Bombay High Court: In a bail application filed by a member of the LGBTQ+ community charged for the offence under Section 370 read with Section 34 of the Penal Code, 1860 (‘IPC’) and Sections 80 and 81 of the Juvenile Justice (Care and Protection of Children) Act, 2015, Manish Pitale J., opined that because of the identity of applicant, he was vulnerable to ridicule and harassment in jail. Basing their reasoning on this opinion, the Court accepted the bail application.
A police sub-inspector (informant) filed an FIR stating that due to the poor financial condition of accused 1 and 2, they agreed to send their minor child for shooting roles so that they could earn some money. Accused 5 stated that accused 6 (applicant) wanted to adopt a child and they agreed to buy the minor child from the parents at a consideration of Rs 4,65,000. It was submitted that applicant did not take the child for shotting and since this statement indicated involvement of applicant, he was arrested and has been in judicial custody since then.
The applicant contended that the ingredients of offence under Section 370 of IPC, which pertained to trafficking of person were not made out and that they belonged to the LGBTQ+ community because of which they are vulnerable in society and in jail. Medical documents were produced to prove that applicant was HIV positive. It was submitted that applicant and his partner, as per the present legal position in India, were unable to legally adopting children and since they wanted to take care of the child, they had taken possession of the minor child. However, they vehemently denied any exchange of money between them and the parents. The applicant prayed that their applicant be favourably considered.
The State contended that the investigation was still ongoing, and the medical report of the minor child was still awaited. Further, the allegations were serious and due to the other accused giving details about applicant being paid amount for taking possession of the minor child, the ingredients for the offence under Section 370 of IPC were clearly made out.
The Court observed that due to the allegations about specific amount being exchanged for the child’s “sale”, the ingredients of offence under Section 370 of IPC were prima facie made out. However, the Court opined that a person belonging to the LGBTQ+ community, who was also HIV positive, could be said to be a person belonging to a category of persons, who were certainly vulnerable, particularly within four corners of a jail.
The Court noted that applicant had remained behind bar since 26-05-2024, which was more than a month and he was in judicial custody. The Court also noted that there were no criminal antecedents of applicant and hence, it accepted the bail application.
[X v. State of Maharashtra, 2024 SCC OnLine Bom 1984, decided on 27-06-2024]
Advocates who appeared in this case :
For the Applicant: Sesley Menezes, Steven Anthony, Waqar Pathan, Advocates
For the Respondent: Kiran C. Shinde, APP
Buy Penal Code, 1860 HERE
