looking approach to prevent such wanton and egregious callousness to
human lives and to have prevention rather than punishment as the guiding
factor in the prosecution of such crime. We, therefore, deem it fit to lay
down guidelines for the grant of bail in cases of human trafficking thus:
The application for bail must take into account
(a) The fundamental right of the victim not to be trafficked. All
else is subservient.
(b) The antecedents of the accused The trafficker would be easily
seen to have been earlier apprehended and arrested. Such accused are
habitual offenders.
(c) The repetitiveness of the offence since it is a career in crime, it
is bound to be repeated upon the accused being released on bail thus
trafficking further similar victims which is the State's duty to prevent.
(d) The intimidation and threat that accompanies the relationship
between the accused and the victim. The victim is the helpless
chattel of the accused, the accused being in a position to threaten her
to lie and coerce her to turn hostile and thus tamper with evidence.
(e) The economic position of the accused, if a trafficker, This
would reflect in the brothel that he or she runs and which is statutorily
required to be sealed and closed by the police this would be the most
potent antidote. The crime of trafficking in humans is an organized
crime. It is one of the most profitable criminal activities worldwide.
(f) The violence involved in the case reflected from the statement
of the victim and the other witnesses, if any. The violence suffered by
the victim would show the strength in the position of the accused.
(g) The subterfuge deployed by the accused in diverting the police
machinery from himself or herself when non traffickers and other
docile persons who may be working for the accused in various
positions may be kept in the frontline for arrest and who need to be
released on bail as harmless coaccused.
27. Keeping in mind these diverse ways to frustrate justice adopted
in various modes and after fully appreciating and considering the aforesaid
aspects the Magistrate/Judge must give the grounds and the reasons as to
why in a transient offence such as trafficking also he/she has deemed it fit to
grant bail, more especially to the trafficker and the brothel owner.
28. Upon the aforesaid main aspects being specifically noted, the
Court may proceed to consider the application for bail as in other cases.
Hence the Court would, as a general principle, refuse bail to an accused who
is shown as a trafficker in human beings as such accused pursues a career in
such crime, which is prone to reputation, which is expected to have
antecedents and which is generally indisposed to intimidation and threats.
The Court would certainly release on bail such of the accused or coaccused
as are themselves not traffickers but may be shown to have played some
minor role in the commission of the offence. The Court would release on
bail a brothel owner but only subject to the closure and sealing of his brothel
under Section 18 of the ITPA.
29. We have been informed that even if an accused is refused bail,
he or she applies for bail on medical ground. We may mention that the
provision of medical assistance and medical fees in our prisons have come of
age. All facilities as would be usually required by the accused must,
therefore, be provided for and allowed to be availed to the accused within
jail precincts itself. Experience in the above matters, as contended by the
parties, has shown that some of the accused have absconded even upon bail
having been granted for medical reasons. The Courts would do well not to
allow such slips to happen except in the most dire and emergent cases of
medical problems diagnosed by known and registered medical officers and
certified under their signatures in which medical aid is not available in jail
and that too under strict supervision and upon specific directions in that
behalf.
30. Both the petitioner as also the State have submitted before us
guidelines for streamlining the prosecution of cases of human trafficking. It
would be appropriate to set out some of the most needed guidelines thus:
(i) Bail should be denied to habitual offenders (traffickers) except
upon exceptional, special and compelling reasons upon the most
stringent conditions.
The Court shall call for and consider the antecedents report of the
accused in all trafficking cases before passing any order of bail
maintained by the AntiHuman Trafficking Unit and the local police.
(ii) Bail should be refused to brothel owner until the brothel is
closed and sealed under Section 18 of the ITPA.
(iii) Bail should also be denied if the victim is a minor except in case
of any extraordinary, compelling or special circumstances to be
explained in the order itself and upon the most stringent conditions.
Hence the bail may be granted only after the victim's age is verified by
the birth certificate (and only if it satisfies the Magistrate/Judge that it
is genuine, carries a presumption of its correctness, being a public
document) and not a school leaving certificate (which would be
required to be proved upon verification of the school records by the
signatory and which never carries any legal presumption of its
correctness, being a private document.) Such documentary evidence
would, therefore, have to be necessarily verified by the competent
authority issuing them before embarking upon the final decision of
grant of bail if upon a simplicitor look at the victim her age (of
adulthood) belies the contents of the documentary evidence produced.
Even medical evidence is opportune, and in case of doubt, "reage
verification" for having a second opinion would be required to be
directed before the order of grant of bail. When the victim is prima
facie ("on the face of it") a minor, the aforesaid medical tests are
mandatory before taking the risky option of deciding the application
for grant of bail.
(iv) Bail should also be denied its case of violent offence which
would be seen from the statements of the victims and witnesses. The
Court would do well to take into account the expected intimidation
and threat to the victims and/or witnesses.
(v) If bail is applied on the ground of death of a family member the
Court should ensure that clear documentation is produced to prove the
genuineness of the ground.
(vi) Bail, upon stringent conditions, (if at all), be granted to the
trafficker or the brothel owners only after the statement of the victim
is recorded under Section 164 of the Code of Criminal Procedure and
only if all other aforesaid conditions are met.
This would include a victim impact statement which may be
considered with regard to the violence, if any, suffered by the victim or
the other psychological and mental trauma having been faced by her
whilst granting bail and fixing the conditions of such bail.
(vii) Anticipatory bail should be denied in ITPA cases.
(viii) The Court shall specify the condition of at least weekly
attendance of the accused pending the trial with a further rider that
failure of the accused to attend the Police Station shall be a ground for
cancellation of bail. A condition be imposed on the Investigating
Officer to submit a detailed report with regard to attendance of the
accused.
(ix) The accused must never be allowed to gain access to the victim
as the safety of the victim is of prime concern when the accused is
released on bail. The Court shall give directions and make special
conditions and provisions for supervision to ensure that there would
be no contact between the accused and the victim.
(x) The Court may also consider the condition of externment in the
bail order.
(xi) The victim shall not be allowed to sign any Vakalatnama without
the permission of the Court.
(xii) No Advocate shall be allowed to appear in ITPA cases on behalf
of the accused as well as the victim.
(xiii) The victim deserves to have legal representation and emotional
support. It may be mentioned that in the case of Prerna (supra) this
Court held that the victims of ITPA offences are "victims of crime" and
should not be treated as criminals or as a source of evidence. The
stage of bail is the most important as also the most fragile when the
victims' rights begin and should not be lost.
Hence the Court shall permit any of the known NGOs and legal
officers to work for assisting victims and prosecution and to represent
the victims.
(xiv) The Court shall provide a lawyer from the Legal Services
Authority or from any organization of service providers to represent
the victims from the stage of the first remand of the accused and the
application of bail itself or whenever an order of detention is passed
against the victim under Section 17 of the ITPA as such an order is
appealable.
(xv) The police shall appoint specially trained and sensitized police
officer as special police officer for dealing with offence under the ITPA
as mandated under Section 13 of the ITPA.
(xvi) Upon the first remand, the victims shall be sent to the relevant
statutory authorities being the Child Welfare Committee (CWC) in case
of child victims and the National/State Commission for women in case
of adult victims. The accused shall be taken for interrogation.
(xvii) No victim shall be released to any person who claims her
custody except upon verification of the identification of the claimant
along with Post Card size photograph and details of name, age, local
address, native address and contact details of such claimant and after
consent of the victim is obtained.
(xviii)Women accused who may be trafficker, brothel keeper or pimp
have the benefit of not being arrested after sunset. Hence if she has to
be arrested the next day or has to be directed to report to the police
station the next day, it should NOT be stated to be a reason for
granting bail; she should be arrested during the legally permissible
hours and her application for bail must be considered on the aforesaid
parameters the next day.
(xix) It is common knowledge that in a case involving more than 1
accused, if an accused is released on bail, another applies on the
principle of parity. It is pertinent to appreciate what parity is. The
dictionary meaning of parity in the New pocket Oxford English
Dictionary, Indian Edition at page 652 is :
“the state of being equal or equivalent”.
Hence the facts of each case must be appreciated to consider
“parity”. If a manager, a sweeper, who has been charged or “framed
upon a raid being conducted is released on bail, which would be
justifiably granted, the main accused who is the trafficker or brothel
owner, cannot claim or be granted “parity”. He/She is not on par.
(xx) The Magistrates and Judges shall use the following bail checklist
proforma while deciding the application for bail :
(i) Whether antecedents of the bail applicant have been
checked.
(ii) Whether antecedent report has been submitted before the
Court.
(iii) Whether the address of the bail applicant and the local
surety has been verified by the Police and whether a report has
been submitted before the Court.
(iv) Whether bail applicant has had bail cancelled in the past.
(v) If bail is applied for on medical grounds, whether
treatment within the jail is possible.
(vi) Whether accused is likely to have contact with the victim
and intimidate or threaten her.
(vii) Whether the accused is likely to repeat the offence; i.e.
whether he/she would be able to return to and run the brothel.
(viii) Whether the brothel is already sealed (and if not to
undergo the process of sealing before any order of bail is
passed).
Such proforma check list shall be duly completed and kept in the
record & proceedings of the cases along with the order of bail.
(xxi) The State shall create a database of offenders, who are human
traffickers under the ITPA in the entire State of Maharashtra together
with their Post Card size photograph name, age, local address, native
address, names of their parents or guardian, contact details etc. as also
details of their antecedents maintained by the Police Department more
specially the Social Security Branch of the office of the Commissioner
of Police in each city which shall be made known and available to all
the police officers, prosecutors as also the NGOs who run services pro
bono or otherwise in support of the victims so that they are in turn
made known to Court.
(xxii) The State shall prepare a database of all the absconding
offenders under the ITPA in the entire State of Maharashtra.
The police shall thus maintain an active centralized database
storing antecedents of human trafficking offenders. Whenever an
application for bail is preferred by the accused in such cases, it would
be the duty of the Investigating Officer, the Public Prosecutor and the
Judicial Officer to verify from the centralized database, whether
accused is having any criminal antecedents, as noted in the said
database. The list of the updated database also be sent from time to
time to the Registrar of all the Courts so that whenever such
application for bail is filed, the Registrar of the Court will also verify
whether the name of the accused appears in such database.
31. We may also reiterate the functions of police officers,
prosecutors and judicial officers, oft stated, in the conduct of trafficking cases
for conducive Court climate thus:
While deciding the applications for bail filed by the trafficker in cases
under the ITPA, the Court should consider, without fail, the factors laid down
by the Supreme Court, namely, the nature of the accusation, the nature of
the evidence in existence, the severity of punishment, the character,
behaviour, means and standing of the accused, circumstances peculiar to the
accused, the reasonable possibility of securing the presence of the accused at
the time of trial and the reasonable possibility of his interference with the
witnesses and tampering of evidence.
In addition to these factors, the Court should also invariably in such
cases, call for the report of antecedents of the accused and his past
involvement, if any, in similar offences.
The Court should also obtain a report from the Police about
verification of the address of the accused; whether it is authentic or not,
whether the place of residence given is a rented accommodation, then the
details of the movable and immovable property, his permanent address etc.
32. Needless to mention that once an accused has absconded or
jumped bail, his or her bail must be cancelled and treated as cancelled. He
or she would be taken in custody upon being arrested under the bailable and
non bailable warrant issued for his or her arrest. Such accused cannot be
released on bail pending the trial upon the facts of the case merely on
account of delay in trial except under the legal and the most exceptional and
grave circumstances which may be shown to Court in a given case. The fact
that the petitioner has been constrained to file this petition shows that the
prosecution, who has the legitimate weapon of cancellation of bail, has failed
to use it in all the cases even upon being reinforced of its position by issue of
NBWs in dozens of matters. Such is the sordid state of the criminal justice
machinery which cries out for reforms in thought and action.
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION
Amk
CR. PUBLIC INTEREST LITIGATION NO. 4 OF 2015
Freedom Firm .. Petitioner
Vs.
Commissioner of Police, Pune & Ors.
CORAM : MRS. ROSHAN DALVI &
MRS. SHALINI PHANSALKARJOSHI, JJ.
Date of pronouncing the Judgment : 30th OCTOBER, 2015.
"I hold that the more helpless a creature, the more entitled it is to
protection by men, from the cruelty of men."
Mahatma Gandhi
1. This petition manifests, demonstrates and exposes the stark
reality of the plight the most helpless creatures of our society who are
trafficked into prostitution after being drawn into the dark alleys of the
society by deceit or force. They are some times rescued upon the efforts of
samaritans. A case of trafficking under the Immoral Trafficking (Prevention)
Act, 1956 (ITPA) read with Section 370 of the Indian Penal Code, 1860 and
other allied provisions comes to be registered. This is the harbinger for
various tribulations and travails to befall the helpless rescued victims.
2. The accused applies for anticipatory bail and is readily granted.
If he or she is arrested, he or she is often released on bail. He or she then
often not only absconds pending the trial, but repeats committing similar
offence. The trial remains at that. The police machinery is required for
righting the wrong. It rarely succeeds in the efforts. Justice remains out of
bounds. The victim is far from reaching the doors of justice. It is widely
known that "the doors of justice swing both ways".
3. It is in this precarious condition that the petitioner renders
yeoman service of bringing the offenders to book and the victims to justice.
The journey to justice is, long, tedious and fraught with numerous obstacles.
4. The main grievance of the Petitioner relates to misuse of the
provisions of bail, which results in stalling the proceedings under the ITPA
and thereby deprives the victims of their rightful claim to rehabilitation.
According to the Petitioner, it has also the effect of indirectly encouraging
illegal trafficking. The Petitioner has also proposed to lay down certain
guidelines for the Police Officers and the Judicial Officers to be followed at
the time of dealing with such cases; especially while deciding the
applications for bail. There have been similar petitions upon such conditions
of living, which a civilized society must be ashamed of, that have led Courts
to pass judgments giving directions [See Prerna Vs. State of Maharashtra
2003(2) MLJ 105, Prerna Vs. State of Maharashtra in Cr. Writ Petition
No. 1694 of 2003 being orders dated 10.01.2007 & 18.04.2007, State Vs.
Captain Jagjit Singh, 1962 SC 253, Vishal Jeet Vs. Union of India, AIR
1990 SC 1412, Prajwala Vs. Union of India, (Civil Writ Petition No.56 of
2004)] and secondly the State to make rules, issue circulars and follow
policies to bring a ray of hope into an otherwise hopeless condition of life.
None of these need be repeated though the petitioner has pleaded for its
reiteration. Incidentally and though nothing much has been achieved in this
case, the report of the State also makes out the same picture.
5. We are confronted with 42 cases of trafficking only in one police
station of the State being Faraskhana Police Station, Pune in which FIRs have
been registered and in which the accused are stated to be absconding upon
being released on bail. The petitioner claimed to be actively involved in 19
21 of these cases. The petitioner assists or seeks to assist, often without
reciprocation, the State in its different avatars being the Police Authority, the
prosecution, remand homes and rehabilitation centers etc.
6. The main refrain of the petitioner is that after the accused are
released on bail and more specially after the trial begins and in most of the
cases if satisfactory evidence is recorded, the accused abscond.
7. The accused have been released on bail without considering the
factors, like, the seriousness of the offences, the nature of the evidence in
existence, the severity of the punishment, the character, behaviour, means
and standing of the accused, the circumstances peculiar to the accused, the
reasonable possibility of securing the presence of the accused at the time of
trial and the fact that, most of these accused are habitual accused, involved
in repetitive offences.
8. It is submitted that in Sessions Case No.132 of 2008, pending in
the Sessions Court at Pune, the accused Rani Vyankatramana Nayak was
charged with a heinous offence of trafficking of a minor girl, aged 12 years.
The victim therein has testified against the accused in the case. Despite that,
the bail was granted to the accused, which has resulted in the accused
absconding, after all the evidence had been led and when the case was at the
final stage of arguments. Though nonbailable warrant was issued against
the accused on 22nd January, 2010, accused is still absconding and the case is
indefinitely stalled.
9. It is also urged that, in another case bearing Sessions Case
No.42 of 2010, pending in the same Court, accused Saroja R.N. was arrested
for purchasing and trafficking of three minor girls. The accused was also
wanted for a similar previous offence registered against her vide F.I.R. No.52
of 2008 at Faraskhana Police Station, Pune. The accused had absconded in
previous case at the time of raid, but was arrested again in connection with
the present case. The accused had applied for bail on 6th October, 2008 on
the ground of illness and medical treatment. The said application was not
attached with any medical report or evidence whatsoever. Even then, the
application was allowed and the accused has absconded from 3rd June, 2010,
thereby stalling the trial.
10. The petitioner has also cited the instance of Sessions Case
No.929 of 2009, wherein accused are not attending the case despite the
warrants issued against them. It is urged that in all these cases, the accused
have appeared at the later stage of cancellation of warrants and again
remained absent.
11. The result of this sordid system is that the victims and their
families are subjected to face untold trauma and difficulties in the entire
painful process. The grant of bail also many a times results in the accused
interfering with the witnesses or pressurizing them through direct or indirect
means.
12. It is seen that the Court issues bailable and non bailable
warrants without success and without execution whilst the trial remains
debilitated. The police spend much time and efforts in trying without
success to procure their presence. The cases are stalled, at times at the stage
of arguments or even judgment. In fact it is endemic that after the evidence
of the victim is led and when it is satisfactory to merit a conviction, bail is
granted and the accused absconds. We cannot but see the malaise as both
astonishing as how a judicial officer can grant such bail and artful as to how
an accused would successfully overreach law and justice.
13. The petitioner has shown 8 priority cases in which the accused
have absconded resulting in the situation described above.
14. The State set up what has been stated to be a "special drive" in
the aforesaid area to trace the accused. Only 4 accused, one of whom is the
coaccused in another case also, have been arrested. 38 other accused are yet
at large.
15. The Court has adjourned this petition from time to time with the
abiding hope and with patience to see the fruits of the NBWs which have
been issued. It is seen that these are now lost causes, unless of course, the
State, with the conscience which is required of it, performs its function of
executing them.
16. The contentions of both the petitioner and the State have shown
one common factor that the bane of the trafficking cases is grant of
injudicious bail and once that is granted, the road to slip away is open to the
accused. It is, therefore, a fully conceded fact that the bail in heinous
offences such as trafficking has to be only stringently granted to the accused
other than the main traffickers.
17. It may be mentioned that not being trafficked is a fundamental
right of every Indian citizen, the only provision in the chapter on
Fundamental Rights which appears to be completely forgotten. We would,
therefore, do well to reproduce Article 23 (1) of the Constitution of India
which gives the fundamental rights against exploitation thus:
23. Prohibition of traffic in human beings and forced
labour. (1) Traffic in human beings and begar and other similar
forms of forced labour are prohibited and any contravention of this
provision shall be an offence punishable in accordance with law.
18. The Protocol to prevent, suppress and abolish trafficking of any
person, especially, women and children, also addressed as the Palermo
Protocol, adopted by the General Assembly of United Nations in Palermo,
Italy, 2000 came into force on 25th December, 2003. It imposes a duty on
each and every State signatory to take effective steps for preventing and
combating trafficking in women and children. India being a signatory to the
said Protocol, it becomes the duty of the Government and the Judiciary to
ensure that the menace of trafficking is curbed by adopting stringent
measures.
19. Trafficking in humans, heinous as it is, and as the name
suggests, is a crime against humanity resulting in human rights violations. It
transcends to trafficking minors also. Age knows no bar in trade amongst
humans. In fact a lesser age is considered a better target. Minors, who are
trafficked, would be victims even under the The Protection of Children from
Sexual Offences Act, 2012 (POCSO Act) and are required to be treated with
the sensitivity and empathy (portmanteau sentipathy) statutorily set out
thereunder. Even the accused who have violated and victimized minors are
shown to be released on bail. The result is the subsequent absconding in
many of those cases.
20. Releasing accused on bail and issuing warrants against their
arrest which cannot be easily and smoothly executed results in the situation
of "Cure the decease and kill the patient".
21. However to remedy the ill in the 42 cases in which damage has
been done, almost irretrievably, we even called upon no less than the
Commissioner of Police, Pune to attend before us and to give priority to these
cases of human suffering and violation. The Commissioner of Police has set
up what is called the special drive in the locality with some result but not as
much as was expected of the State machinery for enforcement of criminal
justice.
22. The reasons assigned by the Police for the difficulty, almost
impossibility, in securing the presence of the accused are several e.g. some of
the accused are from the neighbouring countries of Nepal and Bangladesh
and once they are released on bail and leave India, Police are stated to have
no control over them to secure their presence. As per the Police, some of the
addresses provided by the accused at the time of releasing them on bail are
their temporary residence in Pune; their permanent residence being in some
other States like Andhra Pradesh, Karnataka etc. Therefore, it is stated to be
just not possible to secure their presence. Further it is submitted that, even
the documents of the sureties, which are furnished with the bail, are not
adequate. At times, it becomes even difficult to prove the identity of the
person as the same accused because, by the time their presence is to be
secured for the trial, their appearance has undergone substantial changes.
Hence, according to the Police and the State, it is necessary to put certain
conditions and lay down guidelines to be followed while releasing the
accused on bail in such serious offences. The learned APP has also requested
the Court to prepare a checklist which can be used fruitfully by the Trial
Courts when such applications for bail are filed and are to be decided. The
Petitioner on its own has filed a note on proposed guidelines. Similarly, the
A.P.P. has also, at the request of this Court, undertaken the exercise of
preparing the points for the guidelines of the Court.
23. The copy of the proposed guidelines submitted by the Petitioner
was also directed to be circulated to all Principal District Judges, Chief
Judicial Magistrates of the Districts in Maharashtra and Special Judge, ITPA
and it was further directed to elicit responses of the Judges conducting trial
of such cases in their respective District. The responses of various Judges
have been received. They are comprehensive in nature and address majority
of the issues.
24. This Court, therefore, has thus an advantage of going through
the responses of the Judges dealing with these cases and also the suggested
guidelines prepared by the Petitioner, an N.G.O., which has experience in
actual field work, and of the Police, who are having the difficult task of
securing the presence of the accused once they are released on bail.
25. It now falls upon us to marshall what has been stated by all the
functionaries at the grassroot level as also what has been oft stated by the
Courts. As Andregide, French Author and Writer, has stated : “everything has
been said already but as no one listens, we must always begin again”.
26. We, therefore, consider it apt and appropriate to have a forward
looking approach to prevent such wanton and egregious callousness to
human lives and to have prevention rather than punishment as the guiding
factor in the prosecution of such crime. We, therefore, deem it fit to lay
down guidelines for the grant of bail in cases of human trafficking thus:
The application for bail must take into account
(a) The fundamental right of the victim not to be trafficked. All
else is subservient.
(b) The antecedents of the accused The trafficker would be easily
seen to have been earlier apprehended and arrested. Such accused are
habitual offenders.
(c) The repetitiveness of the offence since it is a career in crime, it
is bound to be repeated upon the accused being released on bail thus
trafficking further similar victims which is the State's duty to prevent.
(d) The intimidation and threat that accompanies the relationship
between the accused and the victim. The victim is the helpless
chattel of the accused, the accused being in a position to threaten her
to lie and coerce her to turn hostile and thus tamper with evidence.
(e) The economic position of the accused, if a trafficker, This
would reflect in the brothel that he or she runs and which is statutorily
required to be sealed and closed by the police this would be the most
potent antidote. The crime of trafficking in humans is an organized
crime. It is one of the most profitable criminal activities worldwide.
(f) The violence involved in the case reflected from the statement
of the victim and the other witnesses, if any. The violence suffered by
the victim would show the strength in the position of the accused.
(g) The subterfuge deployed by the accused in diverting the police
machinery from himself or herself when non traffickers and other
docile persons who may be working for the accused in various
positions may be kept in the frontline for arrest and who need to be
released on bail as harmless coaccused.
27. Keeping in mind these diverse ways to frustrate justice adopted
in various modes and after fully appreciating and considering the aforesaid
aspects the Magistrate/Judge must give the grounds and the reasons as to
why in a transient offence such as trafficking also he/she has deemed it fit to
grant bail, more especially to the trafficker and the brothel owner.
28. Upon the aforesaid main aspects being specifically noted, the
Court may proceed to consider the application for bail as in other cases.
Hence the Court would, as a general principle, refuse bail to an accused who
is shown as a trafficker in human beings as such accused pursues a career in
such crime, which is prone to reputation, which is expected to have
antecedents and which is generally indisposed to intimidation and threats.
The Court would certainly release on bail such of the accused or coaccused
as are themselves not traffickers but may be shown to have played some
minor role in the commission of the offence. The Court would release on
bail a brothel owner but only subject to the closure and sealing of his brothel
under Section 18 of the ITPA.
29. We have been informed that even if an accused is refused bail,
he or she applies for bail on medical ground. We may mention that the
provision of medical assistance and medical fees in our prisons have come of
age. All facilities as would be usually required by the accused must,
therefore, be provided for and allowed to be availed to the accused within
jail precincts itself. Experience in the above matters, as contended by the
parties, has shown that some of the accused have absconded even upon bail
having been granted for medical reasons. The Courts would do well not to
allow such slips to happen except in the most dire and emergent cases of
medical problems diagnosed by known and registered medical officers and
certified under their signatures in which medical aid is not available in jail
and that too under strict supervision and upon specific directions in that
behalf.
30. Both the petitioner as also the State have submitted before us
guidelines for streamlining the prosecution of cases of human trafficking. It
would be appropriate to set out some of the most needed guidelines thus:
(i) Bail should be denied to habitual offenders (traffickers) except
upon exceptional, special and compelling reasons upon the most
stringent conditions.
The Court shall call for and consider the antecedents report of the
accused in all trafficking cases before passing any order of bail
maintained by the AntiHuman Trafficking Unit and the local police.
(ii) Bail should be refused to brothel owner until the brothel is
closed and sealed under Section 18 of the ITPA.
(iii) Bail should also be denied if the victim is a minor except in case
of any extraordinary, compelling or special circumstances to be
explained in the order itself and upon the most stringent conditions.
Hence the bail may be granted only after the victim's age is verified by
the birth certificate (and only if it satisfies the Magistrate/Judge that it
is genuine, carries a presumption of its correctness, being a public
document) and not a school leaving certificate (which would be
required to be proved upon verification of the school records by the
signatory and which never carries any legal presumption of its
correctness, being a private document.) Such documentary evidence
would, therefore, have to be necessarily verified by the competent
authority issuing them before embarking upon the final decision of
grant of bail if upon a simplicitor look at the victim her age (of
adulthood) belies the contents of the documentary evidence produced.
Even medical evidence is opportune, and in case of doubt, "reage
verification" for having a second opinion would be required to be
directed before the order of grant of bail. When the victim is prima
facie ("on the face of it") a minor, the aforesaid medical tests are
mandatory before taking the risky option of deciding the application
for grant of bail.
(iv) Bail should also be denied its case of violent offence which
would be seen from the statements of the victims and witnesses. The
Court would do well to take into account the expected intimidation
and threat to the victims and/or witnesses.
(v) If bail is applied on the ground of death of a family member the
Court should ensure that clear documentation is produced to prove the
genuineness of the ground.
(vi) Bail, upon stringent conditions, (if at all), be granted to the
trafficker or the brothel owners only after the statement of the victim
is recorded under Section 164 of the Code of Criminal Procedure and
only if all other aforesaid conditions are met.
This would include a victim impact statement which may be
considered with regard to the violence, if any, suffered by the victim or
the other psychological and mental trauma having been faced by her
whilst granting bail and fixing the conditions of such bail.
(vii) Anticipatory bail should be denied in ITPA cases.
(viii) The Court shall specify the condition of at least weekly
attendance of the accused pending the trial with a further rider that
failure of the accused to attend the Police Station shall be a ground for
cancellation of bail. A condition be imposed on the Investigating
Officer to submit a detailed report with regard to attendance of the
accused.
(ix) The accused must never be allowed to gain access to the victim
as the safety of the victim is of prime concern when the accused is
released on bail. The Court shall give directions and make special
conditions and provisions for supervision to ensure that there would
be no contact between the accused and the victim.
(x) The Court may also consider the condition of externment in the
bail order.
(xi) The victim shall not be allowed to sign any Vakalatnama without
the permission of the Court.
(xii) No Advocate shall be allowed to appear in ITPA cases on behalf
of the accused as well as the victim.
(xiii) The victim deserves to have legal representation and emotional
support. It may be mentioned that in the case of Prerna (supra) this
Court held that the victims of ITPA offences are "victims of crime" and
should not be treated as criminals or as a source of evidence. The
stage of bail is the most important as also the most fragile when the
victims' rights begin and should not be lost.
Hence the Court shall permit any of the known NGOs and legal
officers to work for assisting victims and prosecution and to represent
the victims.
(xiv) The Court shall provide a lawyer from the Legal Services
Authority or from any organization of service providers to represent
the victims from the stage of the first remand of the accused and the
application of bail itself or whenever an order of detention is passed
against the victim under Section 17 of the ITPA as such an order is
appealable.
(xv) The police shall appoint specially trained and sensitized police
officer as special police officer for dealing with offence under the ITPA
as mandated under Section 13 of the ITPA.
(xvi) Upon the first remand, the victims shall be sent to the relevant
statutory authorities being the Child Welfare Committee (CWC) in case
of child victims and the National/State Commission for women in case
of adult victims. The accused shall be taken for interrogation.
(xvii) No victim shall be released to any person who claims her
custody except upon verification of the identification of the claimant
along with Post Card size photograph and details of name, age, local
address, native address and contact details of such claimant and after
consent of the victim is obtained.
(xviii)Women accused who may be trafficker, brothel keeper or pimp
have the benefit of not being arrested after sunset. Hence if she has to
be arrested the next day or has to be directed to report to the police
station the next day, it should NOT be stated to be a reason for
granting bail; she should be arrested during the legally permissible
hours and her application for bail must be considered on the aforesaid
parameters the next day.
(xix) It is common knowledge that in a case involving more than 1
accused, if an accused is released on bail, another applies on the
principle of parity. It is pertinent to appreciate what parity is. The
dictionary meaning of parity in the New pocket Oxford English
Dictionary, Indian Edition at page 652 is :
“the state of being equal or equivalent”.
Hence the facts of each case must be appreciated to consider
“parity”. If a manager, a sweeper, who has been charged or “framed
upon a raid being conducted is released on bail, which would be
justifiably granted, the main accused who is the trafficker or brothel
owner, cannot claim or be granted “parity”. He/She is not on par.
(xx) The Magistrates and Judges shall use the following bail checklist
proforma while deciding the application for bail :
(i) Whether antecedents of the bail applicant have been
checked.
(ii) Whether antecedent report has been submitted before the
Court.
(iii) Whether the address of the bail applicant and the local
surety has been verified by the Police and whether a report has
been submitted before the Court.
(iv) Whether bail applicant has had bail cancelled in the past.
(v) If bail is applied for on medical grounds, whether
treatment within the jail is possible.
(vi) Whether accused is likely to have contact with the victim
and intimidate or threaten her.
(vii) Whether the accused is likely to repeat the offence; i.e.
whether he/she would be able to return to and run the brothel.
(viii) Whether the brothel is already sealed (and if not to
undergo the process of sealing before any order of bail is
passed).
Such proforma check list shall be duly completed and kept in the
record & proceedings of the cases along with the order of bail.
(xxi) The State shall create a database of offenders, who are human
traffickers under the ITPA in the entire State of Maharashtra together
with their Post Card size photograph name, age, local address, native
address, names of their parents or guardian, contact details etc. as also
details of their antecedents maintained by the Police Department more
specially the Social Security Branch of the office of the Commissioner
of Police in each city which shall be made known and available to all
the police officers, prosecutors as also the NGOs who run services pro
bono or otherwise in support of the victims so that they are in turn
made known to Court.
(xxii) The State shall prepare a database of all the absconding
offenders under the ITPA in the entire State of Maharashtra.
The police shall thus maintain an active centralized database
storing antecedents of human trafficking offenders. Whenever an
application for bail is preferred by the accused in such cases, it would
be the duty of the Investigating Officer, the Public Prosecutor and the
Judicial Officer to verify from the centralized database, whether
accused is having any criminal antecedents, as noted in the said
database. The list of the updated database also be sent from time to
time to the Registrar of all the Courts so that whenever such
application for bail is filed, the Registrar of the Court will also verify
whether the name of the accused appears in such database.
31. We may also reiterate the functions of police officers,
prosecutors and judicial officers, oft stated, in the conduct of trafficking cases
for conducive Court climate thus:
While deciding the applications for bail filed by the trafficker in cases
under the ITPA, the Court should consider, without fail, the factors laid down
by the Supreme Court, namely, the nature of the accusation, the nature of
the evidence in existence, the severity of punishment, the character,
behaviour, means and standing of the accused, circumstances peculiar to the
accused, the reasonable possibility of securing the presence of the accused at
the time of trial and the reasonable possibility of his interference with the
witnesses and tampering of evidence.
In addition to these factors, the Court should also invariably in such
cases, call for the report of antecedents of the accused and his past
involvement, if any, in similar offences.
The Court should also obtain a report from the Police about
verification of the address of the accused; whether it is authentic or not,
whether the place of residence given is a rented accommodation, then the
details of the movable and immovable property, his permanent address etc.
32. Needless to mention that once an accused has absconded or
jumped bail, his or her bail must be cancelled and treated as cancelled. He
or she would be taken in custody upon being arrested under the bailable and
non bailable warrant issued for his or her arrest. Such accused cannot be
released on bail pending the trial upon the facts of the case merely on
account of delay in trial except under the legal and the most exceptional and
grave circumstances which may be shown to Court in a given case. The fact
that the petitioner has been constrained to file this petition shows that the
prosecution, who has the legitimate weapon of cancellation of bail, has failed
to use it in all the cases even upon being reinforced of its position by issue of
NBWs in dozens of matters. Such is the sordid state of the criminal justice
machinery which cries out for reforms in thought and action.
33. Hence in conclusion, we may clarify that an accused who is a
trafficker in humans who has criminal antecedents, has been violent as seen
from the statements of the victims of witnesses, who has no permanent local
address, who is an illegal migrant or nonlocal resident or a foreign national
on a lapsed tourist visa, who has trafficked a minor or who has absconded
and is arrested upon NBW issued, or a brothel owner whose brothel has not
been sealed after due procedure cannot be granted the privilege of being
released on bail.
34. If, upon the aforesaid guidelines and directions being followed,
an accused is released on bail, the requirements of the sureties and the
conditions for their acceptance become important to consider thus :
(a) Legal sureties must be provided; Cash bail shall be as far as
possible not to be allowed.
(b) There shall be 2 sureties to be provided. At least 1 surety
shall be a permanent resident and having at least 1 property
within the jurisdiction of the Court.
(c) No surety shall be accepted except upon proof of record of
birth, residence, education, identity, property, contact details
amongst other requirements.
(d) The permanent address including the native address of the
accused as also the surety along with copies of their original
identification documents such as Voter's Card, Ration Card,
Aadhar Card, Passport and Post Card size photographs of the
accused and the surety etc. along with their identification
features in detail be collected and maintained by the police and
verified before the accused is released from custody. Passport
and type of visa of foreign nationals e.g. Nepalese, Bangladeshis
etc. must also be verified. It must be realized and appreciated
that accused, who are illegal migrants, foreign nationals on
lapsed tourist visa, nonlocal residents etc. are good candidates
for absconding if released on bail and are difficult to trace.
(e) The details of their immovable property, if any, be
collected and the relevant entry be made in the Revenue Record.
(f) The verification report of the sureties must have the
permanent address of the sureties shown in their Aadhar Card,
etc verified with their current residence by the local police and
attested and approved by the Anti Human Trafficking Unit
(AHTU) / Social Service Branch (SSB) / Crime Branch.
(g) The Registrar of District Courts shall prepare a computerised
alphabetical register maintaining the details of the accused and
the sureties of all ITPA cases. These details can be fruitfully
shared with the NGOs who render services to the victims, the
lawyers who represent the victims as also the Centralised
Database, showing the antecedents of the accused as and when
established.
(h) The Court shall appreciate that the prices of all the
commodities only increase and escalate. So shall be the
amounts for bail i.e. for sureties, (as would also be for imposing
fines and compensation) which should be commensurate with
the deterrence required not to jump bail. Hence the amount of
surety should not be meager and be such as to ensure the
presence of the accused at all times during the trial.
(i) A person shall stand surety only for 1 accused at a time i.e.
till the end of his / her trial. Such surety cannot be allowed to
be a surety for any other accused.
This direction would rule out the menace of “professional
surety”. The database/ computerised register of the sureties
which would show if the applicant has been a surety before in
any other ITPA case.
(j) The sureties shall not have any prior criminal antecedents
(which goes without saying also.)
35. We would do well to remember the words of Victor Hugo
Liberation is not Deliverance.
36. We are shown that as many as 20 absconding accused are from
Nepal and have gone back to Nepal. Under Article I of The Treaty of
Extradition between the Government of India and the Government of Nepal
dated 2nd October, 1953 both the countries have agreed to deliver up the
persons accused of crime in the territory of one government to the territory
of another on the basis of strict reciprocity. Hence in all the cases of such
accused the CBI as the Nodal Agency and as the Trafficking Police Officer
under Section 13 of the ITPA would be required to be called on for obtaining
the presence of such Nepalese accused since the local police fails in such
endevour despite serious efforts.
37. We have been informed that an office memorandum dated
30.04.2014 has been issued as an advisory of human trafficking as organized
crime. The Central Bureau of Investigation (CBI), Government of India has
been appointed the Nodal Authority in respect of InterState and cross
border assistance as a single point of contact to act as liaison between the
Ministry of External Affairs and the State parties in these cases. Hence all
cases in which victims or accused from neighbouring countries such as
Nepal, Bangladesh or any other country are involved and more specially
when an accused from such a country has absconded upon being granted
bail, may be referred to the CBI for assistance to identify them and to arrest
them in execution of the NBW issued for procuring their presence. The cases
shown by the petitioner in which the accused have not be traced by the local
police must be thus referred.
38. We may appreciate that India and Nepal are amongst the SAARC
nations who are committed to cooperating in preventing trafficking for
prostitution and for punishing those who are offenders of the crime of
trafficking in humans. (See SAARC convention on Preventing and
Combating Trafficking in women and children for Prostitution, 2002). Hence
if even the CBI cannot procure the presence of the accused from Nepal, the
State shall have to undertake extradition proceedings to extradite the
accused located in Nepal to face the trials against them.
39. We are informed that the accused who are traffickers from Nepal
have absconded without a trace and have not been found despite serious
efforts by the local police and despite the "special drive" initiated. We have
noted the deplorable situation of nadir in as many as 42 cases before us
relating to the most fundamental of human rights of life and liberty which is
the right not to be trafficked and hence we direct the Commissioner of
Police, Pune to himself set up a team under a Special Police Officer to
continue the vigil against the accused in the 42 cases reported in this PIL and
continue the drive in the future cases and make written reports of the work
done in that behalf in this petition with a copy to the petitioner with whom
we expect the Commissioner of Police and his (staff) to work in unison to
combat the evil of trafficking and free the most vulnerable section of our
society from such evil and failing which to hand over the task of obtaining
the presence of the accused who are traffickers from the neighbouring
countries to the CBI.
40. A copy of this judgment shall be forwarded to all the
Magistrates, Special Court of ITPA, Sessions Judges, Additional Sessions
Judges dealing with the cases of ITPA by way of appeal or revisions, the
Director General of Police for circulation to all the police stations, the
Directorate of Public Prosecutors for circulation to all Additional Public
Prosecutors as also the Maharashtra Judicial Academy (MJA), Uttan, District
Thane, Maharashtra and the District Legal Services Authority (DLSA), to be
used in the periodical training of Police Officers, Prosecutors and Judicial
Officers. The Registrar General of the Bombay High Court shall take the
necessary steps to the above effect.
41. The Public Interest Litigation is disposed of in terms of the
aforesaid directions. However the Public Interest Litigation is stood over to
14.12.2015 to obtain the report of the work done until then and failing
which to call upon and direct the CBI to search and produce the absconding
accused before the relevant trial Courts with a report to this Court.
(ROSHAN DALVI, J.)
(MRS. SHALINI PHANSALKARJOSHI, J.)
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