LGBTQ+ Person Can Be Vulnerable Within Four Corners Of Jail: Bombay HC Grants Bail To Accused In Child Trafficking Case

The Bombay High Court granted bail to an accused belonging to LGBTQ+ community, saying that such person can be vulnerable within the four corners of a jail.

The accused preferred a bail application as he was arrested for the offences under Sections 370 read with 34 of the Indian Penal Code (IPC) and Sections 80 and 81 of the Juvenile Justice (Care and Protection of Children) Act, 2015.

A Single Bench of Justice Manish Pitale observed, “The applicant has remained behind bars since 26th May 2024, which is more than a month. He is in judicial custody. The amounts in question are stated to have been recovered during the course of investigation. This Court is of the opinion that a person belonging to the LGBTQ+ community, who is also HIV positive, can be said to be a person belonging to a category of persons, who are indeed vulnerable, particularly within the four corners of a jail.”

Advocate Sesley Menezes appeared for the applicant/accused while APP Kiran C. Shinde appeared for the respondent/State.

Brief Facts -

The parents of the minor child who were also the accused in this case, had agreed for their child to be sent for shooting of films so that certain amounts could be earned in order to help them financially. In that regard, the applicant accused wanted to adopt a child and in that context, the minor child of the said parents was agreed to be sold for a consideration of Rs. 4,65,000/-. As a result, the child was given in the custody of the applicant but allegedly, he did not take the child for shooting whatsoever. Hence, he was arrested in May 2024 and was in judicial custody since then.

The counsel for the applicant submitted that the allegations leading to the registration of FIR against the applicant did not indicate the ingredients of the offence under Section 370 IPC which pertains to trafficking of a person. It was further submitted that the applicant belonged to the LGBTQ+ community and therefore, he was vulnerable in society. Whereas, the APP for the State opposed the prayer for grant of bail on the ground that the investigation was still on going and that the medical report of the minor child was still awaited.

The High Court in view of the facts and circumstances of the case noted, “Nonetheless, the peculiar facts of the present case cannot be ignored. The applicant is a person belonging to the LGBTQ+ community. A statement to that effect on affidavit is made by the applicant and this is supported by Exhibit ‘D’ at page 44, which is an Instagram post of the applicant, stating that he is an entrepreneur and event organiser and a person belonging to LGBPQ community. The fact that the applicant has proclaimed such a status in the public domain is enough to indicate that he can be said to be the person belonging to the said community.”

The Court said that the fact that persons belonging to such community are vulnerable and in certain situations open to be ridiculed and harassed, cannot be ignored by it.

“Additionally, the applicant is HIV positive and in support thereof, a report is annexed at page 55 and at page 57, the applicant has annexed a copy of the prescription giving the details of the medicines prescribed to the applicant for treatment, as he is HIV positive”, it added.

The Court observed that there are no criminal antecedents of the applicant and therefore, bail application can be favourably considered. It also said that appropriate conditions can be imposed to address the apprehensions expressed by the APP, as regards the pending investigation.

Accordingly, the High Court allowed the bail application.

Cause Title- Inderdeep @ Inder Hariram Vhatwar v. The State of Maharashtra (Neutral Citation: 2024:BHC-AS:25077)

Appearance:

Applicant: Advocates Sesley Menezes, Steven Anthony, and Waqar Pathan.

Respondent: APP Kiran C. Shinde

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