Prostitution Not Per se Crime: Bombay High Court

On 24.09.2020, Hon’ble Mr. Justice Prithviraj J. Chavan passed judgement in a case registered under the Immoral Traffic (Prevention) Act, 1956.

The Bombay High Court held that Prostitution is not per se a Crime.

Ramchandra More, a constable,  received secret information that a pimp Nijamuddin Khan was supplying women for prostitution at a guest house situated in Malad.

The Police team laid a trap at the guest house, and two women along with the pimp Nijamuddin Khan were taken into custody by the police. 

On 13.09.2019, the police produced the victims before the Metropolitan Magistrate.

After taking into consideration all the facts of the case, the custody of the victims was given to Navjeevan Mahila Vasti Griha, Deonar, Mumbai. The court also directed an NGO that the girls should be provided education and vocational training during their stay at the Navjeevan Mahila Vasti Griha, Deonar, Mumbai.

During the investigation, it was revealed that the victims belonged to the ‘Bediya’ community where there is a custom that after a girl reaches puberty, they are sent into prostitution. It was further revealed that the parents of the victims knew that their daughters were indulging in prostitution, and because of this fact, the court declined to give the custody of the victims to the parents.

Learned Judge went through all the relevant provisions of Sections 17(1), (2), (3), (4) and (6) of Immoral Traffic (Prevention) Act, 1956, and the victims were detained for one year beginning from 19th October 2019. The victims were to be sent to Nari Niketan Prayag Vastigruha, Fultabad, Allahabad, UP or any other institution run by the state for one year. 

The order passed by the Metropolitan Magistrate was challenged, and an appeal was filed in the court of Sessions Judge. The Hon’ble Sessions Judge dismissed the appeal and confirmed the order passed by the Metropolitan Magistrate.

Aggrieved by the order passed by the Sessions Judge, the victims moved Bombay High Court.

Analysis of the Bombay High Court and its decision:-

The counsel for the victim argued that as the victims were not prosecuted in the case, they should not be detained for a period of one year.

It was also submitted that the Immoral Traffic (Prevention) Act, 1956 does not empower a Magistrate to hold a victim for more than three weeks and in the present case, the victims have been in detention for more than a year.

The court observed that as per subsection 5 of Section 17(4) that a five-member panel should conduct an inquiry and in this case, no such inquiry was conducted by the trial court.

Further, it was noted that the magistrate could only detain a victim under Section 17(4) if the provisions subsection five were complied with.

The court referred to Kumari Sangeeta Vs. State of Delhi and Ors. 1999 where it was held that prostitution per se was not a criminal offence.  If a person is soliciting clients in a Public area or where there is exploitation for commercial gains such offences are deemed illegal.

In the present case, it was observed by the court that there was no evidence to back the claim that the victims were running a brothel or were soliciting clients for the purpose of prostitution.

The court was of the view that the judgement passed by the trial court judge might be influenced by the fact that the victims belonged to the ‘Bediya’ community where prostitution was part of the custom.

Further, the court observed that as the victims were majors, they were free to reside anywhere in the country. There was no case against them. The court had also confirmed the fact that the victims were free of any disease and physically able.

In light of all the averments, the court quashed the order passed by the Sessions Judge and ordered that the victims should be released from the detention centre.

Case Details:-

Title: “names of the petitioners withheld” vs The State of Maharashtra 

Case No. WRIT PETITION NO. 6065 OF 2020

Date of Order:- 24.09.2020

Quorum :- Hon’ble Mr. Justice Prithviraj J. Chavan

Advocates :– Mr. A.M. Saraogi i/b Mr. Siddharth Jaiswal for the petitioners ; Ms. M.H. Mhatre, A.P.P, for Respondent-State

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