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Importation of girls (up to 21 years of age)

Updated: Feb 20, 2022

Written By - Nikhil

Contents

Introduction

In ancient times women hold a high place of respect in Indian society as mentioned in the Veda, folk tales and other scriptures. Many Vedas and volumes had been written about the status of women and their heroic deeds in the Vedic period. But as times are gone, the women lost their status and relegated to the background because of the social, economic, and political changes. These changes were made in the name of development and needs of the society and the changes made the woman feels more insecure in society. Today in the world, in our society the women of every class, every religion, race and ethnicity have to face Physical, Sexual, and Psychological violence.

The treatment of a girl as a burden on the family for the dowry to given at the time of her wedding because of this many girls are not even taking up their middle education. She is being tortured, raping, beating, molested, physical abuse in our society. Even she is treated as the source of income. The importation of girl (up to 21 years of age) is a major issue for the countries in the world.


Element

Importation of girls from abroad or from J&K[1] under the age of 21 years with the intent that she may be, or knowing it to be that she will be, seduced or forced to illicit intercourse, with another person[2] shall be, punishable under the IPC Section 366B with imprisonment which may extend to 10Years and is also liable to be fined. A decrease in the number of cases has been recently found in the census reported in 2012 of which only 59 cases have been reported in 2012.

For constituting a crime under Section 366B of IPC there must be importing a girl into [3]India from a foreign country or from the State of J&K. The girl should be under the age of 21 years. There must be the intention of the offender to force or seduce her to illicit intercourse, or there must be the knowledge that a girl would likely be seduced or forced to have illicit intercourse with the other person.

Along with Section 366A, this section (366 B) was added to give effect to some articles of the International Convention for the Suppression of the Trafficking of Woman and Children, which was signed in Paris in 1910 by the Indian Penal Code (Amendment) Act, 1923 (Act No. XX of 1923).

The offence under this section is cognizable, non-bailable and non-compoundable. The cases under this Section are triable by the Court of Session.


Related Case

State v. Sartaj Khan 2016

Facts

The case of the prosecution is that at 11:00 AM, S.I. Manju Panday (in-charge) Human Trafficking Unit Sharda Bairaj, reached Sharda Bairaj near the Indo-Nepal border in order to check the illicit human trafficking. One volunteer Meera Sauda was also with them. At about 13:30 hours, a piece of secret information was received that an Indian boy was importing a minor girl from Nepal. The girl was noticed near a cart selling and discloses her name Km. Jainisha Sharma aged 15 years. She disclosed that on 10.04.2015, she came to see her uncle Arjun Sharma, a teacher in Lamki (Nepal). On 11.04.2015 she was having ice-cream from a cart at Atariya Bus Stand. A boy came also having an ice-cream and stood at her side. He told her that he would her to Banbasa (In India) where she can do the shopping and they would stay in a hotel at Bombesin the morning. She trusted him. The boy brought her and started pressing her breast on the bus. She told him not to do so and thereafter he made her sit on a horse cart. There were police checking, he tutored her to tell the police that she is going shopping. They reached near the canal gate and was standing near a tree facing a bridge Km. Jainisha recognized the boy and told him that he was the same boy, who has enticed her to come from Nepal. The boy was arrested. His name was Sartaj Khan age 30yrs. He admitted her guilt and accepted that he brought the girl to India for exploitation. On personal search one pocket diary, one packet of condom, two-man force tablet, Indian and Nepal currency, and two mobile phones were found. The FIR was registered under Section 313 of Cr. P.C

Procedural History

The prosecution examined six witnesses in its support. Vinod Kumar Joshi proved the medical report. The Medical Board constituted comprised of Chief Medical Officer, Radiologist, Female Medical Officer, Dental Surgeon and they unanimously found the age of Prosecutrix to be 17yrs. The statement recorded under Section 164 of Cr. P.C though is not a substantive piece of evidence. The case was charged under Section 366-B, 363, 370(4), 506 IPC and Section 8[4].

Issue

Whether the accused (the respondent) is guilty or not guilty under Section 363, 366-B, 370(4), 506 IPC and Section 8 of the POCSO Act.

Holding

No, the Respondent (Sartaj Khan) is not guilty of kidnapping, Importation of a girl from a foreign country by fraud or deception and criminal intimidation under Section 363, 366-B, 370(4), 506 and Section 8 of POSCO Act.

Rationale

The appeal was made by the government. The prosecution examined six witnesses in its support. Manju Pandey recognizes the boy and mentioned everything about the incident. Prosecutrix identified her signatures on the statement. In her cross-examination, she has deposed that she came with Meera Sauda and not with Manju Pandey, in the court. She was not tutored by PW Manju Pandey. She has also denied that she was tutored by the Govt. advocate. Meera Sauda also testified that she was working. She told the whole story in her own words. Dr Vinod Kumar Joshi proved the medical report. H.C. Hemant Kumar deposed that he was on night duty and the police have produced the prosecutrix and accused before him. The FIR was registered and papers concerning the arrest were prepared by him. S.I. Meenakshi Nautiyal, also, deposed that she was working at P.S. Lohaghat and was investigating officer and she had recorded the statement of the prosecutrix. By visiting the spot, she, then, prepared the spot map and identified the signatures. The statement recorded herein that the prosecutrix is a Citizen of Nepal and imported to India by the accused of exploitation. The respondent has molested the girl on the bus while coming from Atariya to India. By getting secret information the police went for a search and the girl was spotted near the cart. The boy was also arrested and identified by the girl. The incriminating material was also found in his possession as he was carrying a condom as well as two-man force tablets. He has also assured her that they would stay in a hotel in India.

Order

The court declared him guilty under Section 366B of IPC and awarded him 10yrs of jail and a fine of Rupees 10,000/- he was also given 7yrs of jail and a fine of Rupees 5,000/- under Section 363 of IPC. the bench of Justice Rajiv Sharma And Alok Singh also held him guilty under Section 370 of IPC and awarded him a 6 months sentence and fine of Rupees 1,000/-. And also found guilty under Section 8 (sexual contact without penetration) of the Protection of Children from Sexual Offences Act (POSCO) and awarded 3yrs of imprisonment.

Analysis

Across the federal government, efforts to combat woman trafficking have been nugatory in large part because of lingering preoccupation with a prostitute and border control. Violence against woman in any form is a violation of human rights. Violence against woman remains hidden (not registered) in the culture of silence. There is a need to break the silence and ensure that violence against woman is not just a woman’s issue but primarily the nation’s issue and the issue of men as well. It is the partnership between women and men to end gender-based violence that yields the best result.




2. Sakina Bibi vs the state of West Bengal [5]

Fact

The victim is a citizen of Bangladesh. She developed intimacy with one Sohag (Md. Wahidul Islam Molla) proposed her for a short trip. He took her to Jessore and handed over her to an unknown person (Sakina Bibi and Sumitra Devi) to a brothel situated at Khairpur. Sakina Bibi delivered her to the Sugbey so that she can become a Sex worker. The appellant used to look after her and in lieu of that victim delivered her income which she received by way of satisfying about 15 lusty men per day. The place is totally unknown to her. she had to stay there for about 1/3 years.

Procedural History

There is no dispute that she is a citizen of Bangladesh. In course of her evidence in chief, she has stated that she had love affairs with one Sohag, who assured to marry her and ultimately, she was handed over to the appellant. and here the case of importation is not valid. She (Sakina Bibi) was found not guilty under Section 366B of IPC

Issues

The challenge was on the judgement of Additional District & Session Judge, 1st Track and 2nd Court Alipore, passed under Section 366B/120B/372/373 of IPC directing the conviction of Sugbey, also known as Sumitra Devi and Sakina Bibi under the aforesaid.

Holding

She has not committed any offence under Section 366B of IPC but committed an offence under Section 366A of the Indian Penal Code, 1860.

Rationale

There is no challenge that the woman is a citizen of Bangladesh not was recovered from a Red-light area of Khidirpur. According to the victim she was 16 yrs. of age at the time of the commission of the offence and there was no challenge made by the appellant in course of cross-examination. Therefore, the opinion of the doctor is not accepted on the contrary to the victim’s own statement in the absence of medical examination. The appellant argued that his client is in no way connected with such offences and she never imported the victim from Bangladesh nor enticed her as a sex worker. He submits even for argument's sake at best may be at landlords but that does not mean she is not guilty of that offence. Sakina Bibi had delivered the victim under the custody of Sugbey so that she becomes a sex worker and it is evidence that Sohag had delivered the money to Sakina Bibi. Therefore, the intention of Sakina Bibi was very clear and no direct evidence found that she imported that girl from Bangladesh so found not guilty under Section 366B. Accordingly, this criminal appeal failed the appellant Sakina Bibi found involvement under Section 366A and Section 373 of IPC.


Order

Sakina Bibi (the appellant) found guilty under Section 366A and 373 of IPC and was awarded rigorous imprisonment for 6 years each and to pay a fine of Rs.3,000/- each. The other appellant Sugbey was also awarded rigorous imprisonment for 6 yrs. each and a fine of Rs. 3,000/- under Section 372and 373 of IPC.

Analysis

Violence against woman has crossed it all limit in the present social, economic, political scenario. Human Trafficking is one of crime which not only insult women but also a shame for the nation, for the society. The rising cases of minor girls 53% in 2013 according to NCRB. Assam, Bihar, and West Bengal have witnessed the growing movement of trafficking and sexual exploitation. Girls from the poor community are targeted and selected for this and brought as brides from Kerala and West Bengal and transported to Haryana, Punjab, UP and Rajasthan. Children are the major victims of human trafficking as they protest less and it continues to be divided between ministries and departments. 39% of traffickers viewed trafficking as a social evil and 40% of traffickers have said that it cannot be solved. This shows the mentality of traffickers and can be very helpful and meaningful in law framing.


Conclusion

Although there are a number of laws to protect and safeguard the rights and interest of women, the rate of crime against women and victimization is increasing day by day. It implies that only laws are not responsible to regulate and control the augmentation of the crimes. The suppression of evil eyes on women and inculcation of social ethics, morals and values, respect, and honour in every human being towards women is the need of the hour and is, such a, supplementing factor that can equally contribute to lessening the number of crimes against women. However, there is an unignorable need for more strict and rigorous laws so that any person intending to commit such crimes would not have the courage to act in furtherance of his intention.

[1] Ins. By Act 3 of 1951, S.3 [2] Certain words omitted by S.3 and the Sch., ibid [3] The words “British India” have successively been subs. By the A. O. 1948, the A. o. 1950 and Act 3 of 1951, S. 3 and the Sch. [4] POSCO Act [5] AIR 1964 SC 1254

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