Chattisgarh High Court
Devi Prasad Sahu vs State Of Chhattisgarh on 2 January, 2023
Author: Sanjay K. Agrawal
Bench: Sanjay K. Agrawal
Page 1
NAFR
HIGH COURT OF CHHATTISGARH AT BILASPUR
Order reserved on 20/12/2022
Order delivered on 02/01/2023
Writ Petition (Criminal) No. 271 of 2015
• Devi Prasad Sahu, S/o Bhagirathi Sahu, Aged About 56 Years, Caste
Teli, R/o Village Madhuwa, Post Podi - Dalha, Police Station Akaltara,
District: Janjgir-Champa, Chhattisgarh.
---- Petitioner
Versus
1. State of Chhattisgarh, Through : Secretary, Home Department
Mantralaya, Mahanadi Bhawan, New Raipur Chhattisgarh.
2. Superintendent of Police, Janjgir, District : Janjgir-Champa, Chhattis-
garh.
3. Station House Officer, Police Station Akaltara, District Janjgir
Champa, Chhattisgarh.
4. Laxman Markam, S/o - Late Latel Ram Markam, Aged About 38
Years, Occupation : Sub Inspector Labour Janjgir, District : Janjgir-
Champa, Chhattisgarh........Complainant.
5. Jitendra Vishwakarma, S/o Balaram Vishwakarma, Aged About 24
Years, R/o Madhuwa Barpali, P. S. Akaltara, District : Janjgir Champa,
Chhattisgarh.
6. Smt. Shiv Kumari, W/o - Jitendra Vishwakarma, Aged About 22
Years, R/o Madhuwa Barpali, P. S. Akaltara, District : Janjgir Champa,
Chhattisgarh.
7. Kumari Sunita Devi Vishwakarma, D/o Balaram Vishwakarma, Aged
About 23 Years, R/o Madhuwa Barpali, P. S. Akaltara, District Janjgir
Champa, Chhattisgarh.
8. Smt. Sawan Bai, W/o Balaram Vishwakarma, Aged About 45 Years,
R/o Madhuwa Barpali, P. S. Akaltara, District Janjgir Champa, Chhat-
tisgarh .
9. Balaram, S/o Bodhiram Vishwakarma, Aged About 50 Years, R/o
Madhuwa Barpali, P. S. Akaltara, District Janjgir Champa Chhattis-
garh.
Page 2
10. Smt. Chandrabhaga, W/o Johan Lal Yadav, Aged About 30 Years, R/o
Madhuwa Barpali, P. S. Akaltara, District Janjgir Champa, Chhattis-
garh.
11. Johanlal, S/o Shri Harchan Yadav, Aged About 35 Years, R/o Mad-
huwa Barpali, P. S. Akaltara, District Janjgir Champa, Chhattisgarh.
12. Smt. Jhuna Bai Yadav, W/o Jaichand Yadav, Aged About 52 Years, R/
o Madhuwa Barpali, P. S. Akaltara, District Janjgir Champa Chhattis-
garh.
13. Shakun Bai, W/o Shyamlal Yadav, Aged About 27 Years, R/o Mad-
huwa Barpali, P. S. Akaltara, District Janjgir Champa, Chhattisgarh.
14. Mahesh, S/o Mahadeo Vishwakarma, Aged About 53 Years, R/o Kha-
tola, P. S. Akaltara, District Janjgir Champa, Chhattisgarh.
15. Mukesh Kaiwartya, S/o Baldau Kaiwartya, Aged About 19 Years, R/o
Madhuwa Barpali, P. S. Akaltara, District Janjgir Champa, Chhattis-
garh.
16. Smt. Nirmla Sahu, W/o Ramesh Kumar Sahu, Aged About 27 Years,
R/o Parsada, P. S. Masturi, District Bilaspur, Chhattisgarh.
17. Ramesh Kumar Sahu, S/o Maniram Sahu, Aged About 30 Years, R/o
Parsada, P. S. Masturi, District Bilaspur, Chhattisgarh.
---- Respondents
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For Petitioner : Mr. Vaibhav A. Goverdhan, Advocate
For State : Ms. Ruchi Nagar, Deputy Government
Advocate
For Respondent No. 4 : None
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Hon'ble Shri Justice Sanjay K. Agrawal
Hon'ble Shri Justice Rakesh Mohan Pandey
C.A.V. Order
Rakesh Mohan Pandey, J.
1. This petition has been filed under Article 226 of the Constitution of India seeking direction to the police authorities to hold proper and adequate inquiry and to quash the First Information Report (for short Page 3 "FIR") pertaining to Crime No.21/2015 registered at Police Station Akaltara, District- Janjgir-Champa for the offence punishable under Section 370(2) of the Indian Penal Code (for short "IPC").
2. The relief sought by the petitioner is reproduced herein below:-
"10.1.That, this Hon'ble Court may kindly be pleased to quash the First Information Report registered by respondent No.3 (Annexure P/1) against the petitioner.
10.2. That, this Hon'ble Court may kindly be pleased to direct the respondent No. 2 & 3 to hold proper and adequate enquiry in the alleged Crime No. 21/2015 registered by respondent No.3 and if it is found that no case has been made out against the petitioner then the Khatma report be filed in favour of the petitioner.
10.3. That, this Hon'ble Court may kindly be pleased to call for entire case diary for kind perusal of this Hon'ble Court."
3. The brief facts of this case are that the petitioner is a registered labour contractor under the provisions of Inter-State Migrant Workmen (Regulation of Employment and Conditions of Service) Act, 1979 (for short "the Act, 1979") and he was registered in the year 2006-07 in the Office of the Assistant Labour Commissioner, Bilaspur. The license issued in favour of the petitioner was renewed for the period of 1 year i.e. from 17.12.2014 to 31.12.2015. On 16.01.2015, the petitioner was taking respondent No. 5 to 17, who are labourers from Railway Station- Akaltara to Gorakhpur, Uttar Pradesh to work at Bricks Kiln. The respondent No. 4 made a complaint before Labour Sub-Inspector, Janjgir and after taking cognizance of complaint, the Labour Sub-Inspector, Janjgir-Champa, found 15 labourers at Railway Station Akaltara, who were being migrated to other State by the present petitioner, thereafter, the complaint was made by said authorities to the Police Station-Akaltara and offence punishable under Section 370(2) of the IPC was registered against the petitioner.
Page 4 The FIR was lodged on the instance of Laxman Singh Markam, respondent No.4 on 16.01.2015 at about 6 P.M., and after receipt of complaint from respondent no. 4, the Officials of Labour Department inspected Railway Station - Akaltara and found 15 labourers, who informed them that they were being migrated to Gorakhpur. It is also stated in the FIR that the labourers were being migrated in contravention of the Act, 1979.
4. Learned counsel for the petitioner would submit that the petitioner was having valid license issued by the competent authority under the Act, 1979 and rules made thereunder. The present petitioner was not present at the time of inquiry. He would further submit that the petitioner has committed the offence punishable under the Act, 1979 as he was not having valid license, therefore, offence punishable under Section 370(2) of the IPC cannot be registered against him. His next contention is that the labourers have given affidavit to the effect that they accompanied the petitioner on their own consent. He would further submit that the police authorities have not conducted adequate inquiry into the matter and due to malafide intention, registered an offence punishable under Section 370(2) of the IPC against the petitioner. He would also submit that the private respondents have sworn affidavit in favour of the petitioner and they have made complaint before the Superintendent of Police, Janjgir- Champa, where they have stated that false and frivolous FIR has been registered against the petitioner and they were going to Gorakhpur, Uttar Pradesh on their own will, therefore, no offence is made out as the victims have not supported the case of the police.
5. Learned counsel for respondent No.1 to 3 would submit that the Page 5 petitioner was indulged in the work of providing labourers under the provisions of the Act, 1979 and license was issued by the Assistant Labour Commissioner, Bilaspur in the year 2007 and same was renewed in the year 2014. She would further submit that the contractor had to deal with the labourers of the District for which license was issued and in the present case license was issued for Bilaspur District only, for the purpose of migrating labourers to the other State, whereas, the respondent No. 5 to 17 are residents of District - Janjgir-Champa and no license was issued in this regard. She would further submit that the petitioner might have contravened some of the provisions of the Act, 1979 but has committed offence punishable under Section 370(2) of the IPC which deals with Trafficking of person and says whoever, for the purpose of exploitation, recruits, transports, harbours, transfers or receives a person or persons by using threats or using force, or any other form of coercion or by abduction or by practicing fraud, or deception or by abuse of power or by inducement including the giving or receiving of payments or benefits, in order to achieve the consent of any person having control over the person recruited, transported harboured, transferred or received, commits the offence of trafficking.
6. Though respondent No.4 has filed its return but there is no representation on his behalf. However, in the said return, respondent No.4 has supported the case of State (respondent No. 1 to 3).
7. We have heard learned counsel for the parties and perused the record carefully.
8. Perusal of the records shows that earlier, Cr.M.P. No. 969 of 2015 was filed by the present petitioner before this Court seeking relief of Page 6 proper inquiry in Crime No. 21/2015 registered at Police Station - Akaltara, District- Janjgir-Champa and the same was dismissed as withdrawn with liberty to avail appropriate remedy, if so advised, vide order dated 02.11.2015. In the instant petition, the petitioner has sought same relief mentioned above in para 10.2 as sought in Cr.M.P. No. 969 of 2015 along with relief to quash the FIR. The same reliefs have been sought in this petition also, whereas, liberty was not reserved in favour of the petitioner to revive the petition before this Court seeking the same reliefs.
9. The object of the Act, 1979 is to bring principal employer and contractor within the ambit of this Act as once the workers come under the clutches of the contractor, they take them to a far place on payment of railway fair only. No working hours are fixed for these workers and they have to work on all the days under the extremely bad working conditions and they are subjected to various malpractices.
10. In the instant case, there is allegation that workers were allured by the present petitioner making false promises. In the FIR at one place it is stated that the workers were being migrated contrary to the Act, 1979 and same has been found in the inquiry conducted by the Assistant Labour Officer and same would not be sufficient to attract penal provisions of Act, 1979 when ingredients of Section 370 of IPC are available.
11. The Section 370 of IPC deals with "trafficking of a person." The Sub- Sections 1 & 2 are reproduced herein below:-
Page 7 "(1) Whoever, for the purpose of exploitation, (a) recruits, (b) transports, (c) harbours, (d) transfers, or
(e) receives, a person or persons, by--
Firstly.- using threats, or Secondly.- using force, or any other form of coercion, or Thirdly.- by abduction, or Fourthly.- by practicing fraud, or deception, or Fifthly.- by abuse of power, or Sixthly.- by inducement, including the giving or receiving of payments or benefits, in order to achieve the consent of any person having control over the person recruited, transported, harboured, transferred or received, commits the offence of trafficking.
Explanation 1.- The expression "exploitation" shall include any act of physical exploitation or any form of sexual exploitation, slavery or practices similar to slavery, servitude, or the forced removal of organs. Explanation 2.- The consent of the victim is immaterial in determination of the offence of trafficking.
(2) Whoever commits the offence of trafficking shall be punished with rigorous imprisonment for a term which shall not be less than seven years, but which may extend to ten years, and shall also be liable to fine."
12. The explanation (2) to the Section 370 of IPC makes it amply clear that consent of the victim is immaterial in determination of the offence of trafficking. From the definition, it is quite vivid that if any person recruits, transports, harbours, transfers person or persons using threat, force, abduction, by practicing fraud, or deception, abuse of power, inducement etc., shall be punished with rigorous imprisonment for a term which shall not be less than seven years, but which may extend to ten years, and shall also be liable to fine.
13. In the instant case, respondent No. 5 to 17, who are labourers, were being transported/transferred from Akaltara to Gorakhpur by making inducement or using threat etc., therefore, police has not committed Page 8 illegality in registering the offence punishable under Section 370(2) of IPC. It is a case of illegal transport of the labourers without any authority of law, therefore, provisions of the Act, 1979 would be irrelevant and the petitioner shall not be dealt with as per the provisions of the Act, 1979. Learned counsel for the petitioner has submitted that respondent No. 5 to 17 who are labourers, have given their affidavits in favour of the petitioner. The explanation - 2 appended to the Section 370 of the IPC makes such affidavits immaterial, and therefore, it would amount to tampering with the witnesses. Further, earlier Cr. M.P. No. 969/2015 was filed seeking same reliefs between same parties and same was dismissed as withdrawn, therefore, on the same set of facts seeking same reliefs, the instant petition is also not tenable.
14. The Hon'ble Supreme Court in the matter of M/S Neeharika Infrastructures Vs. State of Maharashtra 1 observed thus:-
(i) Police has the statutory right and duty under the relevant provisions of the Code of Criminal Procedure contained in Chapter XIV of the Code to investigate into a cognizable offence;
(ii) Courts would not thwart any investigation into the cognizable offences;
15. Considering the judgment of the Hon'ble Supreme Court in the matter of M/s Neeharika (supra) and above discussed facts, it is conspicuous that a cognizable offence is made out against the petitioner. Further, criminal proceedings ought not to be scuttled at the initial stage and also the quashing of FIR should be an exception and a rarity than an ordinary rule. The functions of judiciary and the 1 AIR 2021 SC 1918 Page 9 police are complementary, not overlapping. Taking into consideration all these aspects, we do not find good grounds to entertain this petition; consequently, this petition is dismissed.
Sd/- Sd/-
(Sanjay K. Agrawal) (Rakesh Mohan Pandey)
Judge Judge
Nadim