Delhi District Court
Arun Kumar Jain @ Balli vs State Of Nct Of Delhi on 8 October, 2018
In the court of Sh. Ajay Kumar Jain,
Additional Sessions Judge02, South District.
Saket Court, New Delhi
Criminal Revision No. 205/18
In the matter of
Arun Kumar Jain @ Balli
S/o Late Mukhchand Jain
R/o 248, Chirag Delhi,
New Delhi. .... Revisionist/Accused
Versus
1. State of NCT of Delhi
Through the Commissioner of Police
IP Estate,
New Delhi.
2. Juvenile
(Represented through his mother Mrs. Munni Devi)
W/o Sh Ram Prakash Gupta
R/o 523, Chirag Delhi,
New Delhi. .... Respondents
FIR No. 1863/16
PS Malviya Nagar
U/s 506 IPC & 23 JJ Act
ORDER
1. By way of present revision petition, revisionist/accused has challenged the impugned order on charge dated 04.04.2018 vide which the Ld. Trial court found that the accused has committed prima facie offence u/s 23/26 JJ Act and sec. 374 IPC, however CR No. 205/18, Arun Kumar Jain @ Balli vs. State etc. (pg1of 6) dated 08.10.2018 discharged u/s 506 IPC.
2. Brief facts as per final report is that a missing complaint is filed by one Mr. Kishan Pal regarding the missing of his minor daughter Manisha alleged to have been taken by juvenile Rahul Gupta and lateron on 26.05.2015 one Harish Chander Jain also made a complaint against Rahul that he has stolen Rs. 2 lakhs pursuant to which FIR No. 1034/15 dated 26.05.2015 u/s 381 IPC was registered. During investigation, on tracking the mobile phone of Rahul, the girl Manisha and Rahul were recovered from Kooch Vihar, Paschim Bengal. Thereafter, both were produced before CWC and CWC vide order dated 23.09.2015 directed the statement of juvenile Rahul be recorded before the SDM as well as before the concerned MM and labour officer, and IO is also directed to take necessary action against the employer. Pursuant to which present FIR u/s 23 JJ Act was registered but lateron offence u/s 506 IPC was also added.
3. On 07.10.2015, the statement of juvenile Rahul Gupta was also recorded before the concerned MM and thereafter on 09.10.2015 his statement were recorded by the SDM. His date of birth was also collected from the school and is found to be around 16 years of age. During investigation, the notice u/s 41 A was given to employer Arun Kumar Jain, thereafter the investigation was also conducted from nearby shopkeepers who disclosed that Rahul did not work at the shop of Arun Kumar Jain, however his mother Munni Devi used to work at the house of Arun Kumar Jain and Rahul used to accompany her but has not worked at the shop. During investigation, it is found that the witnesses had given different CR No. 205/18, Arun Kumar Jain @ Balli vs. State etc. (pg2of 6) dated 08.10.2018 statements. Juvenile Rahul in his statement before SDM as well as MM have given different versions regarding his detention at the job. It is also found during investigation that Juvenile Rahul Gupta name was cancelled from the school because of his absence and his mother had given application for readmission as the Juvenile could not attend the school due to some unavoidable circumstances as he was at village, and because of the cases against Juvenile Rahul it cannot be ruled out that he had made false allegations. It is also opined in the chargesheet that working for last 8 year without salary or to confine in the shop in night do not appear to be practical. On completion of investigation, the cancellation report was filed.
4. After filing of cancellation report, complainant appeared, then vide order dated 05.04.2017 the cognizance taken u/s 23 JJ Act and 506 IPC, and accused was summoned, thereafter vide impugned order, accused Arun Kumar Jain is found to have committed prima facie offence u/s 23/26 JJ Act and sec. 374 IPC. Subsequently, vide order dated 19.05.2018 charges accordingly framed to which accused pleaded not guilty and claimed trial.
5. Ld. counsel for accused/ revisionist submitted that there is no ground to summon the accused because the police has filed the cancellation report and do not found the statement of the complainant /Juvenile reliable. Ld. Counsel submits the genesis of registration of FIR is the CWC order which was already set aside in revision by the Session court. Ld. Counsel submits that lateron another order of CWC was set aside by Sessions Court. Ld. Counsel submits that criminal proceedings initiated by complainant CR No. 205/18, Arun Kumar Jain @ Balli vs. State etc. (pg3of 6) dated 08.10.2018 Juvenile is because of the fact that he himself has stolen Rs. 2 lakhs and also accused in kidnapping of minor girl. Ld. Counsel submits that police deliberately did not file chargesheet in both these FIRs in time. Ld. Counsel submits that the neighbouring witnesses examined by police have not supported the version of the complainant and categorically stated that Juvenile do not work in said shop. Ld. Counsel further submitted that complainant juvenile in his statement before the SDM on 09.10.2015 categorically stated that he himself chooses to work at the shoe shop of the complainant, therefore there is no question of any compulsion, hence no offence at all u/s 374 IPC is made out. Ld. Counsel submits that admittedly the employment is also not hazardous, therefore no offence u/s 26 JJ Act is also made out. Ld. Counsel submits that the police during investigation found that name of complainant is removed from the school because of absence and his mother filed an application for readmission in which she categorically stated that due to some unavoidable circumstances, he has to go to the village which itself suggest that Juvenile was not working at the shop. Ld. Counsel submits that the allegations of non payment of salary for such a long relation on the face of it do not appear credible. Police do not find any veracity in version of complainant, therefore filed cancellation report. Ld. Counsel submits no prima facie offence is disclosed, therefore the impugned order on charge may kindly be set aside.
6. Ld. counsel for the complainant on the other hand submitted that working in a shoe retail shop is also an hazardous occupation as the timings are very long. Furthermore, the juvenile was confined in CR No. 205/18, Arun Kumar Jain @ Balli vs. State etc. (pg4of 6) dated 08.10.2018 shoe shop even in night. Ld. Counsel for complainant submitted that there is no infirmity in the impugned order passed by the trial court. Ld. Addl. PP also submitted that there is no infirmity in the impugned order.
7. Arguments heard. Record perused.
8. The police after investigation filed the cancellation report.
However, Ld. Trial court after considering juvenility, his statement before SDM as well as Ld. MM, and the statements of Munni Devi mother of juvenile, Jyoti Gupta sister of juvenile and one Pushpa, Deepak and Vijay Mandal noticed that the complainant is working in the shop, therefore took cognizance and summoned accused Arun Kumar Jain for offence u/s 23 JJ Act and 506 IPC, but vide impugned order found sufficient material for charges u/s 23/ 26 JJ Act and sec. 374 IPC.
9. As per cancellation report the juvenile complainant is an accused in FIR of theft case as well as for kidnapping of minor girl, and to avoid prosecution made statement before CWC that he was exploited and made to work by the accused at his shop for number of years without salary. However, the CWC orders in revision were set aside and the matter was remanded back but FIR and consequent police investigation is different proceedings. Police during investigation found both versions regarding the fact that whether juvenile is working or not however the Ld. Trial court noticed that there is categorical allegations of working in shop before the SDM as well as the Ld. MM and even corroborated through the statement of Munni Devi, Jyoti Gupta, Pushpa, Deepak, Vijay Mandal, therefore found prima facie case for trial is made CR No. 205/18, Arun Kumar Jain @ Balli vs. State etc. (pg5of 6) dated 08.10.2018 out and charged the accused for offences u/s 23 /26 JJ Act and sec. 374 IPC. I do not find any infirmity in the said view of the Ld. Trial court because on the basis of conduct of accused viz:
kidnapping of the girl or theft, the allegations of juvenile which is corroborated by other witnesses at this stage can't be brushed aside. However, as far as sec. 374 IPC is concerned, the accused in his statement before the SDM dated 09.10.2015 himself stated that he himself works on shoes shop suggests that he is not compelled, therefore no offence u/s 374 IPC prima facie made out. Furthermore, the working in the shoe retail shop cannot be held to be working in hazardous work place. The said place is not found to be hazardous work place in terms of hazardous work place under juvenile labour (Prohibition and Regulation) Act 1986, therefore no prima facie offence u/s 26 JJ Act is made out. The accused Arun Kumar Jain is found to have committed prima facie offence only u/s 23 JJ Act and stands discharged for offence u/s 374 IPC as well as 26 JJ Act. Impugned order dated 04.04.2018 thus partially set aside. Accused Arun Kumar Jain is liable to be tried only for commission of prima facie offence u/s 23 JJ Act. Revision petition disposed off accordingly. It is clarified that nothing in this order shall prejudice the case on merits.
10. TCR alongwith copy of this order be sent to the trial court.
Revision file be consigned to record room.
Announced in the open Court (AJAY KUMAR JAIN)
On 08th October, 2018 ASJ02 (South)
Saket Courts / New Delhi
CR No. 205/18, Arun Kumar Jain @ Balli vs. State etc. (pg6of 6) dated 08.10.2018