The court ruled that consent from the victim and her mother negated the exploitation element necessary for trafficking under Section 370 IPC, justifying the granting of anticipatory bail.

ORDER :

1. The instant appeal filed under Section 21(4) of the National Investigation Agency Act, 2008, is directed against the order dated 02.07.2024 passed by the learned Sessions Judge, Chatra in A.B.P. No. 497 of 2024 by which the prayer for anticipatory bail of the appellants in connection with Hunterganj P.S. Case no. 54 of 2023 registered under Sections 370, 370A and 34 of the Indian Penal Code, Sections 75 and 81 of Juvenile Justice (Care and Protection)Act has been refused.

2. It has been contended by the learned counsel appearing for the appellants that even if the entire prosecution version will be accepted, no case is being made out attracting the ingredient of Section 370 of the Indian Penal Code.

3. It has further been contended that the rejection of the pre-arrest bail is based upon the reference of the various paragraphs made in the case diary but if the entire case will be taken into consideration, then there is no ingredient of exploitation said to be attracted under Section 370 of IPC as the victim girl has been returned.

4. Learned counsel has further submitted that nothing has been said in the statement recorded under Section 164 Cr.P.C. either by the mother of the victim or the victim so as to attract the ingredient of Section 370 of the Indian Penal Code.

5. Learned counsel for the appellants, in view of the aforesaid grounds, has submitted that instant application is fit to be allowed by interfering with the order impugned.

6. On the other hand, Mr. V.S. Sahay, learned Additional Public Prosecutor, has vehemently opposed the prayer for pre-arrest bail.

7. It has been contended by referring to Page 21 of the case diary wherein the ingredient of Section 370 will be said to be there if the aforesaid content of the said page will be taken into consideration.

8. On the basis of aforesaid submission, learned counsel appearing for the State has submitted that the impugned order may not be interfered with.

9. This Court has heard learned counsel for the parties, gone through the material available on record as also the impugned order.

10. This Court, in order to appreciate the arguments advanced on behalf of the learned counsel for the parties as also the reasons of the rejection of anticipatory bail wherein one of the reasons is said to be by making the case of human trafficking of minor girl, is now going to consider the penal offence as referred in Section 370 of the Indian Penal Code along with its explanation. For ready reference, the same is being referred herein which reads as under:

“[370. Trafficking of person.—(1) Whoever, for the purpose of exploitation, (a) recruits, (b) transports, (c) harbours, (d) transfers, or (e) receives, a person or persons, by— First.—using threats, or Secondly.—using force, or any other form of coercion, or Thirdly.—by abduction, or Fourthly.—by practising fraud, or deception, or Fifthly.—by abuse of power, or Sixthly.— 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.

Explanation 1.—The expression "exploitation" shall include any act of physical exploitation or any form of sexual exploitation, slavery or practices similar to slavery, servitude, or the forced removal of organs.

Explanation 2.—The consent of the victim is immaterial in determination of the offence of trafficking.

(2) Whoever commits the offence of trafficking shall be punished with rigorous imprisonment for a term which shall not be less than seven years, but which may extend to ten years, and shall also be liable to fine.

(3) Where the offence involves the trafficking of more than one person, 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.

(4) Where the offence involves the trafficking of a minor, i