"The fact that persons belonging to such a community are vulnerable and in certain situations open to be ridiculed and harassed, cannot be ignored by this Court," the Court observed.
The Bombay High Court recently granted bail to a man who belonged to the LGBTQ+ community and who was accused of child trafficking, after taking note that persons belonging to the LGBTQ+ are prone to harassment and are more vulnerable in jail.
The fact that persons belonging to the LGBTQ community, in certain situations, are open to ridicule and harassment cannot be ignored by the Court, observed Justice Manish Pitale in the June 27 bail order.
"The applicant has remained behind bars since 26th May 2024, which is more than a month. He is in judicial custody ... 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," the Court added, while granting bail.
The Court was hearing a bail application filed by a man (applicant) booked under Section 370 (trafficking of persons) of the Indian Penal Code, 1860 and Sections 80 and 81 of the Juvenile Justice (Care and Protection of Children) Act, 2015.
In this case, the parents of a one-year-old child (co-accused), who were financially poor, were alleged to have "sold" the child to the applicant-accused for around ₹4 lakhs.
The parents claimed that the child was supposed to be featured in films and that it was for this reason that the money was exchanged, although no such film was shot.
On the other hand, the applicant denied having exchanged any money to take possession of the child and said that he and his partner had only wished to take care of a child since LGBTQ couples are presently not legally allowed to adopt children in India.
A first information report (FIR) accusing the applicant of trafficking the child was lodged by the police on information by a sub-inspector after the child's parents approached the police.
The applicant-accused was arrested after some enquiries were made and had been in judicial custody since May 26, 2024. He later filed a bail application before the High Court.
The High Court was of the view that there was a prima facie case made out against the applicant accused.
However, since the applicant is a member of the LGBTQ+ community and was also HIV+ and undergoing treatment, the Court deemed it fit to release the applicant on bail.
Advocates Sesley Menezes, Steven Anthony and Waqar Pathan appeared for the applicant.
Additional Public Prosecutor Kiran C Shinde appeared for the State.
[Read Order]
Attachment
Bombay High Court LGBTQ - bail.pdf