Improper Release of Minor Trafficking Victim Set Aside — Patna High Court, 2021

Case Background

This case began with a criminal writ petition filed in the Patna High Court by the informant of Bakhri P.S. Case No. 58 of 2020. He challenged an order dated 19.02.2020 of the Special POCSO Court, Begusarai passed in POCSO Case No. 3 of 2020.

On the petitioner’s confidential information, Begusarai Police conducted a raid on 08.02.2020 at a house in Ismailnagar, Bakhri, said to be a brothel run by relatives of a minor girl. The raid was led by the then Dy.S.P. (Headquarters). A 15‑year‑old girl was rescued and two women, Sunita Devi and Meera Devi, were arrested on the spot.

From the premises, police seized two empty wine bottles, AIDS medicines, pregnancy test kits, eleven used condoms, one hundred unused condoms and some cash. The rescued girl told the police she had been brought as a child from Patna by one Punam @ Tanuja, wife of Mantun Nutt, and that she did not remember her parents’ names.

She alleged that Sunita Devi, Meera Devi, Punam @ Tanuja and Mantun Nutt were forcing her into prostitution and taking all the money paid by customers. On refusal, she was beaten. She also named another girl who had been taken away at the time of the raid. A detailed FIR was registered under several sections of the Indian Penal Code, POCSO Act, the Immoral Traffic (Prevention) Act, 1956, the Juvenile Justice Act, 2015 and the Bihar Prohibition and Excise Act, 2016.

The girl’s statement under Section 164 Cr.P.C. was recorded on 18.02.2020. She then stated that her maternal uncle had two wives, Sunita and Punam, and that she was engaging in sexual acts with various men, claiming she was doing so voluntarily. In response to the Magistrate’s questions, she said no one had come to see her since childhood, that her father had died, and that her mother, named as Meena Khatoon, had been living with her for the last one month and she wished to go with her.

Before this statement was recorded, on 12.02.2020, a woman named Meena Khatoon had applied before the Special POCSO Court claiming to be the girl’s mother and seeking permission to meet her in the Balika Grih (girls’ home). On the same day, an application for recording the girl’s Section 164 statement was also filed.

The Special Judge first heard Meena Khatoon’s request and allowed her to meet the girl subject to proper identification. However, when her Aadhaar card and her CCTV photograph were shown to the victim at Balika Grih, the girl failed to identify her. The Superintendent, Balika Grih, informed the Special Judge of this by letter dated 15.02.2020.

Despite this, on 18.02.2020 Meena Khatoon applied for release of the girl in her favour. On the same day, the girl was produced, her Section 164 statement was recorded, and she was sent back to Balika Grih. The very next day, 19.02.2020, the Special POCSO Court ordered that the victim be handed over to Meena Khatoon, mainly on the basis that the girl had expressed a desire to go with her “mother.”

What the Court Examined and Decided

Before the Patna High Court, the petitioner argued that the Special POCSO Court had ignored mandatory provisions of three key laws: the Immoral Traffic (Prevention) Act, 1956; the Juvenile Justice (Care and Protection of Children) Act, 2015; and the POCSO Act, 2012. According to him, this failure seriously jeopardised the safety and rehabilitation of the child victim.

He stressed that Section 17(2) of the 1956 Act obliges the Magistrate to conduct an inquiry into the rescued person’s age, character and antecedents, the suitability of parents or guardians, and the likely influence of home conditions. For this, the court may direct a Probation Officer to investigate and report on the prospects of rehabilitation. Further, Section 17A requires the court, before handing a rescued person to parents or guardians, to satisfy itself about their capacity and genuineness, preferably through a recognised welfare institution or organisation.

The petitioner submitted that no such inquiry was held. No medical examination under Section 27 of the POCSO Act was ordered to determine age or sexual assault. Though the FIR stated the girl was under 16, the Special Court did not treat her as a “child in need of care and protection” under Section 2(14) of the JJ Act and did not produce her before the Child Welfare Committee (CWC) as required by Section 31.

The petitioner also pointed out that when Meena Khatoon first came forward, the girl did not recognise her through CCTV footage. Only after some days, when the Section 164 statement was recorded, did the girl name Meena as her mother and say she wanted to go with her. In the petitioner’s view, this raised a strong possibility that the accused had influenced or tutored the child during this period.

After the girl was released to Meena Khatoon, she was allegedly taken back to the same house of the maternal uncle. On 20.03.2020, a compromise petition signed by Meena Khatoon was filed before the POCSO Court through Advocate Vikash Kumar, who was also representing the accused. This, according to the petitioner, showed collusion between Meena and the accused to dilute the case.

The petitioner further informed the High Court that the accused persons had later obtained bail, allegedly by suppressing criminal antecedents and without serving bail applications on the victim. They were frequently absent before the trial court and kept filing exemption petitions. Applications for cancellation of bail had already been filed by the complainant.

Respondent No. 4, the Child Welfare Committee, Begusarai, filed a counter affidavit. It stated that after orders of the High Court, the Bakhri Police had produced the girl before the CWC on 20.07.2021, and she was placed in Balika Grih. A counsellor’s report dated 24.07.2021 recorded the girl saying she had been living with her maternal uncle and aunt from childhood and was now doing stage performances and dance to support herself and her mother. A later social investigation report stated that her father had died, she was living with her mother Meena Khatoon, the family was very poor, and she did stage shows and dance programmes.

Respondent No. 2, Meena Khatoon, entered appearance and filed an interlocutory application seeking the girl’s release in her favour. Her counsel argued that the petitioner had no locus standi, that the girl had been wrongly sent to a remand home, and that the girl had not been examined by a Medical Board when the High Court first passed orders.

The petitioner replied that his locus came from being the original informant whose information led to the raid and rescue. He insisted that Meena’s status as mother remained doubtful and could only be confirmed through a proper legal inquiry.

Justice Rajeev Ranjan Prasad then examined the record closely. He noted that the raid of 08.02.2020 clearly showed the girl was being used for prostitution in a brothel run by relatives. Large quantities of condoms and other material were seized. The girl told police she did not know her parents and was forcibly pushed into prostitution, with the accused taking her earnings.

At that time, Meena Khatoon did not claim to be the mother. Only four days later she appeared and sought permission to meet the girl. When her identity was tested through CCTV photos at Balika Grih, the girl did not recognise her. Yet six days later, in her Section 164 statement, the girl named Meena as her mother and expressed a wish to go with her.

The Court considered this sequence as significant. It observed that there was a possibility that in the intervening days the accused had influenced the child to change her version to suit them, though the Court described this as a prima facie view only, used to underline the need for greater care by the Special Court.

The High Court reproduced Sections 15, 16, 17 and 17A of the Immoral Traffic (Prevention) Act and emphasised that Section 17(2) casts a clear obligation on the Magistrate to conduct an inquiry before handing over custody. The Court found that in this case, no such inquiry regarding age, character, antecedents, or suitability of guardians was undertaken. Nor was any direction given to a Probation Officer to investigate.

The Court further pointed out that the girl was a child within the meaning of POCSO and a “child in need of care and protection” under the JJ Act, yet she had not been produced before the Child Welfare Committee as required by Section 31 JJ Act. Instead, the Special Court itself took the decision to release her to Meena Khatoon without any institutional assessment or social investigation.

To reinforce these conclusions, the High Court relied on several important precedents. It cited a Division Bench judgment of the Patna High Court in Apne Aap Women Worldwide Trust India and others v. State of Bihar and others, 2015 (1) PLJR 268, which had issued wide‑ranging directions on rescue, inquiry, custody and rehabilitation of trafficking victims and on training of police and judiciary.

It also relied on Delhi High Court’s decision in Delhi High Court Legal Services Committee v. Union of India (Crl. Rev. No. 443/2009) which held that persons under 18 rescued from prostitution must be treated as “children in need of care and protection” and that the Child Welfare Committee has final authority over their custody and restoration. Further, it cited Bombay High Court decisions in Prerana v. State of Maharashtra, 2003(2) MHLJ 105, and Arjun Kishanrao Malge v. State of Maharashtra, 2021 Cri LJ 2269, which laid down detailed procedures for dealing with trafficked children and emphasised the role of legal representation and victim participation in proceedings.

Applying these principles, the Patna High Court held that the Special POCSO Judge had acted “in hot haste” in directing release of the minor girl to respondent No. 2. The release order was found to be illegal, contrary to mandatory provisions, and against the interests of the victim child.

The Court also took note of subsequent developments. After the High Court’s interim orders, the girl was once again found in the house of the accused and brought to the CWC, which requested a social audit of her background. A Medical Board assessed her age as between 16 and 17 years, confirming she was still a minor. Reports showed she was made to perform dance and stage shows to earn for herself and her alleged mother. To the Court, this confirmed that she remained a child in need of care and protection.

Consequently, the High Court set aside the Special Court’s order dated 19.02.2020. It directed that the girl, presently in Balika Grih, Begusarai, should continue to stay there until she attains majority. After turning 18, her release is to be considered under Section 46 of the JJ Act, which provides for after‑care and financial support to facilitate reintegration into mainstream society.

Balika Grih, through the Child Welfare authorities, was instructed to work out a rehabilitation plan for the girl, provide protection, and give her opportunities for vocational courses. The Court specifically referred to paragraph 27 of the Apne Aap Women judgment for guidance on rehabilitation measures.

Regarding the allegation that accused persons had tampered with evidence and used the same lawyer as Meena Khatoon to file a compromise petition, the Court observed that this prima facie showed attempts to influence the minor victim and get rid of the case. It directed the trial court to examine this aspect seriously and pass necessary orders to protect the victim, ensuring that accused persons and their supporters do not get access to her. The trial court was also told to inquire into the genuineness of Meena Khatoon’s claim of motherhood as early as possible.

On the question of bail obtained by the accused, the High Court noted that cancellation petitions had already been filed and therefore did not itself decide that issue. But it directed the trial court to ensure compliance with bail conditions and to act if there was tampering with evidence. If any accused was found to have obtained bail from the High Court by concealing criminal antecedents, the trial court was asked to inform the Registrar General to enable appropriate steps after permission of the Chief Justice.

Finally, the Court issued wider systemic directions. It asked the Chief Secretary, Home Secretary and Director General of Police, Bihar to convene a joint meeting within one month to examine compliance with statutory obligations under the Immoral Traffic (Prevention) Act, JJ Act and POCSO Act, to identify gaps, and to create a monitoring cell. It requested Bihar State Legal Services Authority to review compliance with directions issued in Apne Aap Women and to place the matter before the Chief Justice if further monitoring was needed.

A copy of the judgment was ordered to be sent to all District Judges in Bihar, with a request to organise workshops for judicial officers, Juvenile Justice Board members and Child Welfare Committee members to discuss the law and ensure compliance. The Director, Bihar Judicial Academy, was also requested to incorporate these subjects into training programmes.

Why This Judgment Matters

This judgment is crucial for child victims of trafficking and sexual abuse in Bihar. It shows that even courts must strictly follow child protection laws and cannot hand over a rescued child without proper inquiry and safeguards.

The Patna High Court made it clear that a child rescued from a brothel or similar setting is not an offender but a victim needing care and protection. Her wishes alone, especially when she is still a minor, cannot override legal requirements to test the genuineness and capacity of any claimed parent or guardian.

For police and social workers, the judgment reinforces that every rescued minor must be quickly produced before the Child Welfare Committee, medically examined where required, and kept in safe custody till the Committee or court, after proper inquiry, decides on custody and rehabilitation.

For lawyers and trial courts, it underscores the dangers of compromise or collusion in POCSO and trafficking cases, especially when the same advocate appears for both accused and persons claiming custody of victims. The Court’s directions aim to prevent further exploitation of children in the name of family or settlement.

At a wider level, the judgment pushes the Bihar Government, police leadership, Legal Services Authorities and the judiciary to review how they are implementing anti‑trafficking, POCSO and Juvenile Justice laws, and to invest in training, monitoring, and protective homes like Balika Grih.

Legal Issues and Answers

• 
  Issue: Could the Special POCSO Court lawfully release a rescued minor girl from a brothel to a woman claiming to be her mother without conducting statutory inquiries or involving the Child Welfare Committee?
  
  Answer: No. The Patna High Court held that the Special Court’s order violated mandatory provisions of the Immoral Traffic (Prevention) Act, the Juvenile Justice Act and the POCSO Act, and therefore set aside the release order.
  
• 
  Issue: How should rescued minors in trafficking and POCSO cases be treated for custody and rehabilitation?
  
  Answer: They must be treated as children in need of care and protection, produced before the Child Welfare Committee, medically and socially assessed, and kept in safe custody or child care institutions until a proper inquiry determines suitable placement, with rehabilitation and after‑care planning.
  
• 
  Issue: What steps must courts and authorities take to prevent tampering with child victims and misuse of bail in such cases?
  
  Answer: Trial courts must monitor bail conditions, prevent access of accused and their agents to the victim, scrutinise any compromise attempts, and report concealment of criminal antecedents. Authorities must coordinate, train stakeholders, and follow earlier High Court directions on trafficking cases.
  

Cases Cited by the Court

• Apne Aap Women Worldwide Trust India and Ors. v. The State of Bihar and Ors., 2015 (1) PLJR 268 (Patna High Court, Division Bench).
• Delhi High Court Legal Services Committee v. Union of India and Anr., Crl. Rev. No. 443/2009 & Crl. M.A. No. 3071/2010 (Delhi High Court).
• Prerana v. State of Maharashtra and Ors., 2003(2) MHLJ 105 (Bombay High Court).
• Arjun Kishanrao Malge v. State of Maharashtra and Ors., 2021 Cri LJ 2269 = (2021) 2 Bom CR (Cri) 677 (Bombay High Court, Division Bench).
• Eera through Dr. Manjula Krippendorf v. State (NCT of Delhi) and Anr., (2017) 15 SCC 133 (Supreme Court).
• M.C. Mehta v. State of T.N., (1996) 6 SCC 756 (Supreme Court).
• Supreme Court Women Lawyers Association v. Union of India, (2016) 3 SCC 680 (Supreme Court).
• Budhadev Karmaskar v. State of West Bengal, AIR 2011 SC 2636 (Supreme Court) — referred through Apne Aap Women Worldwide Trust India.

Case Details

Case Number: Criminal Writ Jurisdiction Case No. 160 of 2021 (arising out of Bakhri P.S. Case No. 58 of 2020)

Case Title: Hanif Ur Rahman v. The State of Bihar & Ors.

Coram: Hon’ble Mr. Justice Rajeev Ranjan Prasad

Date of Judgment: 14.12.2021

Citation: 2022 (4) PLJR 93

Advocates:

• For the Petitioner: Ms. Kriti Awasthi, Advocate; Mr. Sambhav Gupta, Advocate; Mr. Navnit Kumar, Advocate; Mr. Shyam Kumar, Advocate.
• For the State (Respondent No. 1 and others): Mr. Nadim Seraj, G.P.5.
• For Respondent No. 2: Ms. Archana Sinha, Advocate.
• For Respondent No. 4 (Child Welfare Committee): Mr. Prabhu Narain Sharma, Advocate.

Nature of the Case: Criminal writ petition challenging an order of the Special POCSO Court releasing a minor victim of alleged trafficking and sexual offences to a claimant mother, and seeking protection of the child’s rights and compliance with statutory procedures.

Link to Judgment: Click here to read the full judgment on the Patna High Court website

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