1 mst IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL WRIT PETITION NO.49 OF 2009 Ms.Sameedul Nisha Mohammed Haroon, Age 55 years, R/o. House No.90, Dharye Aa, Village Diyara, Dist. Sultanpur, U.P. Petitioner versus The State of Maharashtra Respondent AND CRIMINAL WRIT PETITION NO.907 OF 2009 Smt.Surjadevi Radheshyam Raj (Karmavat), Age 51 years, Occ. Housewife, R/o.Village Chautha Ka Barwada, Tal.Chautha Ka Barwada, Dist. Savai Madhavpur, Rajasthan State. Petitioner versus The State of Maharashtra Respondent APPEARANCES :- In Criminal Writ Petition No.49/2009 :- Mr.A.M.Saraogi for petitioner. Mr.S.R.Borulkar, Public Prosecutor with Mr.H.J.Dedhia, APP for State. In Criminal Writ Petition No.907/2009 :- Mr.A.M.Saraogi with Mr.Akhilesh Singh for petitioner. Mr.S.R.Borulkar, Public Prosecutor with Ms.A.T.Javeri, APP for State. 2 CORAM : A.S.OKA, J. DATE : 17th July 2009 JUDGEMENT :- 1. The submissions of the learned counsel for the petitioners and the learned Public Prosecutor were heard in detail. When the petitions were heard earlier the learned members of Child Welfare Committee were also present in the Court. With a view to appreciate the submissions, it will be necessary to refer to the facts of the petitions in brief. 2. Criminal Writ Petition No.49 of 2009 has been filed for challenging the judgement and order dated 15th October 2008 passed by the learned Metropolitan Magistrate. The petitioner claims to be the grandmother of one Heena Iqbal Khan @ Rubina Sikandar Khan (hereinafter referred to as "the said Heena"). It appears that on 10th October 2008 the Police raided a premises known as Hotel Gujarat Gaurav. It was alleged that certain persons were involved in prostitution in the said Hotel. Four persons were arrested on 11th October 2008 and the said Heena along with four other victim girls were picked-up by the Police. The accused as well as the victims were produced by the concerned Police Officer on 11th October 2008 before the learned Magistrate. In the remand report as well as a separate report submitted on the same day by the police officer, the age of Heena was disclosed as 18 years. In the separate report the police officer referred to five victims. On the said separate report, the learned Magistrate directed that the victim girls be referred to a hospital 3 for medical check-up and after the medical check-up they may be produced before him. Till then he directed that the victims should be kept in protection home. There is a further order passed by the learned Magistrate on 15th October 2008. In the said further order the learned Judge observed that the medical report shows that the said Heena was between 17 to 18 years of age and no one had come forward to take custody of the said Heena. The learned Judge, therefore, directed that the said Heena be sent to the Child Welfare Committee (hereinafter referred to as "the said Committee") for further enquiry and order. It appears that thereafter the present petitioner filed an application before the learned Magistrate on 22nd December 2008 praying that she may be given the custody of her grand daughter Heena. On the said application the learned Magistrate passed an order on 22nd December 2008 directing that the applicant shall be presented before the said Committee for necessary orders. In the present petition, as stated earlier, the challenge is to the order dated 15th October 2008 passed by the learned Magistrate by which the said Heena was referred to the said Committee. Reliance is placed on certain documents annexed to the petition for contending that the present age of the said Heena is 20 years. It is submitted that as there is no enquiry held under sub section 2 of section 17 of the Immoral Trafficking (Prevention) Act, 1956 (hereinafter referred to as "the PITA") and as the said Heena was major when she was produced before the learned Magistrate, she may be forthwith released. 3. As far as Writ Petition No.907 of 2009 is concerned, the same is 4 filed by one Surjadevi Raj. She claims to be the mother of one Kavita Radheshyam Raj (hereinafter referred to as "said Kavita"). It appears that on 29th May 2008 the police conducted a raid on a lodge. It is alleged that various persons were found indulging in prostitution in the said raid. Apart from the accused persons seven victims were picked-up by the police including the said Kavita. Along with the writ petition a copy of the report submitted by the concerned police officer on 13th October 2008 before the learned Magistrate has been annexed. In the report, the age of Kavita is stated to be between 17 to 18 years. Apart from the said report a copy of order dated 18th June 2008 passed by the learned Magistrate is placed on record which records that the victim girls be sent to Navjeetan Mahila Vasatigruha, Chembur, Mumbai for a period of one year. The said order is passed in purported exercise of powers under sub section 4 of section 17 of the PITA.. It appears that an appeal was preferred by the petitioner before the Sessions Court against the order dated 18th June 2008. There was a delay in filing the appeal and, therefore, an application for condonation of delay was made. The said application for condonation of delay was rejected on the ground that the petitioner had no locus standi to file the said application. 4. The learned counsel appearing for the petitioners in these writ petitions has made detailed submissions. As far as Criminal Writ Petition No.907 of 2009 is concerned, it is submitted that the order dated 18th June 2008 is illegal as there was no enquiry held as contemplated by sub section 2 of section 17 of the PITA.. It must be stated here that during the 5 course of arguments the learned Public Prosecutor pointed out that the said Kavita has been produced before the said Committee as she was a minor. It is submitted that the parents of said Kavita have produced a birth certificate showing her date of birth as 11th April 1990. It is submitted that the order dated 18th June 2008 passed by the learned Magistrate is illegal and in any case the said Committee cannot deal with the matter as the said Kavita had attained majority. He pointed out that the fact that Kavita was sent to the said Committee was not brought to the notice of the Sessions Court. He submitted that the order passed by the said Committee directing that Kavita shall be detained till 15th June 2010 is illegal. His submission is that the victim is sought to be treated as an offender. It is submitted that no enquiry was made by the learned Magistrate as regards the age of the said Kavita. The learned counsel also pointed out that no advocate is allowed to appear before the said Committee for the victim and even the parents of the victims have no access to the said Committee. 5. In support of Writ Petition No.49 of 2009, it is submitted that the said Heena had already attained majority and there are documents placed on record to that effect. It is submitted that the said Heena could not have been sent to the said Committee without there being any enquiry as regards her age. It is submitted that going by the order dated 15th October 2008 now the said Heena has now attained the age of majority and, therefore, she deserves to be released immediately. 6 6. The learned Public Prosecutor has produced the record of the said Committee dealing with Kavita and other victims. I have perused the record. 7. As far as Kavita is concerned, the learned Public Prosecutor stated that an order has already been passed on 10th November 2008 by the said Committee on the basis of the report of the medical officer. An order has been passed that Kavita shall be sent to the Rescue Foundation at Kandivali, Mumbai under section 39(1) of the Juvenile Justice (Care and Protection of Children) Act, 2000 (hereinafter referred to as "the said Act") till she attains the age of majority i.e. till 5th June 2010. He submitted that there is no challenge to the order passed by the said Committee. 8. When it was brought to the notice of the learned Public Prosecutor that the order sheets in the file maintained by the said Committee have been maintained in most shabby manner and it is very difficult even to read the same, the learned Public Prosecutor pointed out that the said Committee is not given basic infrastructure. He pointed out that the basic infrastructure like the land line telephone with fax facility, computer with internet and printer, adequate stationery, storage facility etc. is not provided to the said Committees all over the State. He submitted that there is no full time staff such as Clerks, Computer Operators, Peons etc.. He submitted that the Committees need a complete establishment having all the infrastructure so that the object of forming such Committees can be achieved. 7 9. I have carefully considered the submissions. It will be necessary to refer to the relevant provisions of PITA.. Sub section 2 of section 17 of PITA provides that when the victims are produced before the learned Magistrate in terms of sections 15 or 16 of PITA, the Magistrate is under an obligation under sub section 2 of section 17 to hold an enquiry and pending such enquiry, the Magistrate is empowered to pass appropriate order for safe custody of the person concerned. It is provided in proviso to sub-section 3 of Section 17 that when a child is rescued under section 16 of PITA who is living or is carrying on or is being made to carry on prostitution in a brothel, it is open for the Magistrate to place such a 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. It is provided that for the purpose of holding an enquiry under sub section 2 of section 17 the person or the victim can be kept in custody for a period not exceeding three weeks. After holding an enquiry under sub section 2 of section 17, a Magistrate is given power under sub-section (4) of section 17 to pass an order of detaining the victim in protective home. In case it is found that the information received is correct and the victim is in need of care and protection, the victim can be ordered to be detained for a period not less than one year and not exceeding three years. The said order has been made appellable under sub section 6 of section 17. 10. It will be also necessary to refer to the said Act. Under clause (k) 8 of section 2 of said Act a juvenile or a child is defined to be a person who has not completed eighteenth year of age. Clause (d) of section 2 defines the term "child in need of care and protection". Clauses (vi), (vii) and (viii) of clause (d) are relevant which read thus :- "(vi) who is being or is likely to be grossly abused, tortured or exploited for the purpose of sexual abuse or illegal acts; (vii) who is found vulnerable and is likely to be inducted into drug abuse or trafficking; (viii) who is being or is likely to be abused for unconscionable gains." Under section 29 of the Chapter-III of the said Act, the state Government is under an obligation to constitute a Child Welfare Committee for every district for exercising the powers and discharge the duties conferred on such Committees in relation to child in need of care and protection. Section 29 deals with constitution of such Committees. Section 30 deals with the procedure. Section 31 deals with the powers of the Committee which reads thus:- "31. Powers of Committee :- (1) The Committee shall have the final authority to dispose of cases for the care, protection, treatment, development and rehabilitation of the children as well as to provide for their basic needs and protection of human rights. (2) Where a Committee has been constituted for any area, such Committee shall, notwithstanding anything contained in any other law for the time being in force but save as otherwise expressly provided in this Act, have the 9 power to deal exclusively with all proceedings under this Act relating to children in need of care and protection". Section 32 provides that any child in need of care and protection may be produced before the Committee by any police officer or other persons specified in the said section. It is provided that the child shall be produced before the Committee without any loss of time within a period of 24 hours. Section 33 of the said Act reads thus :- "33. Enquiry : (1) On receipt of a report under section 32, the Committee shall hold an inquiry in the prescribed manner and the Committee, on its own or on the report from any person or agency as mentioned in sub section (1) of section 32, may pass an order to send the child to the children's home for speedy inquiry by a social worker or child welfare officer; (2) The inquiry under this section shall be completed within four months of the receipt of the order or within such shorter period as may be fixed by the Committee : Provided that the time for the sub mission of the inquiry report may be extended by such period as the Committee may, having regard to the circumstances and for the reasons recorded in writing, determine. (3) The State Government shall review the pendency of cases of the Committee at every six months, and shall direct the Committee to increase the frequency of its sittings or may cause the constitution of additional Committees. (4) After the completion of the inquiry, if, the Committee is of the opinion that the said child has no family or ostensible support or is in continued need of care and protection, it may allow the child to remain in the children's home or shelter home till suitable rehabilitation is found for him or till he attains the age of eighteen years." Thus, after completion of the inquiry if the Committee is of the opinion that 10 such a child has no family or ostensible support or is in continued need of care and protection, it may allow the child to remain in the children's home or shelter home till suitable rehabilitation is found for him or till he attains the age of eighteen years. 11. Under section 39 of the said Act it is provided that restoration of and protection to a child shall be the prime objective of any children's home or the shelter home. The children's home or a shelter home shall take such steps as are considered necessary for the restoration of and protection to a child deprived of his family environment temporarily or permanently where such child is under the care and protection of a children's home or a shelter home as the case may be. Sub section 3 of section 39 confers power on the Committee to restore any child in need of care and protection to his parents, guardian, fit person or fit institution and give them suitable directions. 12. Rules have been framed under the said Act. The said Rules are for Juvenile Justice (Care and Protection of Children) Rules, 2007 (hereinafter referred to as the said Rules). As far as the Committee is concerned, the relevant provisions are found in Chapter-IV in the said Rules. Various procedural aspects such as composition of the committee, qualifications of members of the committee, tenure of the committee etc are provided in Chapter-IV. At this stage it must be noted that sub rule 4 of Rule 24 provides that the committee shall meet a minimum of three days a week, which may be extended by the State Government 11 depending on case and pendency of work. It is provided by sub rule 3 of Rule 24 that the premises where the committee holds its sittings shall be child-friendly and shall not look like a court room in any manner whatsoever. It is specifically provided that the committee shall not sit on a raised platform and the sitting arrangement shall be uniform and there shall be no witness boxes. Rule 25 provides for the functions and powers of the committee. Rule 25 shows that vast powers have been conferred on the said committee and the committee is required to perform many functions. The committee is entrusted with the power of conducting necessary inquiry on all the issues relating to and affecting the safety and well being of a child. The committee is required to maintain documents and maintain detailed case record along with a case summary of every case dealt by the committee. The committee is supposed to monitor associations and agencies within their jurisdiction that deal with children in order to check on the exploitation and abuse of children. The committee is supposed to prepare various reports as provided therein. Thus, the Act and Rules contemplate not only appointment and constitution of the committees but setting up of permanent establishments of the committees. Looking to the powers conferred on the committee and the functions which the committee is required to discharge, each committee has to be given a full fledged infrastructure. As stated by the learned Public Prosecutor, elementary facilities like land line telephones with fax facility, computers with internet and printers, adequate stationery, storage facility are not provided to more than 30 committees establishes in the State. There are no full time employees such as clerks, computer 12 operators and peons. It is obvious that without there being a complete establishment available with every committee, the very object of forming such committees through out the State is likely to be frustrated. 13. Now coming back to the point in issue, it must be stated here that there is a decision of Division Bench of this Court in the case of Prerana Vs. The State of Maharashtra and others (2002-All.M.R.(Cri)-2400). There are certain directions issued by the Division Bench. The said directions are summarized in paragraph 37 of the said decision. Paragraph 37 reads thus:- "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 Section 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 or care and protection. 13 (C) Any juvenile rescued from a brothel under the Immoral Traffic (Prevention) Act 1956 or found soliciting in a public place 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 brother keeper is barred from appearing in the same case for the victims rescued under the Immoral Traffic (Prevention) Act 1956." 14. Thus, it is the obligation of a Magistrate to ascertain the age of the victims when the victims are produced before him as required by sub- section 1 of section 17 of the PITA.. When the Magistrate finds that the age of a victim seems to be under 18 years, he has to direct that the victim shall be transferred to the Committee. If the victim is a juvenile in conflict with law, the victim has to be transferred to the Juvenile Justice Board. In the present case, we are dealing with the victims and, therefore, in such a case, when the victims are produced before the Magistrate, he has to apply his mind for ascertaining whether the victim is 14 a child or whether the victim is above the age of 18 years. It is obvious that at that stage a detailed inquiry is not contemplated. The learned Magistrate may question the victim and may examine the record produced by the police officer or by any other authority. He may seek medical opinion. He may also consider the documents produced on behalf of the victim. At that stage if the Magistrate is of the opinion that the victim appears to be under 18 years of age, a direction has to be issued by the learned Magistrate for producing the child before the Committee. It is noticed by this Court that the directions incorporated by the Division Bench in the case of Prerana (supra) are not being scrupulously implemented by the Courts of Magistrates in Mumbai. 15. Now turning to the facts of Criminal Writ Petition No.49 of 2009. The victim Heena was produced before the Magistrate on 11th October 2008 when she was sent for medical examination. On 15th October 2008 the learned Magistrate passed an order noting that in the medical report the age of Heena is shown as 17 to 18 years and, therefore, the learned Magistrate passed an order and in my view rightly, directing that Heena shall be sent to the Child Welfare Committee at Deonar. The petitioner who claims to be the grand mother of Heena applied for custody before the Magistrate. The Magistrate directed that the said application shall be preferred before the said Committee. The contention raised in this petition is that the date of birth of said Heena @ Rubina is 28th January 1988 and therefore, on the date on which she was produced before the learned Magistrate, she had attained majority. The contention is that the 15 documents annexed to the petition are genuine and even the concerned police officer has found the said documents to be genuine. The learned Magistrate passed an order on 22nd December 2008 directing the petitioner to approach the the Committee. Instead of approaching the Committee, the petitioner has approached this Court in January 2009 and present petition has been filed. 16. It is obvious that the said Committee gets jurisdiction