Gujarat High Court
Chhogalal Aasulal Jain (Shah) vs State Of Gujarat on 15 March, 2024
NEUTRAL CITATION
R/CR.RA/637/2015 JUDGMENT DATED: 15/03/2024
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL REVISION APPLICATION (AGAINST ORDER PASSED BY
SUBORDINATE COURT) NO. 637 of 2015
FOR APPROVAL AND SIGNATURE:
HONOURABLE MRS. JUSTICE M. K. THAKKER
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1 Whether Reporters of Local Papers may be allowed
to see the judgment ? No
2 To be referred to the Reporter or not ?
No
3 Whether their Lordships wish to see the fair copy
of the judgment ? No
4 Whether this case involves a substantial question
of law as to the interpretation of the Constitution No
of India or any order made thereunder ?
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CHHOGALAL AASULAL JAIN (SHAH)
Versus
STATE OF GUJARAT & ANR.
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Appearance:
MR.KUSH BAVISHI on behalf of MR P P MAJMUDAR(5284) for the
Applicant(s) No. 1
MS.JIRGA JHAVERI, APP for the Respondent(s) No. 1
RULE SERVED for the Respondent(s) No. 2
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CORAM:HONOURABLE MRS. JUSTICE M. K. THAKKER
Date : 15/03/2024
ORAL JUDGMENT
1. This revision application is filed under section 397 and Page 1 of 11 Downloaded on : Wed Mar 20 20:36:15 IST 2024 NEUTRAL CITATION R/CR.RA/637/2015 JUDGMENT DATED: 15/03/2024 undefined 401 of Code of Criminal Procedure, 1973 (hereinafter referred to as "Cr.PC) challenging the judgment and order passed by learned Chief Judicial Magistrate, Navsari below Exh.3 in Criminal Case No. 1976 of 2014 whereby, the application preferred by the present applicant praying to discharge from the offence came to be rejected. It is the case of the prosecution that one FIR came to be lodged on 07.01.2014 being CR NO.II- 2 of 2014 with Navsari (Rural) Police Station for the offence punishable under section 23 and 26 of the Juvenile Justice (Care and Protection of Children) Act, 2000.
2. It is alleged by the complainant namely Shobhanaben who is a social worker that one offence came to be registered being I-CR NO. of 249 of 2013 under sections 342, 376 and 34 of the Indian Penal Code, 1860 (hereinafter referred to as "IPC") wherein, the victim namely A and victim namely B were alleged to be working with the pauwa Industries run by the present applicant. It is alleged in the FIR that the victims were exploited by forcing to work under the Page 2 of 11 Downloaded on : Wed Mar 20 20:36:15 IST 2024 NEUTRAL CITATION R/CR.RA/637/2015 JUDGMENT DATED: 15/03/2024 undefined present applicant who engaged in the pauwa Industries of the applicant. On registration of the FIR, investigation was carried out and on conclusion of the investigation, the charge-sheet came to be filed:
3. After filing the charge-sheet the application was filed below Exh.3 before the learned trial Court by the applicant stating that there is no evidence suggesting the involvement of present applicant and no material evidence were collected during the investigation except the statements which are recorded in the FIR at I-CR No.249/2013 registered for the offence punishable under sections 342, 376 and 34 of the IPC. It is contended that there is no evidence collected during the investigation showing that these two juveniles were engaged by the present applicant for employment and in a casual manner the charge-sheets were submitted by the Investigating Officer for the alleged offences.
4. Learned trial court, after considering the arguments advanced by the respective parties and the material placed on record, rejected the application on the ground that as per the complaint victim A and victim B Page 3 of 11 Downloaded on : Wed Mar 20 20:36:15 IST 2024 NEUTRAL CITATION R/CR.RA/637/2015 JUDGMENT DATED: 15/03/2024 undefined were working in the factory of the applicant and therefore, applicant is required to be tried for the alleged charges.
5. Being aggrieved and dissatisfied by the said order present revision application was preferred by the applicant-original accused.
6. Heard learned advocate Mr. Kush Bavishi for learned advocate Mr.P.P Majmudar and learned APP Ms.Jirga Jhaveri for the State.
7. Mr.Bavishi, Learned advocate for the applicant has submitted that investigation was carried out in a casual manner by the Investigating Officer and only on relying on the complaint, the charge-sheet was submitted. The counter of the charge-sheet which was produced at page 29 states that no statement was recorded during the investigation of the present offence. However, the statement which were earlier recorded for the offences in FIR being I-CR NO. 249/2013 were produced as a part of the investigation and on this material evidence the present applicant was claimed to be tried. Page 4 of 11 Downloaded on : Wed Mar 20 20:36:15 IST 2024
NEUTRAL CITATION R/CR.RA/637/2015 JUDGMENT DATED: 15/03/2024 undefined
8. Learned advocate Mr.Bavishi submits that even considering the alleged sections i.e section 23 and section 26 of the Juvenile Justice (Care and Protection of Children) Act, 2000, there were no hazardous activities going on in the factory of the present applicant and for that also the applicant is required to be discharged from the alleged offences.
9. Learned advocate Mr.Bavishi submits that when there is no legal evidence showing the involvement of the applicant, framing of the charge and compelling the applicant to face the trial would unnecessary harassment to the applicant. Learned advocate Mr.Bavishi prays that in absence of the material, the revision application preferred by the applicant is required to be allowed and applicant is required to be discharged from the alleged charges.
10. As against the same, learned APP Ms.Jirga Jhaveri is unable to dispute the fact that there was no independent material collected during the investigation by the Investigating Officer except the statement which Page 5 of 11 Downloaded on : Wed Mar 20 20:36:15 IST 2024 NEUTRAL CITATION R/CR.RA/637/2015 JUDGMENT DATED: 15/03/2024 undefined were recorded for the offence registered under section 376 being I-CR NO. 249/2013.
11. Learned APP Ms.Jhaveri submits that as per the allegations made in the complaint, both the victims were working in the factory of the present applicant who are aged 12 and 14 years, respectively, would amount to exploitation of juvenile and therefore, the applicant is required to be tried. Learned APP Ms.Jhaveri submits that after considering the material and evidence on record, the learned trial court has rejected the application preferred by the present applicant and therefore, no interference is required and present revision application deserves to be dismissed.
12. Considering the arguments advanced by the learned advocates for the respective parties, the charge for which the applicant was claimed to be tried i.e sections 23 and 26 of the Juvenile Justice (Care and Protection of Children) Act, 2000 is required to be re-looked, which are reproduced as under:
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NEUTRAL CITATION R/CR.RA/637/2015 JUDGMENT DATED: 15/03/2024 undefined S.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 wilfully neglects the juvenile or causes or procures him to be assaulted, abandons, exposed or neglected in a manner likely to cause such 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.
S.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.
13. Considering the above sections, the charge-sheet which was filed by the Investigating Officer containing the statements of Hemlataben i.e Child Welfare Officer-
complainant, the complaint which was filed in the offence punishable under section 376 registered in I-CR NO. 249/2013, statement recorded of victim A in connection with FIR I-CR No. 249/2013, statement Page 7 of 11 Downloaded on : Wed Mar 20 20:36:15 IST 2024 NEUTRAL CITATION R/CR.RA/637/2015 JUDGMENT DATED: 15/03/2024 undefined recorded of victim B in connection with FIR I-CR No. 249/2013, statement of witnesses namely Hiramani mother if victim A and victim B in I-CR No. 249/2013, the panchnama of place of offence which was drawn in connection with I-CR No. 249/2013 it transpires that except these documents, no other evidences were placed along with the charge-sheet. Even today the Investigating Officer who is present had confirmed the fact that no separate investigation was carried out with regard to the present FIR and all the statements which were recorded in connection with FIR being I-CR No. 249/2013 were placed in support of this investigation.
14. On perusing the statements which are recorded by the Investigating Officer of the previous FIR being I-CR No. 249/2013, also reveals that the victims were staying with the parents who are working in the factory of the present applicant. The alleged factory was working as a pauwa mill and there were no hazardous activities carried out, as required in the section 26. It comes on record that in absence of material evidence and only on the basis of statements which are recorded Page 8 of 11 Downloaded on : Wed Mar 20 20:36:15 IST 2024 NEUTRAL CITATION R/CR.RA/637/2015 JUDGMENT DATED: 15/03/2024 undefined in the investigation of previous FIR, the charge-sheet was filed and applicant was claimed to have been involved in the offence. In this regard, following principles are laid down by the Apex Court:
In State of Tamil Nadu v N Suresh Rajan, (2014) 11 SCC 709, it was observed notwithstanding the difference in language of Sections 227 and 239, CrPC, the approach of the Court concerned is to be common under both provisions. The principles holding the field under Sections 227 and 228, CrPC are wellsettled, courtesy, inter alia, State of Bihar v Ramesh Singh, (1977) 4 SCC 39; Union of India v Prafulla K Samal, (1979) 3 SCC 4; Stree Atyachar Yes, the allusion is to Robert Frost's celebrated poem - The Road Not Taken. Virodhi Parishad v Dilip N Chordia, (1989) 1 SCC 715; Niranjan Singh Karam Singh Punjabi v Jitendra B Bijjaya, (1990) 4 SCC 76; Dilawar B Kurane v State of Maharashtra, (2002) 2 SCC 135; Chitresh K Chopra v State (Government of NCT of Delhi), (2009) 16 SCC 605; Amit Kapoor v Ramesh Chander, (2012) 9 SCC 460; Dinesh Tiwari v State of Uttar Pradesh, (2014) 13 SCC 137; Dipakbhai Jagdishchandra Patel v State of Gujarat, (2019) 16 SCC 547; and State (NCT of Delhi) v Shiv Charan Bansal, (2020) 2 SCC 290. We need only refer to some, starting with Prafulla K Samal (supra), where, after considering Ramesh Singh (supra), K P Raghavan v M H Abbas, AIR 1967 SC 740 and Almohan Das v State of West Bengal, (1969) 2 SCR 520, it was laid down Page 9 of 11 Downloaded on : Wed Mar 20 20:36:15 IST 2024 NEUTRAL CITATION R/CR.RA/637/2015 JUDGMENT DATED: 15/03/2024 undefined as under:
'10. Thus, on a consideration of the authorities mentioned above, the following principles emerge:
(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 court cannot act merely as a Post Office or a mouthpiece 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.Page 10 of 11 Downloaded on : Wed Mar 20 20:36:15 IST 2024
NEUTRAL CITATION R/CR.RA/637/2015 JUDGMENT DATED: 15/03/2024 undefined 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.'
15. Considering the above guidelines and material of investigation, this Court is of the view that there is not sufficient ground for proceeding against the applicant.
16. In view of the above, this revision application is allowed. The applicant is discharged for the offence punishable under section 23 and 26 of the Juvenile Justice (Care and Protection of Children) Act, 2000.
17. Resultantly, this application is allowed.
(M. K. THAKKER,J) ARCHANA S. PILLAI Page 11 of 11 Downloaded on : Wed Mar 20 20:36:15 IST 2024