Bail – Cancellation of – Penal Code, 1860 – ss.363, 311, 370(5) – Kidnapping; Child trafficking – Interstate childtrafficking rackets – High Court granted bail to 13 accused persons allegedly involved in such cases involving interstate trafficking of minor children on a large scale – Challenge to, by the victims of the crime, the kith and kin of the children trafficked:
Held: High Court while releasing the accused persons on bail took into consideration the aspects like the accused were not named in the FIR; names of the accused were disclosed by a co-accused; victim was not recovered from the custody of the accused; similarly situated co-accused were granted bail; no material evidence regarding tampering of evidence or intimidating of witness in previous criminal cases; bail is a rule, jail is an exception – Considering the serious nature of the crime and the modus operandi adopted by the accused persons, the High Court should not have exercised its discretion in favour of the accused persons – High Court dealt with all the bail applications in a very callous manner which ultimately paved way for many accused persons to abscond putting the trial in jeopardy – The true test to ascertain whether discretion has been judiciously exercised or not is to see whether the court has been able to strike a balance between the personal liberty of the accused and the interest of the State, in other words, the societal interests – Impugned bail orders passed by the High Court set aside – Conduct of the State in not challenging the orders of bail, deprecated – Accused persons to surrender before the committal court which shall remand them to judicial custody – Further directions issued to the trial court, State Government – Right of Children to Free and Compulsory Education Act, 2009 – Bharatiya Nagarik Suraksha Sanhita, 2023. [Paras 38, 67, 68, 78, 79]
Directions by Supreme Court – Pending trials relating to child trafficking, to be completed within six months: Held: High Courts to call for the necessary information as regards the status of the pending trials relating to child trafficking – Once each of the High Court collects the necessary data as regards the status of the trials, a circular be issued on administrative side to all the concerned trial courts to complete the trials within six months from the date of the circular and if need be, by conducting the trials on day-to-day basis – Each of the High Courts to forward a report to this Court as regards the compliance of the directions contained in the circular – Non-compliance of directions or any laxity of any nature in that regard on the part of any of the authorities shall be viewed very strictly and if need be, they shall be proceeded for contempt. [Para 81 (l), (m)]
Bail – Constitution of India – Article 21 – Principles for grant of bail in cases of serious nature vis-à-vis cancellation of bail because of supervening circumstances/bail order being perverse or based on irrelevant considerations; nonconsideration of relevant factors – Distinction – Individual liberty vis-à-vis larger social interest – Discussed – Concept of liberty is not in the realm of absolutism but is a restricted one. [Paras 53-60, 62-64]
Directions by Supreme Court – Child trafficking – Directions issued to State Governments to implement the recommendations of Bharatiya Institute of Research and Development (BIRD) made in its report on Human Trafficking:
Held: All the State Governments across the country directed to look into the report of BIRD dated 12.04.2023 on Human Trafficking more particularly the recommendations, on effective law enforcement and prosecution – All the State Governments directed to study the entire report and implement each of the recommendations by working out appropriate modalities in that regard. [Para 81 (j), (k)] Trafficking of newborns from hospitals – Suspension of licence of the hospital:
Held: If any newborn infant is trafficked from any hospital, the immediate action against the hospital should be suspension of licence to run the hospital over and above other actions in accordance with law – When a baby is delivered in any hospital, it is the responsibility of the administration of the hospital to protect the newborn infant in all respects. [Para 91] Child trafficking – Globally and in India – UN Convention on the Rights of the Child, 1989 (CRC); The Hague Convention on Protection of Children and Cooperation in Respect of Intercountry Adoption, 1993; Protocol to Prevent, Suppress and Punish Trafficking in Persons, Especially Women and Children supplementing the UN Convention against Transnational Organised Crime; UN Special Rapporteur’s Report on the sale of children, child prostitution and child pornography, 2016; U.N. Declaration on the Rights of the Child (1959) – Reasons for increase in cases of child trafficking globally – Constitution of India – Article 23 – Prohibition of traffic in human beings and forced labour – Central Adoption Resource Authority – Adoption a long-drawn process, traffickers taking advantage of increased demand for children. [Paras 10-28] Child trafficking – Need for parents to be vigilant and careful – Word of caution. [Para 90]
As published in the Supreme Court Reports, Supreme Court of India. Headnotes prepared by: Divya Pandey. Text from the Indian Supreme Court Judgments open data set (Dattam Labs), CC BY 4.0.
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