"Members Of LGBTQ+ Community Vulnerable Within Jail": Bombay High Court Grants Bail To Man Accused Of Trafficking Child

The Bombay High Court recently granted bail to a man belonging to the LGBTQ+ community booked for trafficking a one year and seven months old child observing that members of the community are vulnerable within prison.

Justice Manish Pitale allowed his bail application observing –

“This Court is of the opinion that a person belonging to the LGBTQ+ community, who is also HIV positive, can be said to be a person belonging to a category of persons, who are indeed vulnerable, particularly within the four corners of a jail.”

The applicant, arrested on May 26, 2024, faces charges under Sections 370 (trafficking of persons) read with 34 of the IPC and Sections 80 and 81 of the Juvenile Justice (Care and Protection of Children) Act, 2015.

The FIR was registered when the parents of the child, who have also been arraigned as accused in the case, approached the police. They claimed that financial distress led them to agree to send their child for film shoots to earn money.

Another accused revealed during an inquiry that the applicant intended to adopt a child and thus, the minor child was agreed to be sold in exchange for Rs. 4,65,000. Payments totalling Rs. 4,50,000 were made on May 5 and May 25, 2024, after which the child was handed over to the applicant.

Advocate Wesley Menezes for the applicant argued that the allegations did not meet the criteria for trafficking under Section 370 of the IPC. He also argued that the applicant belongs to the LGBTQ+ community which makes him vulnerable in society. He submitted that the applicant and his partner took the child as they were desirous of taking care of a child but were unable to adopt legally due to current Indian laws.

The applicant denied any monetary exchange for the child. It was also brought to the notice of the court that the applicant is HIV-positive, substantiated by medical documents. He sought bail, citing the applicant's cooperation with the investigation and his month-long imprisonment.

APP Kiran C Shinde argued that the investigation was ongoing, and the medical report of the minor child was pending. The prosecution stressed the seriousness of the allegations, with the co-accused detailing the payments made to the applicant for taking possession of the child, indicating involvement in trafficking.

The court examined the informant's statement and found clear allegations against the applicant for paying to take possession of the minor child.

“Undoubtedly, there are clear allegations against the applicant of having paid specific amounts in order to take possession of the minor child. Co-accused No.5 has given details as to when such amounts were paid and the fact that in exchange for payment of such amounts, the child was “sold” to the applicant”, the court observed.

Thus, the court held that a prima facie case is made out for the offence under Section 370 IPC. However, the court also considered the applicant's LGBTQ+ status, noting societal vulnerability and potential harassment in jail. It said:

“The fact that persons belonging to such a community are vulnerable and in certain situations open to be ridiculed and harassed, cannot be ignored by this Court.”

The court also noted the applicant's HIV-positive condition and the absence of criminal antecedents.

Considering more than a month in judicial custody and the recovery of the alleged amounts during the investigation, the court deemed the applicant a vulnerable person and granted him bail on a PR Bond of Rs. 50,000/- with one or two sureties of the same amount.

The court prohibited the applicant from contacting the minor child and his parents.

The court stated that any violation of bail conditions can lead to the cancellation of bail. The court further clarified that observations in this order were limited to the bail application and should not influence the case's further proceedings.

Case no. – Bail Application No. 2436 of 2024

Case Title – ABC v. State of Maharashtra

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