Calcutta High Court (Appellete Side)
An Application For Anticipatory Bail ... vs Gay Tshering Shenga @ Gay Tshering ... on 14 March, 2016
Author: Patherya
Bench: Patherya
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. 28
2016
HIK
CTED
C.R.M. 1321 of 2016.
In the matter of an application for anticipatory bail under Section 438 of the
Code of Criminal Procedure filed on 15.02.2016 in connection with Kalimpong
P.S. Case No. 332 of 2015 dated 28.10.2015 under Sections 26 of the Juvenile
Justice (Care & Protection) Act read with Section 14(1) of the Child Labour
Prevention & Regulation Act corresponding to G.R. Case No. 420 of 2015.
And
In the matter of : Gay Tshering Shenga @ Gay Tshering Bhutia ... Petitioner.
Mr. Biswajit Manna
.. for the Petitioner.
Mr. Madhusudan Sur
Mr. Monoranjan Mahata.
.. for the State.
This is an application under Section 438 of the Code of Criminal
Procedure as filed by the accused petitioner praying for his release on
anticipatory bail in the event of his arrest in connection with
Kalimpong P.S. Case No. 332 of 2015 dated 28.10.2015 under
Sections 26 of the Juvenile Justice (Care & Protection) Act read with
Section 14(1) of the Child Labour Prevention & Regulation Act
corresponding to G.R. Case No. 420 of 2015.
Defence counsel submits that the petitioner is a 75 year old
gentleman who has been falsely implicated in the alleged offence and
is not in any way involved therein. It is only due to grudge and ill
motive that he has been implicated. Section 26 of the 2000 Act will
have no application as the victim was not engaged in any hazardous
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employment nor his earnings withheld. In fact, if at all, Section 23
will apply which is bailable. Section 2 (cb) of the Factories Act has
defined 'hazardous' to be a process or activity which will cause
impairment to the health of the person engaged. Such is not the case
here as the victim's health has not been in any way impaired by
either finished products or bye-products. There is no hazardous
process or activity involved. Section 3 of the Child Labour Act, 1986
prohibits employment of children in certain occupations as set out in
Schedules A and B of the Schedule and it is only in case of such
engagement that penalties have been mentioned under Section 14.
The said offence is also bailable. Black's Law Dictionary, 8th Edition,
has described 'hazardous employment' to mean high risk work and
work involving extra peril. There is no question of any peril in the
engagement of the victim nor was the work that he discharged, if any,
of high risk. Wharton's Law Lexicon, 15th Edition has described
'hazardous work' to mean any solid or liquid as defined in EEC
Council Director in December, 1991. Hazardous substance has been
defined in the Environment Protection (Protection) Act, 1986 to
mean any preparation which is likely to cause harm to human beings
and other living creatures. None of these can be applied to the work
that the victim was engaged in doing. Reliance has been placed on
decisions reported in 2013 Criminal Law Journal 833 (Kerala)
(Vinod S. Panicker Vs. Sub Inspector of Police & Anr.), 2016 SCC
OnLine Ker 206 (Abdul Khader Vs. State of Kerala) and an
unreported judgment of Delhi High Court in Crl. Rev. No. 454 of
2011 (State Vs. Nayan Ahmad) and the Gujarat High Court in
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Criminal Misc. Application No. 5484 of 2011 (Virendra K Malik
Vs. State of Gujarat & Ors.). As Section 26 has no application,
therefore, orders be passed as sought.
Counsel for the State produces the case diary and takes us to
the statement recorded under Section 164 Cr. P. C. of the victim at
page 26 so also the statement of the neighbours recorded under
Section 161 Cr. P. C. and a similarly situate boy engaged by the
petitioner at pages 13 to 15.
Having considered the submissions of the parties and on
scrutiny of the case diary, sufficient material exists to reject this
application.
Although an argument was raised by defence counsel with
regard to hazardous employment and recourse was taken to the
Factories Act and Child Labour Act so also some decisions of the
various High Courts. The Factories Act will have no application to
the facts of this case as the Factory Act does not deal with Juvenile.
It deals with persons employed in a factory who are engaged in
hazardous labour. It is presumed that the labour engaged in a
factory will be above 14 years of age preferably or adults. Similarly
under the Child Labour Act, Section 3 prohibits employment of
children in certain occupation and process as set out in Part-A and
Part-B. In Part-A by S.O. 1742(A) dated 10.10.2006 employment of
children as domestic worker or servant was included. Therefore,
children engaged as domestic workers are prohibited as per the 1986
Act. This S.O. has come into effect from 10.10.2006. Therefore, both
the Child Labour Act and the Factories Act will not be applicable.
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The term 'Hazardous employment' is only in respect of a Juvenile who
is below the age of 18 and when the word hazardous is used with
regard to employment it must mean an employment or engagement
which does not commensurate with the age of the juvenile. Another
interesting feature of Section 26 of the 2000 Act is that exploitation
may also be by keeping a person in bondage which is evident from
the statements made under Section 164 Cr. P. C. by the victim
himself. We cannot shut our eyes to such statement made and
although counsel for the petitioner has raised an objection with
regard to the age of the victim. In his 164 Cr. P.C. statement
recorded by the Executive Magistrate the victim has categorically
stated that he is 13 years of age. The matter was referred to CWC
and it is as per the order of the CWC that the child was taken to the
Child Labour Rehabilitation Centre of Bal Siksha Abhijan Trust.
The decisions relied on will have no application to the instant
case. The case before the Delhi High Court is distinguishable. The
decision of Delhi High Court is distinguishable as there is a noting in
paragraph 31 that the child requested the committee to send her
back to the 'aunty' respondent where she was happy and she was
neither treated like servant nor bonded labour. In the decision before the Kerala Court, the juvenile worked in a Bakery shop and was not engaged in hazardous works. It is because of this that the offence was quashed. In Virendra K Malik (supra), it was a case of four juvenile girls being engaged in a factory and the statement of the girls were looked into before passing the order and it was the statement of the girl which weighed with the Court in passing the order. In Abdul 5 Khader (supra), sufficient material existed on record to evidence that the child was not engaged in any hazardous job. This is what prompted the Kerala High Court to grant anticipatory bail. In the case in hand before us the statement of the victim is otherwise.
Accordingly, the prayer for anticipatory bail is rejected and the application is, thus, dismissed.
Certified copy of this order, if applied for, be given to the parties on priority basis.
( Patherya, J.) ( Debi Prosad Dey, J. ) 6