Immoral Traffic (Prevention) Act Not Meant To Punish Victims Of Sexual Exploitation; Apprehension Of Relapse Cannot Justify Detention In Protective Home: Bombay High Court

The Court observed that unreasonable restrictions on personal liberty cannot be imposed on a victim based solely on conjecture or apprehension of relapse into immoral activities.

The Court was hearing a writ petition filed by a major victim challenging an order passed by the Magistrate under Section 17 of the Immoral Traffic (Prevention) Act, 1956, which directed her detention in a protective home for a period of one year, and the subsequent dismissal of her revision petition by the Sessions Court.

A Bench of Justice N.J. Jamadar, who examined the scope, object, and constitutional limits of the powers exercised under the Act, held that “PITA 1956 was not meant to punish a victim of the sexual exploitation, …in the absence of material to show that the role attributed to the victim would fall within the dragnet of any of the penal provisions, the victim cannot be subjected to unreasonable restrictions on the basis of a bald assertion that the victim may again indulge in immoral acts”.

Background

Pursuant to a police raid conducted at a lodging establishment, several women, including the petitioner, were rescued, and a crime was registered against certain accused persons for offences punishable under Sections 3, 4, 5, and 6 of the Immoral Traffic (Prevention) Act, 1956.

Following the rescue, the learned Magistrate conducted an inquiry under Section 17 of the Act and, relying on the probation officer’s report and the perceived vulnerability of the petitioner, directed that she be detained in a protective home for a period of one year. The Magistrate reasoned that since the petitioner had no relatives to take care of her and lacked a stable source of income, there was a likelihood that she might again indulge in immoral activities.

A revision petition filed by the petitioner was dismissed by the Sessions Court, prompting her to approach the High Court under its writ jurisdiction.

The petitioner contended that she was not an accused but a victim, that she was a major, and that her detention in a protective home against her wishes amounted to an infringement of her fundamental rights under Part III of the Constitution. It was further argued that mere apprehension of relapse, unsupported by material, could not justify her confinement.

The State, on the other hand, supported the impugned orders, contending that the detention was necessary for the petitioner’s safety and rehabilitation, given her socio-economic condition and absence of family support.

Court’s Observation

The High Court examined the scheme and object of the Immoral Traffic (Prevention) Act, 1956, and reiterated that the legislation was enacted to prevent trafficking and sexual exploitation, not to criminalise or punish victims.

The Court noted that prostitution per se is not made an offence under the Act and that penal consequences attach only to acts of sexual exploitation, abuse, or activities carried out in specified prohibited circumstances.

Emphasising the constitutional dimension of personal liberty, the Court observed that a major victim’s fundamental rights cannot be curtailed unless the restrictions fall within the permissible limits under Article 19 of the Constitution.

The Court found that the sole distinguishing factor relied upon by the Magistrate, namely, the absence of relatives to take custody of the petitioner, was insufficient to justify detention. It noted that no material was placed on record to show that the petitioner posed a threat to society, suffered from any disability, or attracted any reasonable restriction under Article 19.

The High Court also reiterated earlier judicial pronouncements holding that a major victim cannot be detained against her wishes merely on the apprehension of relapse, and that rehabilitation measures must respect personal autonomy and constitutional freedoms.

“In the absence of material which would justify the restriction on personal liberty and fundamental freedom, in the nature of detention of the victim, learned Magistrate could not have directed the detention of victim for the reason that there was nobody to take care of Victim, who was a major, and, thus, there were chances of victim again indulging in commercial sex work, if she was released without providing her necessary counseling and training”, the Court concluded.

Conclusion

Holding that the courts below had approached the issue from an erroneous perspective, the High Court concluded that the detention of the petitioner in a protective home was unsustainable in law.

The Court allowed the writ petition and set aside both the Magistrate’s order and the revisional order, directing that the petitioner be released forthwith, subject to conditions.

Cause Title: XYZ v. State of Maharashtra (Neutral Citation: 2026:BHC-AS:1926)

Appearances

Petitioner: Advocates Abhijeet V. Jangale, Nikita Bordepatil

Respondents: R.S. Tendulkar, APP

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