PINKI versus STATE OF UTTAR PRADESH AND ANR.

Summary

On appeals by parents of trafficked children, the Supreme Court set aside all the Allahabad High Court orders releasing thirteen accused in an organised inter-state child-trafficking racket (Sections 363, 311 and 370(5) IPC) on bail. The High Court had dealt with the applications callously, relying on non-naming in the FIR, disclosure by co-accused, non-recovery of the victim from the particular accused, parity and 'bail is the rule', ignoring the gravity of the offence, the prima facie material and the risk of repetition and absconding; many accused absconded. The Court directed surrender, committal, day-to-day trial within six months, special prosecutors, victim protection and compensation, and issued nationwide directions to State Governments and High Courts on child-trafficking trials.

Issues

1. Whether the High Court erred in releasing on bail the accused in an organised inter-state child-trafficking racket on considerations such as non-naming in the FIR, disclosure of the name by a co-accused, non-recovery of the victim from the accused, parity with co-accused and the principle that bail is the rule and jail the exception.
2. What factors govern the grant of bail for offences of a serious nature, and how does an appeal assailing a bail order as perverse or based on irrelevant considerations differ from an application for cancellation of bail on supervening circumstances.
3. Whether the appellants, being the parents of the trafficked children rather than the State, could seek setting aside of the bail orders, and what directions were required for the expeditious trial of child-trafficking cases and the protection and rehabilitation of victims.

Provisions considered

• Sections 363, 311 and 370(5), Indian Penal Code, 1860The FIRs, initially registered as missing-child cases, were converted on investigation into cases of kidnapping and trafficking under these sections, and chargesheets were filed against 14, 10 and 7 accused respectively. The Court noted that Sections 370 and 370A were inserted in 2013 to give effect to the Palermo Protocol definition of trafficking (now Sections 143 and 144 BNS), and that the coordinate Bench had recorded that the charged sections carry a minimum of 14 years extending to life imprisonment. The Court did not quote or construe the text of the sections. (¶¶ 3, 6, 8, 19, 20, 37)
• Article 23, Constitution of IndiaArticle 23 prohibits traffic in human beings and begar and makes contravention punishable. The Court traced the constitutional prohibition and observed that trafficking has since taken diverse forms, with traffickers adapting to technology and operating as networks across States. (¶¶ 17, 18, 21, 51)
• Article 21, Constitution of IndiaPersonal liberty under Article 21 suffers lawful eclipse only by procedure established by law; the Court balanced the sanctity of liberty against the societal interest, holding that liberty is a regulated and restricted freedom and that deprivation must rest on the most serious considerations relevant to the welfare objectives of society. (¶¶ 53, 62, 63, 64, 72, 73, 74, 75, 78)
• Section 439, Code of Criminal Procedure, 1973Through Manoj Kumar Khokhar and Gurcharan Singh, the Court reiterated that where new circumstances arise after bail the State may seek cancellation under Section 439(2), but where none have arisen the prosecution or informant may appeal against the bail order as perverse, illegal or passed ignoring material establishing a prima facie case; the present appeals fell in the latter category. (¶¶ 58, 60, 61)
• Sections 38, 56, 57, 58, 61 and 68, Juvenile Justice (Care and Protection of Children) Act, 2015The Court described the statutory adoption framework: CARA as a statutory body under Section 68; categories of children legally free for adoption under Section 38; eligibility and procedure under Sections 57 and 58; and the bar under Section 61 on any consideration passing to the adoption agency beyond permitted fees. It observed that the checks and the long waiting list have fuelled a demand for children that traffickers exploit. (¶¶ 26, 27, 28)
• Admission of trafficked children, Right of Children to Free and Compulsory Education Act, 2009The State Government was directed to ensure that the trafficked children are admitted to schools under the Act and to continue supporting their education. (¶ 81)
• Victim compensation provisions, Bharatiya Nagarik Suraksha Sanhita, 2023At the end of the trial the trial court is to pass appropriate orders on compensation to the victims under the BNSS, including under the Uttar Pradesh Rani Laxmi Bai Mahila Evam Bal Samman Kosh. (¶ 81)

Held

• The High Court should not have exercised its discretion in favour of the accused. Considering the serious nature of the crime and the modus operandi of an organised racket that kidnapped children from pavement-dwelling families in Varanasi and sold them through a network across Uttar Pradesh, Jharkhand and Rajasthan, the High Court dealt with all the bail applications in a very callous manner; its reliance on the accused not being named in the FIR (which had been registered merely as missing-child reports), disclosure by co-accused, non-recovery of the victim from the particular accused, parity and 'bail is the rule, jail is the exception' ignored the recovery memos showing how each accused led to the apprehension of others and the retrieval of children, and the risk of repetition. This callous approach paved the way for many accused to abscond and put the trial in jeopardy. (¶¶ 38, 39, 40, 67, 76, 77)
• In granting bail for offences of a serious nature the court must consider the nature and gravity of the accusation, the nature of the evidence, the severity of punishment on conviction, the character and antecedents of the accused, the danger of absconding, the likelihood of repetition and of witnesses being influenced, and the larger interest of the public (Gudikanti Narasimhulu, Prahlad Singh Bhati, Ram Govind Upadhyay, Prasanta Kumar Sarkar, Brijmani Devi, Manoj Kumar Khokhar). A bail order bereft of cogent reasons or passed mechanically suffers from non-application of mind. The true test of judicious discretion is whether the court has balanced the personal liberty of the accused against the societal interest. (¶¶ 53, 54, 55, 56, 57, 59, 60, 61, 78)
• An appeal assailing an order granting bail stands on a different footing from an application for cancellation of bail: the former is tested on whether the discretion was exercised improperly or arbitrarily, that is whether the order is perverse, illegal or unjustified, whereas cancellation is examined on supervening circumstances or breach of conditions (Mahipal, Bhoopendra Singh). Where no new circumstances have arisen, the State or the informant may appeal against the order as perverse or passed ignoring material establishing a prima facie case. (¶¶ 58, 60, 61)
• Liberty is a cherished but controlled and restricted value; it cannot be elevated to a pedestal that brings anarchy or allows a person to jeopardise the life or liberty of others. In no circumstances could the High Court have released Santosh Sao, Jagveer Baranwal and Manish Jain on bail: the purchaser of a trafficked child for Rs. 4,00,000, even if not involved in the kidnapping, can prima facie be imputed with knowledge that the child was trafficked and is equally responsible; a child was retrieved directly from Jagveer Baranwal's custody while a sale was being negotiated; and Manish Jain appears to be a kingpin coordinating sales across regions. (¶¶ 62, 63, 64, 69, 70, 71, 72, 73, 74, 75, 76)
• The least that was expected of the High Court while granting bail to accused of this kind was a condition requiring each of them to mark attendance at the concerned police station once a week so that their movements could be tracked; the absence of any such condition caused the police to lose track of all the accused. The State's failure to challenge the bail orders or act on the earlier surrender directions showed no seriousness worth the name. (¶¶ 8, 67, 68)
• Directions: all accused to surrender before the committal court and be remanded to judicial custody; the CJM and ACJM, Varanasi to commit the three cases to sessions within two weeks; charges to be framed within one week thereafter; absconding accused to be secured by non-bailable warrants and their trial separated; evidence to be recorded on a day-to-day basis and trials completed within six months; the State to appoint three special public prosecutors, provide police protection to victims and their families, ensure the children's schooling under the RTE Act and trace absconders within two months; compensation to be determined at the end of trial; all State Governments to study and implement the recommendations of the BIRD report of 12.04.2023 (reproduced in paragraph 34); all High Courts to collect data on pending child-trafficking trials, issue circulars for their completion within six months and report compliance to this Court; non-compliance to be viewed strictly, including by contempt. (¶¶ 79, 80, 81, 87, 88)
• Where a newborn is trafficked from a hospital, the immediate action should be suspension of the hospital's licence in addition to other action under law, the hospital administration being responsible for protecting newborns; parents across the country were urged to remain vigilant. The observations in the judgment are prima facie and the trial court is to decide guilt strictly on the evidence. (¶¶ 86, 90, 91)

Result

All appeals allowed; the High Court's bail orders set aside and all accused directed to surrender before the committal court for remand to judicial custody, with the time-bound directions in paragraph 81 on committal, charge, trial, prosecutors, victim protection and compensation, and nationwide directions to State Governments and High Courts. Registry to circulate the judgment, list Writ Petition (Crl.) No. 43 of 2024 before the appropriate Bench and relist the matter in October 2025 for compliance. Pending applications disposed of.