Delhi District Court
Upon P. Vijayan vs . State Of Kerala And Anrs. Air 2010 on 30 May, 2016
1
IN THE COURT OF MS. SHAIL JAIN
ADDITIONAL SESSIONS JUDGE/SPECIAL JUDGE NDPS 02
(CENTRAL) DELHI
State
Vs.
Rakesh Dua son of Manohar Lal,
r/o Manohar Lal and sons,
63, Naya Bans, Delhi110006.
SC No. 28/2016
FIR no. 52/2014
P.S. : Kashmere Gate
U/s 16/17/18 Bonded Laour Act and 22 Minimum Wages Act &
344/370/374 IPC
O R D E R :
1. By this order, I shall dispose of the point of framing of charge against the accused.
2. Present charge sheet has been filed against the accused Rakesh Dua u/s 16/17/18 Bonded Labour Act, 22 Minimum wages Act and 344/370/374 IPC. Out of these offences only offences under section 370 IPC is session trial and, therefore, the case FIR no. 52/14 Page 1 of 15 pages 2 was committed to the court of sessions. The investigation of the case was carried out by the IO and after completion of the investigation, charge sheet was filed.
3. Arguments were heard from the Ld. counsel for accused as well as from the Ld. APP for the state.
4. In support of the arguments on the point of framing of charge , Ld. APP had submitted that as per the statement of victims Vinod Kumar son of Laxman Prasad and Debideen son of Laxman Prasad , these two persons were kept as bonded labours by their Employer Rakesh Dua , accused herein, and these victims were not allowed to leave the job or they were not being paid proper salary, hence the charge is made out against the accused persons.
5. On the other hand, Ld. counsel for accused had argued that as per the charge sheet itself no case is made out against the accused under any of the sections alleged against accused. It was also argued by Ld. counsel for accused that victims are adults, they were living in a rented accommodation and as per the statements of witnesses recorded by the IO, they were visiting their native village 56 times in a year, it is also argued by the Ld. counsel for accused that victim Vinod Kumar was also doing his part time business of supplying Pan Masala and Pan etc., as stated by witness i.e. one Hazi Naim , in his statement FIR no. 52/14 Page 2 of 15 pages 3 us 161 Cr.P.C. Even the landlord of the victims i.e. Smt. Dhanwati has stated that Debideen used to go in the morning for work and used to come back in the evening after finishing his job for the day and he used to remain at home on Sundays and holidays and, therefore, there is no prima facie case made out of keeping the victims in bonded labour or that the victims were not paid regular wages or they were kept under any sort of confinement by the accused. hence, it is prayed that the accused be discharged as no prima facie case is made out against the accused.
6. Further , it is prayed by the Ld. counsel for accused that even if all the statement of witnesses including the statement of victims are considered to have been admitted or proved then also no case u/s 344/370/374 IPC is made out against the accused and ultimately the accused will be acquitted, therefore, it is prayed that the accused be discharged from the case. In support of the arguments, Ld. counsel for accused has relied upon P. Vijayan Vs. State of Kerala and anrs. AIR 2010 Supreme court 663, Yogesh @ Sachin Jagdish Joshi Vs. State of Maharashtra, 2008 Crl. L.J. 3872 and Dilawar Balu Kurane Vs. State of Maharashtra, (2002) 2 Supreme Court Cases 135.
7. I have considered the arguments advanced by the Ld. counsel for the parties and the judgments relied upon by the Ld. FIR no. 52/14 Page 3 of 15 pages 4 counsel for accused.
8. In the present case, the accused has been charge sheeted u/s 16/17/18 Bonded Labour Act, 1976 (herein after referred as Bonded Labour Act). Section 16, 17 and 18 of the Bonded Labour Act falls within the chapter VI which provides for the offence and procedure for the trial.
9. Section 16,17 and 18 of the Bonded Labour Act reads as under: Section 16: Punishment for enforcement of bonded labour whoever, after the commencement of this Act, compels any person to render any bonded labour shall be punishable with imprisonment for a term which may extend to three years and also with fine which may extend to two thousand rupees.
Section 17: Punishment for advancement of a bonded debt.: Whoever advances, after the commencement of this Act, any bonded debt shall be punishable with imprisonment for a term which may extend to three years and also with the fine which may extend to two thousand rupees.
Section 18: Punishment for extracting bonded labour under the FIR no. 52/14 Page 4 of 15 pages 5 bonded labour system: whoever enforces, after the commencement of this Act, any custom , tradition, contract, agreement or other instrument, by virtue of which any person or any member of the family of such person or any dependent of such person is required to render any service under the bonded labour system, shall be punishable with imprisonment for a term which may extend to three years and also with fine which may extend to two thousand rupees; and , out of the fine, if recovered, payment shall be made to the bonded labourer at the rate of rupees five for each day for which the bonded labour was extracted from him."
10. These sections, however, do not define "bonded labour", and term "bonded labour" is defined in Section 2 sub section (e) which is as follows:
"Bonded labour" means any labour or service rendered under the bonded labour system."
11. Again "bonded labour system" has been defined in section 2 FIR no. 52/14 Page 5 of 15 pages 6 sub section (g) which is as follows: "Bonded labour system" means the system of forced, or partly forced, labour under which a debtor enters, or has, or is presumed to have, entered, into an agreement with the creditor to the effect than:
(i) in consideration of an advance obtained by him or by any of his lineal ascendants or descendants (whether or not such advance is evidenced by any document) and in consideration of the interest, if any, due on such advance, or
(ii) in pursuance of any customary or social obligations, or
(iii) in pursuance of an obligation devolving on him by succession, or
(iv) for any economic consideration received by him by any of his lineal ascendants or descendants, or
(v) by reason of his birth in any particular caste or community,__ he would__ (1) render, by himself or through any member of his family, or any person dependent on him, labour or service to the creditor, or for the benefit of the creditor, for a specified period or for an unspecified period, either without wages or for nominal wages, or FIR no. 52/14 Page 6 of 15 pages 7 (2) forfeit the freedom of employment or other means of livelihood for a specified period or for an unspecified period, or (3) forfeit the right to move freely throughout the territory of India, or (4) forfeit the right to appropriate or sell at market value any of his property or product of his labour or the labour of a member of his family or any person dependent on him, and includes the system of forced, or partly forced, labour under which a surety for a debtor enters, or has, or is presumed to have, entered into an agreement with the creditor to the effect that in the event of the failure of the debtor to repay the debt, he would render the bonded labour on behalf of the debtor;
(Explanation: for the removal of doubts, it is hereby declared that any system of forced or partly forced labour under which any workman being contract labour as defined in clause (b) s of sub section (1) of section 2 of the Contract Labour (Regulation and Abolition ) Act, 1970 (37 of 1970) or an Inter State Migrant workman as defined in clause
(e) of subsection (1) of section 2 of the Inter State Migrant Workmen (Regulation of Employment and conditions of Service) Act, 1979, (30 of 1979), is required to render FIR no. 52/14 Page 7 of 15 pages 8 labour or service in circumstances of the nature mentioned in subclause (1) of this clause or is subjected to all or any of the disabilities referred to in subclauses (2) to (4), is "bonded labour system" within the meaning of this clause.
(h) "family" in relation to a person, includes the ascendant and descendant of such person:
(1) "nominal wages", in relation to any labour, means a wage which is less than:
(a) the minimum wages fixed by the Government, in relation to the same or similar labour, under any law for the time being in force, and
(b) where no such minimum wage has been fixed in relation to any form of labour, the wages that are normally paid, for the same or similar labour , to the labourers working the same locality.
(j) "prescribed" means prescribed by rules made under this Act.
12. Thus, from the perusal of these sections including the definitions provided in the labour Act u/s 2, it is clear that if a person enters or is presumed to have enter into an agreement with the creditor in consideration of the advance obtained by himself or by any of his lineal ascendants or descendant , and FIR no. 52/14 Page 8 of 15 pages 9 for the benefit of the creditor, he renders himself or any member of his family to work for the creditor for a specified period without wages or for nominal wages or other means of livelihood for a specified period are forfeited for that person, then, it is called that a person is a bonded labour or he has entered into bonded labour system.
13. In the present case, as per the statement of the victim Vinod Kumar he has taken Rs. 18,000/ as debt in year, 2000 from the employer/accused and victim Debideen had stated in his statement u/s 161 Cr.P.C. that he had taken Rs. 5,000/ from his employer i.e. accused herein, in the year, 2000 but from the statement of victim it is nowhere clear that he is being forced to do the job or that he is deprived of his freedom or means of livelihood for any specified or unspecified period. It is prima facie clear from the statement of both victims i.e. Vinod Kumar and Debideen that they were working with the employer/accused Rakesh Dua even prior to taking loan from the employer and thus, the case does not fall within the parameters of section 2 (e) and section 2(g) and therefore, section 16,17,18 of bonded labour act does not apply to the present case.
14. The 'debt' admittedly was taken by the victims after joining the service of the employer and not before joining the services of FIR no. 52/14 Page 9 of 15 pages 10 the employer. It is also clear from the statements of the victims i.e. Vinod Kumsar and Debidden that they were going to their native village to meet their family once or twice in a month, therefore, there is no prima facie allegations of even confinement or forcing the victim to remain at the premises of employer/accused Rakesh Dua.
15. Therefore, I am of the opinion that no prima facie case u/s 16,17,18 of bonded labour act is made out against the accused Rakesh Dua.
16. As regards section 344/370/374 IPC, section 344/370/374 IPC reads as under: Section 344 . Wrongful confinement for ten or more days__whoever wrongfully confines any person for ten days, or more, shall be punished with imprisonment of either description for a term which may extend to three years, and shall also be liable to fine.
Wrongful confinement as per section 340 IPC means that a person is restraint from proceeding beyond certain circumscribed limit.
17. In the present case, it is the admitted case of the victim that they were visiting their family once or twice in a month, they were living in tenanted accommodation. Firstly, accused were FIR no. 52/14 Page 10 of 15 pages 11 travelling daily from the place of tenanted residence and were daily going to the job and in the evening they were returning back to the tenanted accommodation, therefore, it cannot be said prima facie that accused had wrongfully confined the victim Vinod Kumar and Debibeen. Hence, section 344 IPC is not made out against the accused Rakesh Dua.
18. Section 370 IPC reads as under :
370. Trafficking of person (1) Whoever, for the purpose of exploitation, (a) recruits, (b) transports, (c) harbours, (d) transfers, or (e) receives, a person or persons, by First: using threats 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, harbourned, 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 FIR no. 52/14 Page 11 of 15 pages 12 of organs.
Explanation 2: The consent off the victim is immaterial in determination of the offence of trafficking.
(2) (3) (4) (5) (6) (7)
19. Section 370 IPC deals with the trafficking of person and the basic requirement of Section 370 IPC is that a person for the purpose of exploitation, recruits, transports, harbours, transfers or receive , a person or persons by using threats or force or by abduction or by practicing fraud or abuse of power commits the offence of trafficking.
Explanation (1) attached with the section 370 IPC , provides that the expression "exploitation' may include any act of physical exploitation or any form of sexual exploitation, slavery or practices similar to slavery.
20. In the present case, there is no prima facie allegations of there being any exploitation by using threats or force or abduction. Victim Vinod Kumar and Debideen have categoriclaly stated that they have started working with accused Rakesh Dua in 1992 and there is no allegations of physical FIR no. 52/14 Page 12 of 15 pages 13 exploitation or sexual exploitation suffered by the victims by accused Rakesh Dua. The only allegation of victims is that after joining the job, they have taken certain loan from the employer and now the employer demands the return of that money, it is nowhere stated by the victims in their statement u/s 161 Cr.P.C. that they have already paid the amount of the employer and despite that the employer is not permitting them to leave the job, the allegation which might have fallen within the parameters of Section 2(e) and section 2(g) of Bonded Labour Act but not necessarily u/s 370 IPC.
21. Section 374 IPC : Unlawful compulsory labour:
"whoever unlawfully compels any person to labour against the will of that person, shall be punished with imprisonment of either description for a term which may extend to one year, or with fine, or with both."
22. Prima facie case u/s 374 IPC is also not made out against the accused. Thus, I am of the opinion that prima facie no offence is made out against accused Rakesh Dua, because firstly, the victims are grown up , secondly, they are free to move and commute between the place of residence and place of employment, thirdly , they are carrying out their part time business after the employment, Fourthly, they were living freely FIR no. 52/14 Page 13 of 15 pages 14 as per the statement of witnesses and family members of victims , that they have freely visited their families at the native village frequently and Fifthly in the charge sheet itself it is mentioned that they are free to roam in the market of Naya Bans where PS Lahori Gate is situated and they could have approached the police officials, at any point of time, if they had been exploited by the accused. Lastly , both the victims were also having their mobile phones, CDR of which are placed on record as per the CDR they were having frequent conversation with their friends and families and, therefore, in case of there being any restriction for them to leave the place of job , they could have easily approached the police or made the complaint with their family or friends or then their family or friends could have complained to the police or to the other authorities.
23. Even as regards section 22 of Minimum Wages Act, there are no allegations in the present case, as admittedly it is stated by victims, that they were getting Rs. 5,000/ per month as salary in the year, 2014 and prosecution has not averred that these were not the wages prescribed by law at the relevant time.
24. In view of my above discussion, no prima facie case is made out against accused in the present case, hence , accused Rakesh Dua is discharged from sections 16/17/18 Bonded Labour Act and 22 Minimum Wages Act & 344/370/374 IPC. Bail bond and FIR no. 52/14 Page 14 of 15 pages 15 surety bond cancelled. Surety is discharged. File be consigned to Record Room.
ANNOUNCED IN THE OPEN COURT ON 30.05.2016.
( SHAIL JAIN )
ADDL. SESSIONS JUDGE (CENTRAL)
DELHI
FIR no. 52/14 Page 15 of 15 pages