"Can't Keep Her In Jail Indefinitely": Supreme Court Grants Bail To Tribal Woman Who Gave Birth In Jail

The Supreme Court of India has granted bail to a tribal woman accused of the offence of human trafficking who suffered incarceration for a period of 18 months and also delivered child during custody.

A Bench comprising CJI NV Ramana, Justice Surya Kant and Justice Hima Kohli issued the direction in a special leave petition challenging Delhi High Court's order refusing to grant bail to the lady accused of offences under Section 366, 368, 370 and 34 of the Indian Penal Code.

Senior Advocate Salman Khurshid appearing for the petitioner prayed for bail to the petitioner on the ground that she has already undergone sentence of 18 months and has delivered the child on 01.11.2020. He further submitted that the petitioner is 21 year's old lady who herself pushed into flesh trade and she herself was living in the confines of the prime accused and under a constant threat of life.

Additional Solicitor General Aishwarya Bhati vehemently opposed the prayer for granting bail to the petitioner and submitted that there is a high probability of fleeing of the petitioner to Meghalaya.

"Knowing her financial and social background and everything it's difficult to know if she's victim or victimiser. Let that be a matter of trial. Charges are yet to be framed, trial will take time, you can't keep her indefinitely in jail," the Bench orally observed.

The petitioners were represented through Senior Advocate Salman Khurshid, Advocates Atul Kumar, Shaurya Sahay, T.K. Nayak, Adil Boparai, Aadya Mishra, K.N. Kharlyngdoh.

According to the petitioner, she herself is a victim of the illegal racket being run by the other co-accused persons.

The petitioner has argued that the High Court erred in not considering the fact that the complaint was directed against the co-accused and all allegations of wrongful confinement, sexual assault and trafficking are all specific to these co-accused persons and nothing in the complaint discloses commission of any offence by the petitioner.

The petitioner argued that the High Court ought to have granted regular bail to the petitioner after holding the triple test of flight risk, risk of tampering with evidence and risk of influencing of witnesses in favour of the petitioner as it is not the case of the prosecution in its status report furnished to the High Court that the petitioner has either the means or the wherewithal to flee from justice, or hinder the investigation in any manner.

The petition has also submitted that the medical condition of the petitioner escaped the notice of the Single Judge, as the petitioner as a consequence of being forced into prostitution had become pregnant and had to deliver her child during her continued incarceration.

The petitioner has submitted that she has been languishing in jail from the past one year. She has undergone her entire period of pregnancy under rigorous incarceration and has also delivered her child therein on 01.11.2020.

Case Title: Drabhamon Phawa vs State of NCT of Delhi

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