Observations

1. The magistrate ordered an inquiry regarding the age of the victims

and for conducting a medical examination to investigate the health
status of the victims.

2. Intermediate custody of the victims was given to an NGO for

providing them with primary education and for their counselling to
restrain them from prostitution.

3. It was revealed by the reports submitted by the probation officer as

well as the magistrate that they belong to the bediya community
where girls after attaining the age of puberty are sent into the
business of prostitution.

4. Their parents consented to them being prostitute so the magistrate

did not give the victim’s custody to their mothers.

5. The appeal was laid down challenging the said order in the Court
of the Session at Dindoshi which was dismissed.

6. The victims were detained under an institution of the government

‘Navjeevan Mahila Vastigruha’ for their care, protection and
shelter for one year.

7. The court was of the view that the victims who were detained for
one year being prosecuted or declared accused in the matter or
other words without any final order.
8. It was held that both the subordinate courts have taken the matter
involved in the case in a very casual manner ignoring the factual
metrics off the case, specifically section 17 of Immoral Trafficking
Prevention Act.

9. The court observed that the act does not empower the magistrate to
hold the victims under custody for more than 3 weeks without a
final order from the court. The court also observed that under
section 17(4) if the magistrate is satisfied with the inquiry under
subsection (5) off section 17 of the act he shall direct the custody
of the victims to a protective home.

10. The inquiry under sub-section(5) is to be conducted by a

panel of persons having some social work background of which if
practically possible 3 should be women.

11. The court also printed out the use of the word ‘may’
interchangeable with the word ‘shall’ as held in the case of Kumari
Sangeeta & Anr v State & Ors (1995) that because the word may is
used it does not specify discretion of the court but one should look
at the intention of the legislature which it intends to convey
through an enactment.

12. The court highlighted the point that the purpose of the act is
not to abolish prostitutes or prostitution but what is punishable is
sexual exploitation, commercial sex and where a person is running
a brothel or is seducing another person.

13. After considering all the facts and circumstances of the case
the court was of the view that there is nothing on record to show
that they were seducing someone or that they were running a
brothel.
14. They to have a right to reside at any place of their choice and
to carry out the vacation as they like as their fundamental rights are
guaranteed under part III of the constitution.

15. The consent of the victims should have been taken before
putting them under a corrective home as they are major and hold
every fundamental right as an ordinary citizen does

16. Both the orders of the metropolitan magistrate and court of

the session was quashed and the victims were released.