DOLY PRABHAT MAITHY vs STATE BY
- Court
- Karnataka High Court
- Decided on
- 21-01-2026
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IN THE HIGH COURT OF KARNATAKA AT BENGALURU
R
ST
DATED THIS THE 21 DAY OF JANUARY, 2026
BEFORE
THE HON'BLE MR. JUSTICE M.NAGAPRASANNA
CRIMINAL PETITION NO. 17299 OF 2025
BETWEEN:
DOLY PRABHAT MAITHY
W/O SRI PRABHAT MAITY
AGED ABOUT 42 YEARS
R/AT MOTHA KHANA
PANVEL RAIGARH
MAHARASTRA - 410 206.
…PETITIONER
(BY SRI GIREESHA R. J., ADVOCATE)
AND:
STATE BY
ELECTRONIC CITY POLICE STATION
BENGALURU - 560 058.
REPRESENTED BY SPP
HIGH COURT OF KARNATAKA
BENGALURU - 560 001.
…RESPONDENT
Digitally signed by
SANJEEVINI J
KARISHETTY
Location: High
Court of Karnataka
(BY SRI B.N.JAGADEESHA, ADDL. SPP)
THIS CRL.P IS FILED U/S 482 CR.P.C., (FILED U/S
528 BNSS) PRAYING TO SET ASIDE THE IMPUGNED ORDER
DATED 15.11.2025 PASSED IN CR.NO.395/2025 ON I.A.
U/S 17(2) OF THE IMMORAL TRAFFIC (PREVENTION) ACT,
1956 BY ADDL. DISTRICT AND SESSIONS JUDGE, FTSC-II,
BENGALURU RURAL DISTRICT, BENGALURU PRODUCED AT
ANNEXURE-A AND CONSEQUENTLY ALLOW THE
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APPLICATION FILED THE PETITIONER I.A. U/S. 17(2) OF
THE IMMORAL TRAFFIC (PREVENTION) ACT 1956.
THIS PETITION, COMING ON FOR ADMISSION, THIS
DAY, ORDER WAS MADE THEREIN AS UNDER:
CORAM: HON'BLE MR. JUSTICE M.NAGAPRASANNA
ORAL ORDER
The petitioner – mother of the victim girl is before this
Court calling in question an order dated 15.11.2025, passed
by the Additional District and Sessions Judge, FTSC-II,
Benglauru Rural District, whereby, an interlocutory
application filed by the petitioner under Section 17(2) of the
Immoral Traffic (Prevention) Act, 1956 (hereinafter referred
to ‘the Act’ for short), seeking custody of her daughter in
Crime No.395/2025, comes to be rejected.
2. Heard Sri Gireesha R.J., learned counsel for
petitioner and Sri B.N.Jagadeesha, learned Additional State
Public Prosecutor for the respondent.
3. The petitioner is said to be the mother of the victim
child, who was rescued from a lodge, which was running a
prostitution racket. The State then keeps the victim girl in
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the Child Welfare Home. The petitioner - mother of the
victim files an application before the concerned Court under
Section 17(2) of the Act, seeking custody of her daughter
on the score that her daughter has now attained 18 years of
age. Once the minor girl attains the age of 18, the daughter
cannot be kept in the Child Welfare Home and she the
daughter has to be handed over to the parents, one of
whom is the petitioner, the mother of the victim. The
concerned Court after rendering detailed reasons, rejected
the said application on the score that the daughter was
forced to prostitution by the petitioner – mother. This order
of rejection is what is challenged before this Court in the
subject petition.
4. Learned counsel appearing for the petitioner would
submit that Section 17(2) of the Act can be pressed into
service only when the victim girl attains the age of 18 years
and she cannot be kept in the Child Welfare Home or under
the custody of the State. Once the victim attains the age of
18 years, the mother is entitled to the said custody.
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5. Learned Additional State Public Prosecutor takes
this Court through the entire material that lead to a raid in
the lodge and registration of a crime in Crime No.395/2025.
The police after investigation filed a charge sheet against
several persons. Learned Additional State Public Prosecutor
submits that the petitioner - mother ought to have been
booked for forcing her daughter for prostitution, which has
not been done. It is an inadvertent omission. Learned
Additional State Public Prosecutor would further contend
that when an earlier crime had been registered against the
petitioner – mother for the very offences under the Act and
the application being filed by the petitioner mother, the
child was released in favour of the mother. But, the mother
again puts her daughter back into the same situation i.e.,
into the racket of prostitution, which has now become a
crime in Crime No.395/2025. Be that as it may.
6. The issue now is, whether the victim – daughter of
the petitioner who was rescued from a prostitution racket
and at the relevant point in time was aged 17 years, should
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be handed over to the custody of the mother, on the score
that she has now attained the age of 18 years.
7. To answer the issue, it is necessary to notice
Section 17 and Section 17A of the Act. It reads as follows:
“ 17. Intermediate custody of persons removed
under Section 15 or rescued under Section 16 .—
(1) When the special police officer removing a person
under sub-section (4) of Section 15 or a police officer
rescuing a person under sub-section (1) of Section 16,
is for any reason unable to produce him before the
appropriate magistrate as required by sub-section (5)
of Section 15, or before the magistrate issuing the
order under sub-section (2) of Section 16, he shall
forthwith produce him before the nearest magistrate of
any class, who shall pass such orders as he deems
proper for his safe custody until he is produced before
the appropriate magistrate, or, as the case may be, the
magistrate issuing the order:
Provided that no person shall be—
( i ) detained in custody under this sub-section for a
period exceeding ten days from the date of the
order under this sub-section; or
( ii ) restored to or placed in the custody of a person
who may exercise a harmful influence over him.
(2) When the person is produced before the
appropriate magistrate under sub-section (5) of
Section 15 or the magistrate under sub-section
(2) of Section 16, he shall, after giving him an
opportunity of being heard, cause an inquiry to be
made as to the correctness of the information
received under sub-section (1) of Section 16, the
age, character and antecedents of the person and
the suitability of his parents, guardian or husband
for taking charge of him and the nature of the
influence which the conditions in his home are
likely to have on him if he is sent home, and, for
this purpose, he may direct a probation officer
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appointed under the Probation of Offenders Act,
1958 (20 of 1958), to inquire into the above
circumstances and into the personality of
the person and the prospects of his rehabilitation.
(3) The magistrate may, while an inquiry is made
into a case under sub-section (2), pass such orders as
he deems proper for the safe custody of the person:
Provided that where a person rescued under Section
16 is a child or minor, it shall be open to the magistrate
to place such child or minor in any institution
established or recognised under any Children Act for
the time being in force in any State for the safe custody
of children:
Provided further that, no person shall be kept in
custody for this purpose for a period exceeding three
weeks from the date of such an order, and no person
shall be kept in the custody of a person likely to have a
harmful influence over him.
(4) Where the magistrate is satisfied, after making
an inquiry as required under sub-section (2),—
( a ) that the information received is correct; and
( b ) that he is in need of care and protection,
he may, subject to the provisions of sub-section (5),
make an order that such person be detained for such
period, being not less than one year and not more than
three years, as may be specified in the order, in a
protective home, or in such other custody as he shall,
for reasons to be recorded in writing, consider suitable:
Provided that such custody shall not be that of a
person or body of persons of a religious persuasion
different from that of the person and that those
entrusted with the custody of the person including the
persons in charge of a protective home, may be
required to enter into a bond which may, where
necessary and feasible, contain undertakings based on
directions relating to the proper care, guardianship,
education, training and medical and psychiatric
treatment of the person as well as supervision by a
person appointed by the court, which will be in force for
a period not exceeding three years.
(5) In discharging his functions under sub-section
(2), a magistrate may summon a panel of five
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respectable persons, three of whom shall, wherever
practicable, be women, to assist him; and may, for this
purpose, keep a list of experienced social welfare
workers, particularly women social welfare workers, in
the field of suppression of immoral traffic in persons.
(6) An appeal against an order made under sub-
section (4) shall lie to the Court of Session whose
decision on such appeal shall be final.
17A. Conditions to be observed before
placing persons rescued under section 16 to
parents or guardians.—Notwithstanding anything
contained in sub-section (2) of section 17, the
magistrate making an inquiry under section 17
may, before passing an order for handing over
any person rescued under section 16 to the
parents, guardian or husband, satisfy himself
about the capacity or genuineness of the parents,
guardian or husband to keep such person by
causing an investigation to be made by a
recognised welfare institution or organisation. ”
(Emphasis supplied)
Section 17(2) of the Act provides for an inquiry by the
Magistrate, when the persons rescued under Sections 15
and 16 of the Act are produced before him. The Magistrate
is required to enquire into the age, character and
antecedents of such rescued person and the suitability of
his parents, guardian or husband for taking custody of the
rescued person. Section 17A of the Act provides for an
inquiry by the Magistrate before passing an order for
handing over the custody of the rescued person to their
parents, husband or guardian.
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8. The petitioner – mother, files an application
seeking custody of her daughter on the score that she has
now attained the age of 18 years. This comes to be
rejected by the following order:
“ REASONS
8. POINT NO.1 : The present case is registered
against the accused No.1 and 2 for the offences
punishable under Sections 3, 4, 5 of ITP Act and
Section 143(2,3) of BNS. Subsequently Sections 4,
18, 8, 12, 17 of POCSO Act and Sections 64(1), 62,
75, 143(4) of BNS were inserted.
9. The applicant is seeking the custody of the minor
victim girl under section 17(2) of ITP Act stating that
she is the mother of the victim girl.
Section 17 of The Immoral Traffic (Prevention) Act.
1956 Intermediate custody of girls removed under
section 15 or rescued under section 16.
(1) When the special police officer removing a
girl under sub-section (4) of section 15 or rescuing a
girl under sub-section (1) of section 16, fails to
produce her immediately before the magistrate as
required by sub-section (5) of section 15 or sub-
section (2) of section 16, he shall forthwith produce
her before the nearest magistrate of any class, who
shall pass such orders as he deems proper for her
safe custody until she is produced before the
appropriate magistrate.
(2) When the girl is produced before the
appropriate magistrate he shall, after giving the girl
an opportunity of being heard, cause an enquiry to be
made as to the correctness of the information
received under sub-section (1) of section 16 and the
age of the girl and, if satisfied that the information
received is correct and the girl is under the age of
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twenty-one years, he may, subject to the provisions
of the next sub-section, make an order that such girl
be detained for such period as may be specified in the
order, in a protective home or such other custody as
he, for reasons to be recorded in writing, shall
consider suitable: Provided that such custody shall not
be that of a person, or body of persons, of a religious
persuasion different from that of the girl.
(3) In discharging his functions under sub-
section (2), a magistrate may summon a panel of five
respectable persons, three of whom shall wherever
practicable be women, to assist him; and may for this
purpose keep a list of experienced social welfare
workers, particularly women social welfare workers, in
the field of suppression of immoral traffic in women
and girls.
(4) Against every order under sub-section (2)
an appeal shall lie to the Sessions Judge whose
decision on such appeal shall be final.
10. In this case the applicant is said to be the
mother of the victim girl. The applicant has produced
copies of photographs, notarized copies of rental
agreement, Adhar Cards, Identity Cards of the victim
girl and school certificates of the victim girl. One of
the school certificates shows name of the mother as
Doly.
11. Арart from that, report of the
investigating officer shows that earlier also the
victim girl was caught in another case of Beguru
police station registered in Cr.No.332/2024.
Thereafter the victim girl was released to the
custody of her mother. The present applicant is
said to be the mother as per the report of the
investigating officer. However, in this case the
victim girl is not produced before this court.
When the victim girl is not produced before this
court as provided under the provisions of ITP
Act, the applicant is not entitled for the custody
of the victim girl. Therefore, I answer point No.1
in the Negative.
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12. POINT NO.2 : In view of my findings on the point
No. 1, I proceed to pass the following:
ORDER
The application filed by the applicant under
Section 17(2) of the Immoral Traffic (Prevention) Act
1956 is rejected.”
(Emphasis added)
To consider whether the child could be released or
not, it is necessary to go back to the reason for registration
of the crime. The crime comes to be registered in Crime
No.395/2025 for offences punishable under Sections 3, 4
and 5 of the Act and Sections 4, 18, 8, 12, 17 of the
Protection of Children from Sexual Offences Act, 2012.
Subsequently, Sections 4, 18, 8, 12, 17 of POCSO Act and
Sections 64(1), 62, 75, 143(4) of the BNS were added. The
police conduct investigation and file a charge sheet. The
summary of the charge sheet reads as follows:
“17. ( ) Brief Facts of
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The issue in the lis does not concern the merit of the
crime or the charge sheet so filed by the State. The
statement of the victim and the statement of others would
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prima facie indicate that the mother had forced the
daughter to prostitution.
9. Learned Additional State Public Prosecutor is right
in contending that when a child is rescued from a
prostitution racket and is in the custody of the State or the
Child Welfare Home, but when there are allegations against
the mother that she is indulging in the act of using her
daughter for the purpose of prostitution, the girl should not
be handed over to the custody of the mother.
10. It is un-understandable as to how the mother is
left while filing the charge sheet, notwithstanding the fact
that there is a lurking suspicion that she has indulged in
forcing her daughter for prostitution albeit, prima facie, and
how could the mother be left off while filing the charge
sheet.
11. It now becomes apposite to refer to the
interpretation of law on this issue. The High Court of Delhi,
in the case of DELHI HIGH COURT LEGAL SERVICES
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1
COMMITTEE v. UNION OF INDIA , while referring to an
earlier judgment of the Division Bench of the High Court of
2
Bombay in PRERANA v. STATE OF MAHARASHTRA ,
observes as follows:
“…. …. ….
73. It is also noteworthy, that by a statutory
th
amendment with effect from 26 January, 1987,
the following section 17A of the IT Act of 1956
was inserted : -
“17A. Conditions to be observed before
placing persons rescued under section 16 to
parents or guardians - Notwithstanding
anything contained in sub-section (2) of
section 17, the magistrate making an inquiry
under section 17 may, before passing an
order for handing over any person rescued
under section 16 to the parents, guardian or
husband, satisfy himself about the capacity
or genuineness of the parents, guardian or
husband to keep such person by causing an
investigation to be made by a recognised
welfare institution or organisation.
I now propose to examine the issues raised in
the present proceedings.
If persons recovered by the police in a raid
under Sections 15 or 16 of the IT Act, 1956 are
under 18 years of age, are they to be dealt with
under the IT Act, 1956 or in accordance with the
JJ Act, 2000?
In order to find answers to the questions arising
in the present case, we may firstly consider the
principles of statutory interpretation which would guide
the present adjudication.
1
2014 SCC OnLine Del 4101
2
2002 SCC OnLine Bom 984
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IT Act being a penal statute needs to be strictly
construed
74 . It has been submitted that the IT Act,
1956 is a penal statute which deals with all
persons whereas the JJ Act, 2000 is a specific
enactment for persons under 18 years of age.
75. Penal statutes are those which provide
for penalties for disobedience of the law and are
directed against the offender by making him liable
to imprisonment, fine, forfeiture or other penalty.
If the statute enforces obedience to the command
of the law by punishing the offender and not by
the offender merely redressing an individual who
may have suffered, it will be classified as penal.
The IT Act largely defines offences and stipulates
punishments for their commission. It is clearly a
penal statute.
…. …. ….
Thus, it is very clear that the IT Act being a
penal statute has to be strictly construed.
…. …. ….
98. The Indian experience showed that the
differential laws enacted by the different States were
not furthering the welfare of the children resulting in
the relook direction by the Supreme Court in Sheela
Barse's case (supra) for a parliamentary legislation.
International standards prescribed making of such laws
as well as institutions and bodies entrusted with the
functions of administration of juvenile justice designed
to meet the special needs of the juveniles as well as
protection of their rights, i.e., a clear recognition of the
principle that a child has to be dealt with differently
than the adult. The need to provide for special
measures qua children deprived of the basics of
their physical and emotional needs, including
creation of authorities devoted to their cause, was
also recognized. It was essential to bring
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children's law in conformity with international
instruments.
99.The JJ Act came into existence with the
object of addressing the above concerns for a
very special class of persons that is those under
eighteen years of age. It draws a distinction
between children in conflict with law and those in
need of care and protection provides special
treatment for them, mandates a special inquiries.
The constitution of the JJB as well as the CWC is
of persons with expertise and training in child
welfare related areas. Even the Magistrate
concerned is required to be one with expertise in
the psychology of children.
100. On the other hand, the IT Act is a more
general prior enactment and is concerned with all
persons irrespective of ages, involved in immoral
trafficking or prostitution.
…. …. ….
104.A non-obstante clause is also found in
Section 17A of the IT Act, 1956 which stipulates
that notwithstanding anything contained in sub-
section (2) of Section 17, the magistrate making
an enquiry under Section 17 may satisfy himself
about the capacity or genuineness of parents,
guardian or husband to keep such person by
causing an investigation to be made by a
recognised welfare institution or organisation.
…. …. ….
123.The above narration also supports only
conclusion that the JJ Act has been enacted by
the legislature giving primacy to the welfare of
children and has to be given primacy in matters
relating to them irrespective of the concerns of
other legislations.
124. It is noteworthy that so far as Section
17 of the IT Act, 1956 is concerned, the same is
applicable to a consideration on the matter of
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intermediate custody of persons removed under
Section 15 or rescued under Section 16 alone.
Interestingly, no similar provisions have been made
with regard to persons who would be covered under
Section 7 of the IT Act of 1956.
125. Section 17A of the IT Act was
incorporated into the statute by way of an
th
amendment by Act 44 of 1986 w.e.f. 26 January,
1987. So far as the provisions of Section 17A are
concerned, it is also confined to conditions which
are required to be observed before placing a
person rescued under Section 16 with parents or
guardians. The magistrate is required to satisfy
himself about the capacity or genuineness of the
parents, guardians or husband to keep such
person by causing an investigation to be made by
recognised welfare institution or organisation.
126. The legislature in its wisdom did not
consider the existing provisions of the IT Act,
1956 as sufficient provisions looking to the
benefit of the children, having regard to the
enquiry postulated under and the scheme of the
Juvenile Justice Act of 1986 which was passed on
st
the 1 of December, 1986.
127. So far as juveniles in conflict with law or
children in need of care and protection are concerned,
they cannot under any circumstances, be equated with
or treated in the manner in which adult persons are
treated. This statutory scheme is provided under sub-
section (4) of section 1 of the Juvenile Act, 2000 which
states as follows : -
“Section 1(4)- Notwithstanding anything
contained in any other law for the time being
in force, the provisions of this Act shall apply to
all cases involving detention, prosecution, penalty
or sentence of imprisonment of juveniles in conflict
with law under such other law.
128. So far as the children rescued from
brothels are concerned, special statutory
provisions have been made under the JJ Act of
2000. There is therefore, substance in the submissions
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of Mr. Madhukar, learned counsel for the petitioner that
the intent of the statute, to protect the human rights of
the child is to be given primacy, and its provisions have
to be strictly followed.
129. Such reading of the two statutes would
prevent conflict in the statutory provisions as well as
absurdity. Certainly the legal dynamics of social justice
as well as the clear legislative intendment guides this
court in holding that so far as a matter involving a
juvenile in conflict with law or/and children in need of
care and protection are concerned, the statutory intent
is clear and has to be given full effect. The words of
the statute given their plain and literal meaning,
leave no manner of doubt that so far as a child is
concerned, the JJ Act of 2000 has primacy. No
court or authority has any option in the matter and the
provisions of the Juvenile Justice Act, 2000 have to be
strictly applied.
130. The rights of the juvenile and children
having been placed on such a high pedestal by the
legislature, and so it has to be held that the
procedure prescribed under the Juvenile Justice
Act, 2000 governs all cases concerning juveniles
in conflict with law irrespective of the offence
they are alleged to have committed as well as all
children covered under the definition of children
in need of care and protection. Every aspect of the
matter including detention, prosecution,
sentencing, rehabilitation, restoration of a person
who has not completed eighteen years of age
under Section 18 has to be dealt with in
accordance with provisions of the Juvenile Justice
Act.
131. The two legislations under construction
address specific concerns and areas, the JJ Act being
restricted in its application to a specific class of
persons. In case the IT Act of 1956 is allowed to
prevail, it will lead to such construction as was not so
intended by the legislature. Both the special
enactments are required to be allowed to operate in
entirety just as any other self contained code. The
construction of the legislations has to be harmonious/in
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tune so as to ensure that the special features and
purpose of both the enactments can remain intact and
in the best interest of children as well as for the benefit
of the society. If an enactment meant to apply to all
age groups is allowed to override the special enactment
meant for children, it will ultimately result and reduce
such statute (i.e. the special enactment for children) to
a state of futility.
132. Going by the above principles, the JJ
Act deals specifically with person below 18 years
of age whereas the IT Act deals with persons of
all ages; also the JJ Act being a subsequent or
later enactment and the IT Act being an earlier
enactment and both containing non-obstante
clauses, the non-obstante clause in the JJ Act
would ordinarily prevail over the non-obstante
clause in the IT Act.
133. Thus, in the context of persons covered
under the definition of ‘child’ under the JJ Act, it
is the special enactment vis-a-vis the IT Act.)
134. The matter, however, does not end here.
There is another important issue which requires to be
addressed. We are confronted with a situation where a
person under eighteen years of age has been recovered
by the police in action taken under Section 15 and
Section 16 of the IT Act of 1956. The question which
has been raised is whether such person is guilty of
commission of offences under provisions of the IT Act
and therefore to be dealt with as a juvenile in conflict
with law under the JJ Act or such person is to be treat
as a child in need of care and protection.
…. …. ….
169. An issue similar to that before us arose
for consideration before the Bombay High Court in
the judgment reported at 2002 AllMR (Crl.) 2400
entitled Prerna v. State of Maharashtra (Crl. W.P.
th
No. 788/2002 decided on 7 October, 2002 with
regard to custody of girls rescued who were
under the age of 18 years. A challenge had been
laid before the Division Bench with regard to an
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order passed by the Juvenile Justice Board for
releasing the rescued girls. It had been argued
that it was obligatory on the part of the Juvenile
Justice Board to record a finding that they were
not minors but were adult females before making
the order releasing them.
170. The contentions on behalf of the
rescued persons before the Bombay High Court,
with regard to the manner in which they are to be
treated, have been detailed in para 14 of the
judgment which may be usefully adverted to and
extracted in extenso, which reads as follows : -
“14. Ms. Adenwalla urged that some of the
rescued girls being under 18 years of age are
victims and cannot be treated as accused.
Under section 8 of the PITA soliciting in a
public place is an offence. The same provision
cannot be applied to juveniles. The learned
counsel urged that the law does not permit a
girl under 18 years of age to consent to
sexual intercourse. Hence a child cannot be
charged for soliciting as in the eyes of law,
her consent has been vitiated. She also drew
our attention to certain provisions of the
Juvenile Justice (Care and Protection of
Children) Act, 2000 (“The JJA” for short). She
submitted that the said Act aims at providing
proper care, protection and treatment of
children under 18 years of age. ‘Juvenile’ or
child is defined under the JJ Act as a child
who has not completed 18 years of age. A
child who is said to have committed an
offence is described as a juvenile in conflict
with law and destitute children who are likely
to be grossly abused or tortured or who are
mentally or physically challenged, are
described as children in need of care and
protection. She submitted that a juvenile in
conflict with law has to be produced before
Juvenile Justice Board and a child in need of
care and protection has to be produced
before the child welfare committee. Thus, the
JJA deals with two types of children,
juveniles in conflict with law and children in
need of care and protection. A juvenile girl
found soliciting can be categorised both as a
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juvenile in conflict with law under section
2(1) as well as child in need of care and
protection under section 2(d)(vi). The
learned counsel contended that considering
the fact that the girls under 18 years of age
are victims of circumstances and are forcibly
brought into flesh traffic by traffickers, who
may include their family, relatives and
friends, such girls cannot be treated as
accused. They would more appropriately fall
in the category of children in need of care
and protection under section 2(d)(vi). She
submitted that it is, therefore, necessary that
all such girls should be produced before the
Child Welfare committee and not before the
Juvenile Justice Board. This is because it is
necessary to rehabilitate these girls rather
than penalise them, for they are forced into
these activities. ”
(Emphasis supplied)
171. The court had dwelt on the issue as to
when a child would be dealt with as a juvenile in
conflict with law, and whether a person rescued
in such circumstances, is a child in need of care
and protection. The observations of the Bench on
this aspect are important and read as follows : -
“33. We express our displeasure at the
manner in which this case has been handled
by the Board. First of all if the girls were
minors and they were not involved in any
offence, they could not have even been
described as juveniles in conflict with law.
They were children in need of care and
protection as per the provisions of the JJA.
They ought to have been produced before the
Child Welfare Committee once their minority
was confirmed. Assuming they had to be
produced before the Magistrate to seek
orders for their production before the Child
Welfare Committee and not before the
Juvenile Justice Board because they were
minors and not accused. Assuming further,
that they could have been produced before
the Juvenile Justice Board, there was no
warrant for the board to release them
because the record before the Board clearly
indicated that the girls were minors. The
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Board could have released them, without
conditions, only if they were majors. Because
they were minors, the Board was duty bound
to follow the procedure prescribed under the
JJA. The Board ought to have given due
consideration to the request of the probation
officer that they should not be released
because she was awaiting information about
them from the states from where they had
come. This request was obviously made to
explore the possibility of finding out their
parents so that their custody could be
entrusted to them with some conditions.
Surprisingly the Board released them on a
condition that they shall not enter into the
local jurisdiction of social welfare branch.
34. We have referred to the relevant
provisions of the JJA which make it evident
that both, a juvenile in conflict with law or a
child in need of care and protection have to
be dealt with, keeping in mind the possibility
of their reformation and rehabilitation. The
JJA provides for Protection Homes or Special
Homes where such girls have to be kept for
safe custody, because the fear is that they
may be driven back to the brothels. The
Board should have been alive to this. By
asking the girls not to enter into the local
jurisdiction of Social Service Branch, the
Board has treated them as confirmed
prostitutes. Such orders can be passed under
Section 20 of the PITA which empowers a
Magistrate to order removal of prostitutes
from any place and prohibit them from re-
entering it. We wonder how the Board could
have passed such harsh order to the
detriment of the minor girls. The learned
Magistrate presiding over the Board has
observed that he had personally asked the
girls and they had shown eagerness to be
released. There is no provision under the JJA
whereunder, the board can release the minor
girls because they desired to be released
without giving a thought to their
rehabilitation and the frightening possibility
of their re-entry into brothels. ”
(Emphasis supplied)
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172. On a careful consideration of the matter,
the following directions were inter alia made by the
court : -
“37. We feel that the following directions may
prevent recurrence of such events in future.
(A) No Magistrate can exercise jurisdiction
over any person under 18 years of age
whether that person is a juvenile in conflict
with law or a child in need of care and
protection , as defined by Sections 2(1) and 2(d)
of the Juvenile Justice (Care and Protection of
Children) Act, 2000. At the first possible instance,
the Magistrates must take steps to ascertain the
age of a person who seems to be under 18 years
of age. When such a person is found to be
under 18 years of age, the Magistrate must
transfer the case to the Juvenile Justice
Board if such person is a juvenile in conflict
with law, or to the Child Welfare Committee if
such a person is a child in need of care and
protection .
(B) A Magistrate before whom persons
rescued under the Immoral Traffic
(Prevention) Act, 1956 or found soliciting in
a public place are produced, should, under
Section 17(2) of the said Act, have their ages
ascertained the very first time they are
produced before him. When such a person is
found to be under 18 years of age,
the Magistrate must transfer the case to the
Juvenile Justice Board if such person is a
Juvenile in conflict with law, or to the Child
Welfare Committee if such person is a child in
need of care and protection. ” (Emphasis
supplied)
173. So far as release of a person under eighteen
years of age under section 16 and 17 of the IT Act,
1956 are concerned, the Division Bench of the Bombay
High Court directed as follows : -
“(C) Any juvenile rescued from a brothel
under the Immoral Traffic (Prevention) Act,
1956 or found soliciting in a public place
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should only be released after an inquiry has
been completed by the Probation Officer.
(D) The said juvenile should be released
only to the care and custody of a
parent/guardian after such parent/guardian
has been found fit by the Child Welfare
Committee to have the care and custody of
the rescued juvenile.
(E) If the parent/guardian is found
unfit to have the care and custody of the
rescued juvenile, the procedure laid down
under the Juvenile Justice (Care and
Protection of Children) Act, 2000 should be
followed for the rehabilitation of the rescued
child.
(F) No advocate can appear before the Child
Welfare Committee on behalf of a juvenile
produced before the Child Welfare Committee after
being rescued under the Immoral Traffic
(Prevention) Act, 1956 or found soliciting in a
public place. Only the parents/guardian of such
juvenile should be permitted to make
representations before the Child Welfare
Committee through themselves or through an
advocate appointed for such purpose.
(G) An advocate appearing for a pimp or
brothel keeper is barred from appearing in the
same case for the victims rescued under the
Immoral Traffic (Prevention) Act, 1956.”
(underlining by me)
174. It was observed by the High Court of Bihar
in the judgment reported at AIR 1989 Pat 217 Krishna
Bhagwan v. State of Bihar that an extraordinary
procedure has been prescribed under the JJ Act for
enquiring into the offence alleged to have been
committed by child/juvenile and punishment to be
imposed, the basic approach appears to be curative
instead of punitive. It was held by the Bench that the
Juvenile Justice Act is a solemn promise by the present
to the future. Those who are charged with the statutory
duty must not fall. Obedience to law by all concerned
alone shall ensure justice to delinquent children.
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…. …. ….
222. On the question under examination; the
observations of the Supreme Court in the
pronouncement reported at (1997) 8 SCC
114 : AIR 1997 SC 3021 Gaurav Jain v. Union of
India . shed valuable light on the subject. In this
case, the court was concerned with several writ
petitions filed under Article 32 of the Constitution
on behalf of the prostitutes claiming their right to
be free citizens; right not to be trapped again, re-
adjusted by economic empowerment, social
justice and self sustenance thereby with equality
of status, dignity of person in truth and reality
and social integration in the main stream, being
the magna carta. The court found that many
prostitutes themselves were child prostitutes or
had children residing with them. Addressing the
plight and needs of such children, the court made
several observations which throw light on the
issue raised in the present case. A reading of the
judgment would show that a child found engaged
in prostitution has been referred to as a
“neglected juvenile” which expression has been
used synonymously as a “ child in need of care and
protection ”. The court considered the provisions
of the Juvenile Justice Act and observed as
follows : -
“35. ………..A child brought to associate
with a prostitute or is engaged in the
prostitution or the profession of prostitution
or another juvenile who leads an immoral or
depraved life or one who is likely to be
abused or exploited for immoral or illegal
purposes for unconscionable gain is also a
juvenile. The crime is not attached for
identifying him/her as neglected juvenile ; it
is so in the case of a delinquent juvenile
under the Act. They are to be kept in the
juvenile home as a place of safety.
xxx xxx
37. ……….Even, in certain cases a
delinquent juvenile who commits an offence
like begging, being the neglected juvenile, is
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covered as a neglected juvenile and should
not be treated as delinquent juvenile since he
began begging due to destitution or was
forced to beg by organised
gangsters. Therefore, all the types of
juveniles defined within the ambit of
neglected juvenile, though attached with
certain acts or omission, are punishable
under law they still remain to be neglected
juvenile and should be dealt with by the
Welfare Board and he brought within the
protective umbrella of the juvenile home
established under Section 9………
38. Every child who is found to be
neglected juvenile should be dealt by the
Board and should be brought within the
protective umbrella of the juvenile home. The
attribution as ‘neglected children’ is not
social stigma; the purpose is to identify the
children as juveniles to be dealt with under
the JJ Act which is more a reformative and
rehabilitated center rather than for punishing
the child as criminal; and mend their
behavior and conduct. ……………The definition
of ‘neglected juvenile’, therefore, should be
interpreted broadly which is an important
function for the purpose of identifying the
groups of children who need care and
attention and protection for rehabilitation.
Their withdrawal from the protective
umbrella of the JJ Act foils the goals set out;
besides all measures to bring the neglected
juvenile into the mainstream of the social
status end up in failure and frustration.
39. Even if the economic capacity of the
mother of neglected juvenile in the red light
area to educate and to bring him up would
not relieve the child from social trauma : it
would always be adverse to keep the
neglected juvenile in the custody of the
mother or the manager of the brothel; thus,
the child prostitute is unsafe and insecure.
So, they should be rescued, cared for and
rehabilitated. As stated earlier, the three C's,
namely, counselling, cajoling and coercion of
the fallen women to part with the child or
child prostitute herself from the manager of
the brothel is more effective, efficacious and
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meaningful method to rescue the child
prostitute or the neglected juvenile. The
income criteria, therefore, is not a factor not
to rescue the child prostitute or the neglected
juvenile for rehabilitation.
40. It is of necessity to remember that the
arms of law are long enough to mould the
law to operate on the even keel. The coercive
power with the law enforcement agency to
rescue the child prostitute or the neglected
juvenile, may not necessarily end up as a
successful means. It would be last resort
when all avenues fail. On the other hand,
involvement of the nongovernmental
organisations in particular women
organisations which are more resourceful for
counselling and cautioning, would make deep
dent into the thinking mould of the fallen
victims and would be a source of success for
their retrieval from the prostitution or
sending the neglected juvenile to the juvenile
homes for initial treatment, psychologically
and mentally, and will yield place to
voluntaries to surrender guardianship of the
child prostitute or neglected juvenile to the
Welfare Board or to the NGOs to take custody
of a child prostitute or the neglected juvenile
for, care, protection and rehabilitation .”
(Emphasis supplied)
223. We find endorsement of this spirit in the
Juvenile Justice legislation and specifically recognized
fundamental principles enumerated in Rule 3 of the
Juvenile Justice (Care & Protection) Rules, 2007.
224. The fundamental principles contained
in the JJ Rules are required to be abided by. They
guide the application, interpretation and
implementation of the statute by the State
Government, JJB, CWC as well as the competent
authority and agencies. These are premised on
the presumption of the innocence of the child.
225. Rule 3(2)I(a) of the JJ Rules unequivocally
declares the fundamental principle that a child is to be
presumed to be innocent of any malafide or criminal
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intent up to the age of eighteen years. Rule 3(2)I(b)
mandates that a child's right to presumption of
innocence shall be respected throughout the process of
justice. Any unlawful conduct of a juvenile or a child or
a juvenile in conflict with law which is done for survival
or is due to environmental or situational factors or is
done under control of adults, or peer groups, ought to
be covered by the principles of innocence [Rule
3(2)(Ic)].
226. Under Rule 3(2)I(d)(i) the age of innocence
is indicated as the age below which a juvenile or child
or a juvenile in conflict with law cannot be subjected to
the criminal justice system.
227. The JJ Rules, 2007 also statutorily recognise
the principle of family responsibility. [Rule 3(2)(V)]. It
is stated that the primary responsibility of bringing up
children, providing care, support and protection shall be
with the biological parents. Of course, an exception to
this situation is provided when responsibility for the
care of the child may be bestowed on willing adoptive
or foster parents.
228. The inevitable and only answer to the
second question formulated earlier in this judgment is
that a person under eighteen years of age who is
recovered in police action under Sections 15 and 16 of
the IT Act, has to be treated as a ‘ child in need of care
and protection ’ within the meaning of the expression
under the JJ Act 2000. Such person shall not be treated
as a ‘ juvenile in conflict with law ’.
Conclusions
(i) A child is incapable of giving consent and any
sexual behavior or activity involving a child renders the
participating adult open to stringent penal action under
several enactments. No penal liability vests on the child
for the same.
(ii) A bare reading of the statutory
provisions, International Conventions & Treaties
as well as the available jurisprudence manifests
the statutory intendment that such child (i.e. a
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child found begging is a street child, a working
child or a child being or likely to be grossly
abused, tortured, or exploited for the purpose of
sexual abuse or illegal acts as well as a child who
is found vulnerable and likely to be inducted into
drug abuse or trafficking) is not to be treated as
an offender but is only to be treated as a victim
hence as a ‘ child in need of care and protection ’
within the meaning of the expression under the JJ
Act.
(iii) A person under the age of eighteen
years, if found involved in any aspect of
trafficking or prostitution, within the meaning of
the expression in the IT Act, 1956, or is rescued
in police action under Section 15/16 of the IT Act
cannot be treated as a ‘juvenile in conflict with
law’ as defined Section 2(l) and has to be treated
as a ‘child in need of care and protection’ as
defined under section 2(d) of the JJ Act, 2000.
(iv) Notwithstanding the provisions of
Section 17 and 17(A) of the Immoral Traffic
(Prevention) Act, 1956 by virtue of Section 31(1)
and 39(3) of the Juvenile Justice (Care and
Protection of Children) Act, 2000, it is only the
Child Welfare Committee constituted under
Section 29 of the enactment which has the final
authority in respect of the custody and
restoration of a child victim - a child in need of
care and protection.
(v) If a person rescued by the police under the IT
Act, 1956 and produced before the Magistrate appears
to be under 18 years of age, such person must
forthwith be transferred to the Child Welfare Committee
which shall proceed in the matter in accordance with
the provisions of Sections 30, 31, 33 and other relevant
provisions. If the child is found to be hailing from a
place outside the jurisdiction of the Committee, the
Committee shall ensure compliance with the provision
of Section 38 of the JJ Act, 2000.”
(Emphasis supplied)
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The High Court of Delhi in the afore-quoted judgment
holds that notwithstanding the provisions of Section 17 and
17(A) of the Act, by virtue of Section 31(1) and 39(3) of the
Juvenile Justice (Care and Protection of Children) Act, 2000
(‘JJ Act’ for short), it is only the Child Welfare Committee
constituted under Section 29 of the JJ Act which has the
final authority in respect of the custody and restoration of a
child victim. If a person rescued by the police under the Act
and is produced before the Magistrate, appears to be under
18 years of age, such person must forthwith be transferred
to the Child Welfare Committee which shall proceed in the
matter in accordance with the provisions of Sections 30, 31
and 33 of the JJ Act and other relevant provisions. Further,
the guidelines provided by the High Court of Bombay in
PRERANA supra, referred to in the afore-quoted judgment,
provide that when persons rescued under the Act are
produced before the Magistrate, the Magistrate should under
Section 17(2) of the Act, ascertain their ages on the very
first time they are produced before him. If such a person is
found to be under 18 years of age, the Magistrate must
transfer the case to the Juvenile Justice Board if such person
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is a Juvenile in conflict with law, or to the Child Welfare
Committee if such person is a child in need of care and
protection.
12. In light of the afore-quoted judgment, I am of the
considered view that the child cannot be handed over to the
mother who is allegedly using her daughter in the
prostitution racket. Therefore, the petition lacking in merit,
stands rejected .
Sd/-
(M.NAGAPRASANNA)
JUDGE
NVJ
CT:SS
List No.: 1 Sl No.: 1/