IPC Section 370A and BNS Section 144: Exploitation of a Trafficked Person
Section 370A of the Indian Penal Code, 1860 penalised knowingly engaging a trafficked minor or other trafficked person for sexual exploitation. For offences governed by the new criminal law, the corresponding provision is Section 144 of the Bharatiya Nyaya Sanhita, 2023 (BNS).
What is exploitation of a trafficked person?
Under BNS Section 144, a person commits the offence where, knowing or having reason to believe that a child or other person has been trafficked, the person engages that victim for sexual exploitation in any manner. The law targets the knowing sexual exploitation of trafficked victims, including by persons who did not themselves recruit or transport the victim.
Section 143 of the BNS separately defines trafficking of persons through acts such as recruitment, transportation, harbouring, transfer or receipt of a person for exploitation using prohibited means including threats, force, coercion, abduction, fraud, deception, abuse of power or specified inducements. Its explanation includes physical or sexual exploitation, slavery, servitude, beggary and forced removal of organs; the trafficked victim's consent is immaterial to determining the trafficking offence.
IPC Section 370A - Original legal provision
Sub-section (1): Sexual exploitation of a trafficked minor
Whoever, knowingly or having reason to believe that a minor has been trafficked, engages such minor for sexual exploitation in any manner, is punishable with rigorous imprisonment of not less than five years and up to seven years, and fine.
Sub-section (2): Sexual exploitation of a trafficked person
Whoever, knowingly or having reason to believe that a person has been trafficked, engages such person for sexual exploitation in any manner, is punishable with rigorous imprisonment of not less than three years and up to five years, and fine.
These are the penalties under the former IPC provision, relevant to cases to which the IPC continues to apply.
BNS Section 144 - Current legal provision
Section 144(1): Exploitation of a trafficked child
Where a person knowingly, or having reason to believe that a child has been trafficked, engages the child for sexual exploitation in any manner, the punishment is rigorous imprisonment of at least five years and up to ten years, plus fine.
Section 144(2): Exploitation of a trafficked person
Where a person knowingly, or having reason to believe that a person has been trafficked, engages that person for sexual exploitation in any manner, the punishment is rigorous imprisonment of at least three years and up to seven years, plus fine.
The BNS uses the term child in subsection (1). Under BNS Section 2(3), a child means a person below eighteen years of age.
Punishment and procedure at a glance
| Category | IPC Section 370A | BNS Section 144 |
|---|---|---|
| Sexual exploitation of trafficked minor or child | 5 to 7 years rigorous imprisonment and fine | 5 to 10 years rigorous imprisonment and fine |
| Sexual exploitation of trafficked person | 3 to 5 years rigorous imprisonment and fine | 3 to 7 years rigorous imprisonment and fine |
| Classification under current BNSS First Schedule | Historical cases follow applicable procedural law | Both offences cognizable and non-bailable; triable by Court of Session |
Essential ingredients of the offence
- Prior trafficking: The person subjected to sexual exploitation has been trafficked.
- Knowledge or reason to believe: The accused knew, or had reason to believe, that the person had been trafficked.
- Engagement for sexual exploitation: The accused engaged the trafficked person for sexual exploitation in any manner.
- Age where applicable: For the aggravated child provision, the victim must be below eighteen years of age.
The prosecution must prove the applicable elements beyond reasonable doubt. Mere suspicion or association, without proof of the statutory elements, is not itself sufficient for conviction.
Difference between trafficking and exploitation
BNS Section 143 addresses the act of trafficking a person for exploitation through specified means. BNS Section 144 addresses knowingly engaging a trafficked person for sexual exploitation. Depending on the facts, separate or additional offences under child protection and sexual offences legislation may also be relevant.
Illustrative situations
Example 1: A person is aware that a 16-year-old child was trafficked and engages that child for sexual exploitation. Subject to proof of the required elements, BNS Section 144(1) may apply.
Example 2: A person has reason to believe an adult has been trafficked but nevertheless engages that person for sexual exploitation. BNS Section 144(2) may apply.
These illustrations explain the statutory ingredients and are not findings about any particular case.
Frequently asked questions
What replaced IPC Section 370A?
Section 144 of the Bharatiya Nyaya Sanhita, 2023 is the corresponding provision for exploitation of a trafficked person.
Is BNS Section 144 bailable?
No. Both subsections are classified as cognizable and non-bailable in the First Schedule to the Bharatiya Nagarik Suraksha Sanhita, 2023. Bail remains subject to applicable law and judicial consideration.
Which court tries an offence under BNS Section 144?
The Court of Session tries both categories of offences under BNS Section 144.
Does Section 144 punish trafficking itself?
No. The trafficking offence is principally covered by BNS Section 143; Section 144 separately penalises the knowing sexual exploitation of a trafficked person.
Official legal sources
- National Crime Records Bureau - Bharatiya Nyaya Sanhita provisions (Sections 143 and 144)
- National Crime Records Bureau - BNSS First Schedule and offence classifications
- Bureau of Police Research and Development - BNS reference publication
- Ministry of Home Affairs - Government statement on human trafficking
This article provides general legal information. Statutory amendments, transitional rules and the facts of an individual case should be checked before legal action.