Delhi District Court
Presently Residing At vs State Nct Of Delhi on 21 January, 2019
:: 1 ::
IN THE COURT OF SH. SUNIL RANA,
SPECIAL JUDGE (PC ACT) (CBI)06, NEW DELHI DISTRICT,
PATIALA HOUSE COURT, NEW DELHI.
Criminal Revision No. 166/17
CNR No. DLND010052982017
Avinash Chand
S/o Sh. Ravindra Nath Chand
R/o K58, RBI Colony
Presently residing at:
B15, RBI Colony
Byramji Town, Nagpur - 440 013 ... Revisionist
Vs.
State NCT of Delhi ...Respondent
Date of filing of revision : 18.04.2017
Arguments concluded on : 21.01.2019
Date of order : 21.01.2019
ORDER
1. Vide this order, I shall dispose of the revision petition filed challenging the impugned order dated 23.08.2016 whereby, Ld. MM had passed the order on charge against the accused Avinash Chand (hereinafter referred to as "revisionist") for the commission of offence punishable under Sections 23 & 26 of JJ Act, 3 of Child Labour Act and 323 IPC and charges were framed accordingly on CA No. 166/17 Avinash Chand Vs. State . Page 1 of 12 :: 2 ::
21.01.2017.
2. Brief facts of the case are that on a complaint, an NGO ( Butterfly) had rescued a child namely Pooja aged between 12 to 14 years (as per the bonage test) from the house of the revisionist. During the investigation, it was revealed that revisionist had brought the child from her native village, Gorakhpur, U.P. and employed her as domestic help. It has also been revealed that revisionist and his wife used to beat the child on every small issue and made her do all the household work, including taking care of their daughter.
3. Further, after being rescued, statement of child under Section 164 Cr. P.C. was recorded wherein, it has been stated that she used to do all the household work at the house of the revisionist and his wife used to beat her. Subsequently, FIR was registered and chargesheet was filed in the court.
4. Thereafter, vide impugned order dated 23.08.2016, Ld. MM passed the order on charge and framed charges for offence punishable under Sections 23 &26 of JJ Act, 3 of Child Labour Act & 323 IPC against the revisionist and his wife. Hence, the present revision petition on the following grounds:
(i) that as per the MLC report, no injury was found on the person of the girl and as such section 323 IPC is not made out;CA No. 166/17 Avinash Chand Vs. State . Page 2 of 12
:: 3 ::
(ii) That Section 23 & 26 of JJ Act is not made out, as the medical test opines the child between 12 to 14 years of age.
(iii) that no offence under Child Labour Act is made out, as the child was found to be about 14 years of age, as per the boneage test;
(iv) that ld. MM has no jurisdiction to try the present case, as the jurisdiction lies with Children's Court.
(v) That the ld MM has failed to appreciate that the facts do not meet the ingredient of offence to frame the charges.
5. It is therefore, prayed that impugned order dated 23.08.2016 and subsequent order dated 21.01.2017 of framing of charge passed by Ld. MM may be set aside.
6. I have heard Ld. Counsel for the revisionist and Sh. Irfan Ahmad, Ld. PP for the state/respondent and gone through the record.
7. It is submitted on behalf of the revisionist that the girl was not employed as domestic servant and assuming that she was employed as a domestic servant, even then, Section 3 of Child Labour Act is not made out, as being employed as domestic help does not amount to working in hazardous conditions. Ld. Counsel further submitted that even as per MLC, no injury was found on the person of the girl child. Ld. counsel further submitted that statement of the girl was recorded CA No. 166/17 Avinash Chand Vs. State . Page 3 of 12 :: 4 ::
by Magistrate, where she denied to have employed as a domestic help.
8. On the other hand, Ld. PP for the State has argued that girl was rescued by the NGO from the house of revisionist; in her statement under Section 164 Cr. P.C., the girl had stated that she was working in the house of the revisionist as domestic servant; she also stated in her statement that revisionist used to beat her on small issues. Ld. PP has further argued that working as a domestic help does not amount to working in hazardous condition as per Section 3 of Child Labour Act and the charge framed under that section can be set aside. Ld PP further submitted that as per the statement of the child under Section 164 Cr. P.C., she was kept in bondage to do household work and they used to beat and scold her for petty issues, therefore, other charges framed against the revisionist by ld MM do not need any indulgence of this Court.
9. During the course of arguments, Ld. Counsel for revisionist submitted that he is pressing the present petition only w.r.t. charge framed under Sections 3 & 26 of the Child Labour Act. In rebuttal, Ld. Addl. Submitted that though charge under Section 3 Child Labour Act is not made out however, charge under Section 26 Child Labour Act is rightly framed, as the girl child was kept bondage by the revisionist in their house and was rescued by NGO.
10. Section 3 Child Labour Act has been reproduce here as under: CA No. 166/17 Avinash Chand Vs. State . Page 4 of 12 :: 5 ::
"3. Prohibition of employment of children in certain occupations and processes. No child shall be employed or permitted to work in any of the occupations set forth in Part A of the Schedule or in any workshop wherein any of the processes set forth in Part B of the Schedule is carried on:
Provided that nothing in this section shall apply to any workshop wherein any process is carried on by the occupier with the aid of his family or to any school established by, or receiving assistance or recognition from, Government."
11. Reading of above provision makes mention of Part A and Part B of the schedule, which prohibits employment of children in certain occupations and processes. The said schedules are reproduced hereunder: PartA An occupation connected with: (1) Transport of passengers, goods or mails by railway; (2) Cinder picking,' clearing of an ash pit or building operation in the railway premises;
(3) Work in a catering establishment at a railway station, involving the movement of a vendor or any other employee of the establishment from one platform to another or into or out of a moving train;
(4) Work relating to the construction of a railway station or with any other work where such work is done in close CA No. 166/17 Avinash Chand Vs. State . Page 5 of 12 :: 6 ::
proximity to or between the railway lines; (5) A port authority within the limits of any port;
[(6) Work relating to selling of crackers and fireworks in shops with temporary licences;] [(7) Abattoirs/slaughter Houses;] [(8) Automobile workshop and garages;
(9) Foundries;
(10) Handling of toxic or inflammable substances or explosives;
(11) Handloom and powerloom industry;
(12) Mines (underground and underwater) and collieries; (13) Plastic units and fibreglass workshops.] Part B Processes (1) Bidimaking;
[(2) Carpetweaving including preparatory and incidental process thereof;] (3) Cement manufacture, including bagging of cement; [(4) Cloth printing, dyeing and weaving including proceses, preparatory and incidental thereto;] Sections 23 to 26 have been repealed by section 2 and First Schedule of the Repealing and Amending Act, 2001 (30 of 2001) (w.e.f. 392001). The repeal by this Act shall not effect any other enactment in which the repealed enactment has been applied, incorporated or referred to.
1. Ins. by S.O. 404 (E), dated 5th June, 1989.
2. Ins. by S.O. 263(E), dated 29th March, 1994.
3. Added by S.O. 36(E), dated 27th January, 1999.
CA No. 166/17 Avinash Chand Vs. State . Page 6 of 12:: 7 ::
4. Subs. by S.O. 36(E), dated 27th January, 1999. (5) Manufacture of matches, explosives and fireworks; (6) Micacutting and splitting;
(7) Shellac manufacture;
(8) Soap manufacture;
(9) Tanning;
(10) Woolcleaning;
[(11) Building and construction industry including processing and polishing of granite stones;] [(12) Manufacture of slate pencils (including packing); (13) Manufacture of products from agate; (14) Manufacturing processes using toxic metals and substances, such as lead, mercury, manganese, chromium, cadmium, benzene, pesticides and asbestos;] [(15) 'Hazardous process' as defined in section 2 (cb) and 'dangerous operation' as notified in rules under section 87 of the Factories Act, 1948 (63 of 1948);
(16) Printing as defined in section 2(k) (iv) of the Factories Act, 1948 (63 of 1948);
(17) Cashew and cashew nut descaling and processing; (18) Soldering processes in electronics industries;] [(19) 'Aggarbatti' manufacturing;
(20) Automobile repairs and maintenance including processes incidental thereto, namely, welding, lathe work, dent beating and painting;
(21) Brick kilns and roof titles units;
(22) Cotton ginning and processing and production of hosiery goods;
(23) Detergent manufacturing;
CA No. 166/17 Avinash Chand Vs. State . Page 7 of 12:: 8 ::
(24) Fabrication workshops (ferrous and nonferrous); (25) Gem cutting and polishing;
(26) Handling of chromite and managanese ores; (27) Jute textile manufacture and coir making; (28) Lime kilns and manufacture of lime; (29) Lock making;
(30) Manufacturing processes having exposure to lead such as primary and secondary smelting, welding and cutting of lead painted metal constructions, welding of galvanized or zinc silicate, polyvinyl chloride, mixing (by hand) of crystal glass mass, sanding or scrapping of lead paint, burning of lead in enameling workshops, lead mining, plumbing, cable making, wire patenting, lead casting, type founding in printing shops.
Store type setting, assembling of cars, shot making and lead glass blowing;
(31) Manufacture of cement pipes, cement products and other related work;
(32) Manufacturing of glass, glassware including bangles, fluorescent tubes, bulbs and other similar glass products; (33) Manufacture of dyes and dye stuff;
(34) Manufacturing or handling of pesticides and insecticides; (35) Manufacturing or processing and handling of corrosive and toxic substances, metal cleaning and photo engraving and soldering processes in electronic industry; (36) Manufacturing of burning coal and coal briquettes; (37) Manufacturing of sports goods involving exposure to synthetic materials, chemicals and leather; (38) Moldings and processing of fiberglass and plastic; (39) Oil expelling and refinery;
CA No. 166/17 Avinash Chand Vs. State . Page 8 of 12:: 9 ::
(40) Paper making;
(41) Potteries and ceramic industry; (42) Polishing, molding, cutting, welding and manufacture of brass goods in all forms;
(43) Process in agriculture where tractors, threshing and harvesting machines are used and chaff cutting; (44) Saw millall processes;
(45) Sericulture processing;
(46) Skinning, dyeing and processes for manufacturing of leather and leather products;
(47) Stone breaking and stone crushing; (48) Tobacco processing including manufacturing of tobacco, tobacco paste and handling of tobacco in any form; (49) Tyre making, repairing, retreading and graphite benefication;
(50) Utensils making, polishing and metal buffing; (51) 'Zari' making (all processes);] [(52) Electroplating;
(53) Graphite powdering and incidental processing; (54) Grinding or glazing of metals; (55) Diamond cutting and polishing; (56) Extraction of slate from mines; (57) Rag picking and scavenging.]
12. A bare reading above schedules reveals that being employed as domestic servant does not amount to working in hazardous condition.
In view of the same, Ld. MM has erred in framing charge under Section 3 of Child Labour Act, as the same is not made out against the CA No. 166/17 Avinash Chand Vs. State . Page 9 of 12 :: 10 ::
revisionist.
13. Ld. counsel for revisionist also contended that Section 26 of JJ Act is also not made out against him. Before dealing with this contention, let me refer to the Section 26, which is reproduced hereunder: "26. Exploitation of juvenile or child employee.--
Whoever ostensibly procures a juvenile or the child for the purpose of any hazardous employment keeps him in bondage and withholds his earnings or uses such earning for his own purposes shall be punishable with imprisonment for a term which may extend to three years and shall also be liable to fine."
14. In the present case, the girl child was rescued by an NGO from the house of the revisionist meaning thereby that she was kept a bondage in the house of the revisionist. Therefore, it clear that the prima facie, section 26 of JJ Act is very well attracted against the revisionist.
15. Moreover, It is well settled that at the initial stage of framing charges, the truth, veracity and effect of evidence are not to be meticulously judged and the standard of test, proof and the judgment for finding the accused guilty or otherwise, is not to be applied, as held in the matter of Pritam Singh Vs. State 1981 Crl. L.J. 554 and Union of India Vs. Prafulla Kumar Samal AIR (1979) SC 366. At CA No. 166/17 Avinash Chand Vs. State . Page 10 of 12 :: 11 ::
the time of framing of charge, what all needs to be looked into is whether a prima facie case is made out or not, as is the situation in the present case.
16. It is worthwhile to mention here that at the stage of framing of charge, the Court is required to evaluate the materials and documents placed on record by the prosecution with a view to finding out if the facts emerging therefrom taken at their face value disclose the existence of all the ingredients constituting the alleged offence. It is true that at the stage of charge, defence of accused cannot be considered and the court is not required to make roving inquiry into the pros & cons of the matter and weigh evidence as if it is conducting a trial. Moreover, in the present matter, trial has already started and as per the submissions made during the course of arguments, statement of the child has also been recorded.
17. In view of the facts & circumstances of the case and discussion made above, I am of the view that charge framed under Section 3 Child Labour Act is not made out against the revisionist. Accordingly, impugned order dated 23.08.2016 whereby, Ld. MM had framed charges against the revisionist is modified only to the extent that charge framed under Section 3 of Child Labour Act be not read against the revisionist. Rest of the charges framed against the revisionist will remain the same and matter shall proceed further in accordance with law. However, it is made clear that any observation CA No. 166/17 Avinash Chand Vs. State . Page 11 of 12 :: 12 ::
made herein shal not affect the merits of the case during the trial.
18. Revision petition is accordingly disposed of. Copy of this order along with trial court record be sent back to the court concerned.
19. Revision file be consigned to record room.
Announced in the open Court (Sunil Rana) today, i.e., on 21.01.2019 Additional Sessions Judge Special Judge (PC Act)(CBI)6, Patiala House Court, New Delhi CA No. 166/17 Avinash Chand Vs. State . Page 12 of 12