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ROLE OF JUDICIARY ON HUMAN TRAFFICKING: SOME
CHALLENGES
Dr. H.T.C. Lalrinchhana
Senior Civil Judge
Aizawl :: Mizoram
FAILURE TO IMPOSE HARSH PUNISHMENT AS EXPECTED
Punishment not prescribed under the statutory rules cannot
be imposed……. Likewise, a person should not be made to suffer
penalty except for a clear breach of existing law [Vide, In Vijay
Singh vs State Of U.P.& Ors. decided on 13th April, 2012 in
connection with Civil Appeal No. 3550 of 2012 (Arising out of
SLP(C) No. 27600 of 2011) by the Supreme Court]
HYPER TECHNICALITIES OF CRIMINAL PROCEDURE
Right to fair trial and presumption of innocence is prime
factor for criminal trial [Vide, In State Of Rajasthan vs Shera
Ram @ Vishnu Dutta decided on 1st December, 2011 in
connection with Criminal Appeal No. 1502 of 2005 by the
Supreme Court]
"It is fundamental principle of criminal jurisprudence that
an accused is presumed to be innocent and therefore, the burden
lies on the prosecution to prove the guilt of the accused beyond
reasonable doubt.” [Vide, In Dahyabhai Chhaganbhai Thakkar
v. State of Gujarat, AIR 1964 SC 1563]
DOCTRINE OF ‘BENEFIT OF DOUBT’
In criminal cases, the rule is that the accused is entitled to
the benefit of doubt. If the court is of the opinion that on the
evidence two views are reasonably possible, one that the
appellant is guilty, and the other that he is innocent, then the
benefit of doubt goes in favour of the accused [Vide, In
K.P.Thimmappa Gowda vs State Of Karnataka decided on 4
April, 2011 in connection with Criminal Appeal No. 1499 of 2004
by the Supreme Court]

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ESSENCE OF ‘MENS REA’ IN CRIME
To commit a criminal offence, mens rea is generally taken to
be an essential element of crime [Vide, In State Of Rajasthan vs
Shera Ram @ Vishnu Dutta decided on 1 December, 2011 in
connection with Criminal Appeal No. 1502 of 2005 by the
Supreme Court]
LIBERAL JURISPRUDENCE ON BAIL
In the case of Deepak Bajaj Vs. State of Maharastra &
Anr. under Writ Petition (Crl.) No. 77 of 2008 decided on 12 th
November, 2008, the Hon’ble Apex Court held that-
“reputation of a person is a facet of his right to life
under Article 21 of the Constitution…. If a person is sent to
jail then even if he is subsequently released, his reputation
may be irreparably tarnished”
In Rasiklal Vs. Kishore s/o Khanchand Wadhwani
arising out of S.L.P. (Criminal) No. 4008 of 2008) decided on
February 20, 2009, Hon’ble Apex Court has held thus-
“6. ……There is no doubt that under Section 436 of the
Code of Criminal Procedure a person accused of a bailable
offence is entitled to be released on bail pending his trial. As
soon as it appears that the accused person is prepared to
give bail, the police officer or the court before whom he
offers to give bail, is bound to release him on such terms as
to bail as may appear to the officer or the court to be
reasonable. It would even be open to the officer or the court
to discharge such person on his executing a bond as
provided in the Section instead of taking bail from him.”
REMAND OF ACCUSED INTO JUDICIAL CUSTODY
In Manubhai Ratilal Patel Tr. Ushaben vs State Of
Gujarat & Ors. decided on 28 September, 2012 in connection
with Criminal Appeal No. 1572 of 2012 (Arising out of S.L.P.
(Criminal) No. 6468 of 2012), the Supreme Court has held thus-

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“24. The act of directing remand of an accused is
fundamentally a judicial function. The Magistrate does not
act in executive capacity while ordering the detention of an
accused. While exercising this judicial act, it is obligatory on
the part of the Magistrate to satisfy himself whether the
materials placed before him justify such a remand or, to put
it differently, whether there exist reasonable grounds to
commit the accused to custody and extend his remand. The
purpose of remand as postulated under Section 167 is that
investigation cannot be completed within 24 hours. It
enables the Magistrate to see that the remand is really
necessary. This requires the investigating agency to send
the case diary along with the remand report so that the
Magistrate can appreciate the factual scenario and apply his
mind whether there is a warrant for police remand or
justification for judicial remand or there is no need for any
remand at all. It is obligatory on the part of the Magistrate
to apply his mind and not to pass an order of remand
automatically or in a mechanical manner.”
COMPLAINANT AS INTERESTED WITNESS
In Mukut Bihari & Anr. vs State Of Rajasthan decided on
25 May, 2012 in connection with Criminal Appeal No. 870 of
2012, the Supreme Court has held that-
“The complainant is an interested and partisan witness
concerned with the success of the trap and his evidence
must be tested in the same way as that of any other
interested witness and in a proper case the court may look
for independent corroboration before convicting the accused
person. (Vide: Ram Prakash Arora v. The State of Punjab
AIR 1973 SC 498; Panalal Damodar Rathi v. State of
Maharashtra AIR 1979 SC 1191; Suraj Mal v. The State
(Delhi Admn.) AIR 1979 SC 1408; Smt. Meena Balwant
Hemke v. State of Maharashtra AIR 2000 SC 3377; T.
Subramanian v. The State of T.N., AIR 2006 SC 836; A.
Subair v. State of Kerela (2009) 6 SCC 587; State of
Maharashtra v. Dnyaneshwar Laxman Rao Wankhede
(2009) 15 SCC 200; C.M. Girish Babu v. CBI, Cochin, High
Court of Kerala, AIR 2009 SC 2022; and State of Kerala and
Anr. v. C.P. Rao (2011) 6 SCC 450)”

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REPORT OF ARREST TO THE COURT:
The Hon’ble Gauhati High Court in connection with PIL No.
50/2004 decided on 30-08-2009 held by the Hon’ble Mr.
Justices Ranjan Gogoi and B.P. Katakey that
“At this stage we deem appropriate to caution the
investigating officers of the cases in question that under the
law while arresting any accused the reasons/grounds for
arrest should be recorded and forwarded to the competent
court at the time when the accused is forwarded to such
court. We are confident that the investigating officers will
follow the aforesaid procedure prescribed while making
arrest, if any in connection with any of the cases in
question”
FAIR INVESTIGATION IS A PART OF FUNDAMENTAL RIGHTS
In Hema vs State Tr.Insp.Of Police Madras decided on 7
January, 2013 in connection with Criminal Appeal No. 31 of
2013 (Arising out of S.L.P. (Crl.) No. 9190 of 2011), the Supreme
Court has held that-
“8) It is settled law that not only fair trial, but fair
investigation is also part of constitutional rights guaranteed
under Articles 20 and 21 of the Constitution of India.
Accordingly, investigation must be fair, transparent and
judicious and it is the immediate requirement of rule of
law……”
LIABILITIES OF POLICE IN MALICIOUS PROSECUTION
There is no law protecting a police officer who takes part in
the malicious prosecution [Vide, In Lalita Kumari vs Govt.Of
U.P.& Ors. decided on 27 February, 2012 in connection with Writ
Petition (Crl.) No.68 of 2008 by the Supreme Court]

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NO COURT HAVE A SUO MOTU POWERS EXCEPT WRIT
COURTS
As per section 16 of the Immoral Traffic (Prevention) Act,
1956, the Magistrate can direct the Police Officer not below the
rank of Sub-Inspector to rescue of person from brothel but
subject to the provisions of sections 17 and 17A of the Act. The
magistrate is also vested power to closure of brothel and eviction
of offenders from the premises under section 18 of the Act. The
magistrate is further bestowed power to remove of prostitute from
any place by virtue of section 20 of the Act. All the above powers
can also be exercised on receiving a satisfactory and bonafide
complaint.
ADMINISTRATION OF JUSTICE IN THE TERRAIN: MILES
AHEAD
Family Courts:
In terms of the provisions of the Family Courts Act, 1984
and the Mizoram Family Courts Rules, 2008, on 10 th March,
2010, the Government of Mizoram in consultation with the
Gauhati High Court established Family Court at Aizawl for the
administrative districts of Aizawl, Serchhip and Mamit. Family
Court at Lunglei for the administrative district of Lunglei which
excludes the administrative districts of Lawngtlai and Saiha.
Family Court at Kolasib for the administrative district of Kolasib
and Champhai for the administrative district of Champhai. [Vide,
Notification No. A. 12011/39/2008- LJE, the 10 th March, 2010
published in the Mizoram Gazette, Extra Ordinary Vol. XXXIX
23-03-2010 Issue No. 77].
No family courts to handle disputes for family friendly still
existed.
Human Rights Court:
All Judicial Officers in the Grade- I (District Judge Cadre) of
the Mizoram Judicial Service were designated as Judge, Human
Rights Court under the Protection of Human Rights Act, 1993.
Vide, Notification No. A. 12035/1/2008- LJE, Dated Aizawl, the

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16th December, 2010 published in the Mizoram Gazette, Extra
Ordinary, Vol. XL. Dt. 7.1.2011, Issue No. 4.
Again, Court of District & Sessions Judge, Aizawl for the
administrative districts of Aizawl, Kolasib, Mamit, Champhai and
Serchhip and Court of District & Sessions Judge, Lunglei for
administrative districts of Lunglei, Lawngtlai and Saiha are
already identified as Human Rights Court in terms of the
Protection of Human Rights Act, 1993 under Notification No. A.
45011/1/2008-LJE, the 8th Feb., 2012 [Vide, the Mizoram
Gazette, Ext. Ordinary; Vol. XLI. 14.2.2012, Issue No. 69]
Meanwhile, till date no cases remain instituted under this
court.
Special Courts under the Protection of Children from Sexual
Offences Act, 2012 (Act No. 32 of 2012)
No courts remain constituted/identified to trial cases under
the Protection of Children from Sexual Offences Act, 2012 till
date.