WWW.LIVELAW.IN IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL
Government Appeal No. 139 of 2016 State
....Appellant Versus
Sartaj Khan
.…Respondent
Mr. Amit Bhatt, Dy.A.G. with Mr. K.S. Rawal, Brief Holder for the State. Mr. Ramji Srivastava, Legal Aid Counsel for the respondent.
Judgment Reserved- 09.11.2017 Date of Judgment - 07.12.2017 Coram: Hon’ble Rajiv Sharma, J Hon’ble Alok Singh, J Per: Hon’ble Rajiv Sharma, J The State has come in appeal against the judgment dated 04.05.2016, rendered by learned Special Sessions Judge, Champawat in Special Sessions Trial No.07 of 2015, whereby the respondent, who was charged with and tried for the offences under Section 363, 366-B, 370(4), 506 IPC and Section 8 of POCSO Act, was acquitted. 2.
The case of the prosecution, in a nutshell, is that
at 11:00 AM, S.I. Manju Pandey, In-charge Human Trafficking Unit Shadra Bairaj, Banbasa along with other police officials reached at Sharda Bairaj near Indo-Nepal border towards eastern side to check the illicit human trafficking. One volunteer namely Meera Sauda was also with them. They were checking the people coming from Nepal border. At about 13:30 hours, a secret information was received that an Indian boy was trying to import a minor girl of Nepal origin for the purpose of exploitation. The information was acted upon and one girl was noticed near a cart selling snacks towards the eastern side of Sharda Barrage. The name of the girl was ascertained. She disclosed her name Km. Jainisha Sharma D/o Moti Ram Sharma, R/o Village Koteshwar, District Kathmandu,
2
Nepal, aged about 15 years. The investigation was carried out by maintaining all decency through Meera Sauda, who was well conversant with Hindi and Nepali languages. She disclosed to the police party that on 10.04.2015, she came all alone to see her uncle namely Arjun Sharma, who was a teacher in Lamki (Nepal). On 11.04.2015 at about 10:00 AM, she was having ice-cream from a cart at Atariya Bus stand. A boy came and stood by her side. He also started having the ice-cream. He tried to entice her. He allured her that he would take her to Banbasa in India where she can do shopping. They would stay in a hotel at Banbasa and in the morning, he would send her back to Atariya, Nepal. She trusted him. The boy brought her from Atariya, Nepal to Mahendra Nagar. He started pressing her breast in the bus. She told him not to do so. Thereafter, at Mahendra Nagar, he made her to sit on a horse cart, which was going towards India. They reached Banbasa bridge at about 13:45 hours. The gate was closed. Many horse carts and vehicles were parked. There was lot of rush. The boy got down from the horse cart and told her that there was police checking. He tutored her to tell the police that she was going to Banbasa for shopping. He started walking ahead. He told her that he would see her after some distance. Thereafter, they searched the boy. They reached near canal gate. The boy was standing near the tree facing towards bridge. Km. Jainisha recognized the boy and told that he was the same boy, who has enticed her to come from Nepal. The boy was arrested. He disclosed his name Sartaj Khan, S/o Sardar Khan, R/o Mohalla Bhure Khan, P.S. Khakhra, District Pilibhit, Uttar Pradesh. He was aged 30 years. He admitted his guilt. The respondent and girl were brought to the office for counseling. Other police officials also reached the spot. It was, prima facie, found that the boy had brought the girl to India for exploitation. The personal search of the respondent was carried out. One pocket diary, one packet
3
of condom, two man force tablets, Indian and Nepal currency and two mobile phones were found from his possession. The seizure memo was prepared. One copy of the same was handed over to the respondent. PW2 Km. Jainisha Sharma was medically examined by PW4 Dr. Vinod Kumar Joshi. 3.
The FIR was registered. The investigation was
carried out and the challan was put up after completing all the codal formalities. 4.
The prosecution has examined as many as six
witnesses in its support. 5.
Thereafter, the statement of respondent was
recorded under Section 313 of Cr.P.C. He denied the case of the
prosecution.
According
to
him,
he
was
falsely
implicated. 6. as
The respondent was acquitted by the Trial Court, noticed
hereinabove.
Hence,
this
appeal
by
the
Government. 7.
Learned counsel appearing on behalf of the State
has vehemently argued that the prosecution has proved its case against the respondent beyond reasonable doubt. 8.
Learned Legal Aid Counsel appearing for the
respondent has supported the judgment dated 04.05.2016. 9.
We have heard learned counsel for both the
parties and perused the judgment and record carefully. 10.
PW1
11.04.2015,
S.I.
she
Manju
was
the
Pandey
testified
In-charge
of
that
on
Anti-Human
Trafficking Unit, Sharda Barrage, Banbasa. She along with other police officials went towards Sharda Barrage to check the human trafficking in the official car. They also associated one volunteer namely Meera Sauda of NGO and
4
they started checking the people coming from Nepal. They received a secret information at 13:30 hours that one Indian Muslim boy was importing minor Nepalese girl from Mahendra Nagar. The gate of the Indian side was closed. People were crossing the bridge on foot. Horse carts and vehicles were parked. They started checking the people and made inquiries. At 13:45 hours, on the eastern side of Sharda barrage, one girl was noticed standing near the cart selling snacks. The informant informed that she is the same girl who has been brought from Nepal by the Indian boy. Thereafter, the informant left the place. They reached near the cart. They made inquiries from the girl. The girl disclosed her name as Km. Jainisha Sharma. She disclosed her age as 15 years. The inquiries were made through good office of Meera Rauda, who was well conversant in Nepalese and Hindi languages. The girl told that she left Kathmandu on 10.04.2015 to meet her uncle namely Arjun Sharma. Her uncle was a teacher. On 11.04.2015 at Atriya bus stand, she came down from the bus. She started eating icecream. In the meantime, one boy reached near the same cart and asked for ice-cream. He asked her to come to India. He enticed her and promised her to take her for shopping. They would stay in a hotel at night and in the morning, he would send her back to Atriya. He also tried to molest her while travelling in bus to Mahendra Nagar. He made her to sit on a horse cart. He also sat with her. At Sharda barrage, the checking was going on. The boy got down from the eastern side of Sharda barrage. He told her that the checking was going on ahead. He tutored her that she should tell the police personnel that she was going to Banbasa for shopping. He told her that he would go on foot and meet her after some time. It was, prima facie, the case of human trafficking.
They went in search of the
respondent. The boy was found near Sharda barrage. The girl identified him and told that he is the same boy who had
5
brought her from Nepal to India. The boy was apprehended. He disclosed his name and parentage. Senior officers were informed. They took the boy and the girl for counseling. The senior officers also came on the spot. The boy and girl were separately interrogated. The girl was speaking in Nepalese language. The interpretation was being done by Bhuwan Gadkoti, Janak Chand and Meera Sauda. They were well conversant with the Nepalese language. The personal search of the boy was carried out. Indian and Nepalese currency along with two mobile phones, one packet of condom and two tablets of man force were recovered from his possession. These were taken into possession. The seizure memo was prepared. She recognized the items in the Court. Thereafter, they went to Banbasa police station. In her cross-examination, she has deposed that she knew little bit of Hindi language. Laxman Chand and driver Hira Singh also knew little bit of Nepalese language. The victim was speaking in Nepalese language and the same was got translated with the help of Hira Singh, Laxman Chand and Meera Sauda. The girl has disclosed that the boy belongs to India and she could recognize him. The height, colour and age was also ascertain from the victim. They were tried to associate
independent
witnesses
but
no
independent
witness was available. 11.
PW2 prosecutrix has deposed that she was a
student of Class 9th in Kathmandu, Nepal. She could speak little bit of Hindi. She was coming on 10.04.2015 from Nepal to Atariya in a bus. She got down at Atariya bus stand. She started having ice-cream at bus stand. The respondent also came near the ice-cream cart and started having ice-cream. She also purchased one bottle of chilled water. The boy asked her to accompany him to Banbasa. Thereafter, they went to Ghangarhi. She sat with the respondent in the bus and came to Mahendra Nagar. The
6
respondent put his one hand on her breast. She asked him not to do so. Thereafter, the boy stopped pressing her breast. She was fed in a hotel by the respondent. Thereafter, the boy brought the horse cart. They sat on a horse cart. One Nepalese citizen asked the owner of horse cart in Hindi language where they were taking this girl. The owner of horse cart was already tutored by the respondent. The owner of horse cart told that they were going to Banbasa where her uncle was residing and she was going for shopping with him. The boy made her to sit on horse cart and started walking ahead of horse cart. Thereafter, the boy also sat on the horse cart. Thereafter, they reached, Gaddha Chowki (Nepal). She was not permitted even to urinate by the owner of horse cart. The accused told her not to come down from horse cart. The boy got down at Gaddha Chowki and started moving ahead and told her that checking was going on and told her to follow him and he would meet her at some distance. She was perplexed when she got down from the horse cart. In the meantime, police reached the spot and she narrated entire episode to them. The police asked her about the boy. The police officers asked her whether she was in a position to recognize the boy. The boy was standing near the canal gate. She recognized him. She was interrogated by the police along with the accused. Her signatures were obtained. Whatever she had narrated, it was jotted down by the police. She recognized her signatures. She was taken to Banbasa police station. She along with the accused were interrogated. They were handed over to police at the police station. She has given her statement in Nepalese language. The same was translated by Meera Sauda. She identified her signatures on the statement. Whatever she has deposed in the Court, the same was recorded in her statement under Section 164 of Cr.P.C. The personal search of the respondent was also carried out. In her cross-examination,
7
she has deposed that she came with Meera Sauda and not with PW1 S.I. Manju Pandey, in the Court. She was not tutored by PW1 Manju Pandey. She has also denied that she was tutored by the government advocate to depose in a particular manner. She could read Hindi language but could not speak Hindi. Whatever she has stated, the same was reduced into writing in her statement. The statement was written by PW1 Manu Pandey and she signed the same. When the police had gone to search the respondent, PW1 Manju Pandey, PW3 Meera Sauda and Bhuwan Chand were together. Her mother’s name was Kamla Devi. It takes about one hour to travel from Atariya to Mahendra Nagar. When her statement was recorded by the CJM, only Meera Sauda accompanied her. She was interrogated in Hindi by Meera Sauda, which was translated by Meera Sauda in Nepalese language. The senior officers had also come in the office of Meera Sauda. They also interrogated her. 12.
PW3 Meera Sauda testified that she was working
as a Counselor ‘In Reads’ NGO. Their office was situated near immigration office. Their organization was setup to check the human trafficking. She reached her office. The police had already come there. They were checking people coming from Nepal. The gate was closed. One informant came near PW1 S.I. Manju Pandey and told them that a girl was standing near the cart. They went towards the cart. The age of the girl was 14-15 years. She asked her about her address in Nepalese language. She disclosed her name and residence. She told that she was going to see her uncle at Lamki. When she reached Atariya, she had ice-cream. One boy met her. He told her to accompany her to Banbasa. Thereafter, he would send her back to Atariya. Thereafter, they boarded in a bus at Mahendra Nagar. She sat on a horse cart to come to India. When they reached Nepal border, the boy told her that the checking was going
8
on and told her to meet her at some distance. The girl told that she did not know the name of the boy but she could recognize him. They went towards the canal gate. When they reached near the canal gate, the girl pointed out towards the boy. The boy was apprehended. He was taken to the office of PW1 S.I. Manju Pandey. The interrogation was carried out in Nepalese language. It was reduced into writing. The accused was arrested. In her cross-examined, she has deposed that there was a custom office, shops and more carts. They have not tried to find out the horse cart, in which, she had travelled from Nepal to India. The girl has disclosed the identity of the boy. Initially, she has tried to speak in Hindi language. Thereafter, she was speaking in Nepalese language. Thereafter, she disclosed her identity. She disclosed her parentage. The accused was arrested in the afternoon. 13.
PW4 Dr. Vinod Kumar Joshi has medically
examined the prosecutrix. He proved the medical report. 14.
The Medical Board was constituted comprising
the Chief Medical Officer, Radiologist, Female Medical Officer, Dental Surgeon. The Board unanimously has found the age of the prosecutrix to be 17 years. The Radiologist has given her age to be 16 years and 01 day, the Female Medical Officer has given the age of the prosecutrix to be 16-17 years and the Dental Surgeon has given the age of the prosecutrix between 17-21 years The average age was found to be 17 years, as per the recommendations of the board. 15.
PW5 H.C. Hemant Kumar has deposed that he
was on night duty on 11.04.2015. The police has produced the prosecutrix and accused before him along with seizure memo. The FIR was registered. The papers concerning the arrest of the accused were prepared by him.
9
16.
PW6 S.I. Minakshi Nautiyal has deposed that she
was working at P.S. Lohaghat on 11.04.2015. She was the Investigating
Officer.
She
completed
all
the
codal
formalities. She recorded the statements of PW1 Manju Pandey and the prosecutrix. She visited the spot and prepared the spot map. She identified the signatures on the report. An application was moved before the CJM for recording the statement of the prosecutrix under Section 164 of Cr.P.C. 17.
What emerges from the statements recorded
hereinabove, is that the prosecutrix is a citizen of Nepal. She was imported to India by the accused for exploitation. The girl has come to see her uncle at Lamki. She got down at Atariya bus stand. The respondent met her there. He enticed her to come to India. The girl boarded the bus and travelled from Atariya to Mahendra Nagar. The respondent has molested her in the bus. She got down at Mahendra Nagar. The respondent fed her at Mahendra Nagar. The accused tutored her that when anybody inquired her, she would say that she was going for shopping at Banbasa. The respondent walked some distance and thereafter, boarded the horse cart. He got down from the horse cart and told the prosecutrix that the checking was going on at police checkpost. Thereafter, the police got the secret information. The girl was spotted near the cart. She disclosed her identity. She was interrogated in Nepalese language with the help of Meera Sauda, who was accompanying the police party. The boy was also arrested. He was identified by the girl. The age of the prosecutrix was also ascertained with the help of ossification test/ dental test. 18.
PW1
S.I.
Manju
Pandey
has
categorically
deposed that she was the In-charge of Anti-Human Trafficking near Indo-Nepal border. They had gone to border in the company of Counselor of one NGO. She
10
received the secret information that the boy was trying to import a minor girl of Nepal origin. They reached the spot. The girl was found. She disclosed her identity. She was interrogated with the help of interpreter. The girl told PW1 S.I. Manju Pandey that she could identify the boy. The boy was arrested near Banbasa, as per the prescription given by the girl. The prosecutrix was taken for counseling. Thereafter,
she
was
taken
to
police
station.
PW2
prosecutrix has corroborated the statement of PW1 S.I. Manju Pandey. She has categorically deposed the manner, in which, she was enticed by the respondent at Atariya bus stand and she was made to board in a bus from Atariya to Mahendra Nagar. She was made to board in a horse cart from Mahendra Nagar. She has specifically deposed that the respondent has molested her in the bus. He told her to come in the horse cart and he would see her across the border. She disclosed her identity including the parentage to the police party and Meera Sauda. Her statement was recorded under Section 164 of Cr.P.C. She identified her signatures on the statement made before the police as well as the CJM. PW3 has also supported the case of the prosecution to the hilt. She was accompanying the police party. The girl was recovered and the boy was arrested. PW4 Dr. Vinod Kumar Joshi has medically examined the prosecutrix. He assessed the age of the prosecutrix to be 17 years. PW5 H.C. Hemant Kumar has registered the FIR. PW6 S.I. Minakshi Nautiyal has investigated the matter. She has got the statement of the prosecutrix recorded under Section 164 of Cr.P.C. She visited the spot and prepared the spot map. 19.
The prosecution has proved to the hilt that the
respondent had imported the minor girl, who is the resident of Nepal to India, for exploitation. The incriminating material was also found from his possession. He was
11
carrying condom as well as two man force tablets at the time of his arrest along with Indian and Nepalis currencies. He enticed poor girl to come to India by promising her to shop. He has also assured her that they would stay in a hotel and he would send her back to Mahendra Nagar. 20.
Learned Trial Court has erred in law by relying
upon Section 188 of Cr.P.C. 21.
The permission of the Central Government was
not required to hold the trial against the respondent under Sections 363, 366-B, 370(4) as well as 373(A) IPC. 22.
Section 370 of IPC prescribes that whoever, for
the purpose of exploitation, (a) recruits, (b) transports, (c) harbours, (d) transfers, or (e) receives, a person or persons, by— a. b. c. d. e. f.
23.
using threats, or using force, or any other form of coercion, or by abduction, or by practising fraud, or deception, or by abuse of power, or by inducement, including the giving or receiving of payments or benefits, in order to achieve the consent of any person having control over the person recruited, transported, harboured, transferred or received, commits the offence of trafficking.
Sub-section 4 of Section 370 IPC lays down that
where the offence involves the trafficking of a minor, it shall be punishable with rigorous imprisonment for a term which shall not be less than ten years, but which may extend to imprisonment for lift, and shall also be liable to fine. 24.
In
the
present
case,
the
respondent
has
practiced fraud and deception by importing the prosecutrix to India and has committed the offence under Section 370(4) IPC. 25.
Her age was unanimously found to be 17 years
by the Board, as per the record. The report was signed by all the Members of the Board.
12
26.
Learned Trial Court has wrongly come to the
conclusion that the prosecutrix has attained the age of majority. She was minor at the time when the respondent has committed the offence of trafficking. The respondent has brought the prosecutrix to India from Nepal. Her age was less than 21 years. It has come in the evidence that the girl was to be forced or seduced to illicit intercourse with another person. In the present case, the consent of the prosecutrix is immaterial as far as offence under Section 370 IPC is concerned. 27.
Now, as far as, offence under Section 363 IPC is
concerned, according to language of Section 361 IPC, whoever, takes or entices any minor under [sixteen] years of age if a male, or under [eighteen] years of age if a female, or any person of unsound mind, out of the keeping of the lawful guardian of such minor or person of unsound mind, without the consent of such guardian, is said to kidnap such minor or person from lawful guardianship. Sections 361 and 363 IPC are to be read together. 28.
Section 363 IPC provides whoever kidnaps any
person from [India] or from lawful guardianship, shall be punished with imprisonment of either description for a term which may extend to seven years, and shall also be liable to fine. 29.
The respondent has been arrested from India. He
has enticed the prosecutrix, who was less than 16 years of age from her lawful guardianship, and trafficked her from Nepal to India. 30.
Respondent has committed continuous offences
starting from Nepal upto India as far as Sections 363, 366B, 370(4) and Section 8 of POCSO Act are concerned. The respondent has threatened and caused injury to reputation
13
of the prosecutrix and has caused the prosecutrix to do act which she was not legally bound to do so. 31.
Learned Trial Court has overlooked to see
Sections 178, 179, 180, 181, 183 of Cr.P.C. during the trial. 32.
Sections 3 and 4 IPC read as under:“Section 3- "Any person liable, by any Indian law, to be tried for an offence committed beyond India, shall be dealt with according to the provisions of this Code for any act committed beyond India in the same manner as if such act had been committed within India." Section 4 -"The provisions of this Code apply also to any offence committed by(1) any citizen of India in any place without and beyond India; (2) any person on any ship or aircraft registered in India wherever it may be. Explanation.- In this section the word "offence" includes every act committed outside India which, if committed in India, would be punishable under this Code." 5. Section 3 of the Penal Code helps the (authorities in India to proceed by treating the offence as one committed within India. No doubt it is by a fiction that such an assumption is made. But such a fiction was found necessary for practical purposes. Section 3 of the Penal Code was found insufficient for police authorities to investigate into the offence. It was in the aforesaid context that Section 188 has been incorporated in the Procedure Code. That section reads thus: "188. Offence committed outside India.When an offence is committed outside India.(a) by a citizen of India, whether on the high seas or elsewhere; or (b) by a person, not being such citizen on any ship or aircraft registered in India, he may be dealt with in respect of such offence as if it had been committed at any place within India at which he may be found: Provided that, notwithstanding anything in any of the preceding sections of this Chapter, no such offence shall be inquired into or tried in India except with the previous sanction of the Central Government." No doubt, Section 188 concerns as to how to deal with a person who has committed an offence outside India. Since the proviso casts an obligation to obtain previous sanction of the Central Government to inquire into and try such person, the section has a message that for the pre-inquiry stage no such sanction is needed. If during pre-inquiry stage any offender can be dealt with (without such sanction) what could be the contours of that stage? I have no doubt that the pre-inquiry stage substantially relates to investigation of the crime. If there is any stage in which an offender can be dealt with before commencement of inquiry, it must be the investigation stage. 6. During such investigation stage, if the person (known or reasonably suspected to be the offender having committed the
14 offence outside India) is not available in India, extradition proceedings may have to be resorted to (vide State of W.B. v. Jugal Kishore, AIR 1969 SC 1171: 1969 Cri LJ 1559). Supreme Court observed that "extradition is the surrender by one State to another of a person desired to be dealt with for crimes of which he has been accused or convicted and which are justiciable in courts of the other State". Such extradition proceedings are contemplated to get down the person concerned to this country to be dealt with thereafter. 7. The upshot is that Sub-Inspector of Tanur Police Station can conduct investigation into the offence notwithstanding the place of occurrence being Sharjah because the person on whom the focus of suspicion turns is laid to be a citizen of India.
33.
Learned Trial Court has misread the entire
evidence leading to miscarriage of justice. The statement of the owner of horse cart was not required to be recorded. Moreover, he was not the Indian citizen. The police has also tried to secure independent witnesses but no independent witness was available. 34.
Learned Trial Court has perversely held the age
of the prosecutrix to be major, though admittedly, she was minor. There were bound to be minor contradictions in the statements with the passage of time, which were required to be overlooked by learned Trial Court. 35.
The prosecutrix has categorically stated that the
respondent has molested her in the bus while travelling from Atariya to Mahendra Nagar. 36.
The prosecution has proved that the respondent
was standing near the barrage on the Indian side of the border. It was also not necessary for the prosecution to find out the persons, who were sitting on the horse cart at the relevant time. There was no necessity of independent witnesses at the time of nabbing the prosecutrix. In case, the police has tried to associate independent witnesses, the culprit could escape from the spot. 37.
It has come in the statement of PW6 Meenakshi
Nautiyal that she moved the application before the CJM for recording the statement of prosecutrix. She has identified
15
her signatures on the report recorded under Section 164 of Cr.P.C i.e. exhibit A-4. 38.
The arrest memo of the respondent was signed
by the police officers. There is no variance in the statement of prosecutrix recorded under Section 164 of Cr.P.C. and her deposition before learned Trial Court while appearing as PW2. She has also stated in her statement recorded under Section 164 of Cr.P.C. that the respondent was telling the owner of horse cart that he would get about Rs.30,000/- to 40,000/- by selling her. 39.
The statement recorded under Section 164 of
Cr.P.C. though, is not substantive piece of evidence but still it has a great corroborative value, more particularly, when there is no contradiction in the statement recorded under Section 164 of Cr.P.C. and the deposition before learned Trial Court on essential facts. 40.
The United Nations has adopted the protocol to
prevent, suppress and punish trafficking in persons, especially women and children, supplementing the United Nations Convention against the Transnational Organized Crime in 2000. The preamble reads as under: “Preamble The States Parties to this Protocol, Declaring that effective action to prevent and combat trafficking in persons, especially women and children, requires a comprehensive international approach in the countries of origin, transit and destination that includes measures to prevent such trafficking, to punish the traffickers and to protect the victims of such trafficking, including by protecting their internationally recognized human rights, Taking into account the fact that, despite the existence of a variety of international instruments containing rules and practical measures to combat the exploitation of persons, especially women and children, there is no universal instrument that addresses all aspects of trafficking in persons,
16 Concerned that, in the absence of such an instrument, persons who are vulnerable to trafficking will not be sufficiently protected, Recalling General Assembly resolution 53/111 of 9 December 1998, in which the Assembly decided to establish an open-ended intergovernmental ad hoc committee for the purpose of elaborating a comprehensive international convention against transnational organized crime and of discussing the elaboration of, inter alia, an international instrument addressing trafficking in women and children, Convinced that supplementing the United Nations Convention against Transnational Organized Crime with an international instrument for the prevention, suppression and punishment of trafficking in persons, especially women and children, will be useful in preventing and combating that crime.”
41.
The protocol defines “Trafficking in persons” as
under:(a) “Trafficking in persons” shall mean the recruitment, transportation, transfer, harbouring or receipt of persons, by means of the threat or use of force or other forms of coercion, of abduction, of fraud, of deception, of the abuse of power or of a position of vulnerability or of the giving or receiving of payments or benefits to achieve the consent of a person having control over another person, for the purpose of exploitation. Exploitation shall include, at a minimum, the exploitation of the prostitution of others or other forms of sexual exploitation, forced labour or services, slavery or practices similar to slavery, servitude or the removal of organs; (b) The consent of a victim of trafficking in persons to the intended exploitation set forth in subparagraph (a) of this article shall be irrelevant where any of the means set forth in subparagraph (a) have been used; (c) The recruitment, transportation, transfer, harbouring or receipt of a child for the purpose of exploitation shall be considered “trafficking in persons” even if this does not involve any of the means set forth in subparagraph (a) of this article;
42.
Article 6 of the protocol for protection of victims
of trafficking in persons reads as under:Article 6 Assistance to and protection of victims of trafficking in persons 1. In appropriate cases and to the extent possible under its domestic law, each State Party shall protect the privacy and identity of victims of trafficking in persons, including, inter alia, by making legal proceedings relating to such trafficking confidential. 2. Each State Party shall ensure that its domestic legal or administrative system contains measures that provide to victims of trafficking in persons, in appropriate cases: (a) Information on relevant court and administrative proceedings; (b) Assistance to enable their views and concerns to be presented and considered at appropriate stages of criminal proceedings against offenders, in a manner not prejudicial to the rights of the defence.
17 3. Each State Party shall consider implementing measures to provide for the physical, psychological and social recovery of victims of trafficking in persons, including, in appropriate cases, in cooperation with non-governmental organizations, other relevant organizations and other elements of civil society, and, in particular, the provision of: (a) Appropriate housing; (b) Counselling and information, in particular as regards their legal rights, in a language that the victims of trafficking in persons can understand; (c) Medical, psychological and material assistance; and (d) Employment, educational and training opportunities. 4. Each State Party shall take into account, in applying the provisions of this article, the age, gender and special needs of victims of trafficking in persons, in particular the special needs of children, including appropriate housing, education and care. 5. Each State Party shall endeavour to provide for the physical safety of victims of trafficking in persons while they are within its territory. 6. Each State Party shall ensure that its domestic legal system contains measures that offer victims of trafficking in persons the possibility of obtaining compensation for damage suffered.
43.
Article
7
deals
with
status
of
victims
of
trafficking in persons in receiving states. It reads as under:Article 7 Status of victims of trafficking in persons in receiving States 1. In addition to taking measures pursuant to article 6 of this Protocol, each State Party shall consider adopting legislative or other appropriate measures that permit victims of trafficking in persons to remain in its territory, temporarily or permanently, in appropriate cases. 2. In implementing the provision contained in paragraph 1 of this article, each State Party shall give appropriate consideration to humanitarian and compassionate factors.
44.
Article 8 provides repatriation of victims of
trafficking in persons. It reads as under:Article 8 Repatriation of victims of trafficking in persons 1. The State Party of which a victim of trafficking in persons is a national or in which the person had the right of permanent residence at the time of entry into the territory of the receiving State Party shall facilitate and accept, with due regard for the safety of that person, the return of that person without undue or unreasonable delay. 2. When a State Party returns a victim of trafficking in persons to a State Party of which that person is a national or in which he or she had, at the time of entry into the territory of the receiving State Party, the right of permanent residence, such return shall be with due regard for the safety of that person and for the status of any legal proceedings related to the fact that the person is a victim of trafficking and shall preferably be voluntary.
18 3. At the request of a receiving State Party, a requested State Party shall, without undue or unreasonable delay, verify whether a person who is a victim of trafficking in persons is its national or had the right of permanent residence in its territory at the time of entry into the territory of the receiving State Party. 4. In order to facilitate the return of a victim of trafficking in persons who is without proper documentation, the State Party of which that person is a national or in which he or she had the right of permanent residence at the time of entry into the territory of the receiving State Party shall agree to issue, at the request of the receiving State Party, such travel documents or other authorization as may be necessary to enable the person to travel to and re-enter its territory. 5. This article shall be without prejudice to any right afforded to victims of trafficking in persons by any domestic law of the receiving State Party. 6. This article shall be without prejudice to any applicable bilateral or multilateral agreement or arrangement that governs, in whole or in part, the return of victims of trafficking in persons.
45.
Article 9 provides for prevention of trafficking in
persons. It reads as under:Article 9 Prevention of trafficking in persons 1. States Parties shall establish comprehensive policies, programmes and other measures: (a) To prevent and combat trafficking in persons; and (b) To protect victims of trafficking in persons, especially women and children, from revictimization. 2. States Parties shall endeavour to undertake measures such as research, information and mass media campaigns and social and economic initiatives to prevent and combat trafficking in persons. 3. Policies, programmes and other measures established in accordance with this article shall, as appropriate, include cooperation with non-governmental organizations, other relevant organizations and other elements of civil society. 4. States Parties shall take or strengthen measures, including through bilateral or multilateral cooperation, to alleviate the factors that make persons, especially women and children, vulnerable to trafficking, such as poverty, underdevelopment and lack of equal opportunity. 5. States Parties shall adopt or strengthen legislative or other measures, such as educational, social or cultural measures, including through bilateral and multilateral cooperation, to discourage the demand that fosters all forms of exploitation of persons, especially women and children, that leads to trafficking.
46.
Article 10 deals with information exchange and
training. It reads as under:Article 10 Information exchange and training
19 1. Law enforcement, immigration or other relevant authorities of States Parties shall, as appropriate, cooperate with one another by exchanging information, in accordance with their domestic law, to enable them to determine: (a) Whether individuals crossing or attempting to cross an international border with travel documents belonging to other persons or without travel documents are perpetrators or victims of trafficking in persons; (b) The types of travel document that individuals have used or attempted to use to cross an international border for the purpose of trafficking in persons; and (c) The means and methods used by organized criminal groups for the purpose of trafficking in persons, including the recruitment and transportation of victims, routes and links between and among individuals and groups engaged in such trafficking, and possible measures for detecting them. 2. States Parties shall provide or strengthen training for law enforcement, immigration and other relevant officials in the prevention of trafficking in persons. The training should focus on methods used in preventing such trafficking, prosecuting the traffickers and protecting the rights of the victims, including protecting the victims from the traffickers. The training should also take into account the need to consider human rights and child- and gender-sensitive issues and it should encourage cooperation with non-governmental organizations, other relevant organizations and other elements of civil society. 3. A State Party that receives information shall comply with any request by the State Party that transmitted the information that places restrictions on its use.
47.
Article 11 deals with border measures. It reads
as under:Article 11Border measures 1. Without prejudice to international commitments in relation to the free movement of people, States Parties shall strengthen, to the extent possible, such border controls as may be necessary to prevent and detect trafficking in persons. 2. Each State Party shall adopt legislative or other appropriate measures to prevent, to the extent possible, means of transport operated by commercial carriers from being used in the commission of offences established in accordance with article 5 of this Protocol. 3. Where appropriate, and without prejudice to applicable international conventions, such measures shall include establishing the obligation of commercial carriers, including any transportation company or the owner or operator of any means of transport, to ascertain that all passengers are in possession of the travel documents required for entry into the receiving State. 4. Each State Party shall take the necessary measures, in accordance with its domestic law, to provide for
20 sanctions in cases of violation of the obligation set forth in paragraph 3 of this article. 5. Each State Party shall consider taking measures that permit, in accordance with its domestic law, the denial of entry or revocation of visas of persons implicated in the commission of offences established in accordance with this Protocol. 6. Without prejudice to article 27 of the Convention, States Parties shall consider strengthening cooperation among border control agencies by, inter alia, establishing and maintaining direct channels of communication.
48.
The United Nations hosted Global Initiative to
Fight Human Trafficking (UN.GIFT) and the relevant extracts of the reports of the Vienna Forum to fight human trafficking reads as under:a. The Commission on Crime Prevention and Criminal Justice decisions 16/1 and 16/2 on the United Nations Global Initiative to Fight Human Trafficking and the Vienna Forum to Fight Human Trafficking 1. The Vienna Forum to Fight Human Trafficking was convened by the United Nations Global Initiative to Fight Human Trafficking (UN.GIFT) pursuant to Commission on Crime Prevention and Criminal Justice (CCPCJ) decision 16/1 of 27 April, which was further reinforced by decision 16/2 of 29 November 2007, whereby the United Nations Office on Drugs and Crime (UNODC) was requested to report on the proceedings of the Vienna Forum as well as on the progress and future planning of UN.GIFT.1 The decisions were part of efforts by the Commission to stress the importance of international cooperation against trafficking in persons. 2. CCPCJ decision 16/2 also decided that the objectives of the Vienna Forum should be to raise awareness, facilitate cooperation and partnerships among stakeholders, and avoid duplication of efforts in the fight against human trafficking, with due regard to the Protocol to Prevent, Suppress and Punish Trafficking in Persons, Especially Women and Children.
49.
The objective of Vienna forum was to raise
awareness
forging
new
partnerships
and
facilitating
cooperation. It made the following future actions and recommendations:Future actions and recommendations 72. The Vienna Forum set the path for future antitrafficking efforts. The Chairperson’s summary emphasized the need to aggressively address all forms of exploitation, including forced labour, and underscored UN.GIFT’s critical role in continuing to build and expand alliances. 73. As stated by the Chairperson, the Vienna Forum met its immediate objectives but action must follow through technical assistance and international cooperation – essential for national capacity building for the
21 implementation of the UNTOC and the Trafficking Protocol. Every panel and workshop produced a number of recommendations and proposals for future actions, many expressing common themes for action across topic areas. 74. Emphasis was placed on the need for adequate national legislation to cover all aspects of trafficking; this included ratifying and implementing the Trafficking Protocol and other relevant international instruments. Within this context, virtually all panels and workshops focused on the need for a victim-centred, human rights approach to preventing and combating trafficking in persons with an understanding that supporting victims can also positively impact criminal justice actions. 75. Increased research was generally agreed on as the cornerstone of more effective action against trafficking in persons. More knowledge is necessary to fill in the crucial information gaps that will allow the design of adequate anti-trafficking policies. 76. Participants highlighted the need for increased cooperation between relevant agencies, civil society and the private sector within countries and on an international level. UN.GIFT was seen as an important facilitator for expanding cooperative and innovative alliances. 77. There was a call for a greater effort to confront all aspects of trafficking, including sexual exploitation and forced labour. Labour market stakeholders employers’ organizations, trade unions, businesses and others – need to become more active partners in ensuring labour rights and labour protections to prevent forced labour and address it where it already exists. 78. Awareness-raising was a cross-cutting activity for all aspects of combating trafficking in persons. Participants in virtually every panel and workshop saw value in awareness-raising activities, whether for front-line law enforcement to aid in victim identification, to enlighten private sector businesses or to alert potential victims and the general public. 79. Finally, as expressed by many panellists and speakers, several critical issues were identified that remain to be addressed. Research needs to lead to achievement indicators that can be used as a baseline against which appropriate monitoring and evaluation mechanisms can be developed and implemented. Also, the question of the nature of appropriate monitoring mechanisms needs to be more thoroughly addressed. 80. There was widespread agreement that the root causes of human trafficking must be confronted using a balanced approach, but increased attention needs to be placed on how to reduce demand for trafficked persons in destination countries. 81. The Chairperson expressed the sentiment of participants in the Chairperson’s summary by pointing out that to follow up on the momentum generated by the Vienna Forum, there is an obligation to convert dialogue it into action to eradicate human trafficking.
50.
Taking
note
of
the
Vienna
Forum
against
Trafficking in Persons in the framework of the United
22
Nations Global Initiative to Fight Human Trafficking, was held from 13 to 15 February, 2008, at Vienna. It expressed following concerns and has also urged the Governments to take necessary steps to check human trafficking as under:(a) The high number of persons, especially women and children, in particular from developing countries and countries with economies in transition, who are being trafficked to developed countries, as well as within and between regions and States; (b) The increasing activities of transnational and national organized crime and others that profit from trafficking in persons, especially women and children, without regard for dangerous and inhumane conditions and in flagrant violation of domestic laws and international standards; (c) The use of new information technologies, including the Internet, for the purposes of exploitation of the prostitution of others and for child pornography, paedophilia and any other form of sexual exploitation of children, as well as for trafficking in women as brides and for sex tourism; (d) The high level of impunity enjoyed by traffickers and their accomplices and the denial of rights and justice to victims of trafficking; 2. Urged Governments to take following steps: (a) To take appropriate measures to address the root factors, including external factors, that encourage trafficking in persons for prostitution and other forms of commercialized sex, forced marriages and forced labour, slavery or practices similar to slavery, servitude or the removal of organs, including by strengthening existing legislation or by considering the enactment of antitrafficking legislation and the adoption of national plans of action with a view to providing better protection for victims of trafficking and to punishing perpetrators through criminal and civil measures; (b) To criminalize trafficking in persons in all its forms and to condemn and penalize traffickers, facilitators and intermediaries, including, where applicable, by imposing sanctions against legal entities involved in the process of trafficking, without making accusations by, or the participation of, the victims of trafficking a precondition for the prosecution of trafficking; (c) To ensure protection and assistance to the victims of trafficking with full respect for their human rights; (d) To actively promote the rehabilitation of victims of trafficking by providing them with access to adequate physical and psychological care and services, including those related to HIV/AIDS, as well as shelter, legal assistance and help lines; (e) To take all appropriate measures to ensure that victims of trafficking are not penalized for being trafficked and that they do not suffer from revictimization as a result of actions taken by Government authorities, bearing in mind that they are victims of exploitation; (f) To adopt or strengthen legislative or other measures to discourage the demand that fosters all forms of exploitation of persons and leads to trafficking in persons;
23 (g) To establish mechanisms, where appropriate, in cooperation with the international community, to combat the use of the Internet to facilitate trafficking in persons and crimes related to sexual or other forms of exploitation and to strengthen international cooperation to investigate and prosecute trafficking facilitated by the use of the Internet; (h) To provide or strengthen training for law enforcement, immigration, criminal justice and other relevant officials, including personnel participating in peacekeeping operations, in preventing and responding effectively to trafficking in persons, including the identification of victims with full respect for their human rights; (i) To conduct information campaigns for the general public, including children, aimed at promoting awareness of the dangers associated with all forms of trafficking and encouraging the public, including the victims of trafficking themselves, to report on instances of trafficking; (j) To cooperate with each other and with relevant intergovernmental and nongovernmental organizations to ensure the effective countering of trafficking in persons; (k) To enhance information-sharing and data-collection capacities as a way of promoting cooperation to combat trafficking in persons, including through the systematic collection of sex- and age-disaggregated data; (l) To consider strengthening existing regional mechanisms aimed at combating trafficking in persons or to establish such mechanisms where they do not exist; (m) To consider signing and ratifying and States parties to implement relevant United Nations legal instruments, such as the United Nations Convention against Transnational Organized Crime and the Protocols thereto, in particular the Protocol to Prevent, Suppress and Punish Trafficking in Persons, Especially Women and Children, supplementing the Convention; 3. Takes note of the work undertaken by the Special Rapporteur on trafficking in persons, especially women and children; 4. Decides to extend the mandate of the Special Rapporteur on trafficking in persons, especially women and children, for a period of three years, in order to, inter alia: (a) Promote the prevention of trafficking in persons in all its forms and the adoption of measures to uphold and protect the human rights of victims; (b) Promote the effective application of relevant international norms and standards and to contribute to the further improvement of them; (c) Integrate a gender and age perspective throughout the work of his or her mandate, inter alia through the identification of gender- and age-specific vulnerabilities in relation to the issue of trafficking in persons; (d) Identify and share best practices as well as challenges and obstacles in order to uphold and protect the human rights of the victims and to identify protection gaps in this regard; (e) Give particular emphasis to recommendations on practical solutions with regard to the implementation of the rights relevant to the mandate, including by the identification of concrete areas and means for
24 international cooperation to tackle the issue of trafficking in persons; (f) Request, receive and exchange information on trafficking in persons from Governments, treaty bodies, special procedures, specialized agencies, intergovernmental organizations and non-governmental organizations and other relevant sources, as appropriate, and, in accordance with current practice, respond effectively to reliable information on alleged human rights violations with a view to protecting the human rights of actual or potential victims of trafficking; (g) Work in close cooperation, while avoiding unnecessary duplication, with other special procedures and subsidiary organs of the Council, relevant United Nations bodies and mechanisms, including the Inter-agency Coordination Group on Trafficking in Persons, the treaty bodies and regional human rights mechanisms, as well as national human rights institutions and civil society and the private sector; (h) Report annually, starting in 2009, on the implementation of the present resolution to the Council and the General Assembly, according to their respective programmes of work; 5. Requests the United Nations High Commissioner for Human Rights to ensure that the Special Rapporteur receives the resources necessary to enable him or her to discharge the mandate fully; 6. Requests the Office of the United Nations High Commissioner for Human Rights to submit to the Council, at its ninth session, a report on the latest developments in the United Nations relating to combating trafficking in persons as well as on the activities of the Office on this issue, including by presenting the recommended Principles and Guidelines on Human Rights and Human Trafficking developed by the Office; 7. Calls upon all Governments to cooperate with the Special Rapporteur and to consider responding favourably to his or her requests to visit their countries and to provide him or her with all the necessary information related to the mandate to enable him or her to fulfil the mandate effectively.
51.
The General Assembly has also adopted the
resolution to combat trafficking in persons in its 64th Session, dated 12th August, 2010. The discussion of the General Assembly resolution passed prior to 2010 and has urged Member State to ratify or acceding to United Nations Convention against Transnational Organized Crime, and the protocol to prevent, suppress and punish trafficking in persons, especially women and children. The annexure of the resolution has suggested to adopt the following action plans:United Nations Global Plan of Action to Combat Trafficking in Persons
25 We, the States Members of the United Nations, reaffirm our commitments to end the heinous crime of trafficking in persons, especially women and children, express our determination to prevent and combat trafficking in persons, protect and assist victims of trafficking in persons, prosecute crimes of trafficking in persons and promote partnerships to strengthen coordination and cooperation, and resolve to translate our political will into concrete actions by adopting an action plan to: 1. Consistently and strongly condemn trafficking in persons, which constitutes a criminal activity violating human dignity and has negative effects on development, peace and security and human rights; 2. Recognize that “trafficking in persons” shall mean the recruitment, transportation, transfer, harbouring or receipt of persons, by means of the threat or use of force or other forms of coercion, of abduction, of fraud, of deception, of the abuse of power or of a position of vulnerability or of the giving or receiving of payments or benefits to achieve the consent of a person having control over another person, for the purpose of exploitation, which includes, at a minimum, the exploitation of the prostitution of others or other forms of sexual exploitation, forced labour or services, slavery or practices similar to slavery, servitude or the removal of organs, as set forth in the Protocol to Prevent, Suppress and Punish Trafficking in Persons, Especially Women and Children, supplementing the United Nations Convention against Transnational Organized Crime (hereinafter referred to as “the Trafficking Protocol”);4 3. Ensure that the promotion and protection of the human rights of victims of trafficking in persons, the prevention of trafficking in persons by addressing the social, economic, cultural, political and other contributing factors and the strengthening of the criminal justice response are at the centre of all efforts to prevent and combat trafficking in persons and to protect, assist and provide redress to victims; 4. Take urgent action to prevent trafficking in persons, protect its victims and prosecute its perpetrators and strengthen partnerships to these ends by promoting and considering, as a priority, ratifying or acceding to the United Nations Convention against Transnational Organized Crime3 and the Trafficking Protocol, as well as other relevant international instruments, including the Forced Labour Convention, 1930 (No. 29) and the Worst Forms of Child Labour Convention, 1999 (No. 182) of the International Labour Organization, the Supplementary Convention on the Abolition of Slavery, the Slave Trade, and Institutions and Practices Similar to Slavery, 5 the Convention on the Rights of the Child6 and the Optional Protocols thereto on the sale of children, child prostitution and child pornography7 and on the involvement of children in armed conflict,8 and the Convention on the Elimination of All Forms of Discrimination against Women;9 5. Recognize that, in accordance with article 32 of the United Nations Convention against Transnational Organized Crime, the Conference of the Parties to the Convention is established to improve the capacity of States parties to promote and review the implementation of the Convention, including the Trafficking Protocol, and take
26 note of ongoing initiatives aimed at exploring options regarding an appropriate and effective mechanism to assist the Conference of the Parties in the review of the implementation of the Convention; 6. Take into account the activities and recommendations of the open-ended interim Working Group on Trafficking in Persons established by the Conference of the Parties to the Convention; 7. Support the Human Rights Council and contribute to its work on the question of the promotion and protection of human rights for all in the fight against trafficking in persons; 8. Support the role and mandates of the Special Rapporteurs on trafficking in persons, especially women and children, on contemporary forms of slavery, including its causes and consequences, on violence against women, its causes and consequences, and on the sale of children, child prostitution and child pornography, the Special Representatives of the Secretary-General on violence against children and on sexual violence in conflict, and other relevant special rapporteurs and representatives. The mandate holders should assist States by offering concrete advice, liaising with the United Nations and regional organizations and reporting on these issues; 9. Reaffirm the central role of the work of the United Nations Office on Drugs and Crime in the global fight against trafficking in persons, particularly in providing technical assistance to implement the Convention and the Trafficking Protocol, by making use of existing capacitybuilding tools, lessons learned and expertise available in international organizations, including the International Framework for Action to Implement the Trafficking in Persons Protocol;14 10. Reaffirm the important work of the Office of the United Nations High Commissioner for Human Rights, the United Nations Children’s Fund, the International Labour Organization and the International Organization for Migration in the global fight against trafficking in persons; 11. Strongly urge all responsible United Nations entities to coordinate their efforts to fight trafficking in persons effectively and to protect the human rights of its victims, including by means of the Inter-Agency Coordination Group against Trafficking in Persons and the United Nations Global Initiative to Fight Human Trafficking; I. Prevention of trafficking in persons 12. Address the social, economic, cultural, political and other factors that make people vulnerable to trafficking in persons, such as poverty, unemployment, inequality, humanitarian emergencies, including armed conflicts and natural disasters, sexual violence, gender discrimination, social exclusion and marginalization, as well as a culture of tolerance towards violence against women, youth and children; 13. Make a commitment to address all forms of trafficking in persons wherever they occur; 14. Mainstream the issue of trafficking in persons into the broader policies and programmes of the United Nations aimed at addressing economic and social development, human rights, the rule of law, good governance, education and natural disaster and postconflict reconstruction;
27 15. Adopt and implement comprehensive policies and programmes at the national level and, as appropriate, at the subregional and regional levels to prevent all forms of trafficking in persons that are in line with relevant policies and programmes on migration, education, employment, gender equality, empowerment of women and crime prevention, in accordance with relevant international human rights instruments; 16. Conduct research and collect suitably disaggregated data that would enable proper analysis of the nature and extent of trafficking in persons; 17. Develop or strengthen processes for the identification of victims, such as those developed, inter alia, by the United Nations Office on Drugs and Crime and other organizations, including appropriate and nondiscriminatory measures that help to identify victims of trafficking in persons among vulnerable populations; 18. Promote awareness-raising campaigns aimed at persons at risk of being trafficked and at the general public through education and the effective involvement of the mass media, non-governmental organizations, the private sector and community leaders with a view to discouraging the demand that fosters the exploitation of persons, especially women and children, and that leads to trafficking, and collect and disseminate best practices on the implementation of those campaigns; 19. Stress the role of education in raising awareness about the prevention of trafficking in persons, and promote education, in particular human rights education, and human rights learning as a sustainable way of preventing trafficking in persons; 20. Reinforce efforts regarding the provision of identity documents, such as the registration of births, in order to lower the risk of being trafficked and to help to identify victims of trafficking in persons; 21. Increase and support prevention efforts in countries of origin, transit and destination by focusing on the demand that fosters all forms of trafficking and the goods and services produced as a result of trafficking in persons; 22. Adopt and implement specific measures at the national level to combat trafficking for labour exploitation and strive to educate consumers on those measures; 23. Strengthen or continue to strengthen the capacity of law enforcement, immigration, education, social welfare, labour and other relevant officials in the prevention of trafficking in persons, taking into account the need to respect human rights and child- and gender-sensitive issues, and encourage cooperation, where appropriate, with civil society, non-governmental organizations and other relevant organizations; 24. Encourage the United Nations to intensify its work with Member States and relevant international, regional and subregional organizations to identify and share best practices to prevent trafficking in persons; II. Protection of and assistance to victims of trafficking in persons 25. Reaffirm that the promotion and protection of human rights for all and effective measures to respond to trafficking in persons are complementary and mutually reinforcing;
28 26. Stress the need to promote and protect the rights of victims of trafficking in persons and to reintegrate victims into the community by taking into account the Recommended Principles and Guidelines on Human Rights and Human Trafficking developed by the Office of the United Nations High Commissioner for Human Rights 15 and the Guidelines on the Protection of Child Victims of Trafficking developed by the United Nations Children’s Fund;16 27. Ensure that victims of trafficking in persons are treated as victims of crime and that national legislation effectively criminalizes all forms of trafficking; 28. Review existing national services available to victims of trafficking in persons, consistent with the Convention and the Trafficking Protocol, strengthen those services where needed, and support the establishment or strengthening of appropriate referral mechanisms; 29. Strengthen or continue to strengthen the capacity of relevant officials likely to encounter and identify possible victims of trafficking in persons, such as law enforcement personnel, border control officers, labour inspectors, consular or embassy officials, judges and prosecutors and peacekeepers, and ensure the availability of needed resources to the relevant sectors and institutions, including those of civil society; 30. Urge Governments to take all appropriate measures to ensure that identified victims of trafficking in persons are not penalized for having been trafficked and that they do not suffer from victimization as a result of actions taken by Government authorities; 31. Protect the privacy and identity and ensure the safety of victims of trafficking in persons before, during and after criminal proceedings and protect immediate family members and witnesses, as appropriate, from retaliation by traffickers by ensuring their safety in accordance with articles 24 and 25 of the Convention; 32. Provide assistance and services for the physical, psychological and social recovery and rehabilitation of trafficked persons, in cooperation with non-governmental organizations and other relevant organizations and sectors of civil society; 33. Urge States parties to consider adopting legislative or other appropriate measures that permit victims of trafficking in persons to remain in their territory, temporarily or permanently, in appropriate cases, consistent with the Convention and the Trafficking Protocol; 34. Ensure that countries of origin accept back their nationals who are victims of trafficking in persons and guarantee that such return is conducted with due regard for safety and shall preferably be voluntary, consistent with the Convention and the Trafficking Protocol; 35. Adopt labour laws in countries of origin, transit and destination which provide legal rights and protections for workers that would limit their risk of being trafficked; 36. Provide specialized services to identified victims of trafficking in persons, consistent with the Convention and the Trafficking Protocol and other relevant instruments, including access to health services, such as access to prevention, treatment, care and support services for HIV and AIDS and other blood-borne and
29 communicable diseases for those victims of trafficking in persons that have been sexually exploited, taking into account the fact that human trafficking for the purposes of sexual exploitation has serious, immediate and longterm implications for health, including sexual and reproductive health; 37. Provide appropriate assistance and protection in the best interest of the child to child victims of trafficking in persons or to those at risk of being trafficked, including through appropriate services and measures for the physical and psychological well-being of child victims of trafficking in persons and for their education, rehabilitation and reintegration, in coordination with existing child protection systems; 38. Establish the United Nations Voluntary Trust Fund for Victims of Trafficking in Persons, Especially Women and Children, to provide humanitarian, legal and financial aid to victims of trafficking in persons through established channels of assistance, such as governmental, intergovernmental and non-governmental organizations, which shall operate as a subsidiary fund of the United Nations Crime Prevention and Criminal Justice Fund managed by the United Nations Office on Drugs and Crime, and shall be administered in accordance with the Financial Regulations and Rules of the United Nations17 and other relevant provisions, with the advice of a board of trustees composed of five persons with relevant experience in the field of trafficking in persons who shall be appointed with due regard to equitable geographical distribution by the SecretaryGeneral in consultation with Member States and with the Executive Director of the United Nations Office on Drugs and Crime; 39. Adopt measures to ensure that victims of trafficking in persons can seek compensation for the damage suffered, consistent with the Convention and the Trafficking Protocol; 40. Acknowledge the important role of civil society organizations in providing assistance and empowerment to victims of trafficking in persons, helping them to seek redress and facilitating the care of and provision of appropriate services to victims, including close cooperation and coordination with law enforcement officials; 41. Ensure that domestic legal or administrative systems include measures to provide information to victims of trafficking in persons, in a language they understand, regarding their legal rights and the relevant court and administrative proceedings and facilitate their access to assistance in order to enable their views and concerns to be presented and considered at appropriate stages of such proceedings against offenders in a manner not prejudicial to the rights of the defence, consistent with the Convention and the Trafficking Protocol; 42. Provide victims of trafficking in persons with an adequate period of time to recover and the opportunity to consult with appropriate advisers to assist in decisionmaking regarding cooperation with law enforcement and their participation in judicial proceedings; III. Prosecution of crimes of trafficking in persons
30 43. Implement all relevant legal instruments that criminalize trafficking in persons, including by: (a) Prosecuting crimes of trafficking in persons that encompass all forms of exploitation and enacting, enforcing and strengthening legislation that criminalizes all trafficking in persons, especially women and children; (b) Adopting legislation and other measures, as necessary, to establish as criminal offences attempting to commit an offence, participating as an accomplice in an offence and organizing or directing other persons to commit an offence, as set out in the Trafficking Protocol, the Convention on the Elimination of All Forms of Discrimination against Women, the Convention on the Rights of the Child and the Optional Protocols thereto and other relevant instruments, as applicable; (c) Combating and prosecuting organized criminal groups engaged in trafficking in persons; 44. Ensure the liability of all categories of perpetrators of trafficking in persons, including the liability of legal persons and entities, as appropriate, in line with relevant international instruments; 45. Enhance efforts to investigate alleged cases of trafficking, strengthen means to combat trafficking, prosecute perpetrators, including through more systematic use of freezing assets for the purpose of eventual confiscation, in accordance with the provisions of article 12 of the United Nations Convention against Transnational Organized Crime, and ensure that penalties are proportionate to the gravity of the crime; 46. Make use of the available technical assistance provided to strengthen the criminal justice response to trafficking in persons, including by the United Nations Office on Drugs and Crime; 47. Investigate, prosecute and punish corrupt public officials who engage in or facilitate trafficking in persons and promote a zero-tolerance policy against those corrupt officials, consistent with the United Nations Convention against Corruption18 and the United Nations Convention against Transnational Organized Crime; 48. Strengthen or continue to strengthen coordination and cooperation among States in combating crimes that might be connected with trafficking in persons, including money-laundering, corruption, smuggling of migrants and all forms of organized crime; 49. Encourage the law enforcement, immigration, border patrol or other relevant authorities of concerned States to cooperate with one another by exchanging information with full respect for domestic laws, such as data protection laws, and continue to promote cooperation among countries of origin, transit and destination in order to enhance investigations, prosecutions and detection of trafficking networks; IV. Strengthening of partnerships against trafficking in persons 50. Recognize that capacity-building is a very important component in combating trafficking in persons and encourage and enhance coordination and coherence within the United Nations system;
31 51. Encourage effective cooperation and coordination of efforts at the national, bilateral, subregional, regional and international levels, especially among countries of origin, transit and destination, and take advantage of the networks provided by relevant organizations to share best practices in capacity-building for responding to and combating trafficking in persons, while stressing the importance of mutual legal assistance efforts and the exchange of information with full respect for domestic laws, such as data protection laws, including operational information, programmes and best practices in supplementing the Convention and the work done by the Conference of the Parties to the Convention; 52. Conclude and implement mutual legal assistance and extradition agreements, where appropriate, to apprehend and prosecute perpetrators of trafficking in persons, in accordance with the relevant provisions of national and international law, including the Convention; 53. Promote cooperation and coordination among governmental institutions, civil society and the private sector, including the media, as well as workers’ and employers’ organizations, to strengthen prevention and protection policies and programmes; 54. Strengthen cooperation among law enforcement agencies, regionally and internationally; 55. Intensify international, regional and subregional cooperation to combat trafficking in persons, as well as technical assistance for countries of origin, transit and destination aimed at strengthening their ability to prevent all forms of trafficking in persons; 56. Strengthen and support the Inter-Agency Coordination Group against Trafficking in Persons in order to improve coordination and cooperation among relevant United Nations bodies, including the human rights treaty bodies and mechanisms, and other international organizations; 57. Encourage the United Nations Office on Drugs and Crime, other agencies, funds and programmes of the United Nations system and international and regional organizations to continue to assist Member States, upon request, to strengthen policymaking, legislative arrangements, border control and law enforcement cooperation, public awareness campaigns and capacitybuilding and to exchange and build upon best practices in assisting victims of trafficking in persons; 58. Further encourage agencies, funds and programmes of the United Nations system to continue to improve the coherence and efficiency of technical assistance delivery in the field of trafficking in persons, in accordance with the recommendations of the Open-ended Intergovernmental Working Group of Governmental Experts on Technical Assistance established by the Conference of the Parties to the Convention; 59. Urge the Secretary-General to expedite the strengthening of the Inter-Agency Coordination Group against Trafficking in Persons under the coordination of the United Nations Office on Drugs and Crime in order to ensure overall organization and coherence in the efforts of the United Nations system to respond to trafficking in persons;
32 60. Request the Secretary-General, as a matter of priority, to strengthen the capacity of the United Nations Office on Drugs and Crime to collect information and report biennially, starting in 2012, on patterns and flows of trafficking in persons at the national, regional and international levels in a balanced, reliable and comprehensive manner, in close cooperation and collaboration with Member States, and share best practices and lessons learned from various initiatives and mechanisms; 61. Encourage Member States to consider making voluntary contributions to the work of the United Nations in combating human trafficking, and to explore additional sources of funding in this regard, including reaching out to the private sector for contributions.
52.
In the notes of Harvard Law Review 2012, the
article was published under the caption “Counteracting the Bias: The Department of Labour’s Unique Opportunity to Combat Human Trafficking”. The opening portion of the note and the conclusion reads as under:In the 1990s, human trafficking received increased attention both internationally and in the United States.1 With the passage of the Trafficking Victims Protection Act of 20002 (TVPA), Congress committed the United States to attacking human trafficking on three fronts: prosecuting violators, protecting victims, and preventing trafficking.3 The TVPA prohibits “severe forms of trafficking in persons,”4 of which it designates two types: “sex trafficking in which a commercial sex act is induced by force, fraud, or coercion”5 and labor trafficking, which involves “the recruitment, harboring, transportation, provision, or obtaining of a person for labor or services, through the use of force, fraud, or coercion for the purpose of subjection to involuntary servitude, peonage, debt bondage, or slavery.”6 Under the TVPA, three federal agencies have domestic antitrafficking responsibilities in all three primary areas (prosecution, protection, and prevention): the Department of Homeland Security (DHS), the Department of Justice (DOJ), and the Department of Labor (DOL).7 CONCLUSION Across the federal government, efforts to combat labor trafficking have been inadequate in large part because of lingering preoccupations with prostitution and border control. Under President Obama, DOL has intensified its antitrafficking efforts, but as the State Department’s 2011 Trafficking in Persons report noted, “DOL investigators have not yet been funded, trained, or given the mandate to focus on human trafficking cases.”181 In a March 2012 update, the State Department noted that DOL was still “finalizing plans to provide basic awareness training to key enforcement field staff throughout the country in an effort to enhance the capability to detect and refer cases of trafficking in persons.”182 Subsequent authorizations of the TVPA should expand DOL’s regulatory and enforcement
33 authority, permitting DOL to take advantage of its unique opportunity to counteract the biasing influences of antiprostitution and border control forces on the federal government’s response to human trafficking.
53.
It is evident from this article that in Unites
States, the Act called Trafficking Victims Protection Act, 2000 has been passed. 54.
In the journal of Social Sciences and Humanities
by Mr. Chanchal Kumar, under the caption “Human Trafficking in the South Asian Region: SAARC’s Response and Initiatives”, following observations have been made in Para Nos.4 and 5.1 qua South Asian Region as well as India:4. Human Trafficking in South Asian Region Human trafficking has emerged as a social dilemma in the South Asian region. The region as a whole has made certain efforts to combat human trafficking but lack of information and statistics on the number of people victimized and pattern of trafficking made it more complex issue. According to the (International Journal of Gynaecology & Obstetrics’ 2006), every year 1 to 2 million women, men and children are trafficked worldwide, around 225,000 of them are from SAARC region (Concept Paper of Research Study on Human Trafficking: 2012). Other estimates show that over the last 30 years, trafficking for sexual exploitation alone has victimized some 30 million Asian women and children. SAARC Convention on “Preventing and Combating the Trafficking in Women and Children for Prostitution” is seen as a milestone on the path to coordinate interventions against trafficking at the sub-regional level (Concept Paper of Research Study on Human Trafficking: 2012). South Asia is witnessing an alarming trend of increasingly younger girls being trafficked into the sex trade. The majority of trafficking in India, both trans-border and in country, happens for the purpose of sex work, and over 60% of those trafficked into sex work are adolescent girls in the age group of 12—16 years (UNDP, 2005). In many Indian cities, girl children as young as eight or nine are sold at auctions. There are an estimated 2,000,000 prostitutes in India and 60% of these women in prostitution in Mumbai are HIV positive (Daily Times Monitor: 2007). One common myth fuelling the demand for young girls in South Asia is that sex with a virgin can cure sexually transmitted infections (STIs) and HIV/AIDS. In South Asia, women are now reported to constitute up to 35% of new HIV infections (UNAIDS, 2000). A complex web of socio-cultural and macro-economic factors affect women’s vulnerability to HIV, including poverty, migration, urbanization, gender inequalities compounded by women’s lack of autonomy, abuse within and outside families, insufficient access to healthcare services, violence and ethnicity. Human trafficking has substantial social, economic and health impacts for instance deprivations from various assets and basic rights, loss of livelihood, suffering from HIV/AIDS etc. There are both,
34 demand and supply side factors contributing to human trafficking. On the demand side poverty, social and cultural practices such as gender discrimination, impact of globalisation on livelihood (traditional jobs, caste/tribes, vulnerability of women children and men). On the other hand, supply side factors include demand of cheap labour and increased level of migrant workers. The worst of all factors is the lack of implementations of the anti-trafficking laws. Where laws are implemented, the punishments are not enough to put a positive effect on trafficking sensitization programs for general public and specifically for stakeholders. SAARC Governments should provide resources for training, technical assistance, and auditing to ensure that trafficking is fully eradicated from their supply chains. South Asia has shown that with modest amounts of funding and focused advocacy, targeting law enforcement could bring dramatic changes in the response of “governance structures” to improve the situation. 5.1. India India is a source, destination, and transit country for men, women, and children subjected to forced labour and sex trafficking. The forced labour of millions of its citizens constitutes India’s largest trafficking problem; men, women, and children in debt bondage are forced to work in industries such as brick kilns, rice mills, agriculture, and embroidery factories. A common characteristic of bonded labour is the use of physical and sexual violence as coercive tools. Ninety per cent of trafficking in India is internal (Trafficking in Persons Report: 2010, Trafficking in Persons Report: 2013), and those from India’s most disadvantaged social strata, including the lowest castes, are most vulnerable. Children are also subjected to forced labour as factory workers, domestic servants, beggars, agricultural workers, and to a lesser extent, in some areas of rural Uttar Pradesh as carpet weavers. There were new reports about the continued forced labour of children in hybrid cotton seed plots in Gujarat, and reports that forced labour may be present in the Sumangali scheme in Tamil Nadu, in which employers pay young women a lump sum to be used for a dowry at the end of a three-year term (Samu K.: 2012). An increasing number of job placement agencies lure adults and children for forced labour or sex trafficking under false promises of employment. Indian boys from Bihar were increasingly subjected to forced labour in embroidery factories in Nepal (2013 Trafficking in Persons Report – India: 2013). Women and girls are trafficked within the country for the purposes of forced prostitution. Religious pilgrimage centres and cities popular for tourism continue to be vulnerable to child sex tourism. Women and girls from Nepal and Bangladesh, and an increasing number of females from Uzbekistan, Ukraine, and Russia, are also subjected to sex trafficking in India (Trafficking in Persons Report, India: 2012)There were increasing reports of females from northeastern states and Odisha subjected to servile marriages in states with low female-to-male child sex ratios, including Haryana and Punjab, and also reports of girls subjected to transactional sexual exploitation in the Middle East under the guise of temporary marriages (Journalism of Courage- Archive: 2013). Maoist armed groups known as the Naxalites forcibly recruited children into their ranks. Establishments of sex trafficking are moving from more traditional locations – such as brothels – to locations that are harder to find, and are also
35 shifting from urban areas to rural areas, where there is less detection. 2.5% of prostitutes in India are Nepalese, and 2.7% are Bangladeshi. In India, Karnataka, Andhra Pradesh, Maharashtra, and Tamil Nadu are considered "high supply zones" for women in prostitution (Menon Meena (2011). Bijapur, Belgaum and Kolhapur are common districts from which women migrate to the big cities, as part of an organised trafficking network. The number of women and children in sex work in India is stated to be between 70,000 and 1 million. Of these, 30% are below 20 year of age. Nearly 15% began sex work when they were below 15, and 25 per cent entered between 15 and 18 years (UN.GIFT:2008). News published in the Hindustan Times (11th October, 2012) states that around 20 children go missing in Delhi every day. Around eight of them- or 40% are never seen again. According to police statistics, “most children who go missing in Delhi end up in traffickers hands (Hindustan Times: 2012) Children below eight years are forced into begging. The older ones are pushed into child labour. Organized gangs kidnap minors and transport them to other cities. A rough estimate prepared in 2008 by an NGO, End Children’s Prostitution in South Asian tourism, reveals that there are around 2 million prostitutes in India, 20% of them being minors.” There are number of women from neighbouring countries trafficked to India. It has been reported that there are 1000 to 10,000 women found in Kolkata brothels, 70% were from Bangladesh (Daw Bianca: 2008). There is also 1, 00,000 to 1,60,000 Nepali girls in Indian brothels, with about 5,000 to 7,000 girls being sold every year(Coomaraswamy Radhika:1997).
55.
There is also reference to initiatives and actions
taken by South Asian Countries, more particularly, Nepal’s response and initiatives on Human Trafficking as under: 6. Initiatives and Actions by South Asian Countries In the recent years, various initiatives and programs in the countries of South Asia have begun addressing the problem of human trafficking, especially in women and children. Governments are becoming active, although most programs are carried out by non-governmental organizations (NGOs) with a focus on local communities. Concerted efforts have also been undertaken at the sub-regional level to combat human trafficking in South Asia. During the 11th SAARC (South Asian Association for Regional Co-operation) Summit, which was held in January 2002 in Kathmandu, the seven SAARC member States (Nepal, India, Pakistan, Bangladesh, Sri Lanka, Bhutan and the Maldives) signed the SAARC Convention on Preventing and Combating the Trafficking in Women and Children for Prostitution (Huda S.:2006). The scope of this Convention is to promote cooperation amongst member States to effectively deal with various aspects of prevention, interdiction and suppression of trafficking in women and children; repatriation and rehabilitation of victims of trafficking, and reventing the use of women and children in international prostitution networks, particularly where the SAARC member countries are the countries of origin, transit and destination. In October 2004, all the eight governments in South Asia unanimously adopted Five Points for further actions as urgent imperatives. Briefly, these include:
36 · Conduct better research into the demand that underpins sexual abuse and exploitation of children, including the abuse that results from home grown demand. · Reinforce protection measures through the adoption of National Action Plans covering sexual abuse, exploitation and trafficking. · Develop compatible databases of abused, exploited and trafficked children with information on age, gender and nationality that would allow better identification of national trends and indicators. · Work with NGO, UN and multilateral partners to develop indicators of impact and effectiveness and identify successful initiatives and good practices. · Work with children and young people to ensure their insights in policy formation and actions. 6.1. Nepal’s Response and Initiatives on Human Trafficking Nepali government increased its efforts to prevent human trafficking. Nepal prohibits most – but not all – forms of trafficking in persons, including the selling of human beings and forced prostitution, through its Human Trafficking and Transportation Control Act (2007) and Regulation (2008) (HTTCA). (Country Narratives: Countries N Through Z) The HTTCA also prohibits other offenses that do not constitute human trafficking, such as people smuggling and purchasing commercial sex. Prescribed penalties range from 10 to 20 years’ imprisonment, which are sufficiently stringent and commensurate with those prescribed for other serious crimes, such as rape. The Bonded Labour (Prohibition) Act (2002) prohibits bonded labour but has no penalties. In August 2011, the National Committee for Controlling Human Trafficking established a secretariat and the government appointed a coordinator under the oversight of a joint (Trafficking in Persons Report: 2012). The Secretariat organized the government’s participation in the fifth annual national antitrafficking day. NGOs state that the majority of the District Committees for Controlling Human Trafficking do not function well or are not active. The lack of political stability and resources has hampered translating commitments into actions. The prime minister visited a leading anti-trafficking NGO in October 2011. The government endorsed the National Plan of Action on Trafficking in Persons in March 2012. Many Nepali girls are trafficked to India as forced labour. In order to combat this issue, a major step forward was taken to prevent and control human trafficking with both India and Nepal having ratified the United Nations Convention on ransnational Organized Crime (UNTOC), while India also ratified the Trafficking Protocol, supplementing the UNTOC. In this backdrop, the first ever bilateral meeting was organized on 3 and 4 May 2012 in Kathmandu, to train law enforcement officials from India and Nepal on countering trafficking for forced labour(South Asia Newsletter:2012). The workshop was organized by UNODC in partnership with the International Labour Organization (ILO), under a project titled ‘Reducing trafficking of women and girls for domestic work in Nepal and India,’ supported by the Department of Foreign Affairs and International Development (DFID) (South Asia Newsletter:2012).
56.
The India’s response and initiatives on Human
Trafficking is as under:-
37 “The Ministry of Home Affairs (MHA) continued to establish Anti-Human Trafficking Units (AHTUs), which were responsible for combining law enforcement and rehabilitation efforts. The Central Bureau of Investigation launched an antitrafficking unit in 2011 and gave investigation authority under trafficking-related laws to its entire police officers (CB Bureau:2012). Challenges remain regarding overall law enforcement efforts against bonded labour and the alleged complicity of public officials in human trafficking. India prohibits most forms of forced labour through the Indian Penal Code (IPC), the Bonded Labour System (Abolition) Act (BLSA), the Child Labour (Prohibition and Regulation) Act, and the Juvenile Justice Act(CB Bureau:2012). India prohibits most forms of sex trafficking. Prescribed penalties for sex trafficking under the Immoral Traffic Prevention Act (ITPA) and the IPC, ranging from three years’ to life imprisonment, are sufficiently stringent and commensurate with those prescribed for other serious crimes, such as rape. The Central Bureau of Investigation established a dedicated federal anti-trafficking unit in January 2012 whose police officers have nationwide investigative authority (Trafficking in Persons Report – India: 2012). The government continued to implement its three-year nationwide anti-trafficking effort by disbursing funds to state governments to establish at least107 new Anti-Human Trafficking Units in police departments during the reporting period, for a total of at least 194 AHTUs (Trafficking in Persons Report – India: 2012). The Ministry of Women and Child Development (MWCD) allocated the equivalent of $118 million for 2011-12 to fund 153 projects in 17 states under the Ujjawala program which seeks to protect and rehabilitate female sex trafficking victims – and 58 new Swadhar projects – which help female victims of violence, including sex trafficking. Some Indian diplomatic missions in the Middle East provided services, including temporary shelters, medical care, legal assistance, and 24-hour hotlines, to Indian migrant labourers, some of whom were victims of trafficking (Trafficking in Persons Report – India: 2012).”
57.
According to the National Crime Records Bureau
report of 2015, three males and one female were in custody and four males and one female were on bail during the state of trial for importation of girls from foreign country. 14 males were in custody and 264 males and 1 female were granted bail for buying of minors for prostitution. 212 males and 8 females were in custody and 314 males and 8 females were granted bail for selling the minors for prostitution. 58.
According to National Crime Records Bureau
(Crime in India 2015), a total number of 6,877 cases of crime relating to human trafficking were registered in the country during the year 2015 as compared to 5,466 cases
38
during the year 2014, showing an increase of 25.8% during 2015 over 2014. The crime rate under the crimes relating to human trafficking increased from 0.4 in 2014 to 0.5 during the year 2015. A total number of 3,517 cases were registered in 2011, which rose to 3,554 cases in 2012, to 3,940 cases in 2013, to 5,466 cases in 2014 and to 6,877 cases in 2015. A total number of 6 cases of importation of girls from foreign country were registered during 2015 compared to 13 cases in 2014 showing a decline of 53.8% over the previous year. These were registered in West Bengal (4 cases) and Uttarakhand (2 cases) during 2015. The cases under the head of Procuration of Minor Girls under Section 366-A IPC have increased by 52.8% during the year 2015 as compared to the previous year (2,020 cases). A total of 1,021 cases of human trafficking under Sections 370 & 370-A IPC were registered in the country during 2015 showing an increase of 41.8% over previous year (720 cases). Out of 10,424 cases registered under various
crimes
relating
to
human
trafficking
for
investigation, 5,432 cases were disposed of by police (investigation completed). Charge-sheets were submitted in 4,573 cases resulting in 89.0% charge-sheet rate under crimes related to human trafficking during 2015. Out of 19,717 cases relating to human trafficking, trials have been completed in 2,075 cases during 2015. A total of 1,251 cases led either to acquittal or discharge by various courts in 2015. Maximum conviction rates were observed in cases under buying of minors for prostitution (100.0%) whereas lowest conviction rate was reported under procuration of minor girls (11.1%) during 2015. A total of 17,612 such cases remained pending for trial at the end of the year, showing pendency rate of 89.3%.
A total of 3,490 cases of
crimes relating to child trafficking were registered in the country during the year 2015. A total of 221 cases of child trafficking under Section 370 &
370A
IPC were
39
registered in the country during 2015. Out of 5,026 cases relating to child trafficking for investigation, 2,348 cases were disposed of by police (investigation completed). Charge-sheets were submitted in 1,658 cases resulting in 79.2% charge-sheet rate during 2015. Out of 5,003 cases relating to child trafficking, trials have been completed in 384 cases during 2015. A total of 55 cases under child trafficking ended in conviction, showing a conviction rate of 14.3%. A total of 4,602 such cases remained pending for trial at the end of the year, showing pendency rate of 92.0%. Out of 7,145 persons (including 2,117 persons sent for trial during 2015), trials have been completed for 633 persons. A total of 95 persons have been convicted under various crime heads relating to child trafficking while 538 persons were acquitted by courts during 2015. 59.
It is thus, evident that the disposal of cases of
person arrested under crimes pertaining to crimes relating to child trafficking in only 384 cases during 2015 and the conviction rate in disposal of crime relating to child trafficking by courts is 14.3%. 60.
The State of Uttarakhand has constituted seven
Anti-Human Trafficking Units in Vikasnagar (Dehradun), Haridwar, Kotdwar (Pauri Garhwal), Uttarkashi, Haldwani (Nainital), Banbasa (Champawat) and Pithoragarh. 61.
Between 2013 to October, 2017, total number of
cases registered under human trafficking are 98 in which, 13 cases pertaining to boys, 42 pertaining to minor girls, 06 pertaining to males and 76 pertaining to females. 254 males and 113 females were arrested. In 73 cases, chargesheets were submitted. 10 cases are under investigation. 62.
The
Uttarakhand police has organized 548
meetings
to make
the people aware
of this crime.
Operations were also launched from time to time. In 2014,
40
the gang of child smuggler was detected. 5 FIR were registered. 6 children were recovered. 63.
In 2013, 16 cases were registered of human
trafficking. In 2014, 28 cases were registered. In 2015, 23 cases were registered. In 2016, 12 cases were registered. Till October, 2017, 19 cases were registered under the human trafficking. The rescue victims are from Nepal, Bangladesh, West Bengal, Punjab, Uttar Pradesh, Delhi, Haryana, Chhattisgarh, Bihar and Nagaland. 64.
According to the data compiled by the police
department, in the year 2013, 16 FIRs, in 2014, 23 FIRs, in 2015, 19 FIRs, in 2016, 7 and till October, 2017, 8 FIRs were registered. A total number of 67 cases were registered from the period 2013 to October, 2017. 65. Article 23 of the Constitution of India reads as under:Article 23: Prohibition of traffic in human beings and forced labour (1) Traffic in human beings and begar and other similar forms of forced labour are prohibited and any contravention of this provision shall be an offence punishable in accordance with law. (2) Nothing in this article shall prevent the State from imposing compulsory service for public purpose, and in imposing such service the State shall not make any discrimination on grounds only of religion, race, caste or class or any of them.
66.
In AIR 1953 Calcutta 522, in the case of “Raj
Bahadur vs. Legal Remembrancer to the Government of West Bengal & others”, learned Single Judge of Calcutta High Court has held that Article 23 of the Constitution of India provides for prohibition of traffic, ‘inter alia’, in human beings, which would include traffic in women and children for immoral and other purposes. Learned Single Judge has held as under:“7. Mr. Ghose next argues that the girl's removal from the brothel and her subsequent detention at the Rescue Home were in breach of the provision of Article 21 of the Constitution. As to this, we need only say that the matter is concluded by the majority decision of the Supreme Court in -- 'Gopalan A. K. v.
41 State of Madras', 1950CriLJ1383 (B). In our view, the words "procedure established by law" refer to any enactment which is not repugnant to the Constitution. That being the position, Bengal Act 6 of 1933 would be attracted by Article 21, provided, of course, there is nothing in the Bengal Act which is repugnant to the Constitution. Article 23 of the Constitution provides for prohibition of traffic, 'inter alia', in human beings, which would include traffic in women and children for immoral or other purposes. The provisions of Article 35, which require that Parliament shall have, and the Legislature of a State shall not have, power to make laws for prescribing punishment for those acts which are declared to be offences under Part III of the Constitution, are subject to clause (b) of Article 35. It is, therefore, nobody's case that Bengal Act 6 of 1933 is not validly in operation. If the provisions of Article 22 (1) and (2) have no application to the facts of this case, then the question of the alleged non-disclosure of the grounds of the girl's removal or any failure to produce her before the nearest Magistrate within a period of 24 hours cannot arise. The scheme of the Bengal Act is to provide for salvage of such children as are being exploited or are likely to be exploited for immoral purposes. While the Constitution prohibits discrimination, it provides for protection of women and children who may be said to suffer from a certain amount of disability either by reason of their sex or age. In our view, nothing has been shown in the Bengal Act which can be said to infringe either Article 21 or Article 22 of the Constitution, and we would, therefore, hold that the removal and the subsequent detention of the girl under the provisions of the said Act were and are legal.”
67.
In 1990 (3) SCC 318, in the case of “Vishal Jeet
vs. Union of India & other States and Union Territories”, their Lordships of the Hon’ble Supreme Court have issued following mandatory directions:“16. We, after bestowing our deep and anxious consideration on this matter feel that it would be appropriate if certain directions are given in this regard. Accordingly, we make the following directions: (1) All the State Governments and the Governments of Union territories should direct their concerned law enforcing authorities to take appropriate and speedy action under the existing laws in eradicating child prostitution without giving room for any complaint of remissness or culpable indifference. (2) The State Governments and the Governments of Union territories should set up a separate Advisory Committee within their respective zones consisting of the Secretary of the Social Welfare Department or Board, the Secretary of the Law Department, sociologists, criminologists, members of the women’s organisations, members of Indian Council of Child Welfare and Indian Council of Social Welfare as well the members of various voluntary social organisations and associations etc., the main objects of the Advisory Committee being to make suggestions of: (a) the measures to be taken in eradicating the child prostitution, and
42 (b) the social welfare programmes to be implemented for the care, protection, treatment, development and rehabilitation of the young fallen victims namely the children and girls rescued either from the brothel houses or from the vices of prostitution. (3) All the State Governments and the Governments of Union territories should take steps in providing adequate and rehabilitative homes manned by well-qualified trained social workers, psychiatrists and doctors. (4) The Union Government should set up a committee of its own in the line, we have suggested under direction No. (2) the main object of which is to evolve welfare programmes to be implemented on the national level for the care, protection, rehabilitation etc. etc. of the young fallen victims namely the children and girls and to make suggestions of amendments to the existing laws or for enactment of any new law, if so warranted for the prevention of sexual exploitation of children. (5) The Central Government and the Governments of States and Union territories should devise a machinery of its own for ensuring the proper implementation of the suggestions that would be made by the respective committees. (6) The Advisory Committee can also go deep into Devadasi system and Jogin tradition and give their valuable advice and suggestions as to what best the government could do in that regard. (7) The copies of the affidavits and the list containing the names of 9 girls are directed to be forwarded to the Commissioner of Police, Delhi for necessary action.”
68.
In 2005 (1) SCC 617, in the case of “Om
Hemrajani vs. State of U.P. & another”, their Lordships of the Hon’ble Supreme Court have interpreted and explained Section 188 of Cr.P.C. as under:“8. Section 177 postulates that ordinarily offence shall be inquired into and tried by a court within whose local jurisdiction it was committed. Section 178, inter alia, deals with situations when it is uncertain in which of several local areas, an offence is committed or partly committed in one area and partly in another. The section provides that the offence can be inquired into or tried by a court having jurisdiction over any of the local areas mentioned therein. Under Section 179, offence is triable where act is done or consequences thereof ensued. Section 180 deals with the place of trial where act is an offence by reason of its relation to other offence. It provides that the first-mentioned offence may be inquired into or tried by a court within whose local jurisdiction either act was done. In all these sections, for jurisdiction the emphasis is on the place where the offence has been committed. There is, however, a departure under Section 181(1) where additionally place of trial can also be the place where the accused is found, besides the court
43 within whose jurisdiction the offence was committed. But the said section deals with offences committed by those who are likely to be on the move which is evident from the nature of offences mentioned in the section. Section 181(1) is in respect of the offences where the offenders are not normally located at a fixed place and that explains the departure. Section 183 deals with offences committed during journey or voyage. Section 186 deals with situation where two or more courts take cognizance of the same offence and in case of doubt as to which one of the courts has jurisdiction to proceed further, the High Court decides the matter. Section 187 deals with a situation where a person within the local jurisdiction of a Magistrate has committed an offence outside such jurisdiction. The Magistrate can compel such a person to appear before him and then send him to the Magistrate which has jurisdiction to inquire into or try such offence. 9. Under the aforesaid circumstances, the expression abovenoted in Section 188 is to be construed. The same expression was also there in the old Code. From the scheme of Chapter XIII of the Code, it is clear that neither the place of business nor place of residence of the petitioner and for that matter of even the complainant is of any relevance. The relevant factor is the place of commission of offence. By legal fiction, Section 188 which deals with offence committed outside India, makes the place at which the offender may be found, to be a place of commission of offence. Section 188 proceeds on the basis that a fugitive from justice may be found anywhere in India. The finding of the accused has to be by the court where the accused appears. From the plain and clear language of the section, it is evident that the finding of the accused cannot be by the complainant or the police. Further, it is not expected that a victim of an offence which was committed outside India should come to India and first try to ascertain where the accused is or may be and then approach that court. The convenience of such a victim is of importance. That has been kept in view by Section 188 of the Code. A victim may come to India and approach any court convenient to him and file complaint in respect of offence committed abroad by an Indian. The convenience of a person who is hiding after committing offence abroad and is a fugitive from justice is not relevant. It is in this context, the expression in question has to be interpreted. Section 188 has been the subject-matter of interpretation for about 150 years. 12. In Empress v. Maganlal2 decided in the year 1882 interpreting the word “found”, it was opined that it was used to confer the jurisdiction on the court of a place where the accused is actually found i.e. produced before the court and not where a person is discovered. In other words, it would mean that an accused may be discovered by the police at a place not within the jurisdiction of the court inquiring or trying but that is not the place contemplated by Section 188. For the purpose of jurisdiction, it would be the court where he is actually produced or appears which can be said to have found him. As earlier stated, the finding of the accused is to be by the court inquiring or trying and not by the police.
44 13. The aforesaid decisions were referred to and relied upon in Emperor v. Vinayak Damodar Savarkar3. The contention that the accused is charged before a Magistrate with an offence under the Penal Code and was brought there illegally from a foreign country was rejected. An illustration was given in that — a man commits a crime, say murder, in a country but he escapes to some other country before he is apprehended, the police finding him in some other country, brings him to England and produces him before a Magistrate. It would not be open to the Magistrate to refuse to commit him. The Court held that: (ILR p. 229) “If he were brought here for trial, it would not be a plea to the jurisdiction of the Court that he had escaped from justice, and that by some illegal means he had been brought back.” 14. The last decision on interpretation of Section 188 is of Justice Vivian Bose in Sahebrao Bajirao v. Suryabhan Ziblaji4. The question posed was as to who is to do the “finding”. Learned Judge held that the word “found” in Section 188 means found by the court at the time when the matter comes up for trial, that is to say, any court which is otherwise competent to try the offence can take seisin the moment the accused appears in its presence. How the accused gets there is immaterial. It does not matter whether he comes voluntarily or in answer to summons or under illegal arrest. It is enough that the court should find him present when it comes to take up the matter. 15. In our opinion, the law has been correctly enunciated in the aforesaid case. The scheme underlying Section 188 is to dispel any objection or plea of want of jurisdiction at the behest of a fugitive who has committed an offence in any other country. If such a person is found anywhere in India, the offence can be inquired into and tried by any court that may be approached by the victim. The victim who has suffered at the hands of the accused on a foreign land can complain about the offence to a court, otherwise competent, which he may find convenient. The convenience is of the victim and not that of the accused. It is not the requirement of Section 188 that the victim shall state in the complaint as to which place the accused may be found. It is enough to allege that the accused may be found in India. The court where the complaint may be filed and the accused either appears voluntarily pursuant to issue of process or is brought before it involuntarily in execution of warrants, would be the competent court within the meaning of Section 188 of the Code as that court would find the accused before him when he appears. The finding has to be by the court. It has neither to be by the complainant nor by the police. The section deems the offence to be committed within the jurisdiction of the court where the accused may be found.”
69.
In 1993 Cr.L.J. 1098, in the case of “Remia &
another vs. Sub-Inspector of Police & others”, learned Single
45
Judge of Hon. Kerala High Court has interpreted Section 188 as under:“3. Section 177 of the Code of Criminal Procedure (for short 'the Code') says that every offence shall ordinarily be inquired into and tried by a Court within whose local jurisdiction it was committed. The said section, no doubt, deals with inquiries and trials and does not deal with investigation. Even otherwise, the provision envisages only the general principle which is subject to exceptions. It is clear from the provision itself since the section employs the words "shall ordinarily" (vide Nikka Singh v. The State. Supreme Court also observed that with the use of the word "ordinarily" the provision has to be understood as "except as otherwise provided in the Code or special law" (vide Narumal v. State of Bombay, AIR 1960 SC 1329 : 1960 Cri LJ 1674). 4. Even when Indian Penal Code was codified, its authors took special care to incorporate two prefatory provisions in a guarded manner. They are Sections 3 and 4 of the Penal Code. Section 3 of the I.P.C. reads thus: "Any person liable, by any Indian law, to be tried for an offence committed beyond India, shall be dealt with according to the provisions of this Code for any act committed beyond India in the same manner as if such act had been committed within India." Section 4 -"The provisions of this Code apply also to any offence committed by(1) any citizen of India in any place without and beyond India; (2) any person on any ship or aircraft registered in India wherever it may be. Explanation.- In this section the word "offence" includes every act committed outside India which, if committed in India, would be punishable under this Code." 5. Section 3 of the Penal Code helps the (authorities in India to proceed by treating the offence as one committed within India. No doubt it is by a fiction that such an assumption is made. But such a fiction was found necessary for practical purposes. Section 3 of the Penal Code was found insufficient for police authorities to investigate into the offence. It was in the aforesaid context that Section 188 has been incorporated in the Procedure Code. That section reads thus: "188. Offence committed outside India.When an offence is committed outside India.(a) by a citizen of India, whether on the high seas or elsewhere; or (b) by a person, not being such citizen on any ship or aircraft registered in India, he may be dealt with in respect of such offence as if it had been committed at any place within India at which he may be found: Provided that, notwithstanding anything in any of the preceding sections of this Chapter, no such offence shall be inquired into or tried in India except with the previous sanction of the Central Government." No doubt, Section 188 concerns as to how to deal with a person who has committed an offence outside India. Since the proviso casts an obligation to obtain previous sanction of the Central
46 Government to inquire into and try such person, the section has a message that for the pre-inquiry stage no such sanction is needed. If during pre-inquiry stage any offender can be dealt with (without such sanction) what could be the contours of that stage? I have no doubt that the pre-inquiry stage substantially relates to investigation of the crime. If there is any stage in which an offender can be dealt with before commencement of inquiry, it must be the investigation stage. 6. During such investigation stage, if the person (known or reasonably suspected to be the offender having committed the offence outside India) is not available in India, extradition proceedings may have to be resorted to (vide State of W.B. v. Jugal Kishore, AIR 1969 SC 1171: 1969 Cri LJ 1559). Supreme Court observed that "extradition is the surrender by one State to another of a person desired to be dealt with for crimes of which he has been accused or convicted and which are justiciable in courts of the other State". Such extradition proceedings are contemplated to get down the person concerned to this country to be dealt with thereafter. 7. The upshot is that Sub-Inspector of Tanur Police Station can conduct investigation into the offence notwithstanding the place of occurrence being Sharjah because the person on whom the focus of suspicion turns is laid to be a citizen of India.”
70.
The General Assembly continued its efforts to
give legal force to these declarations. It was with that end in view that the International Covenant on Civil and Political Rights 1966 and International Covenant on Economics, Social and Cultural Rights 1966 were framed and agreed upon. On ratification by the specified minimum of States, the Covenant on Economics, Social and Cultural Rights entered into force on January 3, 1976. India is one of the States which ratified the Covenant on Civil and Political Rights. The Protocol to the other Covenant i.e., the Covenant on Civil and Political Rights entered into force on March 23, 1976. India became a party to the Covenant as well as Protocol to it. The two Covenants therefore have legal force as treaties imposing legal obligations on the parties including India. 71.
The statement of victim assumes finality and she
was less than 15 years at the time when she was imported to India. 72.
Article
10
of
International
Covenant
Economic, Social and Cultural Rights reads as under: -
on
47 Article 10 The States Parties to the present Covenant recognize that: 1. The widest possible protection and assistance should be accorded to the family, which is the natural and fundamental group unit of society, particularly for its establishment and while it is responsible for the care and education of dependent children. Marriage must be entered into with the free consent of the intending spouses. 2. Special protection should be accorded to mothers during a reasonable period before and after childbirth. During such period working mothers should be accorded paid leave or leave with adequate social security benefits. 3. Special measures of protection and assistance should be taken on behalf of all children and young persons without any discrimination for reasons of parentage or other conditions. Children and young persons should be protected from economic and social exploitation. Their employment in work harmful to their morals or health or dangerous to life or likely to hamper their normal development should be punishable by law. States should also set age limits below which the paid employment of child labour should be prohibited and punishable by law.”
73.
The United Nations Office on Drugs and Crime
has developed the Model Law against Trafficking in Persons including
to
provide
criminal
provisions
specific
to
trafficking, ancillary offences and offences related to trafficking, victim and witness protections, assistance and compensation, protection of victims and witnesses in court, protection and date of privacy, relocation of victims and/or witnesses, court-ordered compensation, return of victims of trafficking in persons, repatriation of victims of trafficking in persons to another State, verification of legitimacy and validity of documents upon request. 74.
The Court can take judicial notice of the fact that
in the State of Uttarakhand also due to abject poverty, the girls
are
being
exported
to
adjoining
States,
more
particularly, from Districts Champawat, Pithoragarh and Almora. 75.
In the United States, the Congress has enacted
the Act called Trafficking Victims Protection Act, 2000.
48
76.
It would be apt at this stage to refer the Indo-
Nepal Treaty, 1950. It reads as under:“Treaty of Peace and Friendship between the Government of India and the Government Of Nepal. Signed at Kathmandu, on 31 July 1950.The Government of India and the Government of Nepal, recognizing the ancient ties which have happily existed between the two countries; Desiring still further to strengthen and develop these ties and to perpetuate peace between the two countries; Have resolved therefore to enter into a Treaty of Peace and Friendship with each other, and have, for this purpose, appointed as their plenipotentiaries the following persons, namely, The Government of India: His Excellency Shri Chandreshwar Prasad Narain Singh, Ambassador of India in Nepal.The Government of Nepal: Maharaja Mohan Shamsher Jang Bahadur Rana, Prime Minister and Supreme Commander-in-Chief of Nepal, who having examined each other's credentials and found them good and in due form have agreed as follows: Article 1: There shall be everlasting peace and friendship between the Government of India and the Government of Nepal. The two Governments agree mutually to acknowledge and respect the complete sovereignty, territorial integrity and independence of each other, Article 2: The two Governments hereby undertake to inform each other of any serious friction or misunderstanding with any neighboring State likely to cause any breach in the friendly relations subsisting between the two Governments. Article 3: In order to establish and maintain the relations referred to in Article 1 the two Governments agree to continue diplomatic relations with each other by means of representatives with such staff as is necessary for the due performance of their functions. The representatives and such of their staff as may be agreed upon shall enjoy such diplomatic privileges and immunities as are customarily granted by international law on a reciprocal basis : Provided that in no case shall these be less than those granted to persons of a similar status of any other State having diplomatic relations with either Government. Article 4: The two Governments agree to appoint ConsulsGeneral, Consuls, Vice-Consuls and other consular agents, who shall reside in towns, ports and other places in each other's territory as may be agreed to. Consuls-General, Consuls, Vice-Consuls and consular agents shall be provided with exequaturs or other valid authorization of their appointment. Such exequatur or authorization is liable to be withdrawn by the country which issued it, if considered necessary. The reasons for the withdrawal shall be indicated wherever possible. The persons mentioned above shall enjoy on a reciprocal basis all the rights, privileges, exemptions and immunities that are accorded to persons of corresponding status of any other State. Article 5: The Government of Nepal shall be free to import, from or through the territory of India, arms, ammunition or warlike material and equipment necessary for the security of Nepal. The procedure for giving effect to this arrangement shall be worked out by the two Governments acting in consultation.
49 Article 6: Each Government undertakes, in token of the neighborly friendship between India and Nepal, to give to the nationals of the other, in its territory, national treatment with regard to participation in industrial and economic development of such territory and to the grant of concessions and contracts, relating to such development. Article 7: The Governments of India and Nepal agree to grant, on a reciprocal basis, to the nationals of one country in the territories of the other the same privileges in the matter of residence, ownership of property, participation in trade and commerce, movement and other privileges of a similar nature. Article 8: So far as matters dealt with herein are concerned, this Treaty cancels all previous Treaties, agreements, and engagements entered into on behalf of India between the British Government and the Government of Nepal. Article 9: This Treaty shall come into force from the date of signature by both Governments. Article 10: This Treaty shall remain in force until it is terminated by either party by giving one year's notice.”
77.
It is evident from the treaty that the movement of
citizens across the country is unrestricted but still to check the human trafficking, more particularly of minor girls, the Central Agencies, local agencies should at least insist for proper
verification
and
identity
of
children
more
particularly, minor girls coming to India. The antecedents should be verified and counter checking be made from the authorities in Nepal. The agency should ensure that the children who are travelling to India without their legal guardian should be properly counseled and telephone numbers of their guardian should be taken along with the permanent address to be verified and re-verified from the counterpart agencies of Nepal. 78.
In the news item published under the caption
“Government sitting on national global trafficking racket in Uttarkhand”, published in the daily newspaper “Times of India”, dated 05.12.2017. It is reported that the then Additional Secretary of the State Social Welfare Department has prepared the report regarding ‘rampant child trafficking going on in the state’. He had highlighted several points which required investigation including criminal acts against the children at the Shishu Niketan shelter home.
It is
50
stated in the report that the children brought to the shelter homes were sent to work at different houses in Dehradun and Noida as a domestic help. However, till date, no FIR has been registered against the persons employed in the Shishu Niketan for their criminal acts. There is also reference of girls from Nepal and Jharkhand. 79.
According to National Crime Records Bureau
report, 208 females and 216 males are missing in the previous years in the State of Uttarakhand, below the age of 18 years. In 2016, 224 boys and 211 girls have gone missing. The State Government is required to take steps to trace them and reunite them with their families. In the State of Uttarakhand, 312 girls and 277 boys were traced in previous years upto 2016. The percentage of recovered girls is 72% and percentage of recovered boys is 67.9%. In 2016, 432 girls and 427 boys below the age of 18 years went missing. The police has traced 312 boys and 277 girls. Still 270 children are missing. 80.
The report of National Crime Records Bureau is
alarming as per as missing children in the State of Uttarakhand are concerned. However, the Court places its appreciation for the sincere efforts made by the police department to trace out the children and restore them to their guardian. All concrete steps are required to be taken to trace out the missing children. 81.
The importation of girls and their kidnapping for
exploitation is a heinous crime against the Society. It is an organized crime. There should be strictness against the persons who are indulging in this heinous act. The concerned authorities should invoke provisions of Money Laundering Act, 2008, since the Immoral Trafficking Prevention Act, 1986 has been included as Para 7 of the
51
Schedule
prepared
under
Section
2(y)
and
also
by
required
to
attachment of their property. 82.
The
Central
agencies
are
also
increase patrolling on the international borders and also by invoking
the
Organizations
help
of
to check
genuine
Non-Government
the human trafficking, more
particularly, of minor girls by setting up more check-posts and by providing additional manpower. 83.
Respondent has kidnapped the prosecutrix from
lawful guardianship. He has imported her from Nepal to India for the purpose of exploitation. He has transported the
prosecutrix
by
practicing
fraud,
deception
and
inducement. He has sexually assaulted the prosecutrix while travelling from Atariya to Mahendra Nagar. He has intimated the prosecutrix. 84.
Accordingly, the present appeal is allowed. The
judgment dated 04.05.2016 is set-aside.
Respondent is
convicted for the offence of Sections 363, 366-B, 370(4) and 506 IPC and Section 8 of POCSO Act. Registry is directed to prepare the production warrant ensuring the presence of respondent before the Court on the next date fixed. 85.
Put up this matter on 12.12.2017, for hearing
the respondent on the quantum of sentence. 86.
However, before parting with the judgment, we
deem it proper to issue the following mandatory directions to the State Government/other agencies: A.
All the Central agencies, local agencies in the
State of Uttarakhand should insist for proper verification and
identity
of
children,
more
particularly,
minor
girls/women coming to India from Nepal. The antecedents should be verified and counter verification be made from the authorities of Nepal.
52
B.
The minor children coming from Nepal should be
properly
counseled
and
telephone
numbers
of
their
guardian should be taken along with the permanent address to be verified and re-verified from the counterpart agencies of Nepal. C.
The
Court
recommends
to
the
Central
Government to frame law based on model law against trafficking in persons, as drafted by United Nations Office on Drugs and Crime mentioned in Paragraph no.73 of the judgment, in relation to trafficking, victim and witness protections, assistance and compensation, protection of victims and witnesses in court, protection, relocation of victims and/or witnesses, repatriation of victims to their countries of origin. D.
The police authorities should invoke provisions
of Money Laundering Act, 2008 against the persons who are involved in human trafficking, since the Immoral Trafficking Prevention Act, 1986 has been included in Para 7 of the Schedule prepared under Section 2(y) of the Act and also to attach the properties of persons involved in human trafficking. E.
The Central agencies should increase patrolling
on the international borders with the help of genuine NonGovernment Organizations to check the human trafficking, more particularly, of minor girls/women by setting up more check-posts and by providing additional manpower. F.
All the anti-human trafficking units in the State
of Uttarakhand must be headed by a person not below the rank of DSP/CO, one Inspector, two Sub-Inspectors and three
ASI
and
10-15
Constables.
50%
officers/officials should be sensitized women.
of
these
53
G.
All public prosecutors, police officers should be
adequately trained. Legal aid should be provided to the victims of human trafficking. H.
The State should take preventive measures to
check the
trafficking of children from the State of
Uttarakhand by improving the socio-economic conditions of the areas which are vulnerable to human trafficking. I.
The State Government is directed to provide safe
and proper accommodation for the victims of human trafficking. They should be provided basic health care. They should be properly counseled by a psychiatrist. The Court should appoint a legal guardian of an unaccompanied minor. His/her identity should be established. Steps should be taken to locate his/her family in the interest of the child. The trial under Sections 366(B) and 370 IPC should be held in camera. J.
The State Government is directed to constitute a
Special Investigation Team (SIT), if not already constituted, headed
by
the
Senior
Superintendent
of
Police
to
investigate the matter, as per the details given in the report by Mr. Manoj Chandran, the then Additional Secretary of the State Social Welfare Department, regarding ‘Rampant Child Trafficking’, within four weeks and to register FIRs against the persons, who were/are involved in human trafficking of boys/girls from shelter homes. K.
The Court can take judicial notice of the fact that
the minors are kidnapped by the organized gangs to force them into beggary. The Police Department should conduct DNAs of the parents as well as of the children of the beggars to ensure that the children found in their company are their own children. The Court again recommends that the begging should be banned throughout the State of Uttarakhand by bringing suitable legislation on the analogy
54
of Uttar Pradesh Prohibition of Beggary Act, 1975. The religious places should be free of beggars. L.
The State Government is directed to constitute
special wing to locate/trace and restore the missing boys and girls with their lawful guardian. The State Government is also directed to setup Photo Bank Data to trace the missing children and to display it on their official website. The Police Department is also directed to have effective liaisoning with the adjoining States as well as with the Central agencies. The Police Department should flash the photographs of missing children at the earliest at bus stands, railway stations. The FIRs in the cases of missing children should be registered promptly and investigated in a time bound manner. The photographs of the missing children should also be predominantly displayed in the regional as well as national newspapers and also on television. It is a very sensitive issue. The newspapers and news channels should reasonably charge the police for displaying the photographs of the missing children under corporate social responsibility. The State should also involve the Gram Panchayats at the grass-root level to trace the missing children. 87.
We
would
like
to
place
on
record
our
appreciation for the valuable assistance rendered by Mr. Amit Bhatt and Mr. Ramji Srivastava, Advocates in the matter.
(Alok Singh, J.) NISHANT
(Rajiv Sharma, J.)
