HEADNOTE
XYZ v. State of Maharashtra
Court: Bombay High Court
Jurisdiction: Criminal Appellate Jurisdiction
Bench: Justice N. J. Jamadar
Date of Judgment: January 16, 2026
Citation: 2026:BHC-AS:1926
Laws / Sections Involved: Immoral Traffic (Prevention) Act, 1956 – Sections 3, 4, 5, 6, 15, 16 & 17; Constitution of India – Articles 19 & 21
Keywords: PITA Act, protective home detention, major victim rights, personal liberty, Section 17 PITA, rehabilitation vs punishment
Summary
The Bombay High Court allowed a writ petition filed by a major victim rescued during a raid under the Immoral Traffic (Prevention) Act, 1956, and set aside orders directing her detention in a protective home for one year. The Court held that a major victim cannot be detained against her will merely on the apprehension that she may relapse into commercial sex work. Emphasising constitutional guarantees under Articles 19 and 21, the Court ruled that PITA is a welfare legislation aimed at rehabilitation, not punishment of victims. In the absence of material showing danger to society or disability warranting restrictions, continued detention was held illegal. The Court also underscored the mandatory requirement of assistance from a panel of respectable persons under Section 17(5) PITA.
Court’s decision
The Bombay High Court allowed the writ petition and quashed the orders of the Magistrate and Sessions Court directing the detention of the petitioner (Victim No.3) in a protective home for one year. The Court held that continued detention of a major victim against her wish violates her fundamental rights to personal liberty and freedom of movement, particularly when she is neither an accused nor shown to pose a threat to society. The petitioner was ordered to be released forthwith, subject to a condition that she shall not indulge in activities similar to those which led to her rescue.
Facts
Following a police raid at Hotel Vijay Lodging, Yeola, five women including the petitioner were rescued and a crime under the Immoral Traffic (Prevention) Act was registered against two accused persons. After conducting an inquiry under Section 17 of the PITA, the Magistrate ordered that Victim No.3 be detained in a protective home for one year, citing lack of family support and apprehension of relapse into commercial sex work. Though two other victims were released into family custody, the petitioner’s detention was continued. Her revision was dismissed by the Sessions Court, leading to the present writ petition.
Issues
The core issue before the High Court was whether a major victim rescued under the PITA can be detained in a protective home against her consent solely on the ground that she has no relatives to take custody of her and may potentially relapse into commercial sex work.
Petitioner’s arguments
The petitioner contended that she was a victim and not an accused, was a major, and that her detention amounted to punishment rather than protection. It was argued that the Magistrate failed to appreciate the distinction between offenders and victims under the PITA and that her detention infringed Articles 19 and 21 of the Constitution. The petitioner also asserted non-compliance with Section 17(5) of the PITA, as the Magistrate had not taken assistance of a mandatory panel of respectable persons.
Respondent’s arguments
The State supported the impugned orders, submitting that the petitioner had no family support, lived in vulnerable economic conditions, and faced a real risk of being forced back into commercial sex work if released. It was argued that detention in a protective home was necessary to safeguard her interests and ensure rehabilitation.
Analysis of the law
The Court analysed the object and scheme of the Immoral Traffic (Prevention) Act, noting that prostitution per se is not criminalised and that the Act primarily targets sexual exploitation and trafficking. The Bench emphasised that Section 17 provides protective and rehabilitative measures and must be interpreted in harmony with constitutional freedoms. Detention, the Court held, is a serious restriction on liberty and must be justified by compelling material, not conjectural apprehensions.
Precedent analysis
Reliance was placed on Asiya Anwar Shaikh v. State of Maharashtra (2019) and Kajal Mukesh Singh v. State of Maharashtra (2021), where it was held that major victims cannot be detained against their wishes in corrective institutions in the absence of statutory or constitutional justification. The Court also referred to Sahyog Mahila Mandal v. State of Gujarat, which underscored that victims under PITA deserve rehabilitation, not penal treatment.
Court’s reasoning
The Court found that the only distinguishing factor cited by the Magistrate for detaining the petitioner was absence of a relative to take custody. There was no finding that the petitioner suffered from any disability, posed danger to society, or was herself involved in offences under the PITA. The apprehension of relapse into sex work, without supporting material, was held insufficient to override fundamental freedoms. The failure to seek assistance of the statutory panel under Section 17(5) further vitiated the detention order.
Conclusion
The Bombay High Court quashed the orders directing detention of the petitioner in a protective home and directed her immediate release, holding the detention illegal and unconstitutional.
Implications
This judgment reinforces that victims of trafficking are holders of constitutional rights and cannot be subjected to paternalistic detention. It draws a clear line between protection and punishment under the PITA and strengthens safeguards against arbitrary curtailment of liberty of adult victims in the name of rehabilitation.
Case law references
• Asiya Anwar Shaikh v. State of Maharashtra (2019 ALL MR (Cri) 5006)
Holding: A major victim cannot be detained in a corrective institution against her will.
Application: Relied upon to hold detention unconstitutional.
• Kajal Mukesh Singh v. State of Maharashtra (2021(1) ABR (Cri) 534)
Holding: Fundamental rights of major victims cannot be curtailed without justification.
Application: Applied to order release of the petitioner.
• Sahyog Mahila Mandal v. State of Gujarat (2004 SCC OnLine Guj 269)
Holding: Victims under PITA are to be rehabilitated, not punished.
Application: Used to emphasise rehabilitative intent of the statute.
FAQs
Q1. Can a major victim be detained in a protective home under PITA?
Only if there is compelling material justifying restriction of liberty; detention cannot be automatic or against the victim’s will.
Q2. Is prostitution itself an offence under PITA?
No. PITA criminalises sexual exploitation and trafficking, not prostitution per se.
Q3. Why was the detention order set aside?
Because it violated the petitioner’s fundamental rights and was based only on speculative apprehensions.
