High Court · 2024

Crl.R.C.No.1198 of 2024IN THE HIGH COURT OF JUDICATURE AT MADRASDATED : 19.07.2024CORAM :THE HONOURABLE MR. JUSTICE M. DHANDAPANICrl.R.C.No.1198 of 2024Tuhin Shaik ... PetitionerVs.1.The State Rep. by The Inspector of Police, Krishnagiri Taluk Police Station, Krishnagiri District.2.Shila Shaik ... RespondentsPrayer : Criminal Revision Case filed under Sections 438 & 442 of Bharatiya Nagarik Suraksha Sanhita, 2023, praying to set aside the order passed in Crl.M.P.No.4798 of 2024 dated 04.07.2024 on the file of the learned Additional Mahila Magistrate Level at Krishnagiri.For Petitioner:Mr.M.MuruganFor R1:Mr.A.GopinathGovernment Advocate (Crl.Side) *****Page No.1 of 8 https://www.mhc.tn.gov.in/judis Crl.R.C.No.1198 of 2024ORDERThe petitioner, claiming to be the husband of the 2nd respondent/victim had filed a petition in Crl.M.P.No.4798 of 2024 before the learned Additional Mahila Magistrate Level at Krishnagiri, seeking custody of the 2nd respondent and the said petition was dismissed by the learned Magistrate vide order dated 04.07.2024. Aggrieved by the same, the petitioner is before this court with the above prayer.2. The case of the prosecution is that on 02.05.2024, the 1st respondent police, during his search in respect of Crime No.164 of 2024 registered u/s 3(2)(a), 4(1) and 5(1)(a) of Immoral Traffic (Prevention) Act, 1956 (in short ''ITP Act'') had rescued the 2nd respondent/victim along with 6 others and produced them before the learned Magistrate. Thereafter, the victim was ordered to be kept under interim safe custody at Government Protection Home as per Section 17(4) of ITP Act.Page No.2 of 8 https://www.mhc.tn.gov.in/judis Crl.R.C.No.1198 of 20243. It is the case of the petitioner that the 2nd respondent is the wife of the petitioner and she is an innocent and she has no involvement over the alleged offence. Since the victim was looking the family of the petitioner, the petitioner has filed a petition in Crl.M.P.No.4798 of 2024 before the learned Additional Mahila Magistrate Level at Krishnagiri, seeking her custody, however the trial court has refused to send the victim with him.4. Learned counsel for the petitioner has assailed the order of the trial court stating that the trial court overlooking the fact that the petitioner is the husband of the second respondent, has simply detained the victim in the Government Home, which is an arbitrary exercise of power and is against the provisions of law. The petitioner has furnished sufficient materials to show his bona fide that the victim is his wife and the trial court, disbeliving all these material aspects, had dismissed the petition filed by the petitioner, which is illegal, improper and liable to be set aside.Page No.3 of 8 https://www.mhc.tn.gov.in/judis Crl.R.C.No.1198 of 20245. Per contra, the learned Government Advocate (Crl.Side) appearing for the 1st respondent police submitted that, though the petitioner claims to be the husband of the victim, however, the petitioner has not provided any document before the trial court to establish their relationship. Therefore, he submitted that, handing over the custody of the victim to the petitioner will further deteriorate her condition and there is every possibility of her being involved in the trafficking again. Accordingly, he prays for dismissal of the revision.6. Heard the learned counsel for the petitioner and the learned Government Advocate (Crl.Side) appearing for the 1st respondent and perused the materials available on record.7. It is seen that the victim was rescued during the search operation conducted by the 1st respondent police in respect of Crime No.164 of 2024 registered under the ITP Act. Thereafter, the petitioner filed a petition seeking custody of the victim before the trial court. The trial court, did not adhere to the request of the petitoner and refused to hand over the custody to the petitioner, thereby the victim was kept under Page No.4 of 8 https://www.mhc.tn.gov.in/judis Crl.R.C.No.1198 of 2024the custody of the Government Protection Home under Section 17(4) of ITP Act. Section 17(4) of ITP Act is extracted hereunder for the purpose of clarity :-“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 fro 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 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.”Page No.5 of 8 https://www.mhc.tn.gov.in/judis Crl.R.C.No.1198 of 20248. Section 17-A of ITP Act is also extracted hereunder:-“17-A. Conditions to be observed before placing persons rescued under section 16 to parents or guardian – 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.”9. The reason for refusal to hand over the custody to the petitoner is that there is no strong iota of proof adduced on the side of the petitioner to substantiate that the victim is his wife. Further, the Probationary Officer has filed a report stating that there is no proof available to show that the petitioner is the husband of the victim. Hence, in the absence of any proof to establish the relationship between the petitioner and the victim, the trial court, by considering all the above aspects, had refused to send the victim with the petitioner, which cannot be said to be perverse, illegal or arbitrary and thereby, this court is not inclined to interfere with the impugned order passed by the trial court.Page No.6 of 8 https://www.mhc.tn.gov.in/judis Crl.R.C.No.1198 of 202410. Accordingly, the Criminal Revisions Case is dismissed. However, if any material is available to the petitioner to establish his relationship with the victim, he is at liberty to file appropriate petition before the trial court seeking custody of the victim by producing appropriate documents establishing their relationship.19.07.2024Index : Yes / NoSpeaking order / Non-speaking orderssbTo1.The Additional Mahila Magistrate Level at Krishnagiri.2.The Inspector of Police, Krishnagiri Taluk Police Station, Krishnagiri District.3.The Public Prosecutor, Madras High Court, Chennai.Page No.7 of 8 https://www.mhc.tn.gov.in/judis Crl.R.C.No.1198 of 2024M.DHANDAPANI, J.ssbCrl.R.C.No.1198 of 202419.07.2024Page No.8 of 8

Crl.R.C.No.1198 of 2024IN THE HIGH COURT OF JUDICATURE AT MADRASDATED : 19.07.2024CORAM :THE HONOURABLE MR. JUSTICE M. DHANDAPANICrl.R.C.No.1198 of 2024Tuhin Shaik ... PetitionerVs.1.The State Rep. by The Inspector of Police, Krishnagiri Taluk Police Station, Krishnagiri District.2.Shila Shaik ... RespondentsPrayer : Criminal Revision Case filed under Sections 438 & 442 of Bharatiya Nagarik Suraksha Sanhita, 2023, praying to set aside the order passed in Crl.M.P.No.4798 of 2024 dated 04.07.2024 on the file of the learned Additional Mahila Magistrate Level at Krishnagiri.For Petitioner:Mr.M.MuruganFor R1:Mr.A.GopinathGovernment Advocate (Crl.Side) *****Page No.1 of 8 https://www.mhc.tn.gov.in/judis Crl.R.C.No.1198 of 2024ORDERThe petitioner, claiming to be the husband of the 2nd respondent/victim had filed a petition in Crl.M.P.No.4798 of 2024 before the learned Additional Mahila Magistrate Level at Krishnagiri, seeking custody of the 2nd respondent and the said petition was dismissed by the learned Magistrate vide order dated 04.07.2024. Aggrieved by the same, the petitioner is before this court with the above prayer.2. The case of the prosecution is that on 02.05.2024, the 1st respondent police, during his search in respect of Crime No.164 of 2024 registered u/s 3(2)(a), 4(1) and 5(1)(a) of Immoral Traffic (Prevention) Act, 1956 (in short ''ITP Act'') had rescued the 2nd respondent/victim along with 6 others and produced them before the learned Magistrate. Thereafter, the victim was ordered to be kept under interim safe custody at Government Protection Home as per Section 17(4) of ITP Act.Page No.2 of 8 https://www.mhc.tn.gov.in/judis Crl.R.C.No.1198 of 20243. It is the case of the petitioner that the 2nd respondent is the wife of the petitioner and she is an innocent and she has no involvement over the alleged offence. Since the victim was looking the family of the petitioner, the petitioner has filed a petition in Crl.M.P.No.4798 of 2024 before the learned Additional Mahila Magistrate Level at Krishnagiri, seeking her custody, however the trial court has refused to send the victim with him.4. Learned counsel for the petitioner has assailed the order of the trial court stating that the trial court overlooking the fact that the petitioner is the husband of the second respondent, has simply detained the victim in the Government Home, which is an arbitrary exercise of power and is against the provisions of law. The petitioner has furnished sufficient materials to show his bona fide that the victim is his wife and the trial court, disbeliving all these material aspects, had dismissed the petition filed by the petitioner, which is illegal, improper and liable to be set aside.Page No.3 of 8 https://www.mhc.tn.gov.in/judis Crl.R.C.No.1198 of 20245. Per contra, the learned Government Advocate (Crl.Side) appearing for the 1st respondent police submitted that, though the petitioner claims to be the husband of the victim, however, the petitioner has not provided any document before the trial court to establish their relationship. Therefore, he submitted that, handing over the custody of the victim to the petitioner will further deteriorate her condition and there is every possibility of her being involved in the trafficking again. Accordingly, he prays for dismissal of the revision.6. Heard the learned counsel for the petitioner and the learned Government Advocate (Crl.Side) appearing for the 1st respondent and perused the materials available on record.7. It is seen that the victim was rescued during the search operation conducted by the 1st respondent police in respect of Crime No.164 of 2024 registered under the ITP Act. Thereafter, the petitioner filed a petition seeking custody of the victim before the trial court. The trial court, did not adhere to the request of the petitoner and refused to hand over the custody to the petitioner, thereby the victim was kept under Page No.4 of 8 https://www.mhc.tn.gov.in/judis Crl.R.C.No.1198 of 2024the custody of the Government Protection Home under Section 17(4) of ITP Act. Section 17(4) of ITP Act is extracted hereunder for the purpose of clarity :-“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 fro 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 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.”Page No.5 of 8 https://www.mhc.tn.gov.in/judis Crl.R.C.No.1198 of 20248. Section 17-A of ITP Act is also extracted hereunder:-“17-A. Conditions to be observed before placing persons rescued under section 16 to parents or guardian – 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.”9. The reason for refusal to hand over the custody to the petitoner is that there is no strong iota of proof adduced on the side of the petitioner to substantiate that the victim is his wife. Further, the Probationary Officer has filed a report stating that there is no proof available to show that the petitioner is the husband of the victim. Hence, in the absence of any proof to establish the relationship between the petitioner and the victim, the trial court, by considering all the above aspects, had refused to send the victim with the petitioner, which cannot be said to be perverse, illegal or arbitrary and thereby, this court is not inclined to interfere with the impugned order passed by the trial court.Page No.6 of 8 https://www.mhc.tn.gov.in/judis Crl.R.C.No.1198 of 202410. Accordingly, the Criminal Revisions Case is dismissed. However, if any material is available to the petitioner to establish his relationship with the victim, he is at liberty to file appropriate petition before the trial court seeking custody of the victim by producing appropriate documents establishing their relationship.19.07.2024Index : Yes / NoSpeaking order / Non-speaking orderssbTo1.The Additional Mahila Magistrate Level at Krishnagiri.2.The Inspector of Police, Krishnagiri Taluk Police Station, Krishnagiri District.3.The Public Prosecutor, Madras High Court, Chennai.Page No.7 of 8 https://www.mhc.tn.gov.in/judis Crl.R.C.No.1198 of 2024M.DHANDAPANI, J.ssbCrl.R.C.No.1198 of 202419.07.2024Page No.8 of 8