The Court of Sessions for Greater Bombay granted regular bail to Khushbu Salman Shaikh, an accused in a case involving the Immoral Traffic (Prevention) Act, 1956 (ITPA). H.H. Additional Sessions Judge Dr. Gauri Kawdikar (Court Room No. 41), in an order dated March 26, 2024, in Criminal Bail Application No. 480 of 2024, ruled that continued incarceration was unnecessary, particularly since a magisterial inquiry found no evidence of force or coercion used against the victims, who were all adults. Ms. Shaikh was arrested in connection with C.R. No. 28/2024 registered with Govandi Police Station for offenses under Section 370(3) of the Indian Penal Code (IPC) (Trafficking of Persons) and Sections 4 and 5 of the ITPA.

The Allegations and the Raid

The case against the applicant originated from a secret information received on January 30, 2024, alleging that the accused was providing girls for prostitution. The prosecution detailed the process of the raid:

1. Operation Setup: Two panchas (witnesses) were called, and a dummy customer contacted the accused via WhatsApp.
2. Evidence Collection: The accused sent photos of the girls to the dummy customer.
3. Raid and Rescue: A raid was effected, and three adult victims were rescued.
4. Seizure: Mobile phones, chat transcripts, and cash were seized, and the statement of the Hotel Manager corroborated the prosecution’s version.

The accused was arrested on January 31, 2024.

Defense Arguments and Prosecution Resistance

Mr. M. S. Pathan, the learned Advocate for the accused, argued that the FIR was false and concocted, asserting that Ms. Shaikh had no nexus with the commission of the offense. He categorically submitted that the accused did not force the victims into prostitution, did not secure girls for the purpose, and was not living off their earnings.

The Ld. Addl. P.P., Mrs. Meera Choudhari-Bhosale, strongly opposed the application, citing the serious nature of the offense and the preliminary stage of the investigation. Crucially, the prosecution highlighted that C.R. No. 122/2022, involving offenses under IPC Section 376 (Rape), POCSO Act, and various sections of the ITPA, was pending against the accused. The prosecution feared repetition of the crime, abscondence, and tampering with evidence.

Judicial Focus on Lack of Coercion

The Court’s decision hinged on an important finding made during an earlier judicial inquiry related to the victims:

• Magisterial Inquiry Finding: The Court reviewed an order dated February 20, 2024, passed by the In-charge, 15th Court, Mazgaon, Mumbai for ITPA, in the same CR. That order specifically mentioned: “During the inquiry any sort of force or coercion not detected regarding sex work done by the said victim.”
• Voluntary Involvement: The order further appended that the victims’ “involvement in the sex work was found to be voluntarily. Moreover, voluntary sex work is at all not illegal.”

The Sessions Judge incorporated this finding into the bail order, noting that since the magisterial inquiry found no force or coercion detected on the victims (who were all major), the severity of the charge under Section 370(3) IPC (Trafficking) was significantly mitigated prima facie.

The Consequence of Pending Cases

Regarding the pending previous serious offense (C.R. No. 122/2022) cited by the prosecution, the Court applied settled law: it is a “settled legal position that pending offences in itself is not a ground for rejection of bail application.” Since the prosecution had produced no judgment to show a conviction of the present accused in any offense, the pending charge alone was insufficient to justify denying bail.

Given that the victims’ statements under Section 164 Cr.P.C. were recorded, and all essential materials (mobile phone, cash, panchanama) were seized, the Court concluded that the continued incarceration of the accused was not required.

Bail Conditions Imposed

The Criminal Bail Application No. 480 of 2024 was allowed. Khushbu Salman Shaikh was released on bail upon executing a P.R. Bond of ₹25,000/- with one or more sureties in the like amount, subject to strict conditions:

1. Police Station Attendance: She must attend Govandi Police Station on the 1st and 3rd Saturday of every month (10:00 a.m. to 11:00 a.m.) till the filing of the charge-sheet, and thereafter on the 1st Saturday of every month until the conclusion of the trial.
2. Jurisdiction: She shall not leave the jurisdiction of Mumbai without the leave of the Court.
3. Witness Protection: She is strictly ordered not to tamper or attempt to influence any person concerned with the case, including victims.
4. Cooperation: She shall co-operate in the conduct of the trial.

This decision underscores the legal distinction between soliciting/managing prostitution and the more severe charge of human trafficking, particularly when victims are adults and no force is established.