Delhi District Court
Criminal Appeal No. 21/2/18 vs State on 9 August, 2018
1
IN THE COURT OF SH. DEVENDER KUMAR JANGALA
ADDITIONAL SESSIONS JUDGE03, WEST,
TIS HAZARI COURTS, DELHI
UID No. 54153/2016
Criminal Appeal No. 21/2/18
P.S. Vikas Puri
NDMC Employees Cooperative,
Group Housing Society Ltd.
Vikas Puri, New Delhi,
Through its Secretary
Satish Bhardwaj .... Appellant
Versus
1. State
2. Chairperson
Bench of Magistrates,
Child Welfare CommitteeI,
Nirmal Chhaya Complex,
Jail Road, New Delhi64 ....... Respondents
Date of filing: 20.04.2016
Date of transfer : 05.07.2018
Date of arguments: 02.08.2018
Date of order: 09.08.2018
NDMC Employees CoOperative Housing Society Ltd. Versus State & Ors.
CR No.54153/16 1 of 12
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JUDGEMENT
09.08.2018
1. This is an appeal under section 52 of Care & Protection of Children Act 2000 against the impugned order dated 20.03.2015 passed by the Chairperson of Bench of Magistrates under Child Welfare CommitteeI (in short CWC), Nirmal Chhaya Complex, Jail Road, New Delhi whereby the appellant has been ordered to pay Rs. 72,520/ as minimum wages (compensation included).
2. A complaint was received by the Ld. Child Welfare Committee that a minor child aged about 15 years was working as electrician in NDMC Apartment, Vikas Puri, New Delhi. That the Childline West was directed to rescue the child and produce him before the Ld. CWC. On 07.05.2014, said child 'A' was produced before Ld. CWC West vide DD No. 73B dated 06.05.2014 of PS Vikas Puri. The Ld. CWC got the ossification test of the child conducted and on the basis of the said report, NDMC Employees CoOperative Housing Society Ltd. Versus State & Ors.
CR No.54153/16 2 of 12 3 considered the age of the child on 01.07.2014 as 16 years. The Ld. CWC on 20.03.2015 ordered for payment of wages as per Minimum Wages Act to the child for the period of employment. The total amount of Rs. 1,24,884/ was decided as due wages after calculation which included Rs. 5,000/ for childhood loss. The society had already paid Rs. 52,364/ to the child as agreed wages. Therefore, after considering the same, the management of the society was asked to pay the balance amount of Rs. 72,520/ on or before 27.03.2015.
3. The appellant society being aggrieved by the order of the Ld. CWC has filed the present appeal. It is stated that at the time of joining as parttime worker, the child has produced his AADHAR CARD showing his date of birth as 30.10.1993. It is stated that after satisfying that he was major and aged about 19 years, he was taken as parttime worker to carry out odd jobs for 2/3 hours a day and he was paid Rs. 3,500/per month. That NDMC Employees CoOperative Housing Society Ltd. Versus State & Ors.
CR No.54153/16 3 of 12 4 an FIR No. 484/14 under Section 23 of JJ Act was registered at PS Vikas Puri. That the sister of the child with whom he was residing, has submitted the AADHAR CARD showing his date of birth as 30.10.1993. Ms. Ruby Khatoon, sister of the child has also disclosed his age as 30.10.1993 in her statement dated 20.05.2014.The statement of the parents of the child was recorded who disclosed that date of birth of their son as 30.10.1993. The statement of the victim child was also got recorded under Section 161 Cr.PC wherein he disclosed his age as 21 years. It is specifically stated by the child that none had forced him to do the work.
4. It is stated that the appellant society was not given a chance to join the proceedings and proceedings were conducted exparte. It is stated that the impugned judgment is based on conjectures and surmises. That there is not an iota of semblance of a trial as per the Criminal Procedure Code or the Law of Evidence. That NDMC Employees CoOperative Housing Society Ltd. Versus State & Ors.
CR No.54153/16 4 of 12 5 the order is silent about the stand of the appellant and regarding annexures A to E which were also a part before the Ld. CWC. That the Ld. CWC has failed to take into account the AADHAR CARD, statement of the child, his sister and parents. It is prayed that in view of grounds of appeal, the impugned order dated 20.03.2015 passed by the Ld. Child Welfare Committee be set aside.
5. The notice of the appeal was issued to the State which is accepted by the Ld. Addl. PP for the State.
6. The notice of the appeal was also issued to the respondent No. 2/Ld. CWC.
7. I have carefully perused the material on record and heard the submissions made by Sh. M S Butalia, Ld. Counsel for appellant, Sh. Pravesh Ranga, Ld. Addl. PP for the State/respondent No. 1.
8. It is submitted by Ld. Counsel for appellant that in view of the NDMC Employees CoOperative Housing Society Ltd. Versus State & Ors.
CR No.54153/16 5 of 12 6 grounds of the appeal, the impugned judgment passed by the Ld. CWC is not sustainable in the eyes of law.
9. On the other hand, it is submitted by Ld. Addl. PP for the State that it was well within the powers to the Ld. CWC to pass order of the compensation regarding the victim child. That in absence of any proof of the age, the Ld. CWC opted for the ossification test of the victim child. It is stated that it is benevolent statute therefore, its provisions should be interpreted in a liberal manner. It is prayed that the appeal may kindly be dismissed.
10.In the present case, the appellant has relied upon the following documents, i.e., (ANNEXUREA) copy of AADHAR CARD of victim child showing his date of birth as 30.10.1993, (ANNEXUREB) payment voucher to the victim, (ANNEXUREC) statement under Section 164 Cr.PC of the victim child, (ANNEXURED) copy of statement of Ms. Ruby Khatoon, sister of the victim child recorded on 20.05.2014, NDMC Employees CoOperative Housing Society Ltd. Versus State & Ors.
CR No.54153/16 6 of 12 7 (ANNEXUREE) reply filed by the respondent (appellant herein) to the show cause and (ANNEXUREF) impugned order dated 20.03.2015.
11.The perusal of the record of Ld. CWC has revealed that the victim child in his statement under Section 164 Cr.PC recorded by the Ld. Metropolitan Magistrate has claimed his age 21 years on 11.07.2014 at the time of recording of his statement. The victim child in his statement under Section 164 Cr.PC has stated that the society persons were not forcing him to work and he was doing the small job in the society.
12.The investigating officer of case FIR No. 484/14, recorded the statement of victim child wherein he stated that he was doing the job with his own free will without any pressure. The victim child at the time of his medical examination for assessment of the age has also disclosed his date of birth as 30.10.1993. Ms. Ruby Khatoon elder sister of the victim child in her letter to the NDMC Employees CoOperative Housing Society Ltd. Versus State & Ors.
CR No.54153/16 7 of 12 8 Ld. CWC has claimed that the age of victim child is 21 years. The parents of the victim child in their statement have also stated that the date of birth of the victim child is 30.10.1993 and claimed him to be an adult person. The certificate issued by the Municipal Corporation of Darbhanga was also placed on record whereby it is stated that the date of birth of victim child is 30.10.1993 and he is aged about 21 years.
13.The perusal of the impugned judgment dated 20.03.2015 has revealed that the Ld. CWC has failed to take into consideration the above documents and the statements which were very much relevant for passing the order in the present case. It is no doubt true that the provisions of the Care and Protection of Children Act, 2000 are benevolent. Therefore, the liberal interpretation has to be done regarding its provisions.
14.The Ld. CWC has granted the wages for the work done by the victim child as per the Minimum Wages Act for the period of NDMC Employees CoOperative Housing Society Ltd. Versus State & Ors.
CR No.54153/16 8 of 12 9 his employment considering him a child as per the provisions of JJ Act. The Ld. CWC has relied upon the judgment of Hon'ble Delhi High Court in WP (Crl.) No. 82/2009 and accorded the compensation of childhood loss.
15.In the present case, the appellant society in its reply before the Ld. CWC has claimed that the victim child at the time of employment has produced his AADHAR CARD showing himself as an adult person. This submission of the appellant society is corroborated by the statement of victim child recorded under Section 164 Cr.PC wherein he claimed himself to be an adult person. This contention of the appellant society is further corroborated by the statements of sister of victim and his parents. The certificate issued by Municipal Corporation of Darbhanga has also fortified this submission of the appellant society. The appellant society has employed the victim child as parttime worker with his own free will considering him as an NDMC Employees CoOperative Housing Society Ltd. Versus State & Ors.
CR No.54153/16 9 of 12 10 adult person on the basis of the AADHAR CARD produced by him. There was no reason before the appellant society to have doubt upon the veracity of the statement of the victim child or the document produced by him.
16.It is not out of place to mention that even during the investigation, the authenticity of the AADHAR CARD produced by the victim child could not be impeached. A person may be punished for commission of the offence only when he is having the mensrea. Malafide intention must be there to adversely effect the interest of a person. None of the document produced before the Ld. CWC has disclosed the mensrea or the malafide intention of the appellant society regarding the victim child. It appears that the appellant society has acted in bonafide manner relying upon the claim made by the victim child and the AADHAR CARD, showing him to be an adult person. The appellant society has acted in the manner as a NDMC Employees CoOperative Housing Society Ltd. Versus State & Ors.
CR No.54153/16 10 of 12 11 common prudent person may act in the given circumstances.
17.In view of the above discussions, I am of the considered opinion that the impugned order dated 20.03.2015 was passed by the Ld. CWC without taking into consideration the facts and circumstances of the case. The documents produced before the Ld. CWC were not considered. There was no material on record to show any malafide or mensrea on the part of the appellant society rather the documents and material on record disclosed the bonafide of the appellant society. Therefore, the order of the Ld. CWC directing the appellant society to pay the compensation is not sustainable in the eyes of law. Accordingly, considering the facts and circumstances of the case, the appeal filed by the appellant society against impugned order dated 20.03.2015 is allowed, and same is set aside.
18.The appellant society has deposited a FDR before the Ld. Trial court in compliance of the order dated 21.04.2015 passed by NDMC Employees CoOperative Housing Society Ltd. Versus State & Ors.
CR No.54153/16 11 of 12 12 Ld. District & Session Judge (West) Ld. Predecessor of this court. Therefore, the Ld. Chief Metropolitan Magistrate is directed to release the FDR to the appellant society after expiry of the period of the appeal.
19.Trial Court record be sent back along with attested copy of the judgment.
20. Appeal file be consigned to Record Room after completion of necessary formalities.
Announced in the open court today i.e. 09th August, 2018 (DEVENDER KUMAR JANGALA) ADDL. SESSIONS JUDGE03 (WEST), DELHI This judgement contains 12 pages and all pages bears my signatures.
(DEVENDER KUMAR JANGALA) ADDL. SESSIONS JUDGE03 (WEST), DELHI NDMC Employees CoOperative Housing Society Ltd. Versus State & Ors.
CR No.54153/16 12 of 12