1

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

J U D G M E N T

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