Delhi District Court
State vs . Manbir Kaur & Anr. on 9 September, 2015
IN THE COURT OF SH. AKASH JAIN, MM06,
PATIALA HOUSE COURT, NEW DELHI DISTRICT, NEW DELHI
FIR No.121/12
PS South Campus
State vs. Manbir Kaur & Anr.
09.09.2015
ORDER ON CHARGE
1.In brief the facts of the present case as per prosecution are that on 31.08.2012, at about 02:45 PM, a call was made to child helpline that one girl namely Telani Gudia, aged about 15 years was working at 162, Satyaniketan, Delhi and her sister namely Shanti wanted to take her back at their home in Ranchi, Jharkhand. Since, the employer of child did not handover her to Shanti, she approached Butterfly Childline. A complaint was then made to police by Ms. Ravinder Kaur, Head of Resilience Centre and Childline Service wherein it was alleged that in the year 2010 accused Cyprian Ekka who is soninlaw of paternal uncle (namely Dalip) of victim Telani Gudia brought the victim to Delhi with the consent of her parents for work. The victim was reportedly employed at the house of accused Manbir Kaur and remained in touch on telephone with her family.
2. It is alleged that accused Cyprian Ekka in the beginning had sent a sum of Rs.70,000/ to the family of Telani Gudia but thereafter failed to send any money to the family of victim. Elder sister of victim thereafter contacted the employer who informed her that they were regularly paying salary of victim to accused Cyprian Ekka. On request of Shanti, the FIR No.121/12 State vs. Manbir Kaur & Anr. Page 1 of 7 employer of victim agreed to pay salary of victim to parents or relatives of victim directly. When elder sister of victim came to meet her in Delhi, she could not contact either of the accused due to which she got disturbed and called the Child helpline. It is alleged that thereafter the rescue team of complainant reached the premises of accused Manbir Kaur alongwith elder sister of victim where they found victim Telani Gudia who appeared to be happy and in good condition. It is alleged that the victim told the rescue team that she used to do minuscule domestic work in the house of accused Manbir Kaur and was never subjected to any abuse and manhandling. Thereafter, employer handed over the victim to the rescue team who consequently went to police station and FIR in question was registered.
3. During the course of investigation the victim was medically examined and produced before Child Welfare Committee, where the age determination test of the victim was ordered to be conducted. The victim also got recorded her statement before the SDM concerned. The age determination test of victim was got conducted by Department of Forensic Science and Toxicology, Safdarjung Hospital and after test her age was opined between 1416 years. Both the accused persons were admitted to bail during investigation and charge sheet was filed by the IO accordingly. On filing of the charge sheet, this court took cognizance of offences under Section 23 and 26 of Juvenile Justice Act, 2000 (hereinafter referred to as JJ Act) against both the accused persons. Upon appearance of accused persons, copy of documents were supplied to them and after scrutiny of documents the matter proceeded further for arguments on the point of charge.
FIR No.121/12 State vs. Manbir Kaur & Anr. Page 2 of 74. It is argued on behalf of accused Manbir Kaur that even if the contents of the complaint are presumed to be true on their face value, then also prima facie case for alleged offences under Section 23 and 26 of JJ Act, is not made out. It is argued that victim in her statement recorded before SDM concerned clearly stated that she came to Delhi alongwith her uncle Dalip for work and she got employed at the premises of accused Manbir Kaur at the instance of accused Cyprian Ekka. It is argued that victim categorically stated that she used to get food and water on time at the premises of accused and she was kept nicely there. She further stated that she was never troubled by her employer.
5. With respect to accused Cyprian Ekka, it was argued that as per the case of prosecution he merely assisted in the employment of victim at the premises of accused Manbir Kaur and admittedly sent a sum of Rs.70,000/ to the family of victim. It was argued that the domestic work carried out by victim does not fall within the purview of hazardous employment and question of bondage is itself ruled out by the investigating agency. Thus, it was prayed that no offence under Section 23 and 26 of JJ Act is made out against him.
6. Ld. APP for State argued that merits of the case cannot be considered at this initial stage of charge. He fairly conceded that Section 23 of JJ Act is not made out against any of the accused persons, however, he argued that prima facie offence under Section 26 of JJ Act is made out against them.
7. Before discussing the rival contentions of the parties and material FIR No.121/12 State vs. Manbir Kaur & Anr. Page 3 of 7 on record, it is imperative to refer to the judgment of Hon'ble Supreme Court in the matter of Union of India vs. Prafulla Kumar Samal and Anrs. reported as AIR 1979 SC 366, wherein Hon'ble Apex Court enunciated following 4 principles for determining whether in a given case accused is to be discharged or not (Para 10): ".........1) That the Judge while considering the question of framing the charges under Section 227 of the Code has the undoubted power to sift and weigh the evidence for the limited purpose of finding out whether or not a prima facie case against the accused has been made out.
2) Where the materials placed before the court disclose grave suspicion against the accused which has not been properly explained the court will be fully justified in framing a charge and proceeding with the trial.
3) The test to determine a prima facie case would naturally depend upon the facts of each case and it is difficult to lay down a rule of universal application. By and large, however, if two views are equally possible and the Judge is satisfied that the evidence produced before him while giving rise to some suspicion but not grave suspicion against the accused, he will be fully within his right to discharge the accused.
4) That in exercising his jurisdiction under section 227 of the Code the judge which under the present Code is a senior and experienced Judge cannot act merely as a Post Office or a mouth piece of the prosecution, but has to consider the broad probabilities of the case, the total effect of the evidence and the documents produced before the court, any basic infirmities appearing in the case and so on. This however, does not mean that the Judge should make a roving enquiry into the pros and cons of the matter and weigh the evidence as if he was conducting a trial......."
8. Now, Section 23 and 26 of JJ Act read as under: "...23. Punishment for cruelty to juvenile or child: Whoever, having the actual charge of, or control over, a juvenile or the child, assaults, abandons, exposes or willfully neglects the juvenile or causes or procures him to be assaulted, abandoned, exposed or neglected in a manner likely to cause such FIR No.121/12 State vs. Manbir Kaur & Anr. Page 4 of 7 juvenile or the child unnecessary mental or physical suffering shall be punishable with imprisonment for a term which may extend to six months, or fine, or with both.
"...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........."
9. From the facts and material on record, no prima facie case under Section 23 of JJ Act is made out against any of the accused persons as victim herself stated in her statement recorded before SDM concerned that she was never assaulted, abandoned or neglected by accused and no mental and physical suffering was caused to her during her two years stay at the premises of accused.
10. In order to make accused persons liable for offence under Section 26 of JJ Act, it has to be prima facie shown by prosecution that:
i) the accused kept the victim in bondage; and,
ii) the accused procured and employed her for the purpose of hazardous employment; and,
iii) the accused withheld her earnings and used the same for their own purposes.
11. With respect to point (i), it may be noted that it is the admitted case of prosecution that child Telani Gudia was not kept in bondage by accused. She came to Delhi alongwith her uncle for work with the FIR No.121/12 State vs. Manbir Kaur & Anr. Page 5 of 7 consent of her parents and was in constant touch with her family on phone. It is also admitted case of prosecution that the family of child knew the address of her employer in Delhi. The child was further found in good condition by rescue team and she ruled out any abuse or misbehaviour by her employer, in her statement recorded before SDM concerned.
12. With respect to point (ii), it is pertinent to refer to the judgment of Usha Rani Soren vs. The State of Jharkhand, A.B.A. No.3691 of 2012, wherein it was held that term "hazardous employment does not include domestic work and prima facie does not invoke Section 26 of JJ Act.
13. With respect to point (iii), nothing material is brought on record against accused Manbir Kaur that she had withheld the earnings of victim Telani Gudia. Accused Cyprian Ekka, though had been accused of not sending the salary of victim to her home after giving initial sum of Rs.70,000/, cannot be put to trial for offence under Section 26 of JJ Act, in lieu of absence of other two essential ingredients of the Section.
14. It is well settled that the court cannot act merely as a post office or a mouth piece of the prosecution, but has to consider the broad probabilities of the case, the total effect of the evidence and the documents produced before it, while exercising its jurisdiction under Section 23 & 26 of JJ Act. As such, keeping in view the facts of the case, material on record and aforesaid observations, this court is of the view that no offences u/s 23 & 26 of Juvenile Justice Act are made out against FIR No.121/12 State vs. Manbir Kaur & Anr. Page 6 of 7 both the accused persons. Accordingly, accused persons namely Manbir Kaur and Cyprian Ekka are discharged in the present case in terms of Section 239 Cr.P.C..
Fresh bail bond furnished by accused Manbir Kaur and personal bond by accused Cyprian Ekka to the tune of Rs.10,000/ each in terms of Section 437A Cr.PC.. Same are accepted for the period of six months from today.
(Akash Jain) MM06/PHC/ND/09.09.2015 FIR No.121/12 State vs. Manbir Kaur & Anr. Page 7 of 7