GURIA, SWAYAM SEVI SANSTHANversusSTATE OF U.P. AND ORS.

                                [2009] 11 S.C.R. 761


      ~                GURIA, SWAYAM SEVI SANSTHAN                                A
                                        v.
                            STATE OF U.P. AND ORS.
                       (Criminal Appeal No. 1373 of 2009)

                                    JULY 31, 2009
                                                                                  B
                   [S.B. SINHA AND CYRIAC JOSEPH, JJ.]

                Immoral Traffic (Prevention) Act, 1956 - ss. 5, 6, and 9
          - Arrest of persons allegedly involved in purchase of girls for
          facilitating immoral traffic of prostitution - Bail application filed   c
          by them rejected by Sessions Judge - High Court however
 ~        granted bail - Justification of - Held: Question as regards
          grant of bail should be considered having regard to gravity
          of the offence wherewith the accus~d .were charged - High
          Court erred in dealing with the matte(in a cursory manner -             D
          However, keeping in vie\('/ the peculiarfacts and circumstances
          of the case, that as. the accused were granted bail long time
          back and in some cases trials had aiso· been concluded, it
          would not be proper to. cancel the bail at this stage - Penal
          Code, 1860- ss: ·323, 504, 506, 117, 366A and 373 - Crime               E
          against Women ""'" Bail.
rir
               Immoral Traffic (Prevention) Act, 1956 - Object of -
          Distinction between rescued children including girls and
          persons organizing such immoral traffic in a systematic
          manner and otherwise aiding and abetting commission of                  F
          offences thereunder - Need for a well-thought out plan for
          rehabilitation of rescued children in society .bY bringing in
          suitable legislations or schemes.

               Persons allegedly involved in the purchase of girls                G
          for facilitating the immoral traffic of prostitution were
          arrested and charge sheeted under ss. 5; 6 and 9 of the
      ~
          Immoral Traffic (Prevention) Act, 1956 and. provisions of
          IPC. Bail application filed by them. were rejected by the
                                      761                                         H
    762       SUPREME COURT REPORTS          [2009] 11 S.C.R.


A Sessions Judge. The High Court, however, granted bail          ~
  on the premise that there was no specific evidence
  regarding inducing or taking of a specific person for
  prosecution. Hence the present appeal.

          Dismissing the appeal, the Court
B
      HELD: 1.1. The Immoral Traffic (Prevention) Act, 1956
  was enacted 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
C 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 draw
D 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
E 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
F or may be held to be guilty of offences of higher
  magnitude. [Para 9] [766-A-E]

      1.2. The question as regards grant of bail should be
  considered having r~gard to the gravity of the offence
  wherewith the accused had been charged. The High
G Court was not correct in dealing with the matter in such
  a cursory manner. The High Court was also wrong in
  recording that the statements of the girls was not
  recorded under Section 164 CrPC, as the same was not
  necessary. However, keeping in view the peculiar facts
H
GURIA, SWAYAM SEVI SANSTHAN v. STATE OF U.P. 763
                AND ORS.

and circumstances of the case, that as the accused                 A
persons have been granted bail long time back and in
some cases trials have also been concluded, it would not
be proper to cancel the bail at this stage. [Paras 11 and
13) [767 -A-E]
                                                                   B
     Puran v. Rambi/as and Another (2001) 6 SCC 338,
referred to.
                      Case Law Reference:
     (2001) G sec 338             referred to         Para 12      c
    CRIMINAL APPELLATE JURISDICTION : Criminal Appeal
No. 1373 of 2009.

     From the Judgment & Order dated 4.4.2006 of the High
Court of Judicature at Allahabad in Criminal Misc. Bail            D
Application No. 4649, 2752, 1901, 3340, 3886, 2683, 4946 of
2006.
   Aparna Bhat, P.Ramesh Kumar, Gopal Krishna, Madhulika
Mohta for the Appellant.
                                                                   E
    S.R. Singh, Sunita Gautam, Shrish Kr. Mishra, Pramod
Swarup, Pooja, Pareena Swarup, B.D. Jha for the
Respondents.

     The Judgment of the Court was delivered by                    F
     S.8. 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.      G
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    H
    764         SUPREME COURT REPORTS                  (2009] 11 S.C.R.


A more persons were involved in the racket. Some of them were
  arrested.

        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")
B
  and Sections 323, 504, 506, 117, 366-A and 373 of the ln.dian
  Penal Code against 23 persons. Another charge sheeiwas
  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.

c       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
D girls for the purpose of facilitating immoraf·traffic. The learned
  Sessions Judge rejected the said applications for bail, inter
  qlia, stating:

          "... It is prima facie evident from the investigation carried
          out in this manner that these people bring the customers
E
          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 onlYfn having
          conducted the raid by the police and other social service
F         institutions on the stated date 31 minor girls have been
          recovered from the houses of Rahmat, Tulsi, etc. Therefore,
          commissioning of the offence under Immoral Traffic
          (Prevention) Act by these people becomes evident. From
          the said acts of the applicants/ agents instigates to commit
G         the said offence and these people enhance the immoral
          traffic of prostitution which is the act against the soc!ety.
          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,
H         applicant is a Tempo driver, is concerned, no evidence has
    GURIA. SWAYAM SEVI SANSTHAN v. STATE OF U.P. 765
              AND ORS. [S.B. SINHA, J.]

        been produced on his behalf. After considering all the facts      A
        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."
                                                                          B
         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     c
        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             D
        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 pi:Qstitutior:r. :
                                                                          E
              Besides that some legal pleas vvere also taken, i.e.,
        search of the prerriises·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."                                      F

         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         G
    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      H
    766        SUPREME COURT REPORTS               [2009] 11 S.C.R.


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
8
     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
C   failed to 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
D   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
E   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
F 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
G 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.

H       Section 6 of the Act involving detaining a person in the
    GURIA, SWAYAM SEVI SANSTHAN v. STATE OF U.P. 767
              AND ORS. [S.B. SINHA, J.]

~   premises where prostitution is carried out provides for              A
    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,
                                                                         8
    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           C
    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              D
    cancellation Qf 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   E
    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 cancelthe bail at this stage. We, however,
    would place on record that in a case of this nature, the High
    Court should have dealt the matter cautiously. The appeal is         F
    dismissed with the aforementioned observations.

    B.B.B.                                       Appeal dismissed.