Immoral Traffic (Prevention) Act Does Not per se Criminalize Prostitution : Bombay High Court

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A single bench of the Bombay High Court of Justice Prithviraj K. Chauhan passed the final order in the case of Kajal Mukesh Singh & Ors. v. State of Maharashtra. In the present case, the Court interpreted various provisions of the Immoral Traffic Act while taking into account fundamental rights enshrined in the Constitution.

Facts of the Case

In this case, a raid was conducted by the Mumbai police relating to prostitution activity being carried out by a procurer named Nijjamuddin Khan. For carrying out this raid, the investigation officers set a trap to rescue the victims of prostitution and to arrest the procurer. The trap was successfully laid down. Following this, three of the victims were arrested and were charged under the Immoral Traffic (Prevention) Act, 1956 by the Magistrate. The victims were asked to call their family members. Later, it was ascertained that the victims belonged to the “bediya” community, where the ritual is that a girl has attained puberty is sent to prostitution. Thereafter, the victims were directed to be sent to a shelter home “Nari Niketan Prayag Vastigruha” located in Prayagraj, Uttar Pradesh for one year for their care, protection, shelter and vocational training.

The said order of the magistrate was challenged by the victims before the Sessions Court. However, the Sessions Court dismissed the said petition. Therefore, the victims invoked the jurisdiction of the high court via Article 227 of the Constitution as well as Section 482 of the Code of Criminal Procedure.

Petitioner’s Arguments

The Counsel for the Petitioners argued that the lower courts failed to acknowledge the interpretation of Section 17 of the Immoral Traffic Act which is not a penal provision, as the victims were not accused nor being prosecuted via section 3 and 9 of the act.

Secondly, the Counsel argued that the victims are majors under the eyes of the law. Hence, they have the right to choose their profession. The Counsel further argued that to bring the victims within the ambit of these provisions, the said victims must be caught doing such immoral acts. However, in the raid conducted by the police, the victims were not found with any customer neither were they accused of indulging in any immoral act.

Thus, there is no point of their continued detention in the shelter home as they are not being prosecuted under the said Act.

Court’s Observations

After going through the arguments made, and evidence presented, the Court made the following observations. Firstly, the order dated 30th September 2019 passed by the Magistrate, shows that the victims were remanded via order 28th September 2019. The lacuna here is that none of the orders can show where the victims were held for these three days. This casualness in holding the victims directly contravenes the provision of the Act which mandates for the safe custody of victims.

No charges have been filed against the victims that they were indulging in acts of prostitution. To send the victims under this Act to detention, there a committee is to be constituted by the Magistrate, under this Act. In the present case, the same was not constituted. The argument on behalf of the Respondent that the word “may” appears in section 17(5) of the act providing the option to the Magistrate to constitute a committee cannot hold ground. The word “may” has to be interpreted as “shall” and the same is supported by Delhi High Court judgment in Kumari Sangeeta vs. State of Delhi and Ors.

The Court also observed that the Immoral Traffic act only punishes sexual abuse and commercial exploitation and not prostitution per se.To this end, the Court observed that under Article 19 of the Constitution, citizens are guaranteed the fundamental right to move freely around the country and to choose their occupation. As the victims in the present instance are majors and are not being prosecuted under the Act, there is no need for their detention in the corrective home.

No proper investigation report was submitted by the police to prove whether the said procurer Nijjamuddin was engaged in running a brothel.

Judgment by the Court

Firstly, the Court quashed the order of the Magistrate.

Secondly, the Court held that the Petitioners are to be freed from their custody at the corrective home.


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