Bombay High Court – In the light of increasing incidents of human trafficking and misuse of the provisions of bail by the accused in such cases, the division bench of Roshan Dalvi and Shalini Phansalkar Joshi, J.J, issued stringent guidelines for the grant of bail in cases of trafficking under the Immoral Trafficking (Prevention) Act, 1956 (ITPA). The Court reiterated the functions of police officers, prosecutors and judicial officers in the conduct of such cases and devised a bail check-list proforma, to be used and kept in the records and proceedings of the cases, by the Magistrates and Judges, while deciding the application for bail. Furthermore, the Commissioner of Police, Pune was directed to set up a team under a Special Police Officer to trace the accused in such cases.
The PIL was filed in the Court by Roshani Joseph, on behalf of Freedom Firm against the Commissioner of Police, Pune and the State, contending that the accused in cases of human trafficking exploit the provisions of bail to stall proceedings under the ITPA, and abscond as soon as there is satisfactory evidence to merit their conviction. Sharmila S. Kaushik, counsel on the behalf of the State, argued that the Police has no control over the accused, as once released on bail they flee to Nepal or Bangladesh. Both counsels were in agreement with the view that it is necessary to have guidelines, to be followed, while releasing the accused on bail.
The Court held that, not being trafficked is a fundamental right of every Indian citizen, under Article 23 (1) of the Constitution and the prosecution has failed to use the legitimate weapon of bail cancellation, when the accused absconds. Addressing the contention of the Police, the Court stated that under Article 1 of the Treaty of Extradition between Government of India and Nepal, the countries have agreed to deliver accused criminals in each others territory, on the basis of strict reciprocity. Aggrieved by the sordid state of criminal justice machinery, the Court further laid down rigorous conditions for acceptance of sureties if the accused is released on bail. [Freedom Firm v. Commissioner of Police., 2015 SCC OnLine Bom 4265 decided on 30-10- 2015]