Magistrate and to set her at liberty, the petitioner has come up with this petition. 2. The facts of the case would be as follows: (i) On 31.07.2009 at about 10 p.m., the Inspector of Police, Neelankarai Police Station, received information from a Head Constable by name Sundaresan by way of special report, in which, he had stated that one Mr. Kaleshah was found acting as a broker and he had promised to identify the place of prostitution. Based on the same, the Inspector of Police took the police team and Kaleshah. Kaleshah identified a house at Palavakkam as a brothel house. Later, when the Inspector of Police and other police officials entered into the same, two persons were found acting as brokers by name Maboobi @ Blessy and Kaleshah. When they searched into the house, according to the Inspector, three women were found in the house, who had been kept to be involved in prostitution. It is alleged that the petitioner was one among the women. The Inspector of Police arrested the accused Maboobi @ Blessy and Kaleshah and rescued the three victims including the petitioner. (ii) From the records, it could be seen that the accused were produced before the learned Judicial Magistrate, Alandur and later on, they were released on bail. So far, final report has not been filed against them. So far as the victims are concerned, on 03.08.2009, they were produced before the learned Judicial Magistrate, Alandur with a request to keep them in Protective Home. The learned Magistrate accordingly passed an order, authorising her to be kept in the Home till 14.08.2009. So far, final report has not been filed against them. So far as the victims are concerned, on 03.08.2009, they were produced before the learned Judicial Magistrate, Alandur with a request to keep them in Protective Home. The learned Magistrate accordingly passed an order, authorising her to be kept in the Home till 14.08.2009. Thereafter, periodically she was produced before the learned Magistrate and the learned Magistrate in turn, extended the detention of the petitioner in the Home. In such a way, till today, the petitioner is languishing in the Home. (iii) From the records, it could also be seen that the petitioner hails from Venkatagiri Village, Nellore District. When the petitioner was so languishing in the Protective Home, her father took pains to come all the way to the State of Tamil Nadu and to file a petition before the learned Judicial Magistrate, Alandur seeking the release of the petitioner from the Home. That petition was not disposed of forthwith and the same was kept for a considerable time without any order being passed. While so, unfortunately, the father of the petitioner also passed away. The petitioner's mother is an old woman, who lives in poverty and she was unable to come over to Tamil Nadu to make any effort to get her daughter released. She is an illiterate woman, having no wherewithal even to travel to Tamil Nadu. It is stated that the petitioner got married long before and she has got a child. But unfortunately, her husband has also deserted her. The child is now with her husband. According to the petitioner, in this poverty stricken position, she came down to Tamil Nadu in search of a job as a domestic servant. But unfortunately, according to her, she was forced into the brothel home, from where she was rescued by the police. (iv) After having spent a long period of two years and 8 months in the Home, fortunately, when an N.G.O. used to visit the Home for the purpose of counselling, the petitioner expressed her agony to her. Ms. Tahera, a representative of the said N.G.O., responded to her distress call. Thereafter, the N.G.O. has taken efforts to engage a counsel to file the instant petition before this Court. As I have already stated, in this petition, the petitioner wants her to be set at liberty. 3. Ms. Tahera, a representative of the said N.G.O., responded to her distress call. Thereafter, the N.G.O. has taken efforts to engage a counsel to file the instant petition before this Court. As I have already stated, in this petition, the petitioner wants her to be set at liberty. 3. This petition came up for hearing, originally, before the vacation Court on 04.05.2012. After having heard the woes of the petitioner, this Court called for a report from the learned Judicial Magistrate, Alandur. The case was ordered to be listed on 08.06.2012. Accordingly, when the case was taken up on 08.06.2012, the report of the Magistrate had not been received. On that date, this Court passed the following order: "In the affidavit filed in support of the petition, the petitioner has stated that she is only a victim of crime in connection with Crime No.540 of 2009 on the file of the respondent police; but she has been kept in the Government Women Home, Mylapore, Chennai-4 for more than two years and eight months. A petition filed by her father in C.M.P.No.197 of 2010 has not been disposed of by the learned Judicial Magistrate, Alandur from 11.01.2010 onwards. She alleges that there is serious human rights violation. In response to a direction issued by this Court to submit his remarks, the learned Judicial Magistrate, Alandur has submitted a report that nobody has turned up to take care of the petitioner. But he has not stated anything about C.M.P.No.197 of 2010 filed before him seeking to set her at liberty. In those circumstances, this Court is really distressed to know that a young woman, for no offence committed by her, is kept in Home for such a long time and from the records, it is seen that she will be kept in Home for an endless period. The allegations are so serious. Therefore, the Superintendent, Government Vigilance Home/Government Protective Home, Arasinar Magalir Kaapagam, Mylapore, Chennai - 4 is directed to produce Pavithra @ Swathy, daughter of Gunasekar, who has been detained in connection with the case in Crime No.540 of 2009 on the file of the Inspector of Police, Neelankarai Police station before this Court on 14.06.2012 at 10.30 a.m. to know the actual position. In the meanwhile, Registry is directed to forthwith send for the records in connection with the case in Crime No.540 of 2009 of Neelankarai Police Station from the file of Judicial Magistrate, Alandur. The learned Magistrate shall forward the petition and the order made in Crl.M.P.No.197 of 2010 also. The same shall be before this Court on or before 13.06.2012. Registry is directed to communicate this order either by post or by wire since the matter is so urgent as it involves human rights violation. Post the matter on 14.06.2012." 4. In pursuance of the said order dated 08.06.2012, when this case was taken up for hearing on 14.06.2012, the petitioner was produced before this Court by the first respondent-Inspector of Police. This Court had occasion to hear her with the help of a learned counsel, who is able to converse with the petitioner in Telugu as she speaks only Telugu. Then, on 14.06.2012, this Court passed the following order: "The petitioner/victim girl has been produced by the first respondent from the second respondent Home. She speaks both Telugu and Tamil. She states that her father died some time before. According to her, seeking her release, her father filed a petition. Pending consideration of the same by the learned Magistrate, he also died. Her husband had deserted her. She has got a son, who is now in the custody of her husband. She was all along in the company of her mother and kept in the home. She is willing to go back to her village and reside with her mother. Her mother is Mrs. Venkatamma, W/o. Late Penchalaiah @ Gunasekar, Venkatagiri Mandalam, Nellore Jillah, Moratapalli Village, Andhra Pradesh. 2.) Having regard to the fact that the woman has been in the Home for more than 2 years and 10 months without there being any order made under Section 17(4) of the Immoral Traffic (Prevention) Act authorizing her detention, I am inclined to pass the following order: The first respondent, Inspector of Police, J8, Neelangarai Police Station, Chennai is hereby directed to go over to the village of the petitioner, ascertain the genuineness of the statement made by her, enquire her mother as to whether she is willing to keep the petitioner and then submit a report to this Court on 19.06.2012 at 02.15.p.m. Until then, the woman shall be taken back and kept in the very same Home. She shall be produced before this Court on 19.06.2012 at 02.15. p.m. The registry is also directed to retain the lower Court records. Post on 19.06.2012 at 02.15 p.m." 5. Today, when this case is taken up, the Inspector of Police is present and the mother of the petitioner is also present before this Court. She is identified by the Inspector of Police Mr. K.P.S. Devaraj as well as by the petitioner. The petitioner is also present before this Court. The petitioner's mother has stated that because of her poverty, she could not come over to Tamil Nadu to take any steps to secure the release of the petitioner. Now she states that she will be very happy to take her daughter (the petitioner), if she is released, to her native village. The petitioner is also willing to go to her native village along with her mother to lead the rest of her life with her mother peacefully. When she was informed that she may have to come to the Court of the Judicial Magistrate, Alandur for giving evidence if need be, the petitioner would submit that as and when she receives summons, she would surely come to Court and depose. With this factual background, let me now go into the legal aspects of the matter. 6. As directed by this Court, the entire case records of the lower Court is before me and on going through the same only, I am able to cull out the above facts. The records reveal that from the date of her first production before the learned Magistrate, she was periodically ordered to be kept in Home. The Immoral Traffic (Prevention) Act, 1956 (hereinafter referred to as 'the Act') under which the case has been registered and the petitioner has been rescued is a special enactment, both substantive as well as procedural. Section 17(4) of the Act speaks of the orders to be passed by the Magistrate before whom a victim under this Act is produced. The said provision states that a detailed enquiry is to be held in respect of the victim. After holding such enquiry, the Magistrate, if satisfied that the information received is correct and that the victim is in need of care and protection, is required to pass an order directing the victim to be kept in a Protective Home. The said provision states that a detailed enquiry is to be held in respect of the victim. After holding such enquiry, the Magistrate, if satisfied that the information received is correct and that the victim is in need of care and protection, is required to pass an order directing the victim to be kept in a Protective Home. For better understanding, let me now extract Section 17(4) of the Act, which reads as follows: "17(4): Where the Magistrate is satisfied, after making an inquiry as required under sub-section(2), - (a) that the information received is correct; and (b) that he is in need of care and protection, he may, subject to the provisions of sub-section(5), make an order that such person 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, or in such other custody as he shall, for reasons to be recorded in writing, consider suitable: Provided that such custody shall not be that of a person or body of persons of a religious persuasion different from that of the person and that those entrusted with the custody of the person including the persons in charge of a protective home, may be required to enter into a bond which may, where necessary and feasible, contain undertakings based on directions relating to the proper care, guardianship, education, training and medical and psychiatric treatment of the person as well as supervision by a person appointed by the Court, which will be in force for a period not exceeding three years." 7. A close reading of the said provision would go to show that a woman, who is a victim can be ordered to be kept in a Protective Home for a period, which shall not exceed three years provided the woman is in need of care and protection. In this case, the question is whether the petitioner requires such a care and protection so as to be kept in the Protective Home. The Magistrate would have been right in passing the order, initially when he thought it fit to order her to be kept in the Protective Home. Because at that time, since no one came forward to protect her, the Magistrate was right in doing so. The Magistrate would have been right in passing the order, initially when he thought it fit to order her to be kept in the Protective Home. Because at that time, since no one came forward to protect her, the Magistrate was right in doing so. But subsequently, when her father appeared before him and filed a petition, seeking the release of the petitioner assuring that he would give protection and care to her, the learned Magistrate ought to have considered the same seriously and to have passed appropriate order. But unfortunately, the petition was kept pending and in the meanwhile, the petitioner's father also passed away. After that, no efforts were taken either by the respondent police or by the learned Magistrate to ensure the liberty of the petitioner, which is one of the cherished fundamental rights under the Constitution of India. In a mechanical fashion, she was ordered to be retained in Home for such a long time. She has already completed two years and ten months of life in the said Home. This was much against her wish. 8. The life and liberty of an individual, which has been guaranteed under Article 21 of the Constitution of India, cannot be deprived of, except by following the procedure established by law. Here in this case, neither the respondent nor the lower court had taken care to follow the procedure contemplated in the Immoral Traffic (Prevention) Act, 1956 so as to curtail the said life and liberty of the petitioner. Though technically one may say that she was not in jail, I am of the view that keeping the woman in a Protective Home, thereby curtailing her free movement, itself is an infringement of the fundamental right guaranteed under Article 21 of the Constitution of India. Such curtailment of fundamental right could have been done by strictly following the procedure established by law, which, as I have already stated, has not been done in this case. In my view, allowing the petitioner to be kept in Home continuously any more will only amount to a serious human rights violation. Under Section 17(4) of the Act, even after the final order is passed by the Magistrate after holding enquiry, the period of Protective Home life shall not exceed three years. In my view, allowing the petitioner to be kept in Home continuously any more will only amount to a serious human rights violation. Under Section 17(4) of the Act, even after the final order is passed by the Magistrate after holding enquiry, the period of Protective Home life shall not exceed three years. But here in this case, without any final order being passed as required under Section 17(4) of the Act, the petitioner has been ordered to languish in the Protective Home for two years and ten months now under the guise of protection. The Superintendent, Government Vigilance Home/Government Protective Home, Arasinar Magalir Kaapagam, Mylapore, Chennai -4 has in fact sent a letter to the learned Judicial Magistrate, Alandur on 12.09.2011 wherein it was stated that the petitioner appeared to be mentally depressed and she was weeping inconsolably almost during all nights. It was further stated that she was given psychiatric treatment. But the petitioner, when enquired by this court, denied the said allegation that she is mentally depressed. Her appearance, her interaction with her lawyer in open Court and the police and the learned counsel, who has helped this Court by translating her conversation would clearly go to show that she is mentally alright and she is not depressed. Her mother would also state that the petitioner is not mentally depressed. 9. In normal circumstances, since the petitioner is kept in the Protective Home on repeated judicial orders passed by the learned Magistrate, this Court would have only directed the learned Magistrate to pass an appropriate order under the provisions of the Immoral Traffic (Prevention) Act. But having regard to the fact that the petitioner has been in Protective Home for more than two years and ten months and having regard to the facts which I have narrated above, I do not propose to leave the matter to the discretion of the Magistrate to pass any further orders in respect of the custody of the petitioner. In my considered opinion, this is a very appropriate case where this Court has to invoke its inherent power under Sections 482 and 483 Cr.P.C. so as to secure justice and liberty to the petitioner. So, I am inclined to set aside the order of the learned Judicial Magistrate for her custody in home and I am inclined to order her to be set at liberty forthwith. 10. So, I am inclined to set aside the order of the learned Judicial Magistrate for her custody in home and I am inclined to order her to be set at liberty forthwith. 10. Having regard to the nature of the crime in which the petitioner was attempted to be pushed, I am of the view that while setting her at liberty, this Court has to ensure her safety as well. In my considered opinion, it would be appropriate, in the interest of justice, the first respondent- Inspector of Police shall forthwith nominate a woman Sub Inspector of Police and a woman Police Constable to accompany the petitioner and her mother until they reach their home at Venkatagiri Village in Nellore District of Andhra Pradesh State. 11. In view of all the above, this Criminal Original Petition is allowed on the following terms: (1) The order of the learned Judicial Magistrate, Alandur directing the petitioner to be kept in the second respondent-Government Vigilance Home/Government Protective Home, Arasinar Magalir Kaapagam, Mylapore, Chennai -4 is hereby set aside and the petitioner Pavithra @ Swathi is set at liberty. (2) The petitioner shall be taken from this Court to the Protection Home, where she will be allowed to stay overnight along with her mother. Tomorrow i.e. on 20.06.2012, the petitioner will be allowed to leave the Home with her mother. (3) The first respondent-Inspector of Police shall ensure that a woman Sub Inspector of Police and a woman Police Constable will escort them safely until the petitioner and her mother reach their home village. 12. Before parting with the case, I would like to record my appreciation to the yeomen service rendered by the N.G.O., Ms. Tahera. But for the efforts taken by the N.G.O, I am afraid, the matter would not have been brought to the notice of this Court and in such an event, the human rights of the petitioner would have been continuously violated. I also appreciate the services rendered by Mr. M. Hussaini Basha, learned counsel for the petitioner and Mr. G.J. Anthonysamy, learned counsel, who took much pains to effectively translate the conversation of the victim from Telugu to English. 13. When this order was about to be concluded, the N.G.O. submitted to the Court that there are number of women like the petitioner languishing in the very same Protective Home for years together. G.J. Anthonysamy, learned counsel, who took much pains to effectively translate the conversation of the victim from Telugu to English. 13. When this order was about to be concluded, the N.G.O. submitted to the Court that there are number of women like the petitioner languishing in the very same Protective Home for years together. If that is true, really it is a horrible situation, which cannot be allowed to continue. Therefore, while allowing this petition, I direct the second respondent - Superintendent, Government Vigilance Home/Government Protective Home, Arasinar Magalir Kaapagam, Mylapore, Chennai -4 to submit a report to the Court on or before 22.06.2012 in respect of the other inmates of the Home, who are the victims of various crimes. The Superintendent shall give the details of the detention orders, the details of the case and on whose orders, they are kept in the Home. 14. The Registry is further directed to return the original records of the Trial Court to the learned Judicial Magistrate, Alandur forthwith. List this matter again on 22.06.2012.