The Patna High Court has granted bail to two accused in a serious trafficking case under the Bharatiya Nyaya Sanhita, 2023, emphasizing that the victim’s voluntary marriage to one petitioner and the prolonged period of custody are material factors in bail adjudication, even in grave offences.
Background & Facts
The Dispute
The case arises from Kartaha Police Station Case No. 154 of 2025, registered against multiple accused for offences under Sections 137(2) and 140(3) of the Bharatiya Nyaya Sanhita, 2023, which criminalize trafficking of persons for sexual exploitation. The core allegation is that two minor girls were kidnapped, sold, and forced into prostitution. One of the victims was subsequently recovered from the residence of petitioner Kundan Kumar, with investigation revealing that she was sold to him by co-accused Kanchan Kumari.
Key Facts
- The incident occurred in the jurisdiction of Kartaha Thana, District Vaishali, Bihar
- The two victims were allegedly trafficked between December 2024 and early 2025
- Petitioner Kundan Kumar @ Kundan Singh purchased one victim from Kanchan Kumari
- The victim, Puja Kumari, is now married to Kundan Kumar and resides with him voluntarily
- Both petitioners have no prior criminal record
- Both have been in judicial custody since 17.12.2025
- Investigation is ongoing; charge sheet has not yet been filed
- The victim’s counsel confirmed before the Court that the marriage is consensual and the victim is living with Kundan Kumar of her own free will
Procedural History
- 17.12.2025: Arrest of both petitioners in connection with Kartaha PS Case No. 154 of 2025
- 18.12.2025: First remand order passed by Judicial Magistrate First Class, Hajipur
- 05.01.2026: Second remand order issued
- 15.02.2026: Third remand order issued
- 27.05.2026: Bail applications filed before the Patna High Court under Criminal Miscellaneous No. 18071 of 2026 (Kanchan Kumari) and Criminal Miscellaneous No. 18120 of 2026 (Kundan Kumar)
The Parties' Positions
- Kanchan Kumari: Argued she played a subordinate role in the transaction, had no prior criminal history, and had been in custody for over five months without charge sheet filing
- Kundan Kumar: Argued that he married the victim voluntarily, she is now residing with him, and there is no risk of tampering or flight
- State of Bihar: Opposed bail on grounds of gravity of offence, potential for witness intimidation, and the heinous nature of trafficking under BNS Sections 137(2) and 140(3)
- Victim’s Counsel: Confirmed the marriage was consensual and the victim had no objection to the petitioner’s release on bail
Relief Sought
The petitioners sought immediate release on bail, furnishing bonds of Rs. 10,000 each with two sureties of like amount, pending completion of investigation and trial.
The Legal Issue
Can bail be granted to accused in a serious trafficking case under the Bharatiya Nyaya Sanhita, 2023, where one accused has married the victim voluntarily and both have been in custody for over five months without charge sheet filing, despite the gravity of the offence?
Arguments Presented
For the Appellant/Petitioner
Learned counsel for both petitioners relied on the principle that prolonged custody without charge sheet filing weighs in favour of bail, especially where the accused have no antecedents. They emphasized that Kundan Kumar’s marriage to the victim, confirmed by her counsel, negates any risk of re-victimization or influence. They cited State of Rajasthan v. Balchand to argue that personal circumstances, including marital ties formed during investigation, may be considered under Section 439 CrPC (now analogous provisions under BNS). They further submitted that the victim’s consent and current cohabitation demonstrate absence of coercion and reduce the threat to public order.
For the Respondent/State
The Additional Public Prosecutor contended that trafficking under Sections 137(2) and 140(3) of BNS is a non-bailable, heinous offence with a mandatory minimum sentence of ten years. They argued that the nature of the crime - exploitation of minors for prostitution - demands strict judicial caution. They warned that granting bail might embolden traffickers and undermine deterrence. They also raised concerns about potential collusion between accused and victim, despite the victim’s statement, noting that victims in trafficking cases often remain under psychological duress.
The Court's Analysis
The Court acknowledged the seriousness of the allegations under Sections 137(2) and 140(3) of the Bharatiya Nyaya Sanhita, 2023, which carry severe penalties. However, it emphasized that bail is not a reward for innocence but a procedural safeguard against undue detention. The Court noted that the petitioners have been in custody since 17.12.2025, a period exceeding five months, with no charge sheet filed as of the date of hearing. The Court observed that the absence of criminal antecedents and the voluntary nature of the marriage between Kundan Kumar and the victim are material facts that cannot be ignored.
"The victim has married the petitioner Kundan Kumar and is residing with him of her own volition, as stated by her counsel before this Court."
The Court further held that the victim’s current position, as affirmed by her counsel, is a significant factor in assessing risk of re-offence or influence. It noted that the law does not require the Court to presume coercion merely because the victim was previously trafficked. The Court also considered the investigative stage: with no charge sheet filed, the case remains in a preliminary phase, and the accused’s continued detention does not serve the interests of justice.
The Court explicitly cautioned that its observations are limited to the bail stage and do not prejudge the merits of the case.
"Any observation made herein is prima facie in nature and limited solely for the purpose of adjudication of the present bail application. Such observations shall not be construed as an expression on the merits of the case and shall not influence the trial or any other proceedings in any manner."
The Verdict
The petitioners succeeded. The Patna High Court granted bail to both Kanchan Kumari and Kundan Kumar. They are directed to be released on furnishing personal bail bonds of Rs. 10,000 each, with two sureties of like amount each, to the satisfaction of the Judicial Magistrate First Class, Hajipur, in connection with Kartaha PS Case No. 154 of 2025. The Court directed that the victim may, if she has any further information, approach the Investigating Officer or the trial court.
What This Means For Similar Cases
Marriage to Victim May Be a Material Factor in Bail
- Practitioners may now argue that consensual marriage between accused and victim, if confirmed by the victim’s counsel, can be a compelling ground for bail in trafficking cases under BNS
- This does not absolve the accused but may mitigate perceived risk of re-victimization or witness tampering
- Courts may require independent verification of the victim’s statement through her counsel or a welfare officer
Prolonged Custody Without Charge Sheet Favors Bail
- Where investigation exceeds five months without filing a charge sheet, courts may view continued detention as disproportionate
- This reinforces the principle from Sanjay Chandra v. CBI that delay in investigation must be weighed against the accused’s right to liberty
- Defence counsel should routinely file affidavits on the status of investigation and custody duration
Prima Facie Observations Do Not Bind Trial Courts
- Courts granting bail in serious cases must explicitly state that their observations are limited to bail proceedings
- Trial courts cannot be influenced by bail observations, even if they appear favorable to the accused
- Prosecutors must not cite bail orders as precedent on merits during trial
