The Bombay High Court in its judgment dated 30.10.2015, made some rigorous rules regarding the grant of bail in human trafficking cases. The issue was raised by the NGO, Freedom Firm as a Public Interest Litigation matter, against the law enforcement agencies of Pune. It was acknowledged that the backlog of cases piling up in the Sessions Courts or Special Courts was in large part due to the incessant grant of bail to accused person(s) at various stages of trial, which only contributed to inhibiting the rightful delivery of justice to the victim(s). The main contentions of the Petitioner can be categorized as follows:
- Misuse of the provisions of bail
- Issue of bailable and non-bailable warrants without success and execution
- Accused found absconding, paralysing the trial process and indefinitely stalling the case
- Recurring absenteeism of the accused
- Risk of further victimization or intimidation to the victim.
The Petitioner extolled the basic fundamental rights granted to every individual, reproducing Article 23 (1) of the Indian Constitution which prohibits trafficking and forced labour in human beings. Another derivative reiterating the same principles is laid down under the Palermo Protocol, which imposes a duty on every State signatory to prevent the evil of trafficking in women and children. The petitioner cited several cases wherein the victims, some minors, were deprived of justice, since bail was granted. Sometimes the bail was approved after all the evidence had been led or case was in its final stages or upon medical grounds and other reasons, without proper evidence to support or validate the request, which punched a hole in the prosecution case.
The Petitioner drew the Court’s attention towards Faraskhana Police Station, Pune which alone recorded 42 cases of human trafficking, most of which was in a limbo due to the disappearance of the accused. To effectively tackle this ill, none other than the Commissioner of Police, was called to take necessary action which led to the launch of a ‘special drive’ to trace the absconding persons, with meagre success. The Police and State machinery assigned several reasons for failing to secure the presence of the accused, e.g. nationalities of the accused as most hail from neighbouring countries of Nepal and Bangladesh over which they exercise no control, fake addresses and identification, alteration of physical appearance making it difficult to apprehend them, etc.
Taking a hard stance to counter any egregious callousness towards the protection and preservation of human rights, the division bench of Justices Roshan Dalvi and Shalini Phansalkar-Joshi ruled on some crucial points, based on the guidelines submitted by the Petitioner and the State to streamline the prosecution case. It includes all aspects to be explored while entertaining bail applications as well as appropriate steps to be taken by the Magistrate/Judge, citing reasons for grant of bail. They are as follows:-
- The fundamental right of the victim not to be trafficked.
- The antecedents of the accused, to be vigilant about habitual offenders, who, being in this flourishing trade are likely continuing the crime after their release on bail. Bail should be denied to them, save under the most exceptional circumstances. Moreover, antecedent report of the accused shall be considered, as maintained by the Anti-Human Trafficking Unit and the local police.
- The accused after release can exploit and acquire new victims while being able to exercise control over the victim to threaten, intimidate and use coercive tactics to tamper with evidence. The Court should attempt to consider expected threats to victims and witnesses.
- The statement of the victim and eye witnesses, elaborating about the nature and habit of the accused, such as violence and abuse suffered at his/her hands. Cases of extreme nature, or violent offences, qualify for denial of bail.
Only after the statement of the victim has been recorded under section 164 of the Cr.P.C., along with the victim impact statement, shall bail be granted (if at all), based upon ironclad conditions fixed by the Court, depending on the mental, physical and psychological condition of the victim.
- Save exceptional, extraordinary or compelling circumstances, bail should be denied in case of minor victims. Henceforth, bail may be granted only upon conclusive age verification, to the satisfaction of the Judge/Magistrate.
- Several traffickers, especially repeat offenders utilize divisive methods to mislead the police in arresting non-traffickers who are placed on the frontline and thereafter have to be released as harmless co-accused, thus weakening the prosecution case.
- Under section 18 of the Immoral Traffic (Prevention) Act, 1956 [ITPA] bail shall be granted only after the closure of the brothel, which would help ascertain the economic position of the accused.
- Regular follow-up regarding the attendance of the accused shall be done and submitted in the Court by the Investigating Officer, to ensure that he/she never comes in contact with the victim(s). Court shall pass relevant orders in this regard.
- The victim(s) shall receive all legal representation and support from any organization, be it the Legal Services Authority, NGOs, legal officers via permit from the Court, including their detention under section 17 of the ITPA, as such an order in appealable.
- The ruling also included that Magistrates adopt a bail checklist pro-forma while deciding bail applications, which would mostly ensure that all verification procedures regarding accused are complete and accurate.
- Women accused in the role of trafficker, brothel keeper or pimp should not be let off through grant of bail, but shall be arrested at the legally permissible hours and her application must be considered on the basis of aforesaid parameters.
- Anticipatory bail should be denied in ITPA cases.
- Lastly, the State shall create a database of offenders, who are human traffickers under the ITPA 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. The State shall prepare a database of absconding offenders under the ITPA as well.
The Court also laid down the conditions of acceptance of bail, by elucidating upon the requirements of the sureties. Most importantly, two legal sureties should be provided, in which at least 1 surety shall be a permanent resident having at least 1 property within jurisdiction of the Court. Thorough documentation regarding the identity, address, education, property, proof of birth shall be collected, maintained and verified before accused is released from custody. Care must be taken in case of foreign nationals and illegal migrants, who are non-local and thus more difficult to trace if they abscond. To deter the accused from jumping bail, amount of surety must be set high. To curb the menace of “professional sureties” the Registrar of District Courts shall prepare a computerised register of all the sureties in ITPA cases.
The Court thereafter addressed the issue of 20 absconding accused, who were from Nepal. The Central Bureau of Investigation (CBI) is 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. Knowing that India and Nepal are amongst the SAARC nations committed to cooperating in preventing trafficking, 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.
The imperative of the current ruling is to treat victims of ITPA offences as “victims of crime” since the stage of bail is most important which sets the pace for rightful recovery of the victim’s rights as well as his/her rehabilitation.
In conclusion, the HC ruled that, “An accused, who is a trafficker in humans, who has criminal antecedents, has been violent, who has no permanent local address, who is an illegal migrant or non-local resident or a foreign national on a lapsed tourist visa, who has trafficked a minor, or who has absconded and is arrested upon warrant issued, or a brothel owner whose brothel has not been sealed, cannot be granted the privilege of being released on bail.”
 Adopted by the General Assembly of United Nations in Palermo, Italy in 2000. Came into force on 25th December, 2003.
 Prerna v. State of Maharashtra, 2003 (2) MLJ; Prerna v State of Maharashtra in Cr. Writ Petition no. 1694 of 2003 being orders dated 10.01.2007 & 18.04.2007