Describe the offences relating to “trafficking of person” and exploitation of a “trafficked person”? [MPCJ 2014]
Ans. In the aftermath of Delhi gang-rape ‘Nirbhaya’ case which shook the conscious of nation, a Committee under the Chairmanship of late former Chief Justice of India J. S. Verma constituted to amend several provisions of IPC. Subsequent to that, sections 370 and 370A were introduced by the Criminal Law (Amendment) Act, 2013 which respectively deals with trafficking of person and exploitation of the trafficked person. These two offences are being discussed as under-
Trafficking of person:- Section 370 of IPC deals with it and has following essential ingredient—
- The accused has motive of exploitation of any person. The expression ‘ exploitation’ has been given an expanded connotation under explanation No. (1) attached to the section to include any act of physical exploitation or any form of sexual exploitation and more specifically the forced removal of organs or the practice of slavery or practices similar to that of slavery and servitude.
- In order to such exploitation, the accused recruits, transports, harbours, transfers, or receives such person.
- And, the victim of such exploitation is recruited, transported etc by way of threats, force, coercion, abduction, fraud, deception, abuse of power or by through inducement. It is also clarified that act of inducement includes giving or receiving of payments or benefits, in order to achieve the consent of any person having control over the victim of exploitation. Most importantly, it needs to be underlined that by virtue of explanation No. (2) attached to the section the consent of the victim has been rendered immaterial in determination of the offence of trafficking. So, accused cannot take the plea that the victim had duly consented him for the purpose of exploitation.
On the satisfaction of the aforesaid ingredient, the offence of the trafficking of person is made out. But, the tenure of punishment further depends upon the fact whether the accused is first time offender or a repeat offender. Likewise, if offence of trafficking is committed by a public servant or by a police officer or where such offence is committed against more than one person or against a minor victim then it is also treated as an aggravating factor and punished with more severity.
Recently, Hon’ble hight court of Madhya Pradesh has also held Ku Priyanka vs State of Madhya Pradesh [CRR No. 789/2019, Order dated 20/05/2020] that a woman in prostitution cannot be charged with the offence of trafficking under section 370 of IPC because she cannot be said to exploit herself rather she is victim in such offence.
Exploitation of Trafficked person :- Section 370 A of IPC deals with it and has following essential ingredient—
- Mens rea: The concerned accused must have knowledge or having reason to believe that minor or a person has been trafficked. A minor or a person is said to have been trafficked against whom an offence has been committed under section 370 of IPC.
- Actus reus: With the aforesaid state of mind, the accused engages such trafficked minor or adult victim for sexual exploitation in any manner. While, at the stage of trafficking of a person it is only purpose of exploitation need to show but in the instant section, there has to be actual engagement for sexual exploitation in any manner whatsoever.
Under the scheme, if offence is committed against a minor victim then it is treated as an aggravating factor and punished with more severity.