Adult women charged under ITPA cannot be detained unnecessarily in shelter home, fundamental rights to be considered: Bombay HC

The Bombay High Court on Thursday set aside orders passed by lower courts directing adult women to be detained in the Navjeeven Mahila Vastigruha, Deonar (a shelter home) after they were apprehended in relation to a crime registered under the Immoral Traffic (Prevention) Act, 1956 (ITPA).While allowing the plea challenging the detention order and rejecting the reasoning of the lower courts, Justice Prithviraj K Chavan of the Bombay High Court also pointed out that the ITPA does not criminalise prostitution per se. ."It is interesting to note the relevant provisions of the said Act, which go to show that the purpose and the object of the Act is not to abolish the prostitution or the prostitute. There is no provision under the law which makes prostitution per se a criminal offence or punishes a person because he indulges in prostitution."Bombay High Court.The Court explained,."What is punishable under the Act is sexual exploitation or abuse of person for commercial purpose and to earn the bread thereby, except where a person is carrying on prostitution in a public place... or when a person is found soliciting or seducing another person.".The observations were made in a Criminal Writ Petition filed by three women who were charged under provisions of the ITPA. They had been detained for over a year in the shelter home of Deonar despite having no disability or disease. .The Metropolitan Magistrate of the Special Court of ITPA, Mazgaon had initially given the intermediate custody of the women to the shelter home, where an NGO was directed to give the women primary education. The Metropolitan Magistrate had ordered that the women be sent away to the State-run shelter home in Uttar Pradesh for “care, protection, shelter and vocational training in the subject of their liking.”.This order was challenged by way of appeal in the Sessions Judge at Dindoshi, who upheld the Magistrate's order..On an appeal challenging this order, the High Court observed that there was nothing to indicate that the women-petitioners had indulged in any offence under the ITPA. .Rather, he pointed out that the Metropolitan Magistrate did not follow the proper procedure under Section 17, ITPA and that the “It seems that the learned Magistrate has been swayed away while passing the impugned order by the fact that the petitioners belong to a particular caste.”.The High Court emphasised, ."It is equally important to note that the petitioners victims are major and, therefore, have a right to reside at the place of their choice, to move freely throughout the territory of India and to choose their own vocation as enshrined in Part III of fundamental rights of the Constitution of India."Bombay High Court.Justice Chavan added that the “willingness and consent of the victims" ought to have been considered by the Magistrate "before ordering their detention in the protective home.”.The High Court further noted that “they (women-petitioners) cannot be subjected to unnecessary detention contrary to their wish." .Justice Chavan proceeded to order their immediate release from the shelter home, if the women wished for the same.Justice Chavan also directed the Metropolitan Magistrate to ensure the victims are given adequate protection and are not influenced by anyone at the time of recording their evidence in pending case proceedings..Advocate AM Sarogi with Advocate Siddharth Jaiswal appeared for the women Petitioners. Additional Public Prosecutor MH Mhatre appeared for the State..Read the judgment here: