[Cites 6, Cited by 0]
Bombay High Court
Rescue Foundation Through ... vs Union Of India And Anr on 15 April, 2026
Author: A. S. Gadkari
Bench: A. S. Gadkari
2026:BHC-AS:17586-DB
pmk 7-WP-3414-2025.doc
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION
WRIT PETITION NO.3414 OF 2025
Rescue Foundation ]
Through Superintendent ]
Leena Pramod Jadhav ]
Age :- 40 Years, Occp: - Service, ]
Having Officer at:- Plot No.39, ]
Fathimadevi Road, Behind Our ]
Lady of Remedy School, Poisar, ]
Kandivali(W), Mumbai-400 067. ]
Petition presenting on behalf of ]
Esha Yakub Hussain @ Noopur ]
Age :- 27 Years, Occp :- Nill, ]
Address:- Sipahipara, P.O. Rampal ]
P.S. Munshinganj Sardar, ]
District:- Munshiganj, ]
Bangladesh ] ... Petitioner
V/s.
1. Union of India-Respondent ]
Through Secretory of ]
Government of India, ]
Ministry of Home Affairs ]
Shastri Bhavan, ]
New Delhi-110 001. ]
2. The Deputy High Commission ]
The Peoples of Republic of ]
Bangladesh ]
Office :- Jolly Maker, ]
Bungalow No.08, Cuffe ]
Parade, Mumbai-400 005. ]
3. State of Maharashtra ]
Through Secretory of ]
State of Maharashtra ]
Ministry of Home Affairs, ]
Mantralay, Mumbai-400 032. ]
The Public Prosecutor ]
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pmk 7-WP-3414-2025.doc
Criminal Appellate Side, ]
High Court, Bombay-400 001. ]
4. The Senior Inspector ]
Dahisar Police Station, ]
Dahisar, Mumbai-400 086. ]
Summons to be served upon ]
The Public Prosecutor ]
Criminal Appellate Side, ]
High Court, Bombay-400 001. ] ... Respondents.
Mr. Ashley Cusher a/w Ms. Priyanka Tiwari, Ms. Keerti Gupta for the
Petitioner.
Ms. Manisha Jagtap for Respondent No.1.
Mr. J.P. Yagnik, APP for the State.
Mr. Balasaheb Raut, IO, PI, DCB, CID, Unit 12-Mumbai, Present.
CORAM : A. S. GADKARI AND
KAMAL KHATA, JJ.
RESERVED ON : 6th April, 2026.
PRONOUNCED ON : 15th April, 2026.
JUDGMENT (PER : KAMAL KHATA, J.) :
1) By this Petition under Article 226 of the Constitution of India,
the Petitioner seeks a direction for the repatriation of the victim, namely
Esha Yakub Hussain @ Noopur to her country of origin, Bangladesh. The
Petitioner further seeks a direction to the Deputy High Commission of the
People's Republic of Bangladesh, Mumbai to issue a fresh travel permit in
the name of the said victim and to facilitate her immediate repatriation,
with a further direction to ensure her appearance, as and when required,
through video-conferencing in Special Case No.1595 of 2024.
2) Present Petition arises in somewhat unusual circumstances.
The Petitioner, a Foundation engaged in the rescue, rehabilitation and
pmk 7-WP-3414-2025.doc
repatriation of victims of human trafficking from India, Nepal and
Bangladesh, who are subjected to commercial sexual exploitation, had on
27th December 2024, filed an application before the learned Sessions Court
seeking repatriation of the victim. The learned Sessions Court, by an oral
direction, required the Petitioner to approach the learned Judicial
Magistrate First Class at Borivali with the same application, on the ground
that the victim was a major. Since the application was not taken on record
by the Sessions Court, the Petitioner approached the Judicial Magistrate
First Class (JMFC) at Borivali. The learned JMFC declined to entertain on
the ground that the case is a Sessions triable matter, involving offences
under the POCSO Act in respect of other victims, and that a charge-sheet
had already been filed before the Sessions Court.
In these circumstances, the present Petition came to be filed in
this Court on 19th June, 2025.
3) We have heard Mr. Ashley Cusher learned Counsel for the
Petitioner, Ms. Manisha Jagtap for the Respondent No. 1- Union of India
and Mr. J.P. Yagnik, APP for the State. We have also carefully perused the
material placed on record.
4) A perusal of the earlier Orders discloses an unsatisfactory state
of affairs on the part of both the Union and the State, who despite being
served, have failed to furnish timely instructions to their Advocates,
resulting in considerable delay in a matter of such sensitivity.
pmk 7-WP-3414-2025.doc
5) By an Order dated 8th October, 2025, this Court had directed
the Trial Court to record the evidence of the victim. However, as of 11 th
March, 2026, i.e. over five (5) months thereafter, it was reported that the
evidence of the victim had still not been recorded and was scheduled to be
taken on 24th March, 2026. There was absolutely no satisfactory
explanation offered for this delay. A report was accordingly called for by
this Court from the Registry of the trial Court. The Order dated 11 th March,
2026 also records the submission of the Petitioner that the earlier
permission for repatriation had lapsed on account of the failure of the Trial
Court to frame the charges or record the victim's evidence. A perusal of the
report reveals no satisfactory or plausible explanation for the delay in
complying with the directions of this Court.
6) Learned Advocate for the Union has placed on record the
Standard Operating Procedures (SOP) for countering Cross-Border
Trafficking in Persons between India and Bangladesh, as well as, the
Memorandum of Understanding between the Government of the Republic
of India and the Government of the People's Republic of Bangladesh on
bilateral cooperation for Prevention of Human Trafficking, particularly
trafficking in women and children and for the rescue, recovery, repatriation
and reintegration of the victims of trafficking. The Maharashtra Module for
Cross-Border Repatriation to Bangladesh dated 3 rd March, 2009, annexed to
the Petition, also sets out, inter alia, the applicable SOPs for RRRI and cross-
pmk 7-WP-3414-2025.doc
border traffic victims. Relevant clauses are set out hereunder for ready
reference:
Post-rescue procedure: a) Production before Magistrate for the
order of age verification and safe custody.
b) Placement in proper shelter home.
c) Production before Magistrate/CWC to
order jail/home investigation and family
tracing.
d) The information should be shared with
the State Task Force.
Administrative process: a) Confirmation of Nationality by
Bangladesh Government.
b) Issuance of repatriation
order/consent letter from Ministry of Home
Affairs, Government of Bangladesh.
c) Issuance of travel documents by
Bangladesh High Commission.
d) Issuance of release order from
shelter homes.
e) Issuance of leave the country
permission / notification from Foreign
Registry Office(FRO).
Physical Repatriation: a) Communication with BSF or
immigration authority in the Airport and
other counterpart for arrangements for
repatriation.
pmk 7-WP-3414-2025.doc
b) Physical transfer of victims to the
repatriation point (Land border or Airport).
Handling over to the relevant authority by
endorsing hand over note.
c) Reception of Victim on the other side
of the border (Bangladesh) at Airport or
Border post.
7) The format prescribed under Annexure 5 of the Standard
Operating Procedures that is presently under consideration by us is as
under:
To,
Under Secretary (BSM),
Ministry of External Affairs,
South Block, New Delhi.
Subject : Repatriation Consent from Ministry of External
Affairs.
Dear Sir,
The ........ Bangladeshi girls trafficked in India are
staying in ...... (Name of Organization). These girls have been
ordered for repatriation. (Copy of Consent letter and Order of
CWC/Magistrate is attached herewith).
The State Government of Maharashtra has 'no objection'
to repatriate these girls to Bangladesh subject to approval from
the Ministry of External Affairs. You are requested to recommend
the case to the High Commission of People's Republic of
Bangladesh for issuing the travel permission to these girls, under
intimation to us.
Thanking You,
Yours Sincerely,
( )
Deputy Secretary.
8) A plain reading of the relevant clauses of SOP and said format
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indicates that the victims / girls are required to either obtain consent from
the CWC or secure an order of repatriation from the Magistrate.
9) The question posed to learned Counsels was: Why an adult
victim would be required to obtain an order from the Magistrate when the
Ministry of External Affairs, Government of India had already granted
permission for the victim's return to Bangladesh and the Government of the
People's Republic of Bangladesh, through its Deputy High Commissioner,
had issued the requisite travel permit.
9.1) None of the learned Counsel were able to point out any specific
provision in law mandating such an order from the Magistrate.
10) Our attention was, however, invited to Section 17 of the
Immoral Traffic (Prevention) Act, 1956 (ITA), which deals with
intermediate custody of persons removed under Section 15 or rescued
under Section 16 of the said Act.
11) A plain reading of the Section 17 of ITA makes it clear that, it
does not contemplate or require any order permitting repatriation of a
victim to her country of origin.
12) In our view, the explanation offered by Ms. Jagtap, as adopted
by the other learned Counsel, that the concerned Court hearing the matter
should grant a 'No Objection' to the repatriation of the victim and that such
an endorsement would suffice for the purposes of the Annexure 5 appears
to be both pragmatic and consistent with the intent of the SOP.
pmk 7-WP-3414-2025.doc
13) In our considered view, in the present case, the learned Judge
of the Special Court, who has recorded the statement of the victim, would
be the appropriate authority to record such 'No Objection' and permit the
release of the victim for repatriation to her home country. In other cases, it
would be the Court which has granted custody of the victim to the rescue
foundation or such person as provided under Section 17 of the Immoral
Traffic Act, 1956, that shall grant such 'No Objection' for repatriation.
14) However, in the facts of the present case, since, the repatriation
of the victim has been inordinately delayed for over six months, we deem it
appropriate to exercise our writ jurisdiction instead of relegating the parties
to the Special Court.
15) Accordingly, the victim, namely Esha Yaqub Hussain @ Noopur,
a Bangladeshi national presently under the care and protection of the
Petitioner, shall be repatriated to her country of origin forthwith, subject to
furnishing the usual undertakings as may be required to ensure her
appearance, as and when required, through video-conferencing in the
Special Case No.1595 of 2024.
16) All concerned authorities to act on the basis of an
authenticated copy of this Order.
17) List the matter for reporting compliance on 15th April, 2026.
(KAMAL KHATA, J.) (A.S. GADKARI, J.).
