How Criminal justice system interact with Trafficker – �Role of Police and Prosecutor

Payel Ghosh ( Banerjee), Deputy Director of Prosecution, Government of West Bengal.

​

Trafficking of Person

It is a very vast subject to say about Criminal Justice System and Trafficking of Person.

If for a discussion, I choose the topic “Trafficking of Person” , in common parlance it can be said that the illegally transportation of person for sexual exploitation.

Being a Prosecutor, a student of law, go for the definition of Trafficking of Person as per law.

Section 370 of IPC, 2013 amendment defines as Whoever for the purpose of exploitation

​

• 1) Recruits,
• 2) Transports
• 3) Harbours
• 4) Transfers or
• . 5) Receives

a person or persons

1. using threats, or
2. using force, or any other form of coercion, or
3. by abduction, or
4. by practising fraud, or deception, or
5. by abuse of power, or
6. by inducement, including the giving or receiving of payments or benefits, in order to achieve the consent of any person having control over the person recruited, transported, harboured, transferred or received, commits the offence of trafficking.

Explanation-

The expression “exploitation” shall include any act of physical exploitation or any form of sexual exploitation, slavery or practices similar to slavery, servitude, or the forced removal of organs.�2. The consent of the victim is immaterial in determination of the offence of trafficking.

Faults in definition

This definition by way of amendment 2013 was included.

Still in a recent bill of The Immoral Traffic Prevention Rehabilitation Bill 2021, this definition remains as it is but only a Punishment increased by separating as aggravated Trafficking.

We are now in digital age, if a girl is engaged online and is transported or transferred to globally, or threatened by online this digital trafficking or may be called Cyber Trafficking still in 2023 is not included in this definition.

It can be said that our legal provision are too lack to cop up with the changed situation.

As a Journalists, the fourth but vital pillar of democracy, to draw the attention of the law maker to amend the definition to included E- trafficking or Cyber Trafficking.

Administration of Criminal Justice System

Next topic Administration of Criminal Justice System. If we see the NCRB data, a very poor conviction rate, we can safely say that Administration of Criminal Justice System is not functioning well.

Criminal Justice Administration totally depends upon the Evidence of witnesses. “ Witnesses are the eyes and ears of Justice.”- Bentham quote. Now a days, we see that no one would like to be a witness to a criminal case, or if accidentally be, would not like to come to court, if comes to court but wouldn’t likely to depose in favour of the case to avoid cross examination.

So no witnesses, no evidence, no prosecution case, accused are acquitted. This is the common judgement, we used to see.

We have to think out , how to apply modern technology in Administration of Criminal Justice.

Suppose a minor is outraged by a person. This incidence was captured by CCTV. If in trial, the minor girl said about the incidence and police collect the produce the CCTV footage, then no need of any other witnesses to prove the and accused be convicted.

​

Modern technology in administration of Criminal Justice System(Cont…)

In police file in charge, I came across a trafficking case as a minor girl aged about 14 years is a student of class VIII of a Government School under Canning Police Station, South 24 Parganas. She was a good dancer and used to participate in local competitions. She was offered by a local person used to work as Zari worker in Mumbai, to contact her to film director to get the role of a dancer in a movie. She was too happy but her father asked only after completion of Madhyamik, then to go if possible.

One day she went for a tuition and did not return, later her father came to know she left with that person of the locality, lodged complaint to Canning PS. It takes around 3months then police arrested the accused and victims was recovered. In statement to Magistrate she disclosed she was raped by the neighbour several times and then sold to a brothel in Mumbai for Rs 60,000/.

In brothel, she was brutally tortured by customer and she was seriously ill.

One day Police raided the brothel along with the village boy, and recovered her.

If technology as Crime and Criminal Tracking Network System (CCTNS) face recognition is applied in investigation then very soon the victim be detected in CCTV of Canning Railway station, or Sealdah or Howrah Railways station and could be recovered at the earliest.

The components of Criminal Administration of Justice

• Investigating Agency
• Prosecution
• Defence Counsel
• Judge
• Correctional Home

Newly added, Victim of the case.

POLICE role

• Police is the first component of this administration of Criminal justice and also a vital role in the process.
• Usually a trafficking case starts with missing of a person.
• Then it be added with a Kidnapping, trafficking, rape etc.
• Trafficking of person is an organised crime and it is a very challenging for the investigating agency to recover the victim from the clutches of the trafficker, to arrest the trafficker and produced before the court of law.
• To collect the witnesses, expert opinion, and finally to submit charge sheet.
• In the year 2008, Ministry of Home Affairs, Government of India, issued a notification for establishment of AHTU, Anti Human Trafficking Unit in the District level consist of One Inspector 2 sub inspector 2head Constable, 2 Constable, to coordinate interstate crime with the help of BSF, and other wings of the government.
• Police to produce the accused after arrest within 24 hours arrest excluding the journey to produce to Court. ( Section 57 Cr pC).
• Within 14days of arrest to pray for police custody of accused for investigation.(167 Cr pC).
• To submit charge sheet within maximum 90 days if in custody otherwise will have legal rights of bail. 167(2) Cr pC.
• Maximum time of 3year to submit charge sheet otherwise accused will be discharged as section 167(5) Cr pC West Bengal Amendment.

PP Role

• To oppose bail of the accused of the trafficker.
• To move application for police custody of the for investigation.
• To assist the Ld. Court after submission of Charge sheet for commitment of the case.
• To frame charge against the accused.
• To adduce evidence of witnesses in the trial Court .
• To assist the Ld Judge to frame questions for 313 Cr Pc.
• To make arguments of the case and pray for maximum punishment of the case.

To pray for interim compensation and on disposal final compensation and or rehabilitation or repatriation of the victim, if necessary.

Media Positive Case

Manu Sharma Vs state of Delhi Supreme Court of India, 19^th April 2010, Justice P. Sathasivam., Bench.

Facts of the case-

• A girls used to work at a Bar in New Delhi.
• It was around 2AM at night, 6-7 persons came and asked for drinks.
• The girl said , Bar is closed, no drinks can be served.
• Suddenly one accused person out an arm and one fire in air and then pointing the girl.
• She sustained a serious injury to her head and next day she died in hospital.

The main accused was a son of a powerful politician and brother is a renown industrialist.

All the accused were arrested and after investigation charge sheet was submitted.

• All the accused were acquitted by trial Court, mainly ballistic expert opined that both the. shots were not from same arm, and other contradictory evidence.
• Media highlighted the case and there was a hue and cry in society
• Matter goes to Appeal in High Court and Convicted by life imprisonment with the observation that if eye witnesses were believable and trustworthy, then conviction can be held and it was affirmed by Supreme Court.

No media trial but media to act as informative, as observed by Superior Court of India, in this matter.

Media Negative Case

• (On its own motion Vs Uma Khurana and other) 2007, Delhi High Court.
• A lady teacher of a Government school in Delhi was shown “Live India” a Television News Channel as she is associated with prostitution network and engaged school students. Soon after agitations and ransacking of the school by guardian and she was assaulted and later on suspended by school board. Then it was disclosed that the lady was innocent and out of a monetary dispute, a false and fabricated sting operation was done . it was reported in local newspapers and Honourable High Court, Delhi suo-moto cognizance of the matter the journalist, was also prosecuted.

A person is presumed to be innocent unless he is proved guilty by Court of law.

Law of pocso and trafficking

Important Features of POCSO Act

Section 19 of Protection of Children from Sexual Offences Act, 2012 : Reporting of offences

(1) Notwithstanding anything contained in the Code of Criminal Procedure, 1973 (2 of1974)any person (including the child), who has apprehension that an offence under this Act is likely to be committed or has knowledge that such an offence has been committed, he shall provide such information to,-

(a) the Special Juvenile Police Unit; or

(b) the local police.

2) Every report given under sub-section (1) shall be-

(a) ascribed an entry number and recorded in writing;

(b) be read over to the informant;

(c) shall be entered in a book to be kept by the Police Unit.

​

Section 19 POCSO contd...

​

• (3) Where the report under sub-section (1) is given by a child, the same shall be recorded under sub-section (2) in a simple language so that the child understands contents being recorded.
• (4) In case contents are being recorded in the language not understood by the child or wherever it is deemed necessary, a translator or an interpreter, having such qualifications, experience and on payment of such fees as may be prescribed, shall be provided to the child if he fails to understand the same.
• (5) Where the Special Juvenile Police Unit or local police is satisfied that the child against whom an offence has been committed is in need of care and protection, then, it shall, after recording the reasons in writing, make immediate arrangement to give him such care and protection including admitting the child into shelter home or to the nearest hospital within twenty-four hours of the report, as may be prescribed.
• (6) The Special Juvenile Police Unit or local police shall, without unnecessary delay but within a period of twenty-four hours, report the matter to the Child Welfare Committee and the Special Court or where no Special Court has been designated, to the Court of Session, including need of the child for care and protection and steps taken in this regard.
• (7) No person shall incur any liability, whether civil or criminal, for giving the information in good faith for the purpose of sub-section (1)

​

Section 20 of The POCSO Act

• Section 20 POCSO Act (The Protection of Children from Sexual Offences Act, 2012):
• Obligation of media, studio and photographic facilities to report cases.
• Obligation of media, studio and photographic facilities to report cases. – Any personnel of the media or hotel or lodge or hospital or club or studio or photographic facilities, by whatever name called, irrespective of the number of persons employed therein, shall, on coming across any material or object which is sexually exploitative of the child (including pornographic, sexually-related or making obscene representation of a child or children) through the use of any medium, shall provide such information to the Special Juvenile Police Unit, or to the local police, as the case may be.

Section 21 POCSO Act

​

•    Punishment for failure to report or record a case.
• Any person, who fails to report the commission of an offence under sub-section (1) of section 19 or section 20 or who fails to record such offence under sub-section (2) of section 19 shall be punished with imprisonment of either description which may extend to six months or with fine or with both.

Case law on 19 pocso act

The State of Maharashtra & others Vs Dr Maroti , Honorable SUPREME COURT OF INDIA,

• Facts- There was a tribal girl’s hostel and it was found one girl of class 11 and another is of class III, are seriously ill. They were initially treated by a Medical Officer, attached to the hostel and referred to local block hospital and later on they were transferred to State General Hospital, and it was detected that they were sexually exploited. It came o the knowledge of the Tribal protection officer and informed the matter to the local hospital. In the course of investigation, it was revealed that 17 others girl’s were also sexually exploited by the Hostel super and others staffs. Here the medical officer, as failed to report to PS, also made an accused of the case for violation of section 19 POCSO Act along with sample the hostel super and others.

​

• Dr Maroti, preferred quashing to the Honourable High Court, Maharashtra and was acquitted. Later state of Maharashtra preferred appeal and Honourable Supreme Court dismissed the order of High Court.

Section 23 of POCSO Act

Procedure for media.

(1) No person shall make any report or present comments on any child from any form of media or studio or photographic facilities without having complete and authentic information, which may have the effect of lowering his reputation or infringing upon his privacy.

(2) No reports in any media shall disclose, the identity of a child including his name, address, photograph, family details, school, neighbourhood or any other particulars which may lead to disclosure of identity of the child:

Provided that for reasons to be recorded in writing, the Special Court, competent to try the case under the Act, may permit such disclosure, if in its opinion such disclosure is in the interest of the child.

(3) The publisher or owner of the media or studio or photographic facilities shall be jointly and severally liable for the acts and omissions of his employee.

(4) Any person who contravenes the provisions of sub-section (1) or sub-section (2) shall be liable to be punished with imprisonment of either description for a period which shall not be less than six months but which may extend to one year or with fine or with both.

​

Section 228A in The Indian Penal Code

Disclosure of identity of the victim of certain offences etc.

Whoever prints or publishes the name or any matter which may make known the identity of any person against whom an offence under section 376, section 376A, section 376B, section 376C or section 376D is alleged or found to have been committed (hereafter in this section referred to as the victim) shall be punished with imprisonment of either description for a term which may extend to two years and shall also be liable to fine.

case law- Nipun Saxena Vs Union of India, 11.12 2008

• No person can print or publish in print, electronic, social media, etc. the name of the victim or even in a remote manner disclose any facts which can lead to the victim being identified and which should make her identity known to the public at large.
• 2. In cases where the victim is dead or of unsound mind the name of the victim or her identity should not be disclosed even under the authorization of the next of the kin, unless circumstances justifying the disclosure of her identity exist, which shall be decided by the competent authority, which at present is the Sessions Judge.
• 3. FIRs relating to offences under Sections 376, 376A, 376AB, 376B, 376C, 376D, 376DA, 376DB or 376E of IPC and offences under POCSO shall not be put in the public domain.
• 4. In case a victim files an appeal under Section 372 CrPC, it is not necessary for the victim to disclose his/her identity and the appeal shall be dealt with in the manner laid down by law.
• 5. The police officials should keep all the documents in which the name of the victim is disclosed, as far as possible, in a sealed cover and replace these documents by identical documents in which the name of the victim is removed in all records which may be scrutinised in the public domain.
• 6. All the authorities to which the name of the victim is disclosed by the investigating agency or the court are also duty bound to keep the name and identity of the victim secret and not disclose it in any manner except in the report which should only be sent in a sealed cover to the investigating agency or the court.
• 7. An application by the next of kin to authorise disclosure of identity of a dead victim or of a victim of unsound mind under Section 228A(2)(c) of IPC should be made only to the Sessions Judge concerned until the Government acts under Section 228A(2)(c) and lays down a criteria as per our directions for identifying such social welfare institutions or organisations.
• 8. In case of minor victims under POCSO, disclosure of their identity can only be permitted by the Special Court, if such disclosure is in the interest of the child.
• 9. All the States/Union Territories are requested to set up at least one ‘one stop centre’ in every district within one year from today.

Conclusion

Media being fourth pillar and most vital pillar of the Democracy. In today's age and world, the impact of media is far reaching. Electronic media as compared to print media has an added advantage because visuals have greater ramification and impact as it directly and immediately influences the mind of the viewer. With the growth of the number of News Channels and increasing popularity of "breaking news", electronic media has come to play a major role in stirring public opinion and consciousness.

THANK YOU