Guria, Swayam Sevi Sansthan vs State Of U.P. & Ors

REPORTABLE

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO. 1373 2009 [Arising out of SLP (Crl.) No. 2585 of 2006]

Guria, Swayam Sevi Sansthan ... Appellant

VERSUS

State of U.P. & Ors. ... Respondents

JUDGMENT

S.B. Sinha, J.

1. Leave granted.

2. Appellant is a Non-Governmental Organization. It came to learn

that some children had been detained in the `red light area' at Varanasi.

It approached the police for their rescue. More than thirty young girls

and children were rescued. A complaint was filed by the appellant in

respect thereof.

3. The investigating officer recorded the statement of the girls and on

the basis thereof came to the conclusion that many more persons were

involved in the racket. Some of them were arrested. 2

4. The Investigating Officer upon completion of the investigation

filed a charge sheet under Sections 5, 6 and 9 of the Immoral Traffic

(Prevention) Act, 1956 (for short "the Act") and Sections 323, 504, 506,

117, 366-A and 373 of the Indian Penal Code against 23 persons.

Another charge sheet was filed under Sections 3, 5, 6, 7 and 9 of the Act

and Sections 323, 504 and 506 of the Indian Penal Code against 13

persons.

5. The respondents who were not named in the First Information

Report filed applications for grant of bail before the learned Sessions

Judge. The said bail applications were opposed by the Assistant District

Government Counsel contending that the private respondents had been

purchasing girls for the purpose of facilitating immoral traffic. The

learned Sessions Judge rejected the said applications for bail, inter alia,

stating:

"...It is prima facie evident from the investigation carried out in this manner that these people bring the customers to get indulged in forceful immoral traffic with the minor girls and recover the charges in lieu thereof and have made their main business and brought the minor girls at the said place on having purchased them. In this reference only on having conducted the raid by the police and other social service institutions on the stated date 31 minor girls have been recovered from the houses of Rahmat, Tulsi, etc. Therefore, commissioning of the 3

offence under Immoral Traffic (Prevention) Act by these people becomes evident. From the said acts of the applicants/ agents instigates to commit the said offence and these people enhance the immoral traffic of prostitution which is the act against the society. In case the applicants are released, these people would again indulge in these acts because they have no other business. As far as the question of Sheikh Mohammad, applicant is a Tempo driver, is concerned, no evidence has been produced on his behalf. After considering all the facts and circumstances of the case in my opinion no proper ground is found to release the accused persons on bail. Therefore, all the above-stated four bail applications submitted by the applicants/ accused are rejected."

6. The High Court, however, by reason of the impugned judgment,

allowed the said applications for bail on furnishing personal bonds with

two sureties each of the like amount to the satisfaction of the Chief

Judicial Magistrate, stating:

"...It is pertinent to mention that in the statement of the aforesaid witnesses though the name of some of the applicants emerged but no specific role has been assigned to them nor there is any description of their activities in the statement of the witnesses recorded under Section 161 Cr.P.C. Moreover, no statement of these witnesses was got recorded under Section 164 Cr.P.C. which could give weight to their testimony. There is no specific evidence regarding inducing or taking a specific person for the sake of the prostitution.

4 Besides that some legal pleas were also taken, i.e., search of the premises can be made by a special police officer which is very relevant for the purpose of bail.

In the circumstances, I am of the opinion, that the applicants deserve to bail."

7. Ms. Aparna Bhat, learned counsel appearing on behalf of the

appellant, would contend that the girls who were victims had wrongly

been made accused and in that view of the matter as also otherwise the

High Court committed a serious error in granting bail inter alia on the

premise that they had not been identified.

8. Mr. S.R. Singh, learned senior counsel appearing on behalf of the

respondent, on the other hand, would contend that five different cases are

pending trial and only in one of them a judgment of conviction has been

recorded.

9. The Act was enacted in pursuance of the International Convention

signed at New York on the 9th day of May, 1950 for the prevention of

immoral traffic. It is unfortunate that the Investigating Officers and the

Courts ordinarily fail to bear in mind a distinction between the rescued

children including girls, on the one hand, and the persons who have been

organizing such immoral traffic in a systematic manner and have

otherwise been aiding and abetting the commission of offences

thereunder. The Legislature as also the Executive have also failed to 5

draw a well-thought out plan for rehabilitation of the rescued children in

the society by bringing in suitable legislations or schemes. The victims

of immoral trafficking, most of whom are minor or young girls, are let off

on bail. They again in most of the cases are forced to go back to the

brothels from where they have been recovered and are subjected to

prostitution again at the instance of the same persons. Bails are also

granted to other accused who are arrested from the brothels without

bearing any distinction in mind as to whether they work from behind or

may be held to be guilty of offences of higher magnitude.

10. We may place on record that whereas under Section 3 of the Act,

punishment of three years rigorous imprisonment is provided for keeping

a brothel or allowing premises to be used as a brothel, under Section 4

punishment of not less than seven years and not more than ten years is

provided for living on the earning of prostitution. Section 5 relating to

offences for procuring, inducing or taking person for the sake of

prostitution, provides for punishment with rigorous imprisonment for a

term of not less than three years and not more than seven years or if any

offence under Section 5(1)(d) is committed against the will of any person,

the punishment of imprisonment for a term of seven years shall extend to

imprisonment for a term of fourteen years.

6

Section 6 of the Act involving detaining a person in the premises

where prostitution is carried out provides for imprisonment for life.

11. The question as regards grant of bail, therefore, should be

considered having regard to the gravity of the offence wherewith the

accused had been charged. The High Court, therefore, in our opinion,

was not correct in dealing with the matter in such a cursory manner.

The High Court has also gone wrong in recording that the

statements of the girls have not been recorded under Section 164 of the

Code of Criminal Procedure, as the same was not necessary.

12. Our attention was drawn on a decision of this Court in Puran v.

Rambilas and Another [(2001) 6 SCC 338] wherein it has inter alia been

held that one of the grounds for cancellation of bail would be where

material evidence brought on record have been ignored and that too

without any reasons. We respectfully agree with the said observation.

13. We, however, keeping in view the peculiar facts and circumstances

of this case, are of the opinion that as the private respondents have been

granted bail long time back and in some cases trials have also been

concluded, it would not be proper on our part to cancel the bail at this

stage. We, however, would place on record that in a case of this nature, 7

the High Court should have dealt the matter cautiously. The appeal is

dismissed with the aforementioned observations.

.....................................J. [S.B. Sinha]

..................................

...J. [Cyriac Joseph]

New Delhi;

July 31, 2009