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State Of Uttarakhand vs Sartaj Khan on 7 December, 2017

IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL

Government Appeal No. 139 of 2016

State ….Appellant
Versus

Sartaj Khan ….Respondent

Mr. Amit Bhatt, Dy.A.G. with Mr. K.S. Rawal, Brief Holder for the State.
Mr. Ramji Srivastava, Legal Aid Counsel for the respondent.

Judgment Reserved- 09.11.2017
Date of Judgment – 07.12.2017
Coram: Hon’ble Rajiv Sharma, J
Hon’ble Alok Singh, J
Per: Hon’ble Rajiv Sharma, J

The State has come in appeal against the
judgment dated 04.05.2016, rendered by learned Special
Sessions Judge, Champawat in Special Sessions Trial
No.07 of 2015, whereby the respondent, who was charged
with and tried for the offences under Section 363, 366-B,
370(4), 506 IPC and Section 8 of POCSO Act, was
acquitted.

2. The case of the prosecution, in a nutshell, is that
at 11:00 AM, S.I. Manju Pandey, In-charge Human
Trafficking Unit Shadra Bairaj, Banbasa along with other
police officials reached at Sharda Bairaj near Indo-Nepal
border towards eastern side to check the illicit human
trafficking. One volunteer namely Meera Sauda was also
with them. They were checking the people coming from
Nepal border. At about 13:30 hours, a secret information
was received that an Indian boy was trying to import a
minor girl of Nepal origin for the purpose of exploitation.
The information was acted upon and one girl was noticed
near a cart selling snacks towards the eastern side of
Sharda Barrage. The name of the girl was ascertained. She
disclosed her name Km. Jainisha Sharma D/o Moti Ram
Sharma, R/o Village Koteshwar, District Kathmandu,
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Nepal, aged about 15 years. The investigation was carried
out by maintaining all decency through Meera Sauda, who
was well conversant with Hindi and Nepali languages. She
disclosed to the police party that on 10.04.2015, she came
all alone to see her uncle namely Arjun Sharma, who was a
teacher in Lamki (Nepal). On 11.04.2015 at about 10:00
AM, she was having ice-cream from a cart at Atariya Bus
stand. A boy came and stood by her side. He also started
having the ice-cream. He tried to entice her. He allured her
that he would take her to Banbasa in India where she can
do shopping. They would stay in a hotel at Banbasa and in
the morning, he would send her back to Atariya, Nepal. She
trusted him. The boy brought her from Atariya, Nepal to
Mahendra Nagar. He started pressing her breast in the bus.
She told him not to do so. Thereafter, at Mahendra Nagar,
he made her to sit on a horse cart, which was going
towards India. They reached Banbasa bridge at about 13:45
hours. The gate was closed. Many horse carts and vehicles
were parked. There was lot of rush. The boy got down from
the horse cart and told her that there was police checking.
He tutored her to tell the police that she was going to
Banbasa for shopping. He started walking ahead. He told
her that he would see her after some distance. Thereafter,
they searched the boy. They reached near canal gate. The
boy was standing near the tree facing towards bridge. Km.
Jainisha recognized the boy and told that he was the same
boy, who has enticed her to come from Nepal. The boy was
arrested. He disclosed his name Sartaj Khan, S/o Sardar
Khan, R/o Mohalla Bhure Khan, P.S. Khakhra, District
Pilibhit, Uttar Pradesh. He was aged 30 years. He admitted
his guilt. The respondent and girl were brought to the office
for counseling. Other police officials also reached the spot.
It was, prima facie, found that the boy had brought the girl
to India for exploitation. The personal search of the
respondent was carried out. One pocket diary, one packet
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of condom, two man force tablets, Indian and Nepal
currency and two mobile phones were found from his
possession. The seizure memo was prepared. One copy of
the same was handed over to the respondent. PW2 Km.
Jainisha Sharma was medically examined by PW4 Dr.
Vinod Kumar Joshi.

3. The FIR was registered. The investigation was
carried out and the challan was put up after completing all
the codal formalities.

4. The prosecution has examined as many as six
witnesses in its support.

5. Thereafter, the statement of respondent was
recorded under Section 313 of Cr.P.C. He denied the case of
the prosecution. According to him, he was falsely
implicated.

6. The respondent was acquitted by the Trial Court,
as noticed hereinabove. Hence, this appeal by the
Government.

7. Learned counsel appearing on behalf of the State
has vehemently argued that the prosecution has proved its
case against the respondent beyond reasonable doubt.

8. Learned Legal Aid Counsel appearing for the
respondent has supported the judgment dated 04.05.2016.

9. We have heard learned counsel for both the
parties and perused the judgment and record carefully.

10. PW1 S.I. Manju Pandey testified that on
11.04.2015, she was the In-charge of Anti-Human
Trafficking Unit, Sharda Barrage, Banbasa. She along with
other police officials went towards Sharda Barrage to check
the human trafficking in the official car. They also
associated one volunteer namely Meera Sauda of NGO and
4

they started checking the people coming from Nepal. They
received a secret information at 13:30 hours that one
Indian Muslim boy was importing minor Nepalese girl from
Mahendra Nagar. The gate of the Indian side was closed.
People were crossing the bridge on foot. Horse carts and
vehicles were parked. They started checking the people and
made inquiries. At 13:45 hours, on the eastern side of
Sharda barrage, one girl was noticed standing near the cart
selling snacks. The informant informed that she is the
same girl who has been brought from Nepal by the Indian
boy. Thereafter, the informant left the place. They reached
near the cart. They made inquiries from the girl. The girl
disclosed her name as Km. Jainisha Sharma. She disclosed
her age as 15 years. The inquiries were made through good
office of Meera Rauda, who was well conversant in Nepalese
and Hindi languages. The girl told that she left Kathmandu
on 10.04.2015 to meet her uncle namely Arjun Sharma.
Her uncle was a teacher. On 11.04.2015 at Atriya bus
stand, she came down from the bus. She started eating ice-
cream. In the meantime, one boy reached near the same
cart and asked for ice-cream. He asked her to come to
India. He enticed her and promised her to take her for
shopping. They would stay in a hotel at night and in the
morning, he would send her back to Atriya. He also tried to
molest her while travelling in bus to Mahendra Nagar. He
made her to sit on a horse cart. He also sat with her. At
Sharda barrage, the checking was going on. The boy got
down from the eastern side of Sharda barrage. He told her
that the checking was going on ahead. He tutored her that
she should tell the police personnel that she was going to
Banbasa for shopping. He told her that he would go on foot
and meet her after some time. It was, prima facie, the case
of human trafficking. They went in search of the
respondent. The boy was found near Sharda barrage. The
girl identified him and told that he is the same boy who had
5

brought her from Nepal to India. The boy was apprehended.
He disclosed his name and parentage. Senior officers were
informed. They took the boy and the girl for counseling. The
senior officers also came on the spot. The boy and girl were
separately interrogated. The girl was speaking in Nepalese
language. The interpretation was being done by Bhuwan
Gadkoti, Janak Chand and Meera Sauda. They were well
conversant with the Nepalese language. The personal
search of the boy was carried out. Indian and Nepalese
currency along with two mobile phones, one packet of
condom and two tablets of man force were recovered from
his possession. These were taken into possession. The
seizure memo was prepared. She recognized the items in
the Court. Thereafter, they went to Banbasa police station.
In her cross-examination, she has deposed that she knew
little bit of Hindi language. Laxman Chand and driver Hira
Singh also knew little bit of Nepalese language. The victim
was speaking in Nepalese language and the same was got
translated with the help of Hira Singh, Laxman Chand and
Meera Sauda. The girl has disclosed that the boy belongs to
India and she could recognize him. The height, colour and
age was also ascertain from the victim. They were tried to
associate independent witnesses but no independent
witness was available.

11. PW2 prosecutrix has deposed that she was a
student of Class 9th in Kathmandu, Nepal. She could speak
little bit of Hindi. She was coming on 10.04.2015 from
Nepal to Atariya in a bus. She got down at Atariya bus
stand. She started having ice-cream at bus stand. The
respondent also came near the ice-cream cart and started
having ice-cream. She also purchased one bottle of chilled
water. The boy asked her to accompany him to Banbasa.
Thereafter, they went to Ghangarhi. She sat with the
respondent in the bus and came to Mahendra Nagar. The
6

respondent put his one hand on her breast. She asked him
not to do so. Thereafter, the boy stopped pressing her
breast. She was fed in a hotel by the respondent.
Thereafter, the boy brought the horse cart. They sat on a
horse cart. One Nepalese citizen asked the owner of horse
cart in Hindi language where they were taking this girl. The
owner of horse cart was already tutored by the respondent.
The owner of horse cart told that they were going to
Banbasa where her uncle was residing and she was going
for shopping with him. The boy made her to sit on horse
cart and started walking ahead of horse cart. Thereafter,
the boy also sat on the horse cart. Thereafter, they reached,
Gaddha Chowki (Nepal). She was not permitted even to
urinate by the owner of horse cart. The accused told her
not to come down from horse cart. The boy got down at
Gaddha Chowki and started moving ahead and told her
that checking was going on and told her to follow him and
he would meet her at some distance. She was perplexed
when she got down from the horse cart. In the meantime,
police reached the spot and she narrated entire episode to
them. The police asked her about the boy. The police
officers asked her whether she was in a position to
recognize the boy. The boy was standing near the canal
gate. She recognized him. She was interrogated by the
police along with the accused. Her signatures were
obtained. Whatever she had narrated, it was jotted down by
the police. She recognized her signatures. She was taken to
Banbasa police station. She along with the accused were
interrogated. They were handed over to police at the police
station. She has given her statement in Nepalese language.
The same was translated by Meera Sauda. She identified
her signatures on the statement. Whatever she has deposed
in the Court, the same was recorded in her statement
under Section 164 of Cr.P.C. The personal search of the
respondent was also carried out. In her cross-examination,
7

she has deposed that she came with Meera Sauda and not
with PW1 S.I. Manju Pandey, in the Court. She was not
tutored by PW1 Manju Pandey. She has also denied that
she was tutored by the government advocate to depose in a
particular manner. She could read Hindi language but
could not speak Hindi. Whatever she has stated, the same
was reduced into writing in her statement. The statement
was written by PW1 Manu Pandey and she signed the
same. When the police had gone to search the respondent,
PW1 Manju Pandey, PW3 Meera Sauda and Bhuwan Chand
were together. Her mother’s name was Kamla Devi. It takes
about one hour to travel from Atariya to Mahendra Nagar.
When her statement was recorded by the CJM, only Meera
Sauda accompanied her. She was interrogated in Hindi by
Meera Sauda, which was translated by Meera Sauda in
Nepalese language. The senior officers had also come in the
office of Meera Sauda. They also interrogated her.

12. PW3 Meera Sauda testified that she was working
as a Counselor ‘In Reads’ NGO. Their office was situated
near immigration office. Their organization was setup to
check the human trafficking. She reached her office. The
police had already come there. They were checking people
coming from Nepal. The gate was closed. One informant
came near PW1 S.I. Manju Pandey and told them that a girl
was standing near the cart. They went towards the cart.
The age of the girl was 14-15 years. She asked her about
her address in Nepalese language. She disclosed her name
and residence. She told that she was going to see her uncle
at Lamki. When she reached Atariya, she had ice-cream.
One boy met her. He told her to accompany her to
Banbasa. Thereafter, he would send her back to Atariya.
Thereafter, they boarded in a bus at Mahendra Nagar. She
sat on a horse cart to come to India. When they reached
Nepal border, the boy told her that the checking was going
8

on and told her to meet her at some distance. The girl told
that she did not know the name of the boy but she could
recognize him. They went towards the canal gate. When
they reached near the canal gate, the girl pointed out
towards the boy. The boy was apprehended. He was taken
to the office of PW1 S.I. Manju Pandey. The interrogation
was carried out in Nepalese language. It was reduced into
writing. The accused was arrested. In her cross-examined,
she has deposed that there was a custom office, shops and
more carts. They have not tried to find out the horse cart,
in which, she had travelled from Nepal to India. The girl
has disclosed the identity of the boy. Initially, she has tried
to speak in Hindi language. Thereafter, she was speaking in
Nepalese language. Thereafter, she disclosed her identity.
She disclosed her parentage. The accused was arrested in
the afternoon.

13. PW4 Dr. Vinod Kumar Joshi has medically
examined the prosecutrix. He proved the medical report.

14. The Medical Board was constituted comprising
the Chief Medical Officer, Radiologist, Female Medical
Officer, Dental Surgeon. The Board unanimously has found
the age of the prosecutrix to be 17 years. The Radiologist
has given her age to be 16 years and 01 day, the Female
Medical Officer has given the age of the prosecutrix to be
16-17 years and the Dental Surgeon has given the age of
the prosecutrix between 17-21 years The average age was
found to be 17 years, as per the recommendations of the
board.

15. PW5 H.C. Hemant Kumar has deposed that he
was on night duty on 11.04.2015. The police has produced
the prosecutrix and accused before him along with seizure
memo. The FIR was registered. The papers concerning the
arrest of the accused were prepared by him.

9

16. PW6 S.I. Minakshi Nautiyal has deposed that she
was working at P.S. Lohaghat on 11.04.2015. She was the
Investigating Officer. She completed all the codal
formalities. She recorded the statements of PW1 Manju
Pandey and the prosecutrix. She visited the spot and
prepared the spot map. She identified the signatures on the
report. An application was moved before the CJM for
recording the statement of the prosecutrix under Section
164 of Cr.P.C.

17. What emerges from the statements recorded
hereinabove, is that the prosecutrix is a citizen of Nepal.
She was imported to India by the accused for exploitation.
The girl has come to see her uncle at Lamki. She got down
at Atariya bus stand. The respondent met her there. He
enticed her to come to India. The girl boarded the bus and
travelled from Atariya to Mahendra Nagar. The respondent
has molested her in the bus. She got down at Mahendra
Nagar. The respondent fed her at Mahendra Nagar. The
accused tutored her that when anybody inquired her, she
would say that she was going for shopping at Banbasa. The
respondent walked some distance and thereafter, boarded
the horse cart. He got down from the horse cart and told
the prosecutrix that the checking was going on at police
checkpost. Thereafter, the police got the secret information.
The girl was spotted near the cart. She disclosed her
identity. She was interrogated in Nepalese language with
the help of Meera Sauda, who was accompanying the police
party. The boy was also arrested. He was identified by the
girl. The age of the prosecutrix was also ascertained with
the help of ossification test/ dental test.

18. PW1 S.I. Manju Pandey has categorically
deposed that she was the In-charge of Anti-Human
Trafficking near Indo-Nepal border. They had gone to
border in the company of Counselor of one NGO. She
10

received the secret information that the boy was trying to
import a minor girl of Nepal origin. They reached the spot.
The girl was found. She disclosed her identity. She was
interrogated with the help of interpreter. The girl told PW1
S.I. Manju Pandey that she could identify the boy. The boy
was arrested near Banbasa, as per the prescription given
by the girl. The prosecutrix was taken for counseling.
Thereafter, she was taken to police station. PW2
prosecutrix has corroborated the statement of PW1 S.I.
Manju Pandey. She has categorically deposed the manner,
in which, she was enticed by the respondent at Atariya bus
stand and she was made to board in a bus from Atariya to
Mahendra Nagar. She was made to board in a horse cart
from Mahendra Nagar. She has specifically deposed that
the respondent has molested her in the bus. He told her to
come in the horse cart and he would see her across the
border. She disclosed her identity including the parentage
to the police party and Meera Sauda. Her statement was
recorded under Section 164 of Cr.P.C. She identified her
signatures on the statement made before the police as well
as the CJM. PW3 has also supported the case of the
prosecution to the hilt. She was accompanying the police
party. The girl was recovered and the boy was arrested.
PW4 Dr. Vinod Kumar Joshi has medically examined the
prosecutrix. He assessed the age of the prosecutrix to be 17
years. PW5 H.C. Hemant Kumar has registered the FIR.
PW6 S.I. Minakshi Nautiyal has investigated the matter.
She has got the statement of the prosecutrix recorded
under Section 164 of Cr.P.C. She visited the spot and
prepared the spot map.

19. The prosecution has proved to the hilt that the
respondent had imported the minor girl, who is the resident
of Nepal to India, for exploitation. The incriminating
material was also found from his possession. He was
11

carrying condom as well as two man force tablets at the
time of his arrest along with Indian and Nepalis currencies.
He enticed poor girl to come to India by promising her to
shop. He has also assured her that they would stay in a
hotel and he would send her back to Mahendra Nagar.

20. Learned Trial Court has erred in law by relying
upon Section 188 of Cr.P.C.

21. The permission of the Central Government was
not required to hold the trial against the respondent under
Sections 363, 366-B, 370(4) as well as 373(A) IPC.

22. Section 370 of IPC prescribes that whoever, for
the purpose of exploitation, (a) recruits, (b) transports, (c)
harbours, (d) transfers, or (e) receives, a person or persons,
by–

a. using threats, or
b. using force, or any other form of coercion, or
c. by abduction, or
d. by practising fraud, or deception, or
e. by abuse of power, or
f. 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.

23. Sub-section 4 of Section 370 IPC lays down that
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 lift, and shall also be liable to fine.

24. In the present case, the respondent has
practiced fraud and deception by importing the prosecutrix
to India and has committed the offence under Section
370(4) IPC.

25. Her age was unanimously found to be 17 years
by the Board, as per the record. The report was signed by
all the Members of the Board.

12

26. Learned Trial Court has wrongly come to the
conclusion that the prosecutrix has attained the age of
majority. She was minor at the time when the respondent
has committed the offence of trafficking. The respondent
has brought the prosecutrix to India from Nepal. Her age
was less than 21 years. It has come in the evidence that the
girl was to be forced or seduced to illicit intercourse with
another person. In the present case, the consent of the
prosecutrix is immaterial as far as offence under Section
370 IPC is concerned.

27. Now, as far as, offence under Section 363 IPC is
concerned, according to language of Section 361 IPC,
whoever, takes or entices any minor under [sixteen] years
of age if a male, or under [eighteen] years of age if a female,
or any person of unsound mind, out of the keeping of the
lawful guardian of such minor or person of unsound mind,
without the consent of such guardian, is said to kidnap
such minor or person from lawful guardianship. Sections
361 and 363 IPC are to be read together.

28. Section 363 IPC provides whoever kidnaps any
person from [India] or from lawful guardianship, shall be
punished with imprisonment of either description for a
term which may extend to seven years, and shall also be
liable to fine.

29. The respondent has been arrested from India. He
has enticed the prosecutrix, who was less than 16 years of
age from her lawful guardianship, and trafficked her from
Nepal to India.

30. Respondent has committed continuous offences
starting from Nepal upto India as far as Sections 363, 366-
B, 370(4) and Section 8 of POCSO Act are concerned. The
respondent has threatened and caused injury to reputation
13

of the prosecutrix and has caused the prosecutrix to do act
which she was not legally bound to do so.

31. Learned Trial Court has overlooked to see
Sections 178, 179, 180, 181, 183 of Cr.P.C. during the
trial.

32. Sections 3 and 4 IPC read as under:-

“Section 3- “Any person liable, by any Indian law,
to be tried for an offence committed beyond India, shall
be dealt with according to the provisions of this Code for
any act committed beyond India in the same manner as if
such act had been committed within India.”
Section 4 -“The provisions of this Code apply also to any
offence committed by-

(1) any citizen of India in any place without
and beyond India;

(2) any person on any ship or aircraft registered in
India wherever it may be.

Explanation.- In this section the word “offence”

includes every act committed outside India which, if
committed in India, would be punishable under this
Code.”

5. Section 3 of the Penal Code helps the (authorities in
India to proceed by treating the offence as one committed
within India. No doubt it is by a fiction that such an
assumption is made. But such a fiction was found
necessary for practical purposes. Section 3 of the Penal
Code was found insufficient for police authorities to
investigate into the offence. It was in the aforesaid
context that Section 188 has been incorporated in the
Procedure Code. That section reads thus:

“188. Offence committed outside India.-

When an offence is committed outside India.-

(a) by a citizen of India, whether on the high seas or
elsewhere; or

(b) by a person, not being such citizen on any ship or
aircraft registered in India, he may be dealt with in
respect of such offence as if it had been committed at any
place within India at which he may be found:
Provided that, notwithstanding anything in any of the
preceding sections of this Chapter, no such offence shall be
inquired into or tried in India except with the previous sanction
of the Central Government.”

No doubt, Section 188 concerns as to how to deal with a person
who has committed an offence outside India. Since the proviso
casts an obligation to obtain previous sanction of the Central
Government to inquire into and try such person, the section
has a message that for the pre-inquiry stage no such sanction
is needed. If during pre-inquiry stage any offender can be dealt
with (without such sanction) what could be the contours of that
stage? I have no doubt that the pre-inquiry stage substantially
relates to investigation of the crime. If there is any stage in
which an offender can be dealt with before commencement of
inquiry, it must be the investigation stage.

6. During such investigation stage, if the person (known or
reasonably suspected to be the offender having committed the
14

offence outside India) is not available in India, extradition
proceedings may have to be resorted to (vide State of W.B. v.
Jugal Kishore, AIR 1969 SC 1171: 1969 Cri LJ 1559). Supreme
Court observed that “extradition is the surrender by one State
to another of a person desired to be dealt with for crimes of
which he has been accused or convicted and which are
justiciable in courts of the other State”. Such extradition
proceedings are contemplated to get down the person
concerned to this country to be dealt with thereafter.

7. The upshot is that Sub-Inspector of Tanur Police Station can
conduct investigation into the offence notwithstanding the
place of occurrence being Sharjah because the person on whom
the focus of suspicion turns is laid to be a citizen of India.

33. Learned Trial Court has misread the entire
evidence leading to miscarriage of justice. The statement of
the owner of horse cart was not required to be recorded.
Moreover, he was not the Indian citizen. The police has also
tried to secure independent witnesses but no independent
witness was available.

34. Learned Trial Court has perversely held the age
of the prosecutrix to be major, though admittedly, she was
minor. There were bound to be minor contradictions in the
statements with the passage of time, which were required
to be overlooked by learned Trial Court.

35. The prosecutrix has categorically stated that the
respondent has molested her in the bus while travelling
from Atariya to Mahendra Nagar.

36. The prosecution has proved that the respondent
was standing near the barrage on the Indian side of the
border. It was also not necessary for the prosecution to find
out the persons, who were sitting on the horse cart at the
relevant time. There was no necessity of independent
witnesses at the time of nabbing the prosecutrix. In case,
the police has tried to associate independent witnesses, the
culprit could escape from the spot.

37. It has come in the statement of PW6 Meenakshi
Nautiyal that she moved the application before the CJM for
recording the statement of prosecutrix. She has identified
15

her signatures on the report recorded under Section 164 of
Cr.P.C i.e. exhibit A-4.

38. The arrest memo of the respondent was signed
by the police officers. There is no variance in the statement
of prosecutrix recorded under Section 164 of Cr.P.C. and
her deposition before learned Trial Court while appearing
as PW2. She has also stated in her statement recorded
under Section 164 of Cr.P.C. that the respondent was
telling the owner of horse cart that he would get about
Rs.30,000/- to 40,000/- by selling her.

39. The statement recorded under Section 164 of
Cr.P.C. though, is not substantive piece of evidence but still
it has a great corroborative value, more particularly, when
there is no contradiction in the statement recorded under
Section 164 of Cr.P.C. and the deposition before learned
Trial Court on essential facts.

40. The United Nations has adopted the protocol to
prevent, suppress and punish trafficking in persons,
especially women and children, supplementing the United
Nations Convention against the Transnational Organized
Crime in 2000. The preamble reads as under: –

“Preamble

The States Parties to this Protocol,

Declaring that effective action to prevent and combat
trafficking in persons, especially women and children,
requires a comprehensive international approach in the
countries of origin, transit and destination that includes
measures to prevent such trafficking, to punish the
traffickers and to protect the victims of such trafficking,
including by protecting their internationally recognized
human rights,

Taking into account the fact that, despite the existence
of a variety of international instruments containing rules
and practical measures to combat the exploitation of
persons, especially women and children, there is no
universal instrument that addresses all aspects of
trafficking in persons,
16

Concerned that, in the absence of such an instrument,
persons who are vulnerable to trafficking will not be sufficiently
protected,
Recalling General Assembly resolution 53/111 of 9
December 1998, in which the Assembly decided to establish an
open-ended intergovernmental ad hoc committee for the
purpose of elaborating a comprehensive international
convention against transnational organized crime and of
discussing the elaboration of, inter alia, an international
instrument addressing trafficking in women and children,
Convinced that supplementing the United Nations
Convention against Transnational Organized Crime with an
international instrument for the prevention, suppression and
punishment of trafficking in persons, especially women and
children, will be useful in preventing and combating that
crime.”

41. The protocol defines “Trafficking in persons” as
under:-

(a) “Trafficking in persons” shall mean the recruitment,
transportation, transfer, harbouring or receipt of persons, by
means of the threat or use of force or other forms of coercion,
of abduction, of fraud, of deception, of the abuse of power or of
a position of vulnerability or of the giving or receiving of
payments or benefits to achieve the consent of a person having
control over another person, for the purpose of exploitation.
Exploitation shall include, at a minimum, the exploitation of
the prostitution of others or other forms of sexual exploitation,
forced labour or services, slavery or practices similar to slavery,
servitude or the removal of organs;

(b) The consent of a victim of trafficking in persons to the
intended exploitation set forth in subparagraph (a) of this
article shall be irrelevant where any of the means set forth in
subparagraph (a) have been used;

(c) The recruitment, transportation, transfer, harbouring
or receipt of a child for the purpose of exploitation shall be
considered “trafficking in persons” even if this does not involve
any of the means set forth in subparagraph (a) of this article;

42. Article 6 of the protocol for protection of victims
of trafficking in persons reads as under:-

Article 6 Assistance to and protection of victims of
trafficking in persons

1. In appropriate cases and to the extent possible under
its domestic law, each State Party shall protect the privacy and
identity of victims of trafficking in persons, including, inter alia,
by making legal proceedings relating to such trafficking
confidential.

2. Each State Party shall ensure that its domestic legal or
administrative system contains measures that provide to
victims of trafficking in persons, in appropriate cases:

(a) Information on relevant court and administrative
proceedings;

(b) Assistance to enable their views and concerns to be
presented and considered at appropriate stages of
criminal proceedings against offenders, in a manner not
prejudicial to the rights of the defence.

17

3. Each State Party shall consider implementing
measures to provide for the physical, psychological and social
recovery of victims of trafficking in persons, including, in
appropriate cases, in cooperation with non-governmental
organizations, other relevant organizations and other elements
of civil society, and, in particular, the provision of:

(a) Appropriate housing;

(b) Counselling and information, in particular as regards
their legal rights, in a language that the victims of
trafficking in persons can understand;

(c) Medical, psychological and material assistance; and

(d) Employment, educational and training opportunities.

4. Each State Party shall take into account, in applying
the provisions of this article, the age, gender and special needs
of victims of trafficking in persons, in particular the special
needs of children, including appropriate housing, education
and care.

5. Each State Party shall endeavour to provide for the physical
safety of victims of trafficking in persons while they are within
its territory.

6. Each State Party shall ensure that its domestic legal system
contains measures that offer victims of trafficking in persons
the possibility of obtaining compensation for damage suffered.

43. Article 7 deals with status of victims of
trafficking in persons in receiving states. It reads as under:-

Article 7 Status of victims of trafficking in persons in
receiving States

1. In addition to taking measures pursuant to
article 6 of this Protocol, each State Party shall consider
adopting legislative or other appropriate measures that
permit victims of trafficking in persons to remain in its
territory, temporarily or permanently, in appropriate
cases.

2. In implementing the provision contained in paragraph
1 of this article, each State Party shall give appropriate
consideration to humanitarian and compassionate
factors.

44. Article 8 provides repatriation of victims of
trafficking in persons. It reads as under:-

Article 8 Repatriation of victims of trafficking in persons

1. The State Party of which a victim of trafficking in
persons is a national or in which the person had the
right of permanent residence at the time of entry into the
territory of the receiving State Party shall facilitate and
accept, with due regard for the safety of that person, the
return of that person without undue or unreasonable
delay.

2. When a State Party returns a victim of trafficking in
persons to a State Party of which that person is a
national or in which he or she had, at the time of entry
into the territory of the receiving State Party, the right of
permanent residence, such return shall be with due
regard for the safety of that person and for the status of
any legal proceedings related to the fact that the person
is a victim of trafficking and shall preferably be
voluntary.

18

3. At the request of a receiving State Party, a requested
State Party shall, without undue or unreasonable delay,
verify whether a person who is a victim of trafficking in
persons is its national or had the right of permanent
residence in its territory at the time of entry into the
territory of the receiving State Party.

4. In order to facilitate the return of a victim of trafficking
in persons who is without proper documentation, the
State Party of which that person is a national or in which
he or she had the right of permanent residence at the
time of entry into the territory of the receiving State Party
shall agree to issue, at the request of the receiving State
Party, such travel documents or other authorization as
may be necessary to enable the person to travel to and
re-enter its territory.

5. This article shall be without prejudice to any right
afforded to victims of trafficking in persons by any
domestic law of the receiving State Party.

6. This article shall be without prejudice to any
applicable bilateral or multilateral agreement or
arrangement that governs, in whole or in part, the return
of victims of trafficking in persons.

45. Article 9 provides for prevention of trafficking in
persons. It reads as under:-

Article 9 Prevention of trafficking in persons

1. States Parties shall establish comprehensive
policies, programmes and other measures:

(a) To prevent and combat trafficking in persons;
and

(b) To protect victims of trafficking in persons,
especially women and children, from
revictimization.

2. States Parties shall endeavour to undertake
measures such as research, information and mass media
campaigns and social and economic initiatives to prevent
and combat trafficking in persons.

3. Policies, programmes and other measures established
in accordance with this article shall, as appropriate,
include cooperation with non-governmental
organizations, other relevant organizations and other
elements of civil society.

4. States Parties shall take or strengthen measures,
including through bilateral or multilateral cooperation, to
alleviate the factors that make persons, especially women
and children, vulnerable to trafficking, such as poverty,
underdevelopment and lack of equal opportunity.

5. States Parties shall adopt or strengthen legislative or
other measures, such as educational, social or cultural
measures, including through bilateral and multilateral
cooperation, to discourage the demand that fosters all
forms of exploitation of persons, especially women and
children, that leads to trafficking.

46. Article 10 deals with information exchange and
training. It reads as under:-

Article 10 Information exchange and training
19

1. Law enforcement, immigration or other relevant
authorities of States Parties shall, as appropriate,
cooperate with one another by exchanging information,
in accordance with their domestic law, to enable them to
determine:

(a) Whether individuals crossing or attempting to
cross an international border with travel
documents belonging to other persons or without
travel documents are perpetrators or victims of
trafficking in persons;

(b) The types of travel document that individuals
have used or attempted to use to cross an
international border for the purpose of trafficking
in persons; and

(c) The means and methods used by organized
criminal groups for the purpose of trafficking in
persons, including the recruitment and
transportation of victims, routes and links between
and among individuals and groups engaged in
such trafficking, and possible measures for
detecting them.

2. States Parties shall provide or strengthen
training for law enforcement, immigration and other
relevant officials in the prevention of trafficking in
persons. The training should focus on methods used in
preventing such trafficking, prosecuting the traffickers
and protecting the rights of the victims, including
protecting the victims from the traffickers. The training
should also take into account the need to consider
human rights and child- and gender-sensitive issues and
it should encourage cooperation with non-governmental
organizations, other relevant organizations and other
elements of civil society.

3. A State Party that receives information shall comply
with any request by the State Party that transmitted the
information that places restrictions on its use.

47. Article 11 deals with border measures. It reads
as under:-

Article 11Border measures

1. Without prejudice to international commitments
in relation to the free movement of people, States Parties
shall strengthen, to the extent possible, such border
controls as may be necessary to prevent and detect
trafficking in persons.

2. Each State Party shall adopt legislative or other
appropriate measures to prevent, to the extent possible,
means of transport operated by commercial carriers from
being used in the commission of offences established in
accordance with article 5 of this Protocol.

3. Where appropriate, and without prejudice to
applicable international conventions, such measures
shall include establishing the obligation of commercial
carriers, including any transportation company or the
owner or operator of any means of transport, to ascertain
that all passengers are in possession of the travel
documents required for entry into the receiving State.

4. Each State Party shall take the necessary measures,
in accordance with its domestic law, to provide for
20

sanctions in cases of violation of the obligation set forth
in paragraph 3 of this article.

5. Each State Party shall consider taking measures that
permit, in accordance with its domestic law, the denial of
entry or revocation of visas of persons implicated in the
commission of offences established in accordance with
this Protocol.

6. Without prejudice to article 27 of the Convention,
States Parties shall consider strengthening cooperation
among border control agencies by, inter alia, establishing
and maintaining direct channels of communication.

48. The United Nations hosted Global Initiative to
Fight Human Trafficking (UN.GIFT) and the relevant
extracts of the reports of the Vienna Forum to fight human
trafficking reads as under:-

a. The Commission on Crime Prevention and Criminal
Justice decisions 16/1 and 16/2 on the United Nations
Global Initiative to Fight Human Trafficking and the
Vienna Forum to Fight Human Trafficking

1. The Vienna Forum to Fight Human Trafficking was
convened by the United Nations Global Initiative to Fight
Human Trafficking (UN.GIFT) pursuant to Commission
on Crime Prevention and Criminal Justice (CCPCJ)
decision 16/1 of 27 April, which was further reinforced
by decision 16/2 of 29 November 2007, whereby the
United Nations Office on Drugs and Crime (UNODC) was
requested to report on the proceedings of the Vienna
Forum as well as on the progress and future planning of
UN.GIFT.1 The decisions were part of efforts by the
Commission to stress the importance of international
cooperation against trafficking in persons.

2. CCPCJ decision 16/2 also decided that the objectives
of the Vienna Forum should be to raise awareness,
facilitate cooperation and partnerships among
stakeholders, and avoid duplication of efforts in the fight
against human trafficking, with due regard to the
Protocol to Prevent, Suppress and Punish Trafficking in
Persons, Especially Women and Children.

49. The objective of Vienna forum was to raise
awareness forging new partnerships and facilitating
cooperation. It made the following future actions and
recommendations:-

Future actions and recommendations

72. The Vienna Forum set the path for future anti-
trafficking efforts. The Chairperson’s summary
emphasized the need to aggressively address all forms of
exploitation, including forced labour, and underscored
UN.GIFT’s critical role in continuing to build and expand
alliances.

73. As stated by the Chairperson, the Vienna Forum met
its immediate objectives but action must follow through
technical assistance and international cooperation –
essential for national capacity building for the
21

implementation of the UNTOC and the Trafficking
Protocol. Every panel and workshop produced a number
of recommendations and proposals for future actions,
many expressing common themes for action across topic
areas.

74. Emphasis was placed on the need for adequate
national legislation to cover all aspects of trafficking; this
included ratifying and implementing the Trafficking
Protocol and other relevant international instruments.
Within this context, virtually all panels and workshops
focused on the need for a victim-centred, human rights
approach to preventing and combating trafficking in
persons with an understanding that supporting victims
can also positively impact criminal justice actions.

75. Increased research was generally agreed on as the
cornerstone of more effective action against trafficking in
persons. More knowledge is necessary to fill in the
crucial information gaps that will allow the design of
adequate anti-trafficking policies.

76. Participants highlighted the need for increased
cooperation between relevant agencies, civil society and
the private sector within countries and on an
international level. UN.GIFT was seen as an important
facilitator for expanding cooperative and innovative
alliances.

77. There was a call for a greater effort to confront all
aspects of trafficking, including sexual exploitation and
forced labour. Labour market stakeholders employers’
organizations, trade unions, businesses and others –
need to become more active partners in ensuring labour
rights and labour protections to prevent forced labour
and address it where it already exists.

78. Awareness-raising was a cross-cutting activity for all
aspects of combating trafficking in persons. Participants
in virtually every panel and workshop saw value in
awareness-raising activities, whether for front-line law
enforcement to aid in victim identification, to enlighten
private sector businesses or to alert potential victims and
the general public.

79. Finally, as expressed by many panellists and
speakers, several critical issues were identified that
remain to be addressed. Research needs to lead to
achievement indicators that can be used as a baseline
against which appropriate monitoring and evaluation
mechanisms can be developed and implemented. Also,
the question of the nature of appropriate monitoring
mechanisms needs to be more thoroughly addressed.

80. There was widespread agreement that the root
causes of human trafficking must be confronted using a
balanced approach, but increased attention needs to be
placed on how to reduce demand for trafficked persons in
destination countries.

81. The Chairperson expressed the sentiment of
participants in the Chairperson’s summary by pointing
out that to follow up on the momentum generated by the
Vienna Forum, there is an obligation to convert dialogue
it into action to eradicate human trafficking.

50. Taking note of the Vienna Forum against
Trafficking in Persons in the framework of the United
22

Nations Global Initiative to Fight Human Trafficking, was
held from 13 to 15 February, 2008, at Vienna. It expressed
following concerns and has also urged the Governments to
take necessary steps to check human trafficking as under:-

(a) The high number of persons, especially women
and children, in particular from developing countries and
countries with economies in transition, who are being
trafficked to developed countries, as well as within and
between regions and States;

(b) The increasing activities of transnational and national
organized crime and others that profit from trafficking in
persons, especially women and children, without regard
for dangerous and inhumane conditions and in flagrant
violation of domestic laws and international standards;

(c) The use of new information technologies, including
the Internet, for the purposes of exploitation of the
prostitution of others and for child pornography,
paedophilia and any other form of sexual exploitation of
children, as well as for trafficking in women as brides
and for sex tourism;

(d) The high level of impunity enjoyed by traffickers and
their accomplices and the denial of rights and justice to
victims of trafficking;

2. Urged Governments to take following steps:

(a) To take appropriate measures to address the
root factors, including external factors, that encourage
trafficking in persons for prostitution and other forms of
commercialized sex, forced marriages and forced labour,
slavery or practices similar to slavery, servitude or the
removal of organs, including by strengthening existing
legislation or by considering the enactment of anti-
trafficking legislation and the adoption of national plans
of action with a view to providing better protection for
victims of trafficking and to punishing perpetrators
through criminal and civil measures;

(b) To criminalize trafficking in persons in all its forms
and to condemn and penalize traffickers, facilitators and
intermediaries, including, where applicable, by imposing
sanctions against legal entities involved in the process of
trafficking, without making accusations by, or the
participation of, the victims of trafficking a precondition
for the prosecution of trafficking;

(c) To ensure protection and assistance to the victims of
trafficking with full respect for their human rights;

(d) To actively promote the rehabilitation of victims of
trafficking by providing them with access to adequate
physical and psychological care and services, including
those related to HIV/AIDS, as well as shelter, legal
assistance and help lines;

(e) To take all appropriate measures to ensure that
victims of trafficking are not penalized for being
trafficked and that they do not suffer from revictimization
as a result of actions taken by Government authorities,
bearing in mind that they are victims of exploitation;

(f) To adopt or strengthen legislative or other measures to
discourage the demand that fosters all forms of
exploitation of persons and leads to trafficking in
persons;

23

(g) To establish mechanisms, where appropriate, in
cooperation with the international community, to combat
the use of the Internet to facilitate trafficking in persons
and crimes related to sexual or other forms of
exploitation and to strengthen international cooperation
to investigate and prosecute trafficking facilitated by the
use of the Internet;

(h) To provide or strengthen training for law enforcement,
immigration, criminal justice and other relevant officials,
including personnel participating in peacekeeping
operations, in preventing and responding effectively to
trafficking in persons, including the identification of
victims with full respect for their human rights;

(i) To conduct information campaigns for the general
public, including children, aimed at promoting
awareness of the dangers associated with all forms of
trafficking and encouraging the public, including the
victims of trafficking themselves, to report on instances
of trafficking;

(j) To cooperate with each other and with relevant
intergovernmental and nongovernmental organizations to
ensure the effective countering of trafficking in persons;

(k) To enhance information-sharing and data-collection
capacities as a way of promoting cooperation to combat
trafficking in persons, including through the systematic
collection of sex- and age-disaggregated data;

(l) To consider strengthening existing regional
mechanisms aimed at combating trafficking in persons or
to establish such mechanisms where they do not exist;

(m) To consider signing and ratifying and States parties
to implement relevant United Nations legal instruments,
such as the United Nations Convention against
Transnational Organized Crime and the Protocols
thereto, in particular the Protocol to Prevent, Suppress
and Punish Trafficking in Persons, Especially Women
and Children, supplementing the Convention;

3. Takes note of the work undertaken by the Special
Rapporteur on trafficking in persons, especially women and
children;

4. Decides to extend the mandate of the Special Rapporteur on
trafficking in persons, especially women and children, for a
period of three years, in order to, inter alia:

(a) Promote the prevention of trafficking in persons
in all its forms and the adoption of measures to uphold
and protect the human rights of victims;

(b) Promote the effective application of relevant
international norms and standards and to contribute to
the further improvement of them;

(c) Integrate a gender and age perspective throughout the
work of his or her mandate, inter alia through the
identification of gender- and age-specific vulnerabilities
in relation to the issue of trafficking in persons;

(d) Identify and share best practices as well as challenges
and obstacles in order to uphold and protect the human
rights of the victims and to identify protection gaps in
this regard;

(e) Give particular emphasis to recommendations on
practical solutions with regard to the implementation of
the rights relevant to the mandate, including by the
identification of concrete areas and means for
24

international cooperation to tackle the issue of trafficking
in persons;

(f) Request, receive and exchange information on
trafficking in persons from Governments, treaty bodies,
special procedures, specialized agencies,
intergovernmental organizations and non-governmental
organizations and other relevant sources, as appropriate,
and, in accordance with current practice, respond
effectively to reliable information on alleged human rights
violations with a view to protecting the human rights of
actual or potential victims of trafficking;

(g) Work in close cooperation, while avoiding unnecessary
duplication, with other special procedures and
subsidiary organs of the Council, relevant United Nations
bodies and mechanisms, including the Inter-agency
Coordination Group on Trafficking in Persons, the treaty
bodies and regional human rights mechanisms, as well
as national human rights institutions and civil society
and the private sector;

(h) Report annually, starting in 2009, on the
implementation of the present resolution to the Council
and the General Assembly, according to their respective
programmes of work;

5. Requests the United Nations High Commissioner for
Human Rights to ensure that the Special Rapporteur receives
the resources necessary to enable him or her to discharge the
mandate fully;

6. Requests the Office of the United Nations High
Commissioner for Human Rights to submit to the Council, at
its ninth session, a report on the latest developments in the
United Nations relating to combating trafficking in persons as
well as on the activities of the Office on this issue, including by
presenting the recommended Principles and Guidelines on
Human Rights and Human Trafficking developed by the Office;

7. Calls upon all Governments to cooperate with the
Special Rapporteur and to consider responding favourably to
his or her requests to visit their countries and to provide him
or her with all the necessary information related to the
mandate to enable him or her to fulfil the mandate effectively.

51. The General Assembly has also adopted the
resolution to combat trafficking in persons in its 64th
Session, dated 12th August, 2010. The discussion of the
General Assembly resolution passed prior to 2010 and has
urged Member State to ratify or acceding to United Nations
Convention against Transnational Organized Crime, and
the protocol to prevent, suppress and punish trafficking in
persons, especially women and children. The annexure of
the resolution has suggested to adopt the following action
plans:-

United Nations Global Plan of Action to Combat Trafficking
in Persons
25

We, the States Members of the United Nations, reaffirm
our commitments to end the heinous crime of trafficking in
persons, especially women and children, express our
determination to prevent and combat trafficking in persons,
protect and assist victims of trafficking in persons, prosecute
crimes of trafficking in persons and promote partnerships to
strengthen coordination and cooperation, and resolve to
translate our political will into concrete actions by adopting an
action plan to:

1. Consistently and strongly condemn trafficking in
persons, which constitutes a criminal activity violating
human dignity and has negative effects on development,
peace and security and human rights;

2. Recognize that “trafficking in persons” shall mean the
recruitment, transportation, transfer, harbouring or
receipt of persons, by means of the threat or use of force
or other forms of coercion, of abduction, of fraud, of
deception, of the abuse of power or of a position of
vulnerability or of the giving or receiving of payments or
benefits to achieve the consent of a person having control
over another person, for the purpose of exploitation,
which includes, at a minimum, the exploitation of the
prostitution of others or other forms of sexual
exploitation, forced labour or services, slavery or
practices similar to slavery, servitude or the removal of
organs, as set forth in the Protocol to Prevent, Suppress
and Punish Trafficking in Persons, Especially Women
and Children, supplementing the United Nations
Convention against Transnational Organized Crime
(hereinafter referred to as “the Trafficking Protocol”);4

3. Ensure that the promotion and protection of the
human rights of victims of trafficking in persons, the
prevention of trafficking in persons by addressing the
social, economic, cultural, political and other
contributing factors and the strengthening of the
criminal justice response are at the centre of all efforts to
prevent and combat trafficking in persons and to protect,
assist and provide redress to victims;

4. Take urgent action to prevent trafficking in persons,
protect its victims and prosecute its perpetrators and
strengthen partnerships to these ends by promoting and
considering, as a priority, ratifying or acceding to the
United Nations Convention against Transnational
Organized Crime3 and the Trafficking Protocol, as well as
other relevant international instruments, including the
Forced Labour Convention, 1930 (No. 29) and the Worst
Forms of Child Labour Convention, 1999 (No. 182) of the
International Labour Organization, the Supplementary
Convention on the Abolition of Slavery, the Slave Trade, and
Institutions and Practices Similar to Slavery, 5 the
Convention on the Rights of the Child6 and the Optional
Protocols thereto on the sale of children, child prostitution
and child pornography7 and on the involvement of children
in armed conflict,8 and the Convention on the Elimination
of All Forms of Discrimination against Women;9

5. Recognize that, in accordance with article 32 of the
United Nations Convention against Transnational
Organized Crime, the Conference of the Parties to the
Convention is established to improve the capacity of States
parties to promote and review the implementation of the
Convention, including the Trafficking Protocol, and take
26

note of ongoing initiatives aimed at exploring options
regarding an appropriate and effective mechanism to assist
the Conference of the Parties in the review of the
implementation of the Convention;

6. Take into account the activities and recommendations of
the open-ended interim Working Group on Trafficking in
Persons established by the Conference of the Parties to the
Convention;

7. Support the Human Rights Council and contribute to its
work on the question of the promotion and protection of
human rights for all in the fight against trafficking in
persons;

8. Support the role and mandates of the Special
Rapporteurs on trafficking in persons, especially women
and children, on contemporary forms of slavery, including
its causes and consequences, on violence against women,
its causes and consequences, and on the sale of children,
child prostitution and child pornography, the Special
Representatives of the Secretary-General on violence
against children and on sexual violence in conflict, and
other relevant special rapporteurs and representatives. The
mandate holders should assist States by offering concrete
advice, liaising with the United Nations and regional
organizations and reporting on these issues;

9. Reaffirm the central role of the work of the United
Nations Office on Drugs and Crime in the global fight
against trafficking in persons, particularly in providing
technical assistance to implement the Convention and the
Trafficking Protocol, by making use of existing capacity-
building tools, lessons learned and expertise available in
international organizations, including the International
Framework for Action to Implement the Trafficking in
Persons Protocol;14

10. Reaffirm the important work of the Office of the United
Nations High Commissioner for Human Rights, the United
Nations Children’s Fund, the International Labour
Organization and the International Organization for
Migration in the global fight against trafficking in persons;

11. Strongly urge all responsible United Nations entities to
coordinate their efforts to fight trafficking in persons
effectively and to protect the human rights of its victims,
including by means of the Inter-Agency Coordination Group
against Trafficking in Persons and the United Nations
Global Initiative to Fight Human Trafficking;

I. Prevention of trafficking in persons

12. Address the social, economic, cultural, political
and other factors that make people vulnerable to
trafficking in persons, such as poverty, unemployment,
inequality, humanitarian emergencies, including armed
conflicts and natural disasters, sexual violence, gender
discrimination, social exclusion and marginalization, as
well as a culture of tolerance towards violence against
women, youth and children;

13. Make a commitment to address all forms of
trafficking in persons wherever they occur;

14. Mainstream the issue of trafficking in persons into
the broader policies and programmes of the United
Nations aimed at addressing economic and social
development, human rights, the rule of law, good
governance, education and natural disaster and post-
conflict reconstruction;

27

15. Adopt and implement comprehensive policies and
programmes at the national level and, as appropriate, at
the subregional and regional levels to prevent all forms of
trafficking in persons that are in line with relevant
policies and programmes on migration, education,
employment, gender equality, empowerment of women
and crime prevention, in accordance with relevant
international human rights instruments;

16. Conduct research and collect suitably disaggregated
data that would enable proper analysis of the nature and
extent of trafficking in persons;

17. Develop or strengthen processes for the identification
of victims, such as those developed, inter alia, by the
United Nations Office on Drugs and Crime and other
organizations, including appropriate and non-
discriminatory measures that help to identify victims of
trafficking in persons among vulnerable populations;

18. Promote awareness-raising campaigns aimed at
persons at risk of being trafficked and at the general
public through education and the effective involvement of
the mass media, non-governmental organizations, the
private sector and community leaders with a view to
discouraging the demand that fosters the exploitation of
persons, especially women and children, and that leads
to trafficking, and collect and disseminate best practices
on the implementation of those campaigns;

19. Stress the role of education in raising awareness
about the prevention of trafficking in persons, and
promote education, in particular human rights
education, and human rights learning as a sustainable
way of preventing trafficking in persons;

20. Reinforce efforts regarding the provision of identity
documents, such as the registration of births, in order to
lower the risk of being trafficked and to help to identify
victims of trafficking in persons;

21. Increase and support prevention efforts in countries
of origin, transit and destination by focusing on the
demand that fosters all forms of trafficking and the goods
and services produced as a result of trafficking in
persons;

22. Adopt and implement specific measures at the
national level to combat trafficking for labour exploitation
and strive to educate consumers on those measures;

23. Strengthen or continue to strengthen the capacity of
law enforcement, immigration, education, social welfare,
labour and other relevant officials in the prevention of
trafficking in persons, taking into account the need to
respect human rights and child- and gender-sensitive
issues, and encourage cooperation, where appropriate,
with civil society, non-governmental organizations and
other relevant organizations;

24. Encourage the United Nations to intensify its work
with Member States and relevant international, regional
and subregional organizations to identify and share best
practices to prevent trafficking in persons;

II. Protection of and assistance to victims of trafficking in
persons

25. Reaffirm that the promotion and protection of
human rights for all and effective measures to respond to
trafficking in persons are complementary and mutually
reinforcing;

28

26. Stress the need to promote and protect the rights of
victims of trafficking in persons and to reintegrate
victims into the community by taking into account the
Recommended Principles and Guidelines on Human
Rights and Human Trafficking developed by the Office of
the United Nations High Commissioner for Human Rights
15 and the Guidelines on the Protection of Child Victims
of Trafficking developed by the United Nations Children’s
Fund;16

27. Ensure that victims of trafficking in persons are
treated as victims of crime and that national legislation
effectively criminalizes all forms of trafficking;

28. Review existing national services available to victims
of trafficking in persons, consistent with the Convention
and the Trafficking Protocol, strengthen those services
where needed, and support the establishment or
strengthening of appropriate referral mechanisms;

29. Strengthen or continue to strengthen the capacity of
relevant officials likely to encounter and identify possible
victims of trafficking in persons, such as law enforcement
personnel, border control officers, labour inspectors,
consular or embassy officials, judges and prosecutors
and peacekeepers, and ensure the availability of needed
resources to the relevant sectors and institutions,
including those of civil society;

30. Urge Governments to take all appropriate measures
to ensure that identified victims of trafficking in persons
are not penalized for having been trafficked and that they
do not suffer from victimization as a result of actions
taken by Government authorities;

31. Protect the privacy and identity and ensure the safety
of victims of trafficking in persons before, during and
after criminal proceedings and protect immediate family
members and witnesses, as appropriate, from retaliation
by traffickers by ensuring their safety in accordance with
articles 24 and 25 of the Convention;

32. Provide assistance and services for the physical,
psychological and social recovery and rehabilitation of
trafficked persons, in cooperation with non-governmental
organizations and other relevant organizations and
sectors of civil society;

33. Urge States parties to consider adopting legislative or
other appropriate measures that permit victims of
trafficking in persons to remain in their territory,
temporarily or permanently, in appropriate cases,
consistent with the Convention and the Trafficking
Protocol;

34. Ensure that countries of origin accept back their
nationals who are victims of trafficking in persons and
guarantee that such return is conducted with due regard
for safety and shall preferably be voluntary, consistent
with the Convention and the Trafficking Protocol;

35. Adopt labour laws in countries of origin, transit and
destination which provide legal rights and protections for
workers that would limit their risk of being trafficked;

36. Provide specialized services to identified victims of
trafficking in persons, consistent with the Convention
and the Trafficking Protocol and other relevant
instruments, including access to health services, such as
access to prevention, treatment, care and support
services for HIV and AIDS and other blood-borne and
29

communicable diseases for those victims of trafficking in
persons that have been sexually exploited, taking into
account the fact that human trafficking for the purposes
of sexual exploitation has serious, immediate and long-
term implications for health, including sexual and
reproductive health;

37. Provide appropriate assistance and protection in the
best interest of the child to child victims of trafficking in
persons or to those at risk of being trafficked, including
through appropriate services and measures for the
physical and psychological well-being of child victims of
trafficking in persons and for their education,
rehabilitation and reintegration, in coordination with
existing child protection systems;

38. Establish the United Nations Voluntary Trust Fund
for Victims of Trafficking in Persons, Especially Women
and Children, to provide humanitarian, legal and
financial aid to victims of trafficking in persons through
established channels of assistance, such as
governmental, intergovernmental and non-governmental
organizations, which shall operate as a subsidiary fund
of the United Nations Crime Prevention and Criminal
Justice Fund managed by the United Nations Office on
Drugs and Crime, and shall be administered in
accordance with the Financial Regulations and Rules of
the United Nations17 and other relevant provisions, with
the advice of a board of trustees composed of five persons
with relevant experience in the field of trafficking in
persons who shall be appointed with due regard to
equitable geographical distribution by the Secretary-
General in consultation with Member States and with the
Executive Director of the United Nations Office on Drugs
and Crime;

39. Adopt measures to ensure that victims of trafficking
in persons can seek compensation for the damage
suffered, consistent with the Convention and the
Trafficking Protocol;

40. Acknowledge the important role of civil society
organizations in providing assistance and empowerment
to victims of trafficking in persons, helping them to seek
redress and facilitating the care of and provision of
appropriate services to victims, including close
cooperation and coordination with law enforcement
officials;

41. Ensure that domestic legal or administrative systems
include measures to provide information to victims of
trafficking in persons, in a language they understand,
regarding their legal rights and the relevant court and
administrative proceedings and facilitate their access to
assistance in order to enable their views and concerns to
be presented and considered at appropriate stages of
such proceedings against offenders in a manner not
prejudicial to the rights of the defence, consistent with
the Convention and the Trafficking Protocol;

42. Provide victims of trafficking in persons with an
adequate period of time to recover and the opportunity to
consult with appropriate advisers to assist in decision-
making regarding cooperation with law enforcement and
their participation in judicial proceedings;
III. Prosecution of crimes of trafficking in persons
30

43. Implement all relevant legal instruments that
criminalize trafficking in persons, including by:

(a) Prosecuting crimes of trafficking in persons that
encompass all forms of exploitation and enacting,
enforcing and strengthening legislation that
criminalizes all trafficking in persons, especially
women and children;

(b) Adopting legislation and other measures, as
necessary, to establish as criminal offences
attempting to commit an offence, participating as
an accomplice in an offence and organizing or
directing other persons to commit an offence, as
set out in the Trafficking Protocol, the Convention
on the Elimination of All Forms of Discrimination
against Women, the Convention on the Rights of
the Child and the Optional Protocols thereto and
other relevant instruments, as applicable;

(c) Combating and prosecuting organized criminal
groups engaged in trafficking in persons;

44. Ensure the liability of all categories of
perpetrators of trafficking in persons, including the
liability of legal persons and entities, as appropriate, in
line with relevant international instruments;

45. Enhance efforts to investigate alleged cases of
trafficking, strengthen means to combat trafficking,
prosecute perpetrators, including through more
systematic use of freezing assets for the purpose of
eventual confiscation, in accordance with the provisions
of article 12 of the United Nations Convention against
Transnational Organized Crime, and ensure that
penalties are proportionate to the gravity of the crime;

46. Make use of the available technical assistance
provided to strengthen the criminal justice response to
trafficking in persons, including by the United Nations
Office on Drugs and Crime;

47. Investigate, prosecute and punish corrupt public
officials who engage in or facilitate trafficking in persons
and promote a zero-tolerance policy against those
corrupt officials, consistent with the United Nations
Convention against Corruption18 and the United Nations
Convention against Transnational Organized Crime;

48. Strengthen or continue to strengthen coordination
and cooperation among States in combating crimes that
might be connected with trafficking in persons, including
money-laundering, corruption, smuggling of migrants
and all forms of organized crime;

49. Encourage the law enforcement, immigration, border
patrol or other relevant authorities of concerned States to
cooperate with one another by exchanging information
with full respect for domestic laws, such as data
protection laws, and continue to promote cooperation
among countries of origin, transit and destination in
order to enhance investigations, prosecutions and
detection of trafficking networks;

IV. Strengthening of partnerships against trafficking in
persons

50. Recognize that capacity-building is a very
important component in combating trafficking in persons
and encourage and enhance coordination and coherence
within the United Nations system;

31

51. Encourage effective cooperation and coordination of
efforts at the national, bilateral, subregional, regional
and international levels, especially among countries of
origin, transit and destination, and take advantage of the
networks provided by relevant organizations to share
best practices in capacity-building for responding to and
combating trafficking in persons, while stressing the
importance of mutual legal assistance efforts and the
exchange of information with full respect for domestic
laws, such as data protection laws, including operational
information, programmes and best practices in
supplementing the Convention and the work done by the
Conference of the Parties to the Convention;

52. Conclude and implement mutual legal assistance and
extradition agreements, where appropriate, to apprehend
and prosecute perpetrators of trafficking in persons, in
accordance with the relevant provisions of national and
international law, including the Convention;

53. Promote cooperation and coordination among
governmental institutions, civil society and the private
sector, including the media, as well as workers’ and
employers’ organizations, to strengthen prevention and
protection policies and programmes;

54. Strengthen cooperation among law enforcement
agencies, regionally and internationally;

55. Intensify international, regional and subregional
cooperation to combat trafficking in persons, as well as
technical assistance for countries of origin, transit and
destination aimed at strengthening their ability to
prevent all forms of trafficking in persons;

56. Strengthen and support the Inter-Agency
Coordination Group against Trafficking in Persons in
order to improve coordination and cooperation among
relevant United Nations bodies, including the human
rights treaty bodies and mechanisms, and other
international organizations;

57. Encourage the United Nations Office on Drugs and
Crime, other agencies, funds and programmes of the
United Nations system and international and regional
organizations to continue to assist Member States, upon
request, to strengthen policymaking, legislative
arrangements, border control and law enforcement
cooperation, public awareness campaigns and capacity-
building and to exchange and build upon best practices
in assisting victims of trafficking in persons;

58. Further encourage agencies, funds and programmes
of the United Nations system to continue to improve the
coherence and efficiency of technical assistance delivery
in the field of trafficking in persons, in accordance with
the recommendations of the Open-ended
Intergovernmental Working Group of Governmental
Experts on Technical Assistance established by the
Conference of the Parties to the Convention;

59. Urge the Secretary-General to expedite the
strengthening of the Inter-Agency Coordination Group
against Trafficking in Persons under the coordination of
the United Nations Office on Drugs and Crime in order to
ensure overall organization and coherence in the efforts
of the United Nations system to respond to trafficking in
persons;

32

60. Request the Secretary-General, as a matter of
priority, to strengthen the capacity of the United Nations
Office on Drugs and Crime to collect information and
report biennially, starting in 2012, on patterns and flows
of trafficking in persons at the national, regional and
international levels in a balanced, reliable and
comprehensive manner, in close cooperation and
collaboration with Member States, and share best
practices and lessons learned from various initiatives
and mechanisms;

61. Encourage Member States to consider making
voluntary contributions to the work of the United Nations
in combating human trafficking, and to explore
additional sources of funding in this regard, including
reaching out to the private sector for contributions.

52. In the notes of Harvard Law Review 2012, the
article was published under the caption “Counteracting the
Bias: The Department of Labour’s Unique Opportunity to
Combat Human Trafficking”. The opening portion of the
note and the conclusion reads as under:-

In the 1990s, human trafficking received increased
attention both internationally and in the United States.1
With the passage of the Trafficking Victims Protection Act
of 20002 (TVPA), Congress committed the United States
to attacking human trafficking on three fronts:
prosecuting violators, protecting victims, and preventing
trafficking.3 The TVPA prohibits “severe forms of
trafficking in persons,”4 of which it designates two types:
“sex trafficking in which a commercial sex act is induced
by force, fraud, or coercion”5 and labor trafficking, which
involves “the recruitment, harboring, transportation,
provision, or obtaining of a person for labor or services,
through the use of force, fraud, or coercion for the
purpose of subjection to involuntary servitude, peonage,
debt bondage, or slavery.”6 Under the TVPA, three federal
agencies have domestic antitrafficking responsibilities in
all three primary areas (prosecution, protection, and
prevention): the Department of Homeland Security (DHS),
the Department of Justice (DOJ), and the Department of
Labor (DOL).7
CONCLUSION
Across the federal government, efforts to combat
labor trafficking have been inadequate in large part
because of lingering preoccupations with prostitution
and border control. Under President Obama, DOL has
intensified its antitrafficking efforts, but as the State
Department’s 2011 Trafficking in Persons report noted,
“DOL investigators have not yet been funded, trained, or
given the mandate to focus on human trafficking
cases.”181 In a March 2012 update, the State
Department noted that DOL was still “finalizing plans to
provide basic awareness training to key enforcement field
staff throughout the country in an effort to enhance the
capability to detect and refer cases of trafficking in
persons.”182 Subsequent authorizations of the TVPA
should expand DOL’s regulatory and enforcement
33

authority, permitting DOL to take advantage of its unique
opportunity to counteract the biasing influences of
antiprostitution and border control forces on the federal
government’s response to human trafficking.

53. It is evident from this article that in Unites
States, the Act called Trafficking Victims Protection Act,
2000 has been passed.

54. In the journal of Social Sciences and Humanities
by Mr. Chanchal Kumar, under the caption “Human
Trafficking in the South Asian Region: SAARC’s Response
and Initiatives”, following observations have been made in
Para Nos.4 and 5.1 qua South Asian Region as well as
India:-

4. Human Trafficking in South Asian Region
Human trafficking has emerged as a social dilemma in
the South Asian region. The region as a whole has made
certain efforts to combat human trafficking but lack of
information and statistics on the number of people victimized
and pattern of trafficking made it more complex issue.
According to the (International Journal of Gynaecology
Obstetrics’ 2006), every year 1 to 2 million women, men and
children are trafficked worldwide, around 225,000 of them are
from SAARC region (Concept Paper of Research Study on
Human Trafficking: 2012). Other estimates show that over the
last 30 years, trafficking for sexual exploitation alone has
victimized some 30 million Asian women and children. SAARC
Convention on “Preventing and Combating the Trafficking in
Women and Children for Prostitution” is seen as a milestone on
the path to coordinate interventions against trafficking at the
sub-regional level (Concept Paper of Research Study on Human
Trafficking: 2012). South Asia is witnessing an alarming trend
of increasingly younger girls being trafficked into the sex trade.

The majority of trafficking in India, both trans-border and in
country, happens for the purpose of sex work, and over 60% of
those trafficked into sex work are adolescent girls in the age
group of 12–16 years (UNDP, 2005). In many Indian cities, girl
children as young as eight or nine are sold at auctions. There
are an estimated 2,000,000 prostitutes in India and 60% of
these women in prostitution in Mumbai are HIV positive (Daily
Times Monitor: 2007). One common myth fuelling the demand
for young girls in South Asia is that sex with a virgin can cure
sexually transmitted infections (STIs) and HIV/AIDS. In South
Asia, women are now reported to constitute up to 35% of new
HIV infections (UNAIDS, 2000). A complex web of socio-cultural
and macro-economic factors affect women’s vulnerability to
HIV, including poverty, migration, urbanization, gender
inequalities compounded by women’s lack of autonomy, abuse
within and outside families, insufficient access to healthcare
services, violence and ethnicity. Human trafficking has
substantial social, economic and health impacts for instance
deprivations from various assets and basic rights, loss of
livelihood, suffering from HIV/AIDS etc. There are both,
34

demand and supply side factors contributing to human
trafficking. On the demand side poverty, social and cultural
practices such as gender discrimination, impact of
globalisation on livelihood (traditional jobs, caste/tribes,
vulnerability of women children and men). On the other hand,
supply side factors include demand of cheap labour and
increased level of migrant workers. The worst of all factors is
the lack of implementations of the anti-trafficking laws. Where
laws are implemented, the punishments are not enough to put
a positive effect on trafficking sensitization programs for
general public and specifically for stakeholders. SAARC
Governments should provide resources for training, technical
assistance, and auditing to ensure that trafficking is fully
eradicated from their supply chains. South Asia has shown
that with modest amounts of funding and focused advocacy,
targeting law enforcement could bring dramatic changes in the
response of “governance structures” to improve the situation.
5.1. India
India is a source, destination, and transit country for
men, women, and children subjected to forced labour and sex
trafficking. The forced labour of millions of its citizens
constitutes India’s largest trafficking problem; men, women,
and children in debt bondage are forced to work in industries
such as brick kilns, rice mills, agriculture, and embroidery
factories. A common characteristic of bonded labour is the use
of physical and sexual violence as coercive tools. Ninety per
cent of trafficking in India is internal (Trafficking in Persons
Report: 2010, Trafficking in Persons Report: 2013), and those
from India’s most disadvantaged social strata, including the
lowest castes, are most vulnerable. Children are also subjected
to forced labour as factory workers, domestic servants, beggars,
agricultural workers, and to a lesser extent, in some areas of
rural Uttar Pradesh as carpet weavers. There were new reports
about the continued forced labour of children in hybrid cotton
seed plots in Gujarat, and reports that forced labour may be
present in the Sumangali scheme in Tamil Nadu, in which
employers pay young women a lump sum to be used for a
dowry at the end of a three-year term (Samu K.: 2012). An
increasing number of job placement agencies lure adults and
children for forced labour or sex trafficking under false
promises of employment. Indian boys from Bihar were
increasingly subjected to forced labour in embroidery factories
in Nepal (2013 Trafficking in Persons Report – India: 2013).
Women and girls are trafficked within the country for the
purposes of forced prostitution. Religious pilgrimage centres
and cities popular for tourism continue to be vulnerable to
child sex tourism. Women and girls from Nepal and
Bangladesh, and an increasing number of females from
Uzbekistan, Ukraine, and Russia, are also subjected to sex
trafficking in India (Trafficking in Persons Report, India:
2012)There were increasing reports of females from north-
eastern states and Odisha subjected to servile marriages in
states with low female-to-male child sex ratios, including
Haryana and Punjab, and also reports of girls subjected to
transactional sexual exploitation in the Middle East under the
guise of temporary marriages (Journalism of Courage- Archive:
2013). Maoist armed groups known as the Naxalites forcibly
recruited children into their ranks. Establishments of sex
trafficking are moving from more traditional locations – such as
brothels – to locations that are harder to find, and are also
35

shifting from urban areas to rural areas, where there is less
detection. 2.5% of prostitutes in India are Nepalese, and 2.7%
are Bangladeshi. In India, Karnataka, Andhra Pradesh,
Maharashtra, and Tamil Nadu are considered “high supply
zones” for women in prostitution (Menon Meena (2011).
Bijapur, Belgaum and Kolhapur are common districts from
which women migrate to the big cities, as part of an organised
trafficking network. The number of women and children in sex
work in India is stated to be between 70,000 and 1 million. Of
these, 30% are below 20 year of age. Nearly 15% began sex
work when they were below 15, and 25 per cent entered
between 15 and 18 years (UN.GIFT:2008). News published in
the Hindustan Times (11th October, 2012) states that around
20 children go missing in Delhi every day. Around eight of
them- or 40% are never seen again. According to police
statistics, “most children who go missing in Delhi end up in
traffickers hands (Hindustan Times: 2012) Children below eight
years are forced into begging. The older ones are pushed into
child labour. Organized gangs kidnap minors and transport
them to other cities. A rough estimate prepared in 2008 by an
NGO, End Children’s Prostitution in South Asian tourism,
reveals that there are around 2 million prostitutes in India,
20% of them being minors.” There are number of women from
neighbouring countries trafficked to India. It has been reported
that there are 1000 to 10,000 women found in Kolkata
brothels, 70% were from Bangladesh (Daw Bianca: 2008).
There is also 1, 00,000 to 1,60,000 Nepali girls in Indian
brothels, with about 5,000 to 7,000 girls being sold every
year(Coomaraswamy Radhika:1997).

55. There is also reference to initiatives and actions
taken by South Asian Countries, more particularly, Nepal’s
response and initiatives on Human Trafficking as under: –

6. Initiatives and Actions by South Asian Countries
In the recent years, various initiatives and programs in
the countries of South Asia have begun addressing the problem
of human trafficking, especially in women and children.
Governments are becoming active, although most programs are
carried out by non-governmental organizations (NGOs) with a
focus on local communities. Concerted efforts have also been
undertaken at the sub-regional level to combat human
trafficking in South Asia. During the 11th SAARC (South Asian
Association for Regional Co-operation) Summit, which was held
in January 2002 in Kathmandu, the seven SAARC member
States (Nepal, India, Pakistan, Bangladesh, Sri Lanka, Bhutan
and the Maldives) signed the SAARC Convention on Preventing
and Combating the Trafficking in Women and Children for
Prostitution (Huda S.:2006). The scope of this Convention is to
promote cooperation amongst member States to effectively deal
with various aspects of prevention, interdiction and
suppression of trafficking in women and children; repatriation
and rehabilitation of victims of trafficking, and reventing the
use of women and children in international prostitution
networks, particularly where the SAARC member countries are
the countries of origin, transit and destination. In October
2004, all the eight governments in South Asia unanimously
adopted Five Points for further actions as urgent imperatives.
Briefly, these include:

36

· Conduct better research into the demand that underpins
sexual abuse and exploitation of children, including the abuse
that results from home grown demand.

· Reinforce protection measures through the adoption of
National Action Plans covering sexual abuse, exploitation and
trafficking.

· Develop compatible databases of abused, exploited and
trafficked children with information on age, gender and
nationality that would allow better identification of national
trends and indicators.

· Work with NGO, UN and multilateral partners to develop
indicators of impact and effectiveness and identify successful
initiatives and good practices.

· Work with children and young people to ensure their insights
in policy formation and actions.

6.1. Nepal’s Response and Initiatives on Human Trafficking
Nepali government increased its efforts to prevent human
trafficking. Nepal prohibits most – but not all – forms of
trafficking in persons, including the selling of human beings
and forced prostitution, through its Human Trafficking and
Transportation Control Act (2007) and Regulation (2008)
(HTTCA). (Country Narratives: Countries N Through Z) The
HTTCA also prohibits other offenses that do not constitute
human trafficking, such as people smuggling and purchasing
commercial sex. Prescribed penalties range from 10 to 20 years’
imprisonment, which are sufficiently stringent and
commensurate with those prescribed for other serious crimes,
such as rape. The Bonded Labour (Prohibition) Act (2002)
prohibits bonded labour but has no penalties. In August 2011,
the National Committee for Controlling Human Trafficking
established a secretariat and the government appointed a
coordinator under the oversight of a joint (Trafficking in
Persons Report: 2012). The Secretariat organized the
government’s participation in the fifth annual national anti-
trafficking day. NGOs state that the majority of the District
Committees for Controlling Human Trafficking do not function
well or are not active. The lack of political stability and
resources has hampered translating commitments into actions.
The prime minister visited a leading anti-trafficking NGO in
October 2011. The government endorsed the National Plan of
Action on Trafficking in Persons in March 2012. Many Nepali
girls are trafficked to India as forced labour. In order to combat
this issue, a major step forward was taken to prevent and
control human trafficking with both India and Nepal having
ratified the United Nations Convention on ransnational
Organized Crime (UNTOC), while India also ratified the
Trafficking Protocol, supplementing the UNTOC. In this
backdrop, the first ever bilateral meeting was organized on 3
and 4 May 2012 in Kathmandu, to train law enforcement
officials from India and Nepal on countering trafficking for
forced labour(South Asia Newsletter:2012). The workshop was
organized by UNODC in partnership with the International
Labour Organization (ILO), under a project titled ‘Reducing
trafficking of women and girls for domestic work in Nepal and
India,’ supported by the Department of Foreign Affairs and
International Development (DFID) (South Asia
Newsletter:2012).

56. The India’s response and initiatives on Human
Trafficking is as under:-

37

“The Ministry of Home Affairs (MHA) continued to
establish Anti-Human Trafficking Units (AHTUs), which were
responsible for combining law enforcement and rehabilitation
efforts. The Central Bureau of Investigation launched an anti-
trafficking unit in 2011 and gave investigation authority under
trafficking-related laws to its entire police officers (CB
Bureau:2012). Challenges remain regarding overall law
enforcement efforts against bonded labour and the alleged
complicity of public officials in human trafficking. India
prohibits most forms of forced labour through the Indian Penal
Code (IPC), the Bonded Labour System (Abolition) Act (BLSA),
the Child Labour (Prohibition and Regulation) Act, and the
Juvenile Justice Act(CB Bureau:2012). India prohibits most
forms of sex trafficking. Prescribed penalties for sex trafficking
under the Immoral Traffic Prevention Act (ITPA) and the IPC,
ranging from three years’ to life imprisonment, are sufficiently
stringent and commensurate with those prescribed for other
serious crimes, such as rape. The Central Bureau of
Investigation established a dedicated federal anti-trafficking
unit in January 2012 whose police officers have nationwide
investigative authority (Trafficking in Persons Report – India:
2012). The government continued to implement its three-year
nationwide anti-trafficking effort by disbursing funds to state
governments to establish at least107 new Anti-Human
Trafficking Units in police departments during the reporting
period, for a total of at least 194 AHTUs (Trafficking in Persons
Report – India: 2012). The Ministry of Women and Child
Development (MWCD) allocated the equivalent of $118 million
for 2011-12 to fund 153 projects in 17 states under the
Ujjawala program which seeks to protect and rehabilitate
female sex trafficking victims – and 58 new Swadhar projects –
which help female victims of violence, including sex trafficking.
Some Indian diplomatic missions in the Middle East provided
services, including temporary shelters, medical care, legal
assistance, and 24-hour hotlines, to Indian migrant labourers,
some of whom were victims of trafficking (Trafficking in Persons
Report – India: 2012).”

57. According to the National Crime Records Bureau
report of 2015, three males and one female were in custody
and four males and one female were on bail during the
state of trial for importation of girls from foreign country.
14 males were in custody and 264 males and 1 female were
granted bail for buying of minors for prostitution. 212
males and 8 females were in custody and 314 males and 8
females were granted bail for selling the minors for
prostitution.

58. According to National Crime Records Bureau
(Crime in India 2015), a total number of 6,877 cases of
crime relating to human trafficking were registered in the
country during the year 2015 as compared to 5,466 cases
38

during the year 2014, showing an increase of 25.8% during
2015 over 2014. The crime rate under the crimes relating
to human trafficking increased from 0.4 in 2014 to 0.5
during the year 2015. A total number of 3,517 cases were
registered in 2011, which rose to 3,554 cases in 2012, to
3,940 cases in 2013, to 5,466 cases in 2014 and to 6,877
cases in 2015. A total number of 6 cases of importation of
girls from foreign country were registered during 2015
compared to 13 cases in 2014 showing a decline of 53.8%
over the previous year. These were registered in West
Bengal (4 cases) and Uttarakhand (2 cases) during 2015.
The cases under the head of Procuration of Minor Girls
under Section 366-A IPC have increased by 52.8% during
the year 2015 as compared to the previous year (2,020
cases). A total of 1,021 cases of human trafficking under
Sections 370 370-A IPC were registered in the country
during 2015 showing an increase of 41.8% over previous
year (720 cases). Out of 10,424 cases registered under
various crimes relating to human trafficking for
investigation, 5,432 cases were disposed of by police
(investigation completed). Charge-sheets were submitted in
4,573 cases resulting in 89.0% charge-sheet rate under
crimes related to human trafficking during 2015. Out of
19,717 cases relating to human trafficking, trials have been
completed in 2,075 cases during 2015. A total of 1,251
cases led either to acquittal or discharge by various courts
in 2015. Maximum conviction rates were observed in cases
under buying of minors for prostitution (100.0%) whereas
lowest conviction rate was reported under procuration of
minor girls (11.1%) during 2015. A total of 17,612 such
cases remained pending for trial at the end of the year,
showing pendency rate of 89.3%. A total of 3,490 cases of
crimes relating to child trafficking were registered in the
country during the year 2015. A total of 221 cases of child
trafficking under Section 370 370A IPC were
39

registered in the country during 2015. Out of 5,026 cases
relating to child trafficking for investigation, 2,348 cases
were disposed of by police (investigation completed).
Charge-sheets were submitted in 1,658 cases resulting in
79.2% charge-sheet rate during 2015. Out of 5,003 cases
relating to child trafficking, trials have been completed in
384 cases during 2015. A total of 55 cases under child
trafficking ended in conviction, showing a conviction rate of
14.3%. A total of 4,602 such cases remained pending for
trial at the end of the year, showing pendency rate of
92.0%. Out of 7,145 persons (including 2,117 persons sent
for trial during 2015), trials have been completed for 633
persons. A total of 95 persons have been convicted under
various crime heads relating to child trafficking while 538
persons were acquitted by courts during 2015.

59. It is thus, evident that the disposal of cases of
person arrested under crimes pertaining to crimes relating
to child trafficking in only 384 cases during 2015 and the
conviction rate in disposal of crime relating to child
trafficking by courts is 14.3%.

60. The State of Uttarakhand has constituted seven
Anti-Human Trafficking Units in Vikasnagar (Dehradun),
Haridwar, Kotdwar (Pauri Garhwal), Uttarkashi, Haldwani
(Nainital), Banbasa (Champawat) and Pithoragarh.

61. Between 2013 to October, 2017, total number of
cases registered under human trafficking are 98 in which,
13 cases pertaining to boys, 42 pertaining to minor girls,
06 pertaining to males and 76 pertaining to females. 254
males and 113 females were arrested. In 73 cases, charge-
sheets were submitted. 10 cases are under investigation.

62. The Uttarakhand police has organized 548
meetings to make the people aware of this crime.
Operations were also launched from time to time. In 2014,
40

the gang of child smuggler was detected. 5 FIR were
registered. 6 children were recovered.

63. In 2013, 16 cases were registered of human
trafficking. In 2014, 28 cases were registered. In 2015, 23
cases were registered. In 2016, 12 cases were registered.
Till October, 2017, 19 cases were registered under the
human trafficking. The rescue victims are from Nepal,
Bangladesh, West Bengal, Punjab, Uttar Pradesh, Delhi,
Haryana, Chhattisgarh, Bihar and Nagaland.

64. According to the data compiled by the police
department, in the year 2013, 16 FIRs, in 2014, 23 FIRs, in
2015, 19 FIRs, in 2016, 7 and till October, 2017, 8 FIRs
were registered. A total number of 67 cases were registered
from the period 2013 to October, 2017.

65. Article 23 of the Constitution of India reads as
under:-

Article 23: Prohibition of traffic in human beings
and forced labour
(1) Traffic in human beings and begar and other similar
forms of forced labour are prohibited and any contravention of
this provision shall be an offence punishable in accordance
with law.

(2) Nothing in this article shall prevent the State from imposing
compulsory service for public purpose, and in imposing such
service the State shall not make any discrimination on grounds
only of religion, race, caste or class or any of them.

66. In AIR 1953 Calcutta 522, in the case of “Raj
Bahadur vs. Legal Remembrancer to the Government of West
Bengal others”, learned Single Judge of Calcutta High
Court has held that Article 23 of the Constitution of India
provides for prohibition of traffic, ‘inter alia’, in human
beings, which would include traffic in women and children
for immoral and other purposes. Learned Single Judge has
held as under:-

“7. Mr. Ghose next argues that the girl’s removal from
the brothel and her subsequent detention at the Rescue Home
were in breach of the provision of Article 21 of the Constitution.
As to this, we need only say that the matter is concluded by the
majority decision of the Supreme Court in — ‘Gopalan A. K. v.

41

State of Madras’, 1950CriLJ1383 (B). In our view, the words
“procedure established by law” refer to any enactment which is
not repugnant to the Constitution. That being the position,
Bengal Act 6 of 1933 would be attracted by Article 21,
provided, of course, there is nothing in the Bengal Act which is
repugnant to the Constitution. Article 23 of the Constitution
provides for prohibition of traffic, ‘inter alia’, in human beings,
which would include traffic in women and children for immoral
or other purposes. The provisions of Article 35, which require
that Parliament shall have, and the Legislature of a State shall
not have, power to make laws for prescribing punishment for
those acts which are declared to be offences under Part III of
the Constitution, are subject to clause (b) of Article 35. It is,
therefore, nobody’s case that Bengal Act 6 of 1933 is not validly
in operation. If the provisions of Article 22 (1) and (2) have no
application to the facts of this case, then the question of the
alleged non-disclosure of the grounds of the girl’s removal or
any failure to produce her before the nearest Magistrate within
a period of 24 hours cannot arise. The scheme of the Bengal
Act is to provide for salvage of such children as are being
exploited or are likely to be exploited for immoral purposes.
While the Constitution prohibits discrimination, it provides for
protection of women and children who may be said to suffer
from a certain amount of disability either by reason of their sex
or age. In our view, nothing has been shown in the Bengal Act
which can be said to infringe either Article 21 or Article 22 of
the Constitution, and we would, therefore, hold that the
removal and the subsequent detention of the girl under the
provisions of the said Act were and are legal.”

67. In 1990 (3) SCC 318, in the case of “Vishal Jeet
vs. Union of India other States and Union Territories”,
their Lordships of the Hon’ble Supreme Court have issued
following mandatory directions:-

“16. We, after bestowing our deep and anxious
consideration on this matter feel that it would be appropriate if
certain directions are given in this regard. Accordingly, we
make the following directions:

(1) All the State Governments and the Governments of
Union territories should direct their concerned law
enforcing authorities to take appropriate and speedy
action under the existing laws in eradicating child
prostitution without giving room for any complaint of
remissness or culpable indifference.

(2) The State Governments and the Governments of
Union territories should set up a separate Advisory
Committee within their respective zones consisting of the
Secretary of the Social Welfare Department or Board, the
Secretary of the Law Department, sociologists,
criminologists, members of the women’s organisations,
members of Indian Council of Child Welfare and Indian
Council of Social Welfare as well the members of various
voluntary social organisations and associations etc., the
main objects of the Advisory Committee being to make
suggestions of:

(a) the measures to be taken in eradicating the
child prostitution, and
42

(b) the social welfare programmes to be
implemented for the care, protection, treatment,
development and rehabilitation of the young fallen
victims namely the children and girls rescued
either from the brothel houses or from the vices of
prostitution.

(3) All the State Governments and the
Governments of Union territories should take steps in
providing adequate and rehabilitative homes manned by
well-qualified trained social workers, psychiatrists and
doctors.

(4) The Union Government should set up a committee of
its own in the line, we have suggested under direction
No. (2) the main object of which is to evolve welfare
programmes to be implemented on the national level for
the care, protection, rehabilitation etc. etc. of the young
fallen victims namely the children and girls and to make
suggestions of amendments to the existing laws or for
enactment of any new law, if so warranted for the
prevention of sexual exploitation of children.
(5) The Central Government and the Governments of
States and Union territories should devise a machinery of
its own for ensuring the proper implementation of the
suggestions that would be made by the respective
committees.

(6) The Advisory Committee can also go deep into
Devadasi system and Jogin tradition and give their
valuable advice and suggestions as to what best the
government could do in that regard.

(7) The copies of the affidavits and the list containing the
names of 9 girls are directed to be forwarded to the
Commissioner of Police, Delhi for necessary action.”

68. In 2005 (1) SCC 617, in the case of “Om
Hemrajani vs. State of U.P. another”, their Lordships of
the Hon’ble Supreme Court have interpreted and explained
Section 188 of Cr.P.C. as under:-

“8. Section 177 postulates that ordinarily offence
shall be inquired into and tried by a court within whose
local jurisdiction it was committed. Section 178, inter
alia, deals with situations when it is uncertain in which
of several local areas, an offence is committed or partly
committed in one area and partly in another. The section
provides that the offence can be inquired into or tried by
a court having jurisdiction over any of the local areas
mentioned therein. Under Section 179, offence is triable
where act is done or consequences thereof ensued.

Section 180 deals with the place of trial where act is an
offence by reason of its relation to other offence. It
provides that the first-mentioned offence may be inquired
into or tried by a court within whose local jurisdiction
either act was done. In all these sections, for jurisdiction
the emphasis is on the place where the offence has been
committed. There is, however, a departure under Section
181(1) where additionally place of trial can also be the
place where the accused is found, besides the court
43

within whose jurisdiction the offence was committed. But
the said section deals with offences committed by those
who are likely to be on the move which is evident from
the nature of offences mentioned in the section. Section
181(1) is in respect of the offences where the offenders
are not normally located at a fixed place and that
explains the departure. Section 183 deals with offences
committed during journey or voyage. Section 186 deals
with situation where two or more courts take cognizance
of the same offence and in case of doubt as to which one
of the courts has jurisdiction to proceed further, the High
Court decides the matter. Section 187 deals with a
situation where a person within the local jurisdiction of a
Magistrate has committed an offence outside such
jurisdiction. The Magistrate can compel such a person to
appear before him and then send him to the Magistrate
which has jurisdiction to inquire into or try such offence.

9. Under the aforesaid circumstances, the expression
abovenoted in Section 188 is to be construed. The same
expression was also there in the old Code. From the
scheme of Chapter XIII of the Code, it is clear that
neither the place of business nor place of residence of the
petitioner and for that matter of even the complainant is
of any relevance. The relevant factor is the place of
commission of offence. By legal fiction, Section 188
which deals with offence committed outside India, makes
the place at which the offender may be found, to be a
place of commission of offence. Section 188 proceeds on
the basis that a fugitive from justice may be found
anywhere in India. The finding of the accused has to be
by the court where the accused appears. From the plain
and clear language of the section, it is evident that the
finding of the accused cannot be by the complainant or
the police. Further, it is not expected that a victim of an
offence which was committed outside India should come
to India and first try to ascertain where the accused is or
may be and then approach that court. The convenience
of such a victim is of importance. That has been kept in
view by Section 188 of the Code. A victim may come to
India and approach any court convenient to him and file
complaint in respect of offence committed abroad by an
Indian. The convenience of a person who is hiding after
committing offence abroad and is a fugitive from justice
is not relevant. It is in this context, the expression in
question has to be interpreted. Section 188 has been the
subject-matter of interpretation for about 150 years.

12. In Empress v. Maganlal2 decided in the year 1882
interpreting the word “found”, it was opined that it was
used to confer the jurisdiction on the court of a place
where the accused is actually found i.e. produced before
the court and not where a person is discovered. In other
words, it would mean that an accused may be discovered
by the police at a place not within the jurisdiction of the
court inquiring or trying but that is not the place
contemplated by Section 188. For the purpose of
jurisdiction, it would be the court where he is actually
produced or appears which can be said to have found
him. As earlier stated, the finding of the accused is to be
by the court inquiring or trying and not by the police.

44

13. The aforesaid decisions were referred to and relied
upon in Emperor v. Vinayak Damodar Savarkar3. The
contention that the accused is charged before a
Magistrate with an offence under the Penal Code and was
brought there illegally from a foreign country was
rejected. An illustration was given in that — a man
commits a crime, say murder, in a country but he
escapes to some other country before he is apprehended,
the police finding him in some other country, brings him
to England and produces him before a Magistrate. It
would not be open to the Magistrate to refuse to commit
him. The Court held that: (ILR p. 229)
“If he were brought here for trial, it would
not be a plea to the jurisdiction of the Court that
he had escaped from justice, and that by some
illegal means he had been brought back.”

14. The last decision on interpretation of Section
188 is of Justice Vivian Bose in Sahebrao Bajirao v.
Suryabhan Ziblaji4. The question posed was as to who is
to do the “finding”. Learned Judge held that the word
“found” in Section 188 means found by the court at the
time when the matter comes up for trial, that is to say,
any court which is otherwise competent to try the offence
can take seisin the moment the accused appears in its
presence. How the accused gets there is immaterial. It
does not matter whether he comes voluntarily or in
answer to summons or under illegal arrest. It is enough
that the court should find him present when it comes to
take up the matter.

15. In our opinion, the law has been correctly enunciated
in the aforesaid case. The scheme underlying Section 188
is to dispel any objection or plea of want of jurisdiction at
the behest of a fugitive who has committed an offence in
any other country. If such a person is found anywhere in
India, the offence can be inquired into and tried by any
court that may be approached by the victim. The victim
who has suffered at the hands of the accused on a
foreign land can complain about the offence to a court,
otherwise competent, which he may find convenient. The
convenience is of the victim and not that of the accused.
It is not the requirement of Section 188 that the victim
shall state in the complaint as to which place the
accused may be found. It is enough to allege that the
accused may be found in India. The court where the
complaint may be filed and the accused either appears
voluntarily pursuant to issue of process or is brought
before it involuntarily in execution of warrants, would be
the competent court within the meaning of Section 188 of
the Code as that court would find the accused before him
when he appears. The finding has to be by the court. It
has neither to be by the complainant nor by the police.
The section deems the offence to be committed within the
jurisdiction of the court where the accused may be
found.”

69. In 1993 Cr.L.J. 1098, in the case of “Remia
another vs. Sub-Inspector of Police others”, learned Single
45

Judge of Hon. Kerala High Court has interpreted Section
188 as under:-

“3. Section 177 of the Code of Criminal Procedure
(for short ‘the Code’) says that every offence shall
ordinarily be inquired into and tried by a Court within
whose local jurisdiction it was committed. The said
section, no doubt, deals with inquiries and trials and
does not deal with investigation. Even otherwise, the
provision envisages only the general principle which is
subject to exceptions. It is clear from the provision itself
since the section employs the words “shall ordinarily”
(vide Nikka Singh v. The State. Supreme Court also
observed that with the use of the word “ordinarily” the
provision has to be understood as “except as otherwise
provided in the Code or special law” (vide Narumal v.
State of Bombay, AIR 1960 SC 1329 : 1960 Cri LJ 1674).

4. Even when Indian Penal Code was codified, its authors
took special care to incorporate two prefatory provisions
in a guarded manner. They are Sections 3 and 4 of the
Penal Code. Section 3 of the I.P.C. reads thus:

“Any person liable, by any Indian law, to be tried
for an offence committed beyond India, shall be dealt
with according to the provisions of this Code for any act
committed beyond India in the same manner as if such
act had been committed within India.”

Section 4 -“The provisions of this Code apply also to any
offence committed by-

(1) any citizen of India in any place without
and beyond India;

(2) any person on any ship or aircraft registered in
India wherever it may be.

Explanation.- In this section the word “offence”

includes every act committed outside India which, if
committed in India, would be punishable under this
Code.”

5. Section 3 of the Penal Code helps the (authorities in
India to proceed by treating the offence as one committed
within India. No doubt it is by a fiction that such an
assumption is made. But such a fiction was found
necessary for practical purposes. Section 3 of the Penal
Code was found insufficient for police authorities to
investigate into the offence. It was in the aforesaid
context that Section 188 has been incorporated in the
Procedure Code. That section reads thus:

“188. Offence committed outside India.-

When an offence is committed outside India.-

(a) by a citizen of India, whether on the high seas or
elsewhere; or

(b) by a person, not being such citizen on any ship or
aircraft registered in India, he may be dealt with in
respect of such offence as if it had been committed at any
place within India at which he may be found:
Provided that, notwithstanding anything in any of the
preceding sections of this Chapter, no such offence shall be
inquired into or tried in India except with the previous sanction
of the Central Government.”

No doubt, Section 188 concerns as to how to deal with a person
who has committed an offence outside India. Since the proviso
casts an obligation to obtain previous sanction of the Central
46

Government to inquire into and try such person, the section
has a message that for the pre-inquiry stage no such sanction
is needed. If during pre-inquiry stage any offender can be dealt
with (without such sanction) what could be the contours of that
stage? I have no doubt that the pre-inquiry stage substantially
relates to investigation of the crime. If there is any stage in
which an offender can be dealt with before commencement of
inquiry, it must be the investigation stage.

6. During such investigation stage, if the person (known or
reasonably suspected to be the offender having committed the
offence outside India) is not available in India, extradition
proceedings may have to be resorted to (vide State of W.B. v.
Jugal Kishore, AIR 1969 SC 1171: 1969 Cri LJ 1559). Supreme
Court observed that “extradition is the surrender by one State
to another of a person desired to be dealt with for crimes of
which he has been accused or convicted and which are
justiciable in courts of the other State”. Such extradition
proceedings are contemplated to get down the person
concerned to this country to be dealt with thereafter.

7. The upshot is that Sub-Inspector of Tanur Police Station can
conduct investigation into the offence notwithstanding the
place of occurrence being Sharjah because the person on whom
the focus of suspicion turns is laid to be a citizen of India.”

70. The General Assembly continued its efforts to
give legal force to these declarations. It was with that end in
view that the International Covenant on Civil and Political
Rights 1966 and International Covenant on Economics,
Social and Cultural Rights 1966 were framed and agreed
upon. On ratification by the specified minimum of States,
the Covenant on Economics, Social and Cultural Rights
entered into force on January 3, 1976. India is one of the
States which ratified the Covenant on Civil and Political
Rights. The Protocol to the other Covenant i.e., the
Covenant on Civil and Political Rights entered into force on
March 23, 1976. India became a party to the Covenant as
well as Protocol to it. The two Covenants therefore have
legal force as treaties imposing legal obligations on the
parties including India.

71. The statement of victim assumes finality and she
was less than 15 years at the time when she was imported
to India.

72. Article 10 of International Covenant on
Economic, Social and Cultural Rights reads as under: –

47

Article 10 The States Parties to the present Covenant
recognize that:

1. The widest possible protection and assistance
should be accorded to the family, which is the natural
and fundamental group unit of society, particularly for
its establishment and while it is responsible for the care
and education of dependent children. Marriage must be
entered into with the free consent of the intending
spouses.

2. Special protection should be accorded to mothers
during a reasonable period before and after childbirth.
During such period working mothers should be accorded
paid leave or leave with adequate social security benefits.

3. Special measures of protection and assistance should
be taken on behalf of all children and young persons
without any discrimination for reasons of parentage or
other conditions. Children and young persons should be
protected from economic and social exploitation. Their
employment in work harmful to their morals or health or
dangerous to life or likely to hamper their normal
development should be punishable by law. States should
also set age limits below which the paid employment of
child labour should be prohibited and punishable by
law.”

73. The United Nations Office on Drugs and Crime
has developed the Model Law against Trafficking in Persons
including to provide criminal provisions specific to
trafficking, ancillary offences and offences related to
trafficking, victim and witness protections, assistance and
compensation, protection of victims and witnesses in court,
protection and date of privacy, relocation of victims and/or
witnesses, court-ordered compensation, return of victims of
trafficking in persons, repatriation of victims of trafficking
in persons to another State, verification of legitimacy and
validity of documents upon request.

74. The Court can take judicial notice of the fact that
in the State of Uttarakhand also due to abject poverty, the
girls are being exported to adjoining States, more
particularly, from Districts Champawat, Pithoragarh and
Almora.

75. In the United States, the Congress has enacted
the Act called Trafficking Victims Protection Act, 2000.

48

76. It would be apt at this stage to refer the Indo-
Nepal Treaty, 1950. It reads as under:-

“Treaty of Peace and Friendship between the Government
of India and the Government Of Nepal. Signed at Kathmandu,
on 31 July 1950.The Government of India and the Government
of Nepal, recognizing the ancient ties which have happily
existed between the two countries; Desiring still further to
strengthen and develop these ties and to perpetuate peace
between the two countries; Have resolved therefore to enter into
a Treaty of Peace and Friendship with each other, and have, for
this purpose, appointed as their plenipotentiaries the following
persons, namely, The Government of India:
His Excellency Shri Chandreshwar Prasad Narain Singh,
Ambassador of India in Nepal.The Government of Nepal:
Maharaja Mohan Shamsher Jang Bahadur Rana, Prime
Minister and Supreme Commander-in-Chief of Nepal, who
having examined each other’s credentials and found them good
and in due form have agreed as follows:

Article 1: There shall be everlasting peace and friendship
between the Government of India and the Government of Nepal.
The two Governments agree mutually to acknowledge and
respect the complete sovereignty, territorial integrity and
independence of each other,
Article 2: The two Governments hereby undertake to inform
each other of any serious friction or misunderstanding with
any neighboring State likely to cause any breach in the friendly
relations subsisting between the two Governments.
Article 3: In order to establish and maintain the relations
referred to in Article 1 the two Governments agree to continue
diplomatic relations with each other by means of
representatives with such staff as is necessary for the due
performance of their functions. The representatives and such of
their staff as may be agreed upon shall enjoy such diplomatic
privileges and immunities as are customarily granted by
international law on a reciprocal basis : Provided that in no
case shall these be less than those granted to persons of a
similar status of any other State having diplomatic relations
with either Government.

Article 4: The two Governments agree to appoint Consuls-
General, Consuls, Vice-Consuls and other consular agents,
who shall reside in towns, ports and other places in each
other’s territory as may be agreed to. Consuls-General,
Consuls, Vice-Consuls and consular agents shall be provided
with exequaturs or other valid authorization of their
appointment. Such exequatur or authorization is liable to be
withdrawn by the country which issued it, if considered
necessary. The reasons for the withdrawal shall be indicated
wherever possible. The persons mentioned above shall enjoy on
a reciprocal basis all the rights, privileges, exemptions and
immunities that are accorded to persons of corresponding
status of any other State.

Article 5: The Government of Nepal shall be free to import, from
or through the territory of India, arms, ammunition or warlike
material and equipment necessary for the security of Nepal.
The procedure for giving effect to this arrangement shall be
worked out by the two Governments acting in consultation.

49

Article 6: Each Government undertakes, in token of the
neighborly friendship between India and Nepal, to give to the
nationals of the other, in its territory, national treatment with
regard to participation in industrial and economic development
of such territory and to the grant of concessions and contracts,
relating to such development.

Article 7: The Governments of India and Nepal agree to grant,
on a reciprocal basis, to the nationals of one country in the
territories of the other the same privileges in the matter of
residence, ownership of property, participation in trade and
commerce, movement and other privileges of a similar nature.
Article 8: So far as matters dealt with herein are concerned,
this Treaty cancels all previous Treaties, agreements, and
engagements entered into on behalf of India between the
British Government and the Government of Nepal.
Article 9: This Treaty shall come into force from the date of
signature by both Governments.

Article 10: This Treaty shall remain in force until it is
terminated by either party by giving one year’s notice.”

77. It is evident from the treaty that the movement of
citizens across the country is unrestricted but still to check
the human trafficking, more particularly of minor girls, the
Central Agencies, local agencies should at least insist for
proper verification and identity of children more
particularly, minor girls coming to India. The antecedents
should be verified and counter checking be made from the
authorities in Nepal. The agency should ensure that the
children who are travelling to India without their legal
guardian should be properly counseled and telephone
numbers of their guardian should be taken along with the
permanent address to be verified and re-verified from the
counterpart agencies of Nepal.

78. In the news item published under the caption
“Government sitting on national global trafficking racket in
Uttarkhand”, published in the daily newspaper “Times of
India”, dated 05.12.2017. It is reported that the then
Additional Secretary of the State Social Welfare Department
has prepared the report regarding ‘rampant child trafficking
going on in the state’. He had highlighted several points
which required investigation including criminal acts against
the children at the Shishu Niketan shelter home. It is
50

stated in the report that the children brought to the shelter
homes were sent to work at different houses in Dehradun
and Noida as a domestic help. However, till date, no FIR
has been registered against the persons employed in the
Shishu Niketan for their criminal acts. There is also
reference of girls from Nepal and Jharkhand.

79. According to National Crime Records Bureau
report, 208 females and 216 males are missing in the
previous years in the State of Uttarakhand, below the age of
18 years. In 2016, 224 boys and 211 girls have gone
missing. The State Government is required to take steps to
trace them and reunite them with their families. In the
State of Uttarakhand, 312 girls and 277 boys were traced
in previous years upto 2016. The percentage of recovered
girls is 72% and percentage of recovered boys is 67.9%. In
2016, 432 girls and 427 boys below the age of 18 years
went missing. The police has traced 312 boys and 277 girls.
Still 270 children are missing.

80. The report of National Crime Records Bureau is
alarming as per as missing children in the State of
Uttarakhand are concerned. However, the Court places its
appreciation for the sincere efforts made by the police
department to trace out the children and restore them to
their guardian. All concrete steps are required to be taken
to trace out the missing children.

81. The importation of girls and their kidnapping for
exploitation is a heinous crime against the Society. It is an
organized crime. There should be strictness against the
persons who are indulging in this heinous act. The
concerned authorities should invoke provisions of Money
Laundering Act, 2008, since the Immoral Trafficking
Prevention Act, 1986 has been included as Para 7 of the
51

Schedule prepared under Section 2(y) and also by
attachment of their property.

82. The Central agencies are also required to
increase patrolling on the international borders and also by
invoking the help of genuine Non-Government
Organizations to check the human trafficking, more
particularly, of minor girls by setting up more check-posts
and by providing additional manpower.

83. Respondent has kidnapped the prosecutrix from
lawful guardianship. He has imported her from Nepal to
India for the purpose of exploitation. He has transported
the prosecutrix by practicing fraud, deception and
inducement. He has sexually assaulted the prosecutrix
while travelling from Atariya to Mahendra Nagar. He has
intimated the prosecutrix.

84. Accordingly, the present appeal is allowed. The
judgment dated 04.05.2016 is set-aside. Respondent is
convicted for the offence of Sections 363, 366-B, 370(4) and
506 IPC and Section 8 of POCSO Act. Registry is directed to
prepare the production warrant ensuring the presence of
respondent before the Court on the next date fixed.

85. Put up this matter on 12.12.2017, for hearing
the respondent on the quantum of sentence.

86. However, before parting with the judgment, we
deem it proper to issue the following mandatory directions
to the State Government/other agencies: –

A. All the Central agencies, local agencies in the
State of Uttarakhand should insist for proper verification
and identity of children, more particularly, minor
girls/women coming to India from Nepal. The antecedents
should be verified and counter verification be made from
the authorities of Nepal.

52

B. The minor children coming from Nepal should be
properly counseled and telephone numbers of their
guardian should be taken along with the permanent
address to be verified and re-verified from the counterpart
agencies of Nepal.

C. The Court recommends to the Central
Government to frame law based on model law against
trafficking in persons, as drafted by United Nations Office
on Drugs and Crime mentioned in Paragraph no.73 of the
judgment, in relation to trafficking, victim and witness
protections, assistance and compensation, protection of
victims and witnesses in court, protection, relocation of
victims and/or witnesses, repatriation of victims to their
countries of origin.

D. The police authorities should invoke provisions
of Money Laundering Act, 2008 against the persons who
are involved in human trafficking, since the Immoral
Trafficking Prevention Act, 1986 has been included in Para
7 of the Schedule prepared under Section 2(y) of the Act
and also to attach the properties of persons involved in
human trafficking.

E. The Central agencies should increase patrolling
on the international borders with the help of genuine Non-
Government Organizations to check the human trafficking,
more particularly, of minor girls/women by setting up more
check-posts and by providing additional manpower.

F. All the anti-human trafficking units in the State
of Uttarakhand must be headed by a person not below the
rank of DSP/CO, one Inspector, two Sub-Inspectors and
three ASI and 10-15 Constables. 50% of these
officers/officials should be sensitized women.

53

G. All public prosecutors, police officers should be
adequately trained. Legal aid should be provided to the
victims of human trafficking.

H. The State should take preventive measures to
check the trafficking of children from the State of
Uttarakhand by improving the socio-economic conditions of
the areas which are vulnerable to human trafficking.

I. The State Government is directed to provide safe
and proper accommodation for the victims of human
trafficking. They should be provided basic health care. They
should be properly counseled by a psychiatrist. The Court
should appoint a legal guardian of an unaccompanied
minor. His/her identity should be established. Steps
should be taken to locate his/her family in the interest of
the child. The trial under Sections 366(B) and 370 IPC
should be held in camera.

J. The State Government is directed to constitute a
Special Investigation Team (SIT), if not already constituted,
headed by the Senior Superintendent of Police to
investigate the matter, as per the details given in the report
by Mr. Manoj Chandran, the then Additional Secretary of
the State Social Welfare Department, regarding ‘Rampant
Child Trafficking’, within four weeks and to register FIRs
against the persons, who were/are involved in human
trafficking of boys/girls from shelter homes.

K. The Court can take judicial notice of the fact that
the minors are kidnapped by the organized gangs to force
them into beggary. The Police Department should conduct
DNAs of the parents as well as of the children of the
beggars to ensure that the children found in their company
are their own children. The Court again recommends that
the begging should be banned throughout the State of
Uttarakhand by bringing suitable legislation on the analogy
54

of Uttar Pradesh Prohibition of Beggary Act, 1975. The
religious places should be free of beggars.

L. The State Government is directed to constitute
special wing to locate/trace and restore the missing boys
and girls with their lawful guardian. The State Government
is also directed to setup Photo Bank Data to trace the
missing children and to display it on their official website.
The Police Department is also directed to have effective
liaisoning with the adjoining States as well as with the
Central agencies. The Police Department should flash the
photographs of missing children at the earliest at bus
stands, railway stations. The FIRs in the cases of missing
children should be registered promptly and investigated in
a time bound manner. The photographs of the missing
children should also be predominantly displayed in the
regional as well as national newspapers and also on
television. It is a very sensitive issue. The newspapers and
news channels should reasonably charge the police for
displaying the photographs of the missing children under
corporate social responsibility. The State should also
involve the Gram Panchayats at the grass-root level to trace
the missing children.

87. We would like to place on record our
appreciation for the valuable assistance rendered by Mr.
Amit Bhatt and Mr. Ramji Srivastava, Advocates in the
matter.

(Alok Singh, J.) (Rajiv Sharma, J.)
NISHANT

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