SC berates Allahabad HC’s callous approach in granting bail to persons accused of child trafficking; directs States to implement BIRD’s report

Supreme Court: In a significant ruling, while considering the instant appeals filed by the kith and kin of the children who came to be trafficked, praying for cancellation of bail granted by Allahabad High Court to the accused persons; the Division Bench of J.B. Pardiwala* and R. Mahadevan, JJ., set aside the bail orders passed by the High Court and the accused persons were directed to surrender before the committal court and the committal court in turn shall remand them to the judicial custody. Additionally, the Court directed that once charge is framed by the Trial Court in individual cases, the concerned Trial Court shall proceed with the recording of the evidence preferably on day-to-day basis and complete the proceedings of the trial within 6 months. The Court also directed the State Governments to implement recommendations made by Bharatiya Institute of Research and Development (BIRD) to combat child trafficking cases.

The Court strictly remarked that the High Court dealt with the bail applications in a callous manner which eventually led to the abscondment of many accused persons. The Court said that these accused persons are a threat to the society wherever they are in the country. The Court further expressed its disappointment with the State in not challenging the bail orders granted by the High Court.

Subsequently, the Court conveyed a message of caution to the nation, particularly the parents, the Court said that they should remain extremely vigilant and careful with their children. A slight carelessness or negligence or laxity on their part may prove to be extremely costly. The pain and agony which any parents may have to face when the child dies is different from the pain and agony that the parents may have to face when they lose their children to child trafficking gangs. The Court strictly said that if any newborn infant is trafficked from any hospital, the immediate action against the hospital should be suspension of licence to run the hospital over and above other actions in accordance with law. “When any lady comes to deliver her baby in any hospital, it is the responsibility of the administration of the hospital to protect the newborn infant in all respects”.

Background and Contentions:

The cases before the Court pertained to inter-state child trafficking rackets and incidents of kidnapping. While granting bail to the accused persons in the cases, the High Court had noted that the accused has not been named in the FIR; the name of the accused has been disclosed by a co-accused; victim has not been recovered from the custody of the accused; Similarly situated co-accused has been granted bail; no material evidence regarding tampering of evidence or intimidating of witness in previous criminal cases and bail is a rule, jail is an exception.

Counsel for the appellant submitted that the High Court committed a serious error in releasing the accused persons on bail by completely undermining the serious nature of the crime alleged. It was contended that the High Court failed to consider an important aspect of the matter that the FIRs were registered as cases of missing children and how does the High Court expect precise details in the FIRs? The appellant further brought to the Court’s notice that each child was found from the home/custody of one or the other accused persons.

Per contra, counsels for the accused persons contended that the High Court Committed no error in granting them bail.

Meanwhile counsel for the State submitted that after obtaining instructions from the courts as well as the investigation officers, that the whereabouts of most of the accused persons are not known as on date. It was pointed out that after being released on bail many of the accused persons have absconded and are not appearing before the courts for the purpose of committal proceedings.

Court’s Assessment:

Perusing the matter, the Court had to consider whether the High Court committed any error in passing various orders releasing the accused persons on bail.

Taking note of the core principles for the grant of bail, the Court said that it is conscious that liberty of a person should not be lightly dealt with, for deprivation of liberty of a person has immense impact on the mind of a person. “Incarceration creates a concavity in the personality of an individual. Sometimes it causes a sense of vacuum”. Needless to emphasise, the sacrosanctity of liberty is paramount in a civilised society. However, in a democratic body polity which is wedded to the rule of law, an individual is expected to grow within the social restrictions sanctioned by law. The individual liberty is restricted by larger social interest and its deprivation must have due sanction of law. In an orderly society an individual is expected to live with dignity having respect for law and also giving due respect to others’ rights. It is a well-accepted principle that the concept of liberty is not in the realm of absolutism but is a restricted one. The life of an individual living in a society governed by the rule of law has to be regulated and such regulations which are the source in law subserve the social balance and function as a significant instrument for protection of human rights and security of the collective. This is because, fundamentally, laws are made for their obedience so that every member of the society lives peacefully in a society to achieve his individual as well as social interest. Furthermore, individual liberty cannot be accentuated to such an extent or elevated to such a high pedestal which would bring in anarchy or disorder in the society.

Each bail application should be decided in the facts and circumstances of the case having regard to the various factors germane to the well settled principles of grant or refusal of bail.

The Court took note of a news reported by Times of India, Delhi dated 14-04-2025, wherein cases of abduction of newborn infants by child trafficking gangs were highlighted.

Perusing the FIRs, the serious nature of the crime and the modus operandi adopted by the accused persons, the Court opined that the High Court should not have exercised its discretion in favour of the accused persons. The Court sternly said, “The least that was expected of the High Court while granting bail to all the accused persons was to impose a condition on each of them to mark their presence once in a week at the concerned police station so that the police can keep a check over the movements of all the accused persons. All that the High Court did was to direct the accused persons to remain present before the trial court”. In none of the impugned orders there is a condition of marking presence at the concerned police station as a result, the police lost track of all these accused persons.

The Court also berated the State for not being serious with the matter.

Taking note of the actions of one of the accused persons wherein he was longing for a son, and he went to the extent of purchasing a trafficked minor male child; the Court stated this to be the unfortunate illustration of the evil that men do. “The extent to which people go to have a male child. They do not hesitate to purchase a trafficked child at the cost of causing pain, agony and immense trauma to the biological parents of the trafficked child”.

Therefore, the Supreme Court deemed it fit to cancel the bail of the accused persons and issued the following directions vis-a-vis these cases:

• Chief Judicial Magistrate District Varanasi and the Additional Chief Judicial Magistrate Court No. 5 District Varanasi to commit all the three criminal cases referred to in para 9 of the instant judgment to the Sessions Court, within a period of two weeks from date of this judgment without fail.

• Upon all the three criminal cases being committed to the court of sessions, the concerned trial court shall proceed to frame charge against individual accused persons within a period of one week thereafter.

• If it is brought to the notice of the trial court that some of the accused persons have absconded or their whereabouts are not known, the trial court shall take steps immediately to secure their presence by issuing non-bailable warrant etc. The trial of the absconding accused shall be separated in accordance with law so that the trial of the other co-accused persons do not get delayed.

• The Court directed the State Government to appoint 3 special public prosecutors for the purpose of conducting of the trials well versed in criminal trials at the earliest. The Court further directed the State Government to provide police protection to the victims and their families pending the trial at the earliest to prevent tampering of the evidence.

• The Court granted 2 months’ time to the State Police to trace out all those accused persons who have absconded and are on the run. They shall be apprehended and produced before the court concerned at the earliest.

• The State Government was directed to ensure that the trafficked children are admitted in schools in accordance with the provisions of the Right of Children to Free and Compulsory Education Act, 2009 and continue to provide support for their education.

• At the end of the trial, the concerned trial court shall pass appropriate orders as regards compensation to the victims under the provisions of the BNSS, 2023 including under the Uttar Pradesh Rani Laxmi Bai Mahila Evam Bal Samman Kosh managed by the Land Welfare Committee.

Additional Directions:

Given the severity of the matter, the Supreme Court:

• Directed all the State Governments to study the report by Bharatiya Institute of Research and Development (BIRD) dated 12-4-2023 and its recommendations reproduced by the Court in this judgment. The State Governments were directed to start implementing each of the recommendations by working out appropriate modalities in that regard.

• The Court directed all the High Courts to call for the necessary information as regards the status of the pending trials relating to child trafficking. Once each of the High Courts is able to collect the necessary data as regards the status of the trials, a circular thereafter shall be issued on its administrative side to all the concerned trial courts to complete the trials within a period of 6 months from the date of the circular and if need be, by conducting the trials on day-to-day basis. Each of the High Courts shall thereafter forward a report to this Court as regards the compliance of the directions contained in the circular.

• The Court also cautioned that non-compliance of directions or any laxity of any nature in that regard on the part of any of the authorities shall be viewed very strictly and if need be, they shall be proceeded for contempt.