Kerala High Court
Kleemans vs State Of Kerala on 3 September, 2024
Author: P.V.Kunhikrishnan
Bench: P.V.Kunhikrishnan
Crl.M.C. No.7506 of 2017
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IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE P.V.KUNHIKRISHNAN
TUESDAY, THE 3RD DAY OF SEPTEMBER 2024 / 12TH BHADRA, 1946
CRL.MC NO. 7506 OF 2017
CRIME NO.2315/2014 OF CHAVARA POLICE STATION, KOLLAM
AGAINST THE ORDER/JUDGMENT DATED IN SC NO.1215
OF 2015 OF DISTRICT COURT & SESSIONS COURT,KOLLAM
PETITIONER/ACCUSED:
KLEEMANS
AGED 62,S/O. ISTHAKI, JOSEPH
DALE,NEENDAKARA, KOLLAM
BY ADV. SRI.SAJU J PANICKER
RESPONDENTS/STATE:
1 STATE OF KERALA
THROUGH SUB INSPECTOR OF POLICE,CHAVARA
POLICE STATION, REPRESENTED BY THE PUBLIC
PROSECUTORHIGH COURT OF KERALA, ERNAKULAM
2 VINEESH
AGED 19, S/O. VILWFRED, HOUSE NO:42, ANANYA
NAGAR, PETTAKKADA, TAMIL NADU - 600 004
BY ADV.
SRI.SREEVALSAN.V
SRI. SANGEETHARAJ N. R., PP
THIS CRIMINAL MISC. CASE HAVING COME UP FOR
ADMISSION ON 03.09.2024, THE COURT ON THE SAME DAY
PASSED THE FOLLOWING:
Crl.M.C. No.7506 of 2017
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2024:KER:66826
P.V.KUNHIKRISHNAN, J.
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Crl.M.C. No.7506 of 2017
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Dated this the 03rd day of September, 2024
ORDER
This Criminal Miscellaneous Case is filed to quash the proceedings in S.C. No. 1215 of 2015 pending before the District and Sessions Court, Kollam.
2. When this Crl.M.C. came up for consideration on 09.08.2024, this Court directed the Registry to get a report from the court concerned about the present stage of the case. The Judicial First Class Magistrate Court, Chavara submitted a report stating that the case is now transferred to that court and it is pending as C.C. No. 881/2017.
3. The above case is charge sheeted alleging offence punishable under Section 23 of the Juvenile Crl.M.C. No.7506 of 2017 3 2024:KER:66826 Justice Act, 1986 (for short 'JJ Act').
4. The prosecution case is that the petitioner, with an intention of employing the 2nd respondent, who was a minor at the time of the incident, employed him in the Neendakara Harbour in a boat and committed the above said offence. According to the petitioner, even if the entire allegations are acccepted, no offence is made out. Hence this Crl.M.C. is filed.
5. Heard the learned counsel appearing for the petitioner and the learned Public Prosecutor.
6. Annexure A2 is the final report in this case.
The allegation in the final report is extracted hereunder:
"പ്രതതി മമൈനററായ 1-)o സറാകതിയയ യകറാണ്ടു ജജറാലതി യചെയതിപതിചച ടതിയറാനച സറാമ്പതതിക ലറാഭഭം ഉണറാക്കണയമൈന്നുള്ള ഉജദ്ദേശജതറാടഭം കരുതജലറാടഭം കൂടതി 6.10.14 00:45 മൈണതിക്കച നനീണകര വതിജല്ലേജതിൽ ടതി മുറതിയതിൽ നനീണകര ഹറാർബറതിൽ പ്രതതി മുൻപറായക വള്ളതതിൽ ജജറാലതി യചെയതിപതിക്കുന്നതറായതി 6-)o സറാകതി മുതൽ ജപരറായതി Crl.M.C. No.7506 of 2017 4 2024:KER:66826 കറാണയപട. പ്രതതി ജമൈൽ വകുപ്പുപ്രകറാരമുള്ള ശതികറാർഹമൈറായ കുറഭം യചെയതിരതിക്കുന്നു എന്നുള്ളതച."
7. This Court also perused the FIR. The FIR is registered based on an information submitted by the Sub Inspector of Police, Neendakara. In the information, it is only stated that "............ ടതി വള്ളതതിൽ ജജറാലതി യചെയതിക്കുന്നതറായതി ശ്രദ്ധയതിൽയപട്ടതതിനറാൽ ടതിയറാനറായര ജസ്റ്റേഷനതിൽ കൂട്ടതിയകറാണ്ടു വന്നതിടള്ളതറാണച. "
8. What exactly the nature of job done by the minor is not mentioned in the final report or in the First Information Report. There is no material produced by the prosecution to prove the same. This Court in Joseph v. State of Kerala [2014 (2) KHC 48] considered the ingrediants to attract Section 23 of the JJ Act. It will be better to extract the relevant portion of the above order:
"13. In order to attract an offence under S.23 Crl.M.C. No.7506 of 2017 5 2024:KER:66826 of the Act, it must be proved by the prosecution that: (a) person having the actual charge or control over a juvenile or child, (b) assaults, abandons, exposes or wilfully neglects the juvenile or (c) causes or procures him to be assaulted, abandoned, exposed or neglected, (d) in a manner likely to cause such juvenile or the child unnecessary mental or physical suffering.
14. Even assuming that the petitioner as in charge or control of the juvenile or child, he is only providing shelter to the child and looking after her. Merely because she was helping the inmates of the house in the kitchen, voluntarily, it cannot be said that she was put to hazardous work or exposed to danger. She has no such case in her statement before the police as well. In fact when she was found in an abandoned state, the petitioner took her and gave shelter to her and protected her. If she does some work to help the inmates, it cannot be said that she was treated cruelly either physically or mentally so as to attract the provision of this Act.
15. It is true that Juvenile Justice (Care and Protection of Children) Act, 2000 has been enacted to protect the interest of juvenile or child, who require care and protection and also to reform the juvenile, who is in conflict with law. In this case, on going through the allegations in Annexure-A1 final Crl.M.C. No.7506 of 2017 6 2024:KER:66826 report and also the statement of the victim girl herself will go to show that, she was abandoned by her parents and she was left in a house at Bangalore by her mother to work as a servant maid and due to ill-treatment in that house, she was forced to leave that house and thereafter she was taken care of by the petitioner, while they were working at Bangalore and thereafter she was brought to Kerala and she was living with them. The statement of the victim girl also will go to show that, she was not assaulted or any force has been applied on her or she was compelled to do any hard work and for non-compliance by the girl, she has been subject to any cruelty by the inmates of the house. But her statement will go to show that, after she was taken over by the petitioner, she is being looked after affectionately like their child. So under the circumstances, even if the entire allegations in the evidence collected by the Investigating Officer is admitted to be true, the ingredients of any of offences provided under the Juvenile Justice (Care and Protection of Children) Act, either under S.23 or under S.24 or under S.26 is attracted in this case. No purpose will be served by allowing the prosecution to continue in such circumstances and it will only be a waste of judicial time. "
9. Similarly in Vinod S. Panicker v. Sub Crl.M.C. No.7506 of 2017 7 2024:KER:66826 Inspector of Police [2012 (4) KLT 314] this Court observed that engaging a juvenile as an employee in a bakery can not be viewed as one putting him to a hazardous employment. The relevant portion of the above order is extracted hereunder:
"5. The question to be considered is whether employment of juvenile as such in any activity which is not of a hazardous nature falls within the mischief covered by S.26 of the Act.
S.26 of the Act reads thus:
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 earnings 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.' A reading of the Section clearly spells out that the employment of juvenile or child to constitute an offence must be one which by its nature is hazardous. Over and above the nature of hazardous employment the section also contemplates of keeping the juvenile or child in bondage and withholding his earnings or using of such earnings by his employer.
Crl.M.C. No.7506 of 2017 82024:KER:66826 The aforesaid Section is analogous to S.44 of the Juvenile Justice Act, 1986, which read thus:
"44. Exploitation of Juvenile employees.-- Whoever ostensibly procures a juvenile for the purpose of any employment and withholds the earnings of the juvenile or uses such earnings 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."
Changes brought about under S.26 of the new Act by additions, qualifying or restricting the applicability of exploitation to 'hazardous' employment with the addition 'keeping in bondage', which was not there in S.44 of the Juvenile Justice Act, 1986, definitely have some significance. The aforesaid expressions newly added in the section, no doubt, are the extension of the reflection and in fact imbibing of the spirit of the principles enunciated under Art.23 and Art.24 of the Constitution of India. Art.23 prohibits traffic in human beings and forced labour. Every form of forced labour, beggar or otherwise, is within the inhibition of Art.23 of the Constitution of India, with the sole exception in the case of State imposing compulsory service for public purposes. Otherwise in the case of the State exacting compulsory labour for public purposes from the citizen of the performance of his supreme and noble duty of contributing to the defence of the rights and Crl.M.C. No.7506 of 2017 9 2024:KER:66826 honour of the nation, all other forms of forced labour comes within the sweep of inhibition under the above Article. It makes no difference, whether the person who is forced to give such labour or services is remunerated or not. The Apex Court in Peoples Union for Democratic Rights v. Union of India, 1982 KHC 495 : AIR 1982 SC 1473 : 1982 (3) SCC 235 : 1982 SCC (L&S) 275 : 1982 (2) LLJ 454 : 1982 Lab IC 1646has considered the scope and ambit of Art.23 in detail, and it again came up for consideration in Deena alias Deen Dayal and Others v. Union of India, 1983 KHC 544 : AIR 1983 SC 1155 : 1983 (4) SCC 645 : 1983 SCC (Cri) 879 : 1983 CriLJ 1602. Whereas Art.23 prohibits all forms of forced labour, Art.24 speaks of prohibition of employment of children in factories, mines or in any hazardous occupation. Similarly, provisions under Art.39(e) and
(f) of the Constitution enunciate the directive principles that health and strength of the workers, men and women, and the tender age of the children are not to be abused and that childhood and youth are to be protected against exploitation and against moral and material abandonment. S.26 of the Act, which in effect reflects and imbibes the spirit of Art.23, Art.24 and S.39(e) and (f) imposes punishment extending a term of three years and also fine to any person who procures any juvenile or child for the purpose of any hazardous employment, keeps Crl.M.C. No.7506 of 2017 10 2024:KER:66826 him in bondage and withholds his earnings or uses such earning for his own purposes.
6. S.2(k) of the Act defines a 'juvenile' or 'child' as a person who has not completed eighteenth year of age. 'Juvenile' and 'child' are not separately defined under the Act. So, in relation to the applicability of the Act, having regard to the definition, as indicated above, all human beings below the age of 18 years come within the sweep of children / juvenile. Art.24 of the Constitution, it has to be taken note of, restricts or prohibits employment of children below the age of 14 years in any factory or mine or engagement in any other hazardous employment. Necessarily, the scope and applicability of S.26 of the Act has to be examined with reference to the prohibition covered by Art.24 of the Constitution. A child or juvenile above the age of 14 years at any rate cannot be prevented or restrained from getting employment in any work which is not of a hazardous nature, for remuneration, to eke out his livelihood or that of his family. His right to such employment is insulated under the Constitution, and when that be so, the question has to be examined whether an employer, who provided employment, which is not of a hazardous nature, to a child or juvenile above the age of 14 years is liable to be prosecuted, for that reason alone, under S.26 of the Act. When there is no statutory inhibition in Crl.M.C. No.7506 of 2017 11 2024:KER:66826 employment of children above the age of 14 years, which is not of a hazardous nature, the answer can be only in the negative. Perhaps in the employment of children below the age of 14 years, the question of employment of such children may require further scrutiny even if it is not so an offence under S.26 of the Act, but, with reference to prescriptions under different Statutes, as may be applicable. I say so since statutory interdictions as under S.67 of the Factories Act, 1948, S.45 of the Mines Act, 1952 etc. have significance only in relation to employment of children in hazardous activities. Whereas S.67 of the Factories Act prohibits employment of a child who has not completed fourteenth year in any factory, it is seen, S.45 of the Mines Act, there is an interdiction even in allowing the presence of any child below the age of 18 years in any place where any operation connected with or incidental to any mining operation is being carried of, but, subject to the exception provided under sub-section (2) of S.40 of the Mines Act which permits of engaging of children as apprentices and other trainees not below the age of 16 years to work in any mining area under proper supervision by the manager. Even in respect of engaging of children or juvenile in operation of mines which is, no doubt, hazardous activity, what is noticed is that children above the age of 16 years could be engaged as apprentices or trainees under Crl.M.C. No.7506 of 2017 12 2024:KER:66826 the supervision of a manager of the mine as per the statutory provisions covered by the Mines Act. Though the Parliament has enacted the Child Labour (Prohibition and Regulation) Act, 1986 (Act 61 of 1986), which came into force on 26/05/1993, to prohibit the children in certain employments and to regulate the conditions of work in certain other employments, it is noticed the 'child' to whom such Act is applicable is defined thereunder as a person who has not completed his fourteenth year of age. So, the prohibition in engaging of children above the age of 14 years in areas other than involving hazardous activities, providing them remuneration for their work, for the time being, cannot be viewed as infringing the protection and rights afforded to such children. In the context, it is also to be noticed that the amendments proposed in the existing law against child labour are still to be enacted. A new Act titled as 'Child and Adolescent Labour Prohibition Act' which contemplates of total ban of all forms of child labour under the age of 14 years and the employment of children in the 14-18 age group in hazardous activities prohibited and engagement of any child in such age group contrary thereto a cognizable offence, is yet to be passed by the Parliament though it is stated to have received the approval of the Union Cabinet. (See 'The Hindu' dated Crl.M.C. No.7506 of 2017 13 2024:KER:66826 September, 10, 2012 - 'Getting ready for the new law against child labour' - an article written by Kailash Satyarthi).
7. A mere allegation that a juvenile, aged 17 years, has been employed in a bakery, it does not follow that such employment constituted any threat or hazard to that juvenile. Engaging a juvenile as an employee in a bakery cannot be viewed as one putting him to a hazardous employment. I find, charge imputed against the petitioner for having employed a juvenile, aged 17 years, in his bakery for the offence under S.26 of the Act will not lie. Criminal proceedings against the petitioner in SC No. 37 of 2012 on the file of the Sessions Court, Thiruvananthapuram are quashed under S.482 of the Code of Criminal Procedure.
Petition is allowed."
10. In the light of the above principles, this Court perused the FIR and the final report. I am of the considered opinion that, even if the entire allegations are accepted, there is no case to the prosecution that the petitioner engaged the minor for any hazardous job. In such circumstances, the Crl.M.C. No.7506 of 2017 14 2024:KER:66826 offence is not attracted. Hence the prosecution is to be quashed.
Therefore, this Criminal Miscellaneous Case is allowed. All further proceedings against the petitioner in C.C. No. 881/2017 on the file of the Judicial First Class Magistrate Court, Chavara are quashed.
Sd/-
P.V.KUNHIKRISHNAN JUDGE DM Crl.M.C. No.7506 of 2017 15 2024:KER:66826 APPENDIX OF CRL.MC 7506/2017 PETITIONER ANNEXURES ANNEXURE A1 THE TRUE COPY OF THE FIR NO 2315 OF 2014 OF CHAVARA POLICE STATION, KOLLAM ANNEXURE A2 THE TRUE COPY OF THE CHARGE SHEET IN FIR 2315 OF 2014 OF CHAVARA POLICE STATION, KOLLAM RESPONDENTS EXHIBITS: NIL //TRUE COPY// PA TO JUDGE