The main legal point established in the judgment is the interpretation and application of different legal provisions related to child trafficking and protection, leading to the grant of anticipatory bail to the accused.

JUDGMENT

1. This petition is by accused Nos.4 and 5 in Crime No.1/2020 for grant of anticipatory bail under Section 438 of Cr.P.C.

2. Heard learned counsel for petitioners and learned High Court Government Pleader appearing for respondent.

3. Learned High Court Government Pleader has not filed any statement of objections but has orally opposed the petition.

4. The Deputy Director of Child and Women Development, Madikeri, Coorg District, lodged a complaint before the Madikeri Town Police Station alleging that on receipt of a complaint from one Sri.Kushalappa, District Convener, VHP, she proceeded to the house of A3-Smt.Saleena and found a four months old child in the house and on enquiry, A3 revealed that while she was working as Aaya in Ashwini Hospital and on 22.8.2019, a minor girl gave birth to a child in the said hospital; mother of the child refused to take the child and therefore, the child was given to her son and daughter-in-law viz. the petitioners herein (A4 and A5) by A1 and A2 and they were also given a document to the effect that the said child was born to the petitioners herein.

4.1 A reading of the complaint indicates that A3 has made a clean breast of the entire events and had narrated the manner in which the child came into possession of the petitioners herein. FIR has been registered under Sections 370(4) and (6), 465, 468, 471 r/w.34 of IPC; 80 and 81 of the Juvenile Justice (Care and Protection of Children) Act, 2015 and 21(1) of the Protection of Children from Sexual Offences Act, 2012.

4.2 Section 370 of IPC deals with trafficking of person. In order to attract the said Section, the person accused of committing trafficking of person for the purpose of exploitation by using threats, force, or any other form of coercion or by practicing fraud or deception or by abuse or power or 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, harbored, transferred or received.

Sub Section (4) and (6) of Section 370 read as under :

( 4) 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 life, and shall also be liable to fine.

(6) If a person is convicted of the offence of trafficking of minor on more than one occasion, then such person shall be punished with imprisonment for life, which shall mean imprisonment for the remainder of that persons natural life, and shall also be liable to fine.

5. The allegations made in the complaint do not attract the ingredients of Section 370 of IPC insofar as the petitioners are concerned. There are no allegations that the child was procured for the purpose of exploitation or that the petitioners resorted to threats, force or any other form of coercion or inducement either on the mother or to any other person. In the absence of any such allegations, the charge under Section 370 of IPC ex-facie does not attract insofar as the petitioners are concerned.

6. The allegations constituting the offences under Sections 465, 468 and 471 r/w.34 of IPC are directed only against A1 and A2 and not against the present petitioners. However, the allegations made in the complaint squarely attract Sections 80 and 81 of the Juvenile Justice (Care and Protection of Children) Act, 2015, which reads as under :-

80. Punitive measures for adoption without following prescribed procedures: If any person or organization offers or gives or receives, any orphan, abandoned or surrendered child, for the purpose of adoption without following the provisions of procedures as provided in this Act, such person or organization shall be punishable with imprisonment of either description for a term which may extend upto three years, or with fine of one lakh rupees, or with both:

Provided in case where the offence is committed by a recognized adoption agency, in addit