Delhi District Court
Vishnu @ Bishnu Nirola vs (I) The State on 20 February, 2023
IN THE COURT OF SHRI SUNIL GUPTA
ADDITIONAL SESSIONS JUDGE-06, SOUTH DISTRICT
SAKET COURTS, NEW DELHI
CRIMINAL APPEAL NO. 98/2020 (RBT 47/2022)
IN THE MATTER OF:
Vishnu @ Bishnu Nirola
S/o Sh. Rishi Nirola
R/o A-7/87 Ishwar Colony
Phase-5, Aya Nagar,
New Delhi-110047
.......Appellant
Versus
(i) The State
(ii) Child Welfare Committee (District
South), (Bench of Magistrate U/s 27(9)
of J.J. Act, 2015), Kasturba Niketan,
Lajpat Nagar-II, New Delhi-110024
........Respondents
Instituted on : 14.09.2020
Reserved on : 17.01.2023
Pronounced on : 20.02.2023
CA No. 98/2020 Vishnu @ Bishnu Nirola v. State (Govt. of NCT of Delhi) Page No. 1 of 13
Digitally
signed by
SUNIL
SUNIL GUPTA
GUPTA Date:
2023.02.20
16:05:39
+0530
JUDGMENT
1. Vide this order I shall dispose of present appeal U/s 101 of Juvenile Justice (Care and Protection of Children) Act 2015, preferred by Mr. Vishnu against the order dated 24.08.2020 of Child Welfare Committee (Bench of Magistrates), South District whereby he was directed to pay Rs. 1,30,000/- as minimum wages to the child victim.
2. Brief facts as per record are as under:-
A case FIR No. 278/2020, U/s 3/14 Child Labour (Prohibition and Regulation) Act, 1986, Section 16/17 Bonded Labour System (Abolition) Act, 1976, Section 75/79 Juvenile Justice (Care and Protection of Children) Act 2000 and Section 370/374 IPC PS Fatehpur Beri was registered against the appellant on 20.07.2020 on the complaint of Tehsildar, Mehrauli. A child victim aged around 16 years was allegedly rescued from him. He was arrested and was released on bail subsequently vide order dated 18.08.2020 of Ld. ASJ- 02, South. In the meanwhile, child victim was produced before Child Welfare Committee, South District on 21.07.2020. After the release of appellant on bail, he appeared before CWC on 24.08.2020 whereupon he was directed to deposit the minimum wage of child victim amounting to Rs. 1,30,000/- in her account within 10 days. By way of these proceedings the appellant is assailing said order.
3. Ld. Counsel for appellant has challenged the impugned order on following grounds:-
CA No. 98/2020 Vishnu @ Bishnu Nirola v. State (Govt. of NCT of Delhi) Page No. 2 of 13 Digitally signed by SUNIL SUNIL GUPTA GUPTA Date:
2023.02.20 16:06:20 +0530 a. The Child Welfare Committee has passed the order without following due process of law as he was not given opportunity of being heard.
b. The order has been passed by ignoring the fact that no such offence as alleged ever took place which is clear from the statement of child victim u/s 164 Cr.P.C.
4. It was argued by Ld. Counsel for appellant that the impugned order is illegal as same has been passed while ignoring the principles of natural justice. It was argued that the amount of Rs.1,30,000/- was directed to be paid by him to the child victim vide order dated 28.07.2020 when he was in JC and no one was representing him before Child Welfare Committee. Thereafter, he appeared before the committee on 24.08.2020 and he was directed to deposit the said amount in the bank account of child victim on that date, however, said order was mere formality as the directions to this effect were already issued vide earlier order dated 28.07.2020. Further, it was argued that no offence as alleged by the prosecution, was committed by him which is clear from the statement of the child victim recorded before Ld. Magistrate u/s 164 Cr.P.C. Same is also clear from the bail order dated 18.08.2020 wherein the victim was present alongwith her father and she did not support the case of prosecution even in those proceedings. He has further submitted that after considering these facts, Ld. Sessions Court had granted him interim bail which was confirmed by Ld. Sessions Court vide subsequent order dated CA No. 98/2020 Vishnu @ Bishnu Nirola v. State (Govt. of NCT of Delhi) Page No. 3 of 13 Digitally signed by SUNIL SUNIL GUPTA GUPTA Date:
2023.02.20 16:06:31 +0530 05.10.2020. Also, he has already paid a sum of Rs.10,000/- to the child victim as per order dated 18.08.2020 of Ld. Sessions Court. It has been submitted that in view of the order dated 18.08.2020, there was no occasion for the Child Welfare Committee to direct him to deposit a sum of Rs.1,30,000/- in the bank account of child victim. He has prayed that the impugned order may be set aside.
5. Per contra, it was argued by Ld. Addl. PP for the State as well as Sh. Manish Dhingra, Ld. Counsel for DSLSA that there is no illegality in the impugned order. They have prayed for dismissal of the appeal.
6. Record reveals that notice of this appeal was also issued to respondent no.2 i.e. Child Welfare Committee, South whereupon reply was received on their behalf on 08.01.2021. As per said reply, the impugned order was passed after considering all the relevant facts and in pursuance to powers conferred on the Child Welfare Committee by Hon'ble High Court of Delhi in WP(Crl.) No. 619/2002 and W.P(Crl.) No. 879/2007 titled "Bachpan Bachao Andolan and Ors Vs. Union of India". It was also mentioned therein that correct facts were not brought to the notice of Ld. ASJ during the hearing of interim bail application moved on behalf of appellant. It was mentioned that the appeal is liable to be dismissed.
7. I have considered the arguments from both the sides. I have also gone through the directions of Hon'ble Delhi High Court in CA No. 98/2020 Vishnu @ Bishnu Nirola v. State (Govt. of NCT of Delhi) Page No. 4 of 13 Digitally signed by SUNIL SUNIL GUPTA GUPTA Date:
2023.02.20 16:06:54 +0530 aforementioned cases. It appears that impugned order has been passed by the Child Welfare Committee in pursuance to Delhi Private Placement Agencies (Regulation) Order, 2014 which was issued in compliance of order dated 24.12.2010 and 18.12.2013 of Hon'ble Delhi High Court in Bachpan Bachao Andolan Vs. Union of India & Ors. Writ Petition Crl. 82/2009. Relevant provision thereof is reproduced below for ready reference:- "10. Power of The Delhi Commission for Women and the Child Welfare Committee: The Delhi Commission for Women and Child Welfare Committee will have the following powers by virtue of the aforesaid directions of the Hon'ble High Court of Delhi, namely:-
(a) The Committee and the Commission will have powers to summon the private placement agencies or the employers as the case may be on a complaint made by the domestic worker or her guardian or any person employing her;
(b) Direct payment of wages not less than the Minimum Wages notified by the Labour Department, GNCT of Delhi from time to time as per agreed terms and in appropriate cases impose fines;
(c) Direct payment of compensation in cases where severe injuries are caused to the domestic workers during the course of the work;
(d) Direct medical assistance;
(e) Direct the private placement agency to comply with the agreement with the employer or return the commission where the terms are not complied with;
(f) Impose fines on the private placement agencies where it is found CA No. 98/2020 Vishnu @ Bishnu Nirola v. State (Govt. of NCT of Delhi) Page No. 5 of 13 Digitally signed by SUNIL SUNIL GUPTA GUPTA Date:
2023.02.20 16:07:06 +0530 that terms of the agreement are not followed;
(g) Direct legal aid to the child/woman where a criminal offence has been committed;
(h) Direct employers to inform the local police or the Committee/Commission in cases where the domestic worker is missing within 24 hours;
(i) In cases where a domestic worker has been placed in a home against her wishes, enable her to leave her employment and direct the agency to return the commission paid by the employer back to the employer."
8. Record reveals that the FIR in question was lodged on the basis of a written statement duly signed by child victim before Mr. Alok Kumar Mishra, Tehsildar, Mehrauli, Delhi. In the said statement she has leveled various allegations against the appellant herein including that of non payment of wages to her. She did not fully support her earlier allegations in the statement u/s 164 Cr.P.C. recorded subsequently before Ld. Magistrate on 17.08.2020. In the meanwhile, an application for bail was filed on behalf of applicant which was heard by Ld. ASJ-02 (South) on 18.08.2020. During the hearing thereof, victim alongwith her father had joined the proceedings through VC (proceedings were conducted through CISCO Webex and IO was also present with them). It was submitted by Ld. Counsel for accused in the bail hearing that when he came to know that child was 16 years of age, he did not employ her any where but he could not CA No. 98/2020 Vishnu @ Bishnu Nirola v. State (Govt. of NCT of Delhi) Page No. 6 of 13 Digitally signed by SUNIL SUNIL GUPTA GUPTA Date:
2023.02.20 16:08:20 +0530 send her back due to lockdown. It was also submitted that she was given a mobile phone by him through which she was in touch with her father but he also could not come to take her back due to lockdown. Victim was also given an opportunity to submit her case wherein she stated that she was not send back to Punjab due to Covid-19 Pandemic even after Railway facilities have started. She also stated that despite her requests, appellant had not paid the remaining amount of Rs.5000/- to her. On this, Ld. Counsel for appellant had stated that he was ready to make payment of Rs.5000/- to complainant/victim to show his bonafide.
9. In this factual background and considering the Covid-19 Pandemic at that time, Ld. ASJ granted interim bail to the appellant for 45 days subject to furnishing of bonds and payment of Rs.10,000/-
to the victim within two days after his release. Said order of interim bail was confirmed by Ld. Sessions Court vide another order dated 05.10.2020 on a subsequent bail application moved on behalf of appellant wherein he stated that he has paid Rs.10,000/- to the complainant/victim.
10. It is clear from above that the child/victim has not completely exonerated the appellant neither in her statement u/s 164 Cr.P.C. nor in her submissions before Ld. Sessions Court during hearing of interim bail application of the appellant. Victim was produced before Child Welfare Committee, South District on 21.07.2020 and she was CA No. 98/2020 Vishnu @ Bishnu Nirola v. State (Govt. of NCT of Delhi) Page No. 7 of 13 Digitally signed by SUNIL SUNIL GUPTA GUPTA Date:
2023.02.20 16:08:37 +0530 restored to her father vide order dated 28.07.2020. Order dated 28.07.2020 is important as the amount of Rs.1,30,000/- to be paid by appellant to the victim as arrear of minimum wages was calculated on said date. On that day, child victim alongwith her father and one Legal Aid Counsel (who was there to assist her) was present before the Committee. Said order is being reproduced below for ready reference:-
"Present- Child Ms. Manish Kaur Lady Constable Divya and ASI Ashok Kumar Father of the child Case of child Ms. Manish Kaur produced today by ASI Ashok Kumar and lady constable Divya in FIR No. 278/2020 dated 20.07.2020...Shri Ashok Kumar submitted report with respect to the child along with the statement of the child before SDM. Same are also perused and taken on record.
The Bench interacted with the child. During the interaction with the Committee, child shared that she came to Delhi in February 2020 alongwith one of her relatives and in Delhi one Vishnu, owner of placement agency received her on New Delhi Railway Station. Thereafter child was taken to Aaya Nagar near Arjungarh Metro Station where child was kept for about 25 days and thereafter Vishnu engaged the child on two different places as domestic worker and child was found working and rescued on 20.07.2020 from H.No. A7A/87 Farm House, Ph-1, Aya Nagar, New Delhi. It is also shared by the child that till today she just received CA No. 98/2020 Vishnu @ Bishnu Nirola v. State (Govt. of NCT of Delhi) Page No. 8 of 13 Digitally signed by SUNIL SUNIL GUPTA GUPTA Date:
2023.02.20 16:09:04 +0530 Rs.10,000/- from Vishnu on account of her work done by the child since February 2020 to July 2020. It is further shared by the child that some of the time in between February 2020 till the date of rescue she also worked at the House of Vishnu as a maid and in that period she was not provided proper food by Vishnu and his wife and they also physically assaulted the child.
In view of above the employer shall be liable to pay minimum wages to the child for the period of employment at the rate fixed by the State Government. The child has worked 5 month 06:00 am to 08:00 pm. It is also mentioned that as per minimum wages act wages comes to (Rs.70,000 for 8 hours and Rs.70,000 for overtime four hours, totaling to amount 70,000+70,000=1,40,000. Out of which rupees 10,000 is stated to be given to the girl by the employer therefore balance amount is Rs.1,40,000/ - 10,000=1,30,000/- payable as back wages within 30 days by the employer to the child in her bank account.
We interact with the Child as well as Father of child, child is willing to go with her Father and the Father of the child also willing to take the custody of the child, In the best interest of the child she is restored to her Father u/s 40(3) of JJ Act 2015. As the child originally belongs to the Tarantaran Punjab therefore there is no requirement to produce the child before the Bench further. Adhar card of the Father is taken on record and form 19 and 20 is executed and accepted.
Considering all the facts and circumstances of the case, following directions are issued as under
1) ASI Ashok Kumar is directed to handover the custody of the child to CA No. 98/2020 Vishnu @ Bishnu Nirola v. State (Govt. of NCT of Delhi) Page No. 9 of 13 Digitally signed by SUNIL SUNIL GUPTA GUPTA Date:
2023.02.20 16:09:15 +0530 the Father and submit status report of the case on given NDOH.
2) IO is further directed to produce the employer (Vishnou from the address A7/87 phase 5 Aya Nagar Delhi) before Bench on given NDOH.
3) Father of the child is also directed to the custody of the child and provide her proper care, concern, education and protection and send copy of the passbook of the bank account of the child.
4) DCPU Tarantaran Punjab is directed to produce the child before the CWC Tarantaran Punjab for further follow up and submit report of the case on given NDOH.
5) CWC Tarantaren Punjab is requested to take the follow up of the child and pass appropriate direction in the best interest of child."
11. Apparently, none was present on behalf of the appellant before CWC on 28.07.2020 when the arrears/back wages were calculated. Vide same order, IO was directed to produce the employer i.e. the appellant herein before it on next date of hearing i.e. 12.08.2020. The copy of proceedings/order dated 12.08.2020 of CWC has not been placed on record. Order dated 24.08.2020 is on record wherein IO was present alongwith the appellant. Child victim was already with her father. Proceedings were recorded on that day in following manner:-
"Case of child produced today by ASI Ashok, PS Fatehpur Beri. He has submitted a status report same is perused and taken on record. The child was restored to the father on 28.07.2020, her further production would be at CWC Taran, Taran Punjab.
CA No. 98/2020 Vishnu @ Bishnu Nirola v. State (Govt. of NCT of Delhi) Page No. 10 of 13 Digitally signed by SUNIL SUNIL GUPTA GUPTA Date:
2023.02.20 16:09:27 +0530 The Employer was in JC and was granted bail on 18.02.2020. The copy of the order has been taken on record. The Ld. Court has directed the employer to pay Rs.10,000/- to the child. The Bench interacted with the employer, he has submitted that she was with him for above 4 month, she was in his office waiting for placement. She was residing in the placement agency round the clock he. He needs to deposit the amount of minimum wage Rs.1,30,000/- with NDOH.
Considering the above facts and circumstances of the case following directions are given:-
1. Employer, Vishnu is directed to deposit the minimum wage of the child Rs.1,30,000/- in the account of the child within 10 days and submit a proof of the same on or before NDOH.
2. The Father of the child is directed to get the child enrolled in vocational training and provide care, protection to the child. Produce the child on NDOH.
3. IO is directed to submit verified age proof and status of the case on or before NDOH.
4. Bank Manager, Punjab National Bank, Taran Taran Budh Public School, vill, Thata, dist. Taran Taran. Phone no.01852-274556.
Accounts no.627300002399."
12. As mentioned earlier also, none was present on behalf of appellant before CWC on 28.07.2020 when the arrears of wages to be paid by him was calculated, however, it is to be noted that no CA No. 98/2020 Vishnu @ Bishnu Nirola v. State (Govt. of NCT of Delhi) Page No. 11 of 13 Digitally signed by SUNIL SUNIL GUPTA GUPTA Date:
2023.02.20 16:09:36 +0530 directions were issued to him vide said order to pay/deposit the amount in the bank account of the child victim. Probably, CWC was conscious of the fact that there was no appearance on behalf of appellant before them on that day so, said direction was kept in abeyance and IO was directed to produce him before them. On 24.08.2020, when the appellant was present before CWC, they held an interaction with him and thereafter, he was directed to deposit the amount in the bank account of the child. Details thereof are mentioned in that order and copy of the order was directed to be supplied to the employer as well as bank Manager, PNB, Taran Taran, Punjab.
13. Ld. Counsel for the appellant has submitted that there is failure of nature justice in passing the order dated 24.08.2020 as he was not represented by a Counsel. However, this Court is unable to see any such failure in the proceedings before CWC. There is no requirement in law that said order could have been passed only when accused was represented by an advocate. Ld. Counsel has also failed to show any such legal provision. Appellant was asked about his version of events and same has been mentioned in the order. Same appears to be sufficient compliance of Principles of Natural Justice as directions to the appellant were passed after considering the record including the statement of child victim before CWC dated 28.07.2020 as well as submissions of appellant dated 24.08.2020. It is correct that there are several contradictions in different statements of the child victim before different authorities/Courts, however, the effect thereof can be CA No. 98/2020 Vishnu @ Bishnu Nirola v. State (Govt. of NCT of Delhi) Page No. 12 of 13 Digitally signed by SUNIL SUNIL GUPTA GUPTA Date:
2023.02.20 16:10:10 +0530 ascertained later on, may be at the stage of Trial, but same could not have been taken notice of by CWC when the victim had made submissions before it on the lines of case of prosecution.
14. Considering the above discussion, this Court is of the view that there is no illegality in the impugned order dated 24.08.2020, so as to warrant interference from this Court.
Digitally
Appeal is accordingly dismissed. signed by
SUNIL SUNIL GUPTA
Date:
GUPTA 2023.02.20
16:10:25
+0530
Announced in the open (Sunil Gupta)
court on 20th February, 2023 Additional Sessions Judge-06
South, Saket Courts, New Delhi
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