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2013 DIGILAW 2268 (BOM)

Sunita v. State of Maharashtra

2013-10-25

ABHAY M.THIPSAY

body2013
JUDGMENT 1. Rule. By consent, rule made returnable forthwith. By consent, heard finally. 2. On secret information that at a particular place prostitution was going on, a trap was laid and place in question was raided by the police. The petitioner no. 1 was found at that place. It was revealed that she was doing prostitution. She is not accused of having committed any offence, but she is rightly held to be the victim of the alleged offences. The petitioner no.1 was produced before the learned Magistrate and the learned Magistrate in accordance with the provisions of Section 17 (3) of the Immoral Traffic (Prevention) Act, 1956 (hereinafter referred to as the said Act) detained the petitioner no.1 in the Safe Custody of a Protective home - Mahila Sudhar Griha at Aurangabad. The petitioner no.1 was produced before the Magistrate on 2.9.2013 and ordered to be detained in the safe/protective custody by the Magistrate. On 16.9.2013, the petitioner no.1 filed an application before the Magistrate stating that she was doing prostitution in order to maintain herself and her son petitioner no.2 herein and that she did not want to stay in the protective home. That, she would, in future stay with her husband and that she therefore be set at liberty. The learned Magistrate by her order dated 23.9.2013 rejected the said application. The Magistrate was of the view that as the husband of the petitioner no.1 to whom notice had been issued did not come before the Court for taking the custody of the petitioner no.1, and since the petitioner no.1 had not given any address of any person with whom she would be staying at Mumbai, she ought not to be released. 3. Being aggrieved by the said order passed by the Magistrate, the petitioners have approached this Court, invoking its Constitutional jurisdiction. 4. It is not in dispute that the petitioner no.1 is major. The petitioner no.2 being of two years of age, needs to stay with her. 5. The only contention that has been raised on behalf of the petitioners is that, the Magistrate had no power or authority to keep the petitioner in detention, in any form, for a period exceeding three weeks from the date of an order initiating inquiry as contemplated under sub-section (2) of Section 17 of the said Act. 5. The only contention that has been raised on behalf of the petitioners is that, the Magistrate had no power or authority to keep the petitioner in detention, in any form, for a period exceeding three weeks from the date of an order initiating inquiry as contemplated under sub-section (2) of Section 17 of the said Act. In this case, an inquiry contemplated under sub-section (2) of section 17 of the said Act had commenced on 2.9.2013. Sub section (3) of Section 17 provides that no person shall be kept in custody for the purpose for a period exceeding three weeks from the date on which an order to hold inquiry, as contemplated under sub section (2) and (3) of Section 17 of the said Act, is passed. 6. Though on the date on which the petitioner no.1 made an application before the Magistrate for her release, the period of three weeks was not over, the same was over when the impugned order came to be passed. It is not in dispute that the petitioner no.1 is still under detention having now been kept in the safe custody of Rescue Foundation Home, Hadapsar, Pune. 7. The contention, that pending inquiry, a person can be detained only for a maximum period of three weeks from the date on which inquiry has commenced, appears to be correct. Further detention of a person can be authorized only under sub-section (4) of Section 17 of the said Act and order under the said sub section can be passed only if the Magistrate is satisfied, after making an inquiry under sub section (2) of the said section, that such person is in need of care and protection. In the instant case, admittedly, no order has been passed by the Magistrate under subsection (4) of Section 17 of the said Act. It also appears that the inquiry is still going on in as much as the learned Magistrate has called for report from various authorities including the details of the house of the petitioner no.1 and her relatives at Nepal. Time of three months has been given to the concerned authorities to make inquiry and submit a report. The period of three months would be over on 23.12.2013, as the order calling for such report was passed on 23.09.2013. 8. Time of three months has been given to the concerned authorities to make inquiry and submit a report. The period of three months would be over on 23.12.2013, as the order calling for such report was passed on 23.09.2013. 8. As aforesaid, since no order has been passed so far by the Magistrate under the provisions of sub-section (4) of Section 17 of the said Act, the detention of the petitioner no.1 could be authorized only under the provisions of subsection (3) of the said Section, and it could not have been for a period of more than three weeks. As three weeks are already over, the petitioner no.1 cannot be detained any further and needs to be set at liberty. The petitioner no.2 being the child of the petitioner no.1 would remain with her. 9. Considering the object of the relevant provisions and since the inquiry instituted by the Magistrate under sub-section (2) of Section 17 of the said Act appears to be still pending, in order to ensure that the petitioner no.1 would be available to the Magistrate for the purpose of such inquiry, appropriate conditions should be imposed upon the petitioner no.1. 10. In the result, the petition is allowed. The petitioners be released from custody and set at liberty. However, before their actual release, the petitioner no.1 shall execute a personal bond in the sum of Rs. 5,000/- (Rs. Five thousand) before the NEAREST Magistrate binding herself: (i) That, she shall inform the Magistrate holding the inquiry in writing as to the address where she would be staying after her release and shall also report to the Magistrate about any change in such address. (ii) The petitioner no.1 shall remain present before the Magistrate for the purposes of the inquiry, as and when required and called by the Magistrate. (iii) The petitioner no.1 shall abide by a condition, if any, imposed by the Magistrate, requiring the petitioner no.1, to report to the Protective Home nearest to the place where the petitioner no.1 would be residing, after her release. 11. The petition is allowed in the aforesaid terms and to the aforesaid extent. 12. Rule is made absolute accordingly. Petition allowed.