- (1.) POVERTY is no sin. It is agonising that the haves, at times, sin the poor by turning their nelson's eye to their miseries. The story of the petitioner is an illustration of the latter. This young woman, born to poor parents, married at an young age, but deserted by her husband, having a child, under the guise of offering a decent domestic job, was taken to Chennai and attempted to be pushed into immoral trafficking, but, fortunately, rescued by the police. She has been in Protective Home for the past 34 months on the repeated orders of the Magistrate. Seeking to set aside the proceedings of the learned Judicial Magistrate and to set her at liberty, the petitioner has come up with this petition.
(2.) THE facts of the case would be as follows: (i) On 31.07.2009 at about 10 p.m., the Inspector of Police, Neelankarai Police Station, received information from a Head Constable by name Sundaresan by way of special report, in which, he had stated that one Mr.Kaleshah was found acting as a broker and he had promised to identify the place of prostitution. Based on the same, the Inspector of Police took the police team and Kaleshah. Kaleshah identified a house at Palavakkam as a brothel house. Later, when the Inspector of Police and other police officials entered into the same, two persons were found acting as brokers by name Maboobi @ Blessy and Kaleshah. When they searched into the house, according to the Inspector, three women were found in the house, who had been kept to be involved in prostitution. It is alleged that the petitioner was one among the women. The Inspector of Police arrested the accused Maboobi @ Blessy and Kaleshah and rescued the three victims including the petitioner. (ii) From the records, it could be seen that the accused were produced before the learned Judicial Magistrate, Alandur and later on, they were released on bail. So far, final report has not been filed against them. So far as the victims are concerned, on 03.08.2009, they were produced before the learned Judicial Magistrate, Alandur with a request to keep them in Protective Home. The learned Magistrate accordingly passed an order, authorising her to be kept in the Home till 14.08.2009. Thereafter, periodically she was produced before the learned Magistrate and the learned Magistrate in turn, extended the detention of the petitioner in the Home. In such a way, till today, the petitioner is languishing in the Home. (iii) From the records, it could also be seen that the petitioner hails from Venkatagiri Village, Nellore District. When the petitioner was so languishing in the Protective Home, her father took pains to come all the way to the State of Tamil Nadu and to file a petition before the learned Judicial Magistrate, Alandur seeking the release of the petitioner from the Home. That petition was not disposed of forthwith and the same was kept for a considerable time without any order being passed. While so, unfortunately, the father of the petitioner also passed away. The petitioner's mother is an old woman, who lives in poverty and she was unable to come over to Tamil Nadu to make any effort to get her daughter released. She is an illiterate woman, having no wherewithal even to travel to Tamil Nadu. It is stated that the petitioner got married long before and she has got a child. But unfortunately, her husband has also deserted her. The child is now with her husband. According to the petitioner, in this poverty stricken position, she came down to Tamil Nadu in search of a job as a domestic servant. But unfortunately, according to her, she was forced into the brothel home, from where she was rescued by the police. (iv) After having spent a long period of two years and 8 months in the Home, fortunately, when an N.G.O. used to visit the Home for the purpose of counselling, the petitioner expressed her agony to her. Ms.Tahera, a representative of the said N.G.O., responded to her distress call. Thereafter, the N.G.O. has taken efforts to engage a counsel to file the instant petition before this Court. As I have already stated, in this petition, the petitioner wants her to be set at liberty. This petition came up for hearing, originally, before the vacation Court on 04.05.2012. After having heard the woes of the petitioner, this Court called for a report from the learned Judicial Magistrate, Alandur. The case was ordered to be listed on 08.06.2012. Accordingly, when the case was taken up on 08.06.2012, the report of the Magistrate had not been received. On that date, this Court passed the following order: "In the affidavit filed in support of the petition, the petitioner has stated that she is only a victim of crime in connection with Crime No.540 of 2009 on the file of the respondent police; but she has been kept in the Government Women Home, Mylapore, Chennai 4 for more than two years and eight months. A petition filed by her father in C.M.P.No.197 of 2010 has not been disposed of by the learned Judicial Magistrate, Alandur from 11.01.2010 onwards. She alleges that there is serious human rights violation. In response to a direction issued by this Court to submit his remarks, the learned Judicial Magistrate, Alandur has submitted a report that nobody has turned up to take care of the petitioner. But he has not stated anything about C.M.P.No.197 of 2010 filed before him seeking to set her at liberty. In those circumstances, this Court is really distressed to know that a young woman, for no offence committed by her, is kept in Home for such a long time and from the records, it is seen that she will be kept in Home for an endless period. The allegations are so serious. Therefore, the Superintendent, Government Vigilance Home/Government Protective Home, Arasinar Magalir Kaapagam, Mylapore, Chennai - 4 is directed to produce Pavithra @ Swathy, daughter of Gunasekar, who has been detained in connection with the case in Crime No.540 of 2009 on the file of the Inspector of Police, Neelankarai Police station before this Court on 14.06.2012 at 10.30 a.m. to know the actual position. In the meanwhile, Registry is directed to forthwith send for the records in connection with the case in Crime No.540 of 2009 of Neelankarai Police Station from the file of Judicial Magistrate, Alandur. The learned Magistrate shall forward the petition and the order made in Crl.M.P.No.197 of 2010 also. The same shall be before this Court on or before 13.06.2012. Registry is directed to communicate this order either by post or by wire since the matter is so urgent as it involves human rights violation. Post the matter on 14.06.2012." In pursuance of the said order dated 08.06.2012, when this case was taken up for hearing on 14.06.2012, the petitioner was produced before this Court by the first respondent-Inspector of Police. This Court had occasion to hear her with the help of a learned counsel, who is able to converse with the petitioner in Telugu as she speaks only Telugu. Then, on 14.06.2012, this Court passed the following order: "The petitioner/victim girl has been produced by the first respondent from the second respondent Home. She speaks both Telugu and Tamil. She states that her father died some time before. According to her, seeking her release, her father filed a petition. Pending consideration of the same by the learned Magistrate, he also died. Her husband had deserted her. She has got a son, who is now in the custody of her husband. She was all along in the company of her mother and kept in the home. She is willing to go back to her village and reside with her mother. Her mother is Mrs.Venkatamma, W/o. Late Penchalaiah @ Gunasekar, Venkatagiri Mandalam, Nellore Jillah, Moratapalli Village, Andhra Pradesh. 2. Having regard to the fact that the woman has been in the Home for more than 2 years and 10 months without there being any order made under Section 17(4) of the Immoral Traffic (Prevention) Act authorizing her detention, I am inclined to pass the following order: The first respondent, Inspector of Police, J8, Neelangarai Police Station, Chennai is hereby directed to go over to the village of the petitioner, ascertain the genuineness of the statement made by her, enquire her mother as to whether she is willing to keep the petitioner and then submit a report to this Court on 19.06.2012 at 02.15.p.m. Until then, the woman shall be taken back and kept in the very same Home. She shall be produced before this Court on 19.06.2012 at 02.15. p.m. The registry is also directed to retain the lower Court records. Post on 19.06.2012 at 02.15 p.m."
(3.) TODAY, when this case is taken up, the Inspector of Police is present and the mother of the petitioner is also present before this Court. She is identified by the Inspector of Police Mr.K.P.S.Devaraj as well as by the petitioner. The petitioner is also present before this Court. The petitioner's mother has stated that because of her poverty, she could not come over to Tamil Nadu to take any steps to secure the release of the petitioner. Now she states that she will be very happy to take her daughter (the petitioner), if she is released, to her native village. The petitioner is also willing to go to her native village along with her mother to lead the rest of her life with her mother peacefully. When she was informed that she may have to come to the Court of the Judicial Magistrate, Alandur for giving evidence if need be, the petitioner would submit that as and when she receives summons, she would surely come to Court and depose. With this factual background, let me now go into the legal aspects of the matter. As directed by this Court, the entire case records of the lower Court is before me and on going through the same only, I am able to cull out the above facts. The records reveal that from the date of her first production before the learned Magistrate, she was periodically ordered to be kept in Home. The Immoral Traffic (Prevention) Act, 1956 (hereinafter referred to as 'the Act') under which the case has been registered and the petitioner has been rescued is a special enactment, both substantive as well as procedural. Section 17(4) of the Act speaks of the orders to be passed by the Magistrate before whom a victim under this Act is produced. The said provision states that a detailed enquiry is to be held in respect of the victim. After holding such enquiry, the Magistrate, if satisfied that the information received is correct and that the victim is in need of care and protection, is required to pass an order directing the victim to be kept in a Protective Home. For better understanding, let me now extract Section 17(4) of the Act, which reads as follows: "17(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." ;