Bombay HC says “Prostitution is not an offence”, orders to release 3 sex workers from the corrective institution

Image Source: Wikimedia Commons | In Image: Bombay High Court

Bombay High Court on September 24 orders to release three sex workers from corrective institutions and observed that “prostitution has not been held an offence under Immoral trafficking prevention Act, 1956 and an adult woman has right to choose her profession and cannot be detained without her consent.”

Although, it was made clear that prostitution itself is not legal but some of the activities associated with it such as soliciting are made illegal under Indian jurisprudence.

The 3 sex workers challenged the order of Metropolitan Magistrate, Mazgaon under Sec 17(2) of the said Act as well as the order passed by Additional Session Judge, Dindoshi. The plea regarding the same was heard by the single bench of Justice Prithvi K. Chavan.

Brief Facts:

Rupesh Ramchandra More, Police Constable received secret information that a person named Mr Nijamuddin Khan, who was a pimp provides women for prostitution.

The women aged 20, 22 and 23 along with the accused were arrested and taken into custody from a guest house.

 The women (victims) were produced before Metropolitan Magistrate. The learned Magistrate remanded them to the corrective institution and gave their intermediate custody to Navjeevan Mahila Vasti Griha, Deonar, Mumbai. The learned Magistrate also asked the Probation Officer to submit a report about victims’ antecedents and families.

Further, the mothers of the victims have declined their custody as the custom prevails in their community where girls after attaining puberty were sent for prostitution. Hence, it was held by learned Magistrate that it is not in the interest of victims to live their families.

The victims were detained for the period of one year starting from 19th Oct 2019, after considering circumstances and after going through Sec 17 subsection (1) to (6) of the Act. The victims were again sent to state run institution in Uttar Pradesh.

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The said order was challenged by appeal in Court Of Sessions Judge, wherein, the Additional Session Judge dismissed the appeal and confirmed the order passed by Metropolitan Magistrate.

Court’s observations:

The Bombay High Court held that as women are majors they are entitled to live in a place of their choice and they have the right to practice whatever occupation they desire to pursue. They cannot be restrained against their consents.

Furthermore, the court observed that- “Immoral Trafficking (Prevention) Act, does not empower Magistrate to hold custody of a victim beyond three weeks without there being a final order passed to this regard following a due process of law.”

After reading Sec 17 (4) with the provision of subsection (5) it can be inferred that after completion of inquiry the Magistrate can extend the period of detention of victims, being not less than one year and not more than three years, in a protective institution and must record a reason in writing for the same. Such inquiry shall be conducted by a panel of 5 persons. This requirement was clearly missing in the previous orders.

The Hon’ble Court cited the case of Kumari Sangeeta vs State of Delhi and Ors. 1996, wherein it was held that-

“Prostitution per se is not a criminal offence under the provision of law and there is no punishment defined for the persons indulged in prostitution. The punishable act includes sexual exploitation or abuse of a person for commercial purpose.

In the present case, there was not any material to show that petitioners were running a brothel or soliciting any person.

The Bombay HC noted that victims cannot be exposed to unnecessary detention against their will and therefore the petitioners should be released at once.

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