Guidelines of Bombay high court for deciding bail application of accused in case of human trafficking
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
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