Ahammed Kutty v. Sub Inspector of Police, Kasaragod and State of Kerala

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR. JUSTICE ALEXANDER THOMAS THURSDAY, THE 18TH DAY OF DECEMBER 2014/27TH AGRAHAYANA, 1936 Crl.MC.No.5057 of 2014 (B) --------------------------SC 1034/2012 of SESSIONS COURT, KASARAGOD CRIME NO.510/2011 OF KASARAGOD POLICE STATION , KASARGOD PETITIONER/ACCUSED: -------------------------- AHAMMED KUTTY HOTEL ZAM ZAM, NEW BUS STAND, KASARAGOD BY ADV. SRI.T.G.RAJENDRAN RESPONDENT/COMPLAINANT & STATE: -------------------------------------------- ## 1. SUB INSPECTOR OF POLICE KASARAGOD 671 121 ## 2. STATE OF KERALA REP BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA ERNAKULAM 682 031 R1 & R2 BY PUBLIC PROSECUTOR SRI.R.GITHESH THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON 18-122014, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: Crl.MC.No. 5057 of 2014 () --------------------------- ## APPENDIX PETITIONER(S)' EXHIBITS: ------------------------------- ANNEXURE-1 COPY OF THE FIRST INFORMATION REPORT ANNEXURE-II COPY OF THE FINAL REPORT IN SC 1034/2012 ANNEXURE-III COPY OF THE SSLC CERTIFICATE AD TRANSFER CERTIFICATE ANNEXURE-IV COPY OF THE ORDER IN CRL MC NO 1118/2013 DATED 12-032013 RESPONDENT(S)' EXHIBITS: NIL ------------------------------- // TRUE COPY // P.A TO JUDGE. ## **ALEXANDER THOMAS, J. ----------------------------Crl.M.C.No.5057 Of 2014 --------------------------------Dated this the 18[th] day of December, 2014.** ## **O R D E R** The petitioner is the accused in Annexure-I FIR in the impugned Crime No.510/2011 of Kasaragod Police Station for offence under Section 23 of the Juvenile Justice (Care and Protection of Children) Act, 2000 (hereinafter referred to as 'the Act'). The police after investigation submitted the impugned Annexure-II Final Report/Charge Sheet in the impugned Annexure-I Crime No.510/2011 of Kasaragod Police Station which has led to thew pendency of S.C.No.1034/2012 on the file of the Sessions Court, Kasaragod for the above said offence. The gist of the prosecution case is that on 2.6.2011 at about 6:30 a.m. A minor boy was engaged in a Hotel called 'Zam Zam' as a child labour at Kasaragod new bus stand and he was then taken to the Child Welfare Committee by the police. The petitioner submits that the boy was born on 13.2.1995, he was aged more than 16 years as on 2.6.2011, the date of registration of the impugned Annexure-I FIR and that this is evidenced from Annexure-III SSLC Certificate and TC in respect of the boy. It is the case of the petitioner that ::2:: ## **Crl.M.C.No.5057 Of 2014** offence under Sec.23 will not be attracted in this case as the only allegation against the accused is that he had engaged a 16 year boy in his hotel and such a vague allegation cannot and will not attract an offence punishable under Sec.23 of the Act. It is contended by the petitioner that there is no statutory inhibition under the Juvenile Justice Act in employment of the children above the age of 14 years, which is not hazardous in nature. It is submitted that engaging children above the age of 14 years and providing them remuneration for their work cannot be viewed as one infringing the protection and rights afforded to such children and, at any rate, such engagement would not attract an offence under the Act. The petitioner has relied on the final order dated 12.3.2013 of this Court in Crl.M.C.No.1118/2013 (AnnexureIV) wherein this Court quashed the impugned criminal proceedings alleging offence under Section 23 of the Act in a similar case. It is in the conspectus of these facts and circumstances, that the petitioner has filed the instant Crl.M.C seeking to quash the impugned Annexure-II Final Report/Charge Sheet in the impugned Crime No.510/2011 of ::3:: ## **Crl.M.C.No.5057 Of 2014** Kasaragod Police Station which has led to the pendency of S.C.No.1034/2012 on the file of the Sessions court, Kasaragod and all further proceedings arising there from. 2. It is contended by the petitioner that no offence under Sec.23 of the aforementioned Act is attracted as per the allegation contained in the impugned Annexure-A2 Final Report/Charge Sheet. It is stated that the only allegation against the petitioner contained in the impugned Annexure-A2 Final Report/Charge Sheet is that the petitioner had employed a boy in his hotel and mere employment of the child as defined under that Act will not attract the offence under the said Act. It is further contended that this Court in Crl.M.C.No.1118/2014 as per order dated 12.3.2013 has considered the question whether engaging a juvenile as an employee in a hotel will constitute the offence under Sec.23 of the Act and it has been held that as already held by this Court in the case _**Vinod S.Panicker v. SI of Police and another**_ reported in 2012 (4) KHC 224 that there is no statutory inhibition under the Juvenile Justice Act in employment of the children above the age of 14 years, which is not hazardous in nature and that ::4:: ## **Crl.M.C.No.5057 Of 2014** engaging children above the age of 14 years and providing them remuneration for their work cannot be viewed as one infringing the protection and rights afforded to such children and, at any rate, such engagement would not attract an offence under the Act. Accordingly, it was held by this Court in the order dated 12.3.2013 in Crl.M.C.No.1118/2013 that what is prohibited is employment of a child or a juvenile below the age of 14 and above the age of 14 in a hazardous employment by keeping him in bondage and by not paying him his wages and that since there was no such accusation in the impugned criminal proceedings in that case, this Court held therein that offence under Sec.23 of the Juvenile Justice Act is not attracted and accordingly, quashed the impugned Final Report/Charge Sheet filed in that case which led to the proceedings in the sessions case before the sessions court concerned and all further proceedings therefrom was also quashed. The petitioner also relies on the decision of _**Joseph v. State of Kerala**_ reported in 2014 (2) KHC 48 wherein this Court considered the statement of the victim and has held that if a person working voluntarily it cannot be said that he was ::5:: ## **Crl.M.C.No.5057 Of 2014** put to any hazardous work or exposed to danger and in the absence of any evidence that the victim was assaulted or any force was applied or compelled to to any hard work or subjected to cruelty, no offence under the said Act is attracted. The petitioner also relies on the order dated 5.8.2014 in Crl.M.C.No.3408/2014 wherein this Court relied on the rulings of this Court in _**Joseph v. State of Kerala**_ reported in 2014 (2) KHC 48 and held that unless it is established by the prosecution that; (a) person having the actual charge or control over a juvenile or child, (b) assaults, abandons, exposes or willfully neglects and 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, it cannot be held that the offence under the said provision would be attracted etc. 3. Heard Sri.T.G.Rajendran, learned counsel for the petitioner and learned Public Prosecutor appearing for the respondent-State of Kerala. ::6:: ## **Crl.M.C.No.5057 Of 2014** 4. Section 23 of the Juvenile Justice Act reads as follows:- ## _**Section 23: Punishment for cruelty to juvenile or child.**_ _Whoever, having the actual charge of, or control over, a juvenile or the child, assaults, abandons, exposes or wilfully neglects the juvenile or causes or procures him to be assaulted, abandoned, exposed or neglected in a manner likely to cause such juvenile or the child unnecessary mental or physical suffering shall be punishable with imprisonment for a term which may extend to six months, or fine, or with both._ Section 24 of the said Act reads as follows: ## _**Section 24: Employment of juvenile or child for begging.**_ _(1) Whoever employs or uses any juvenile or the child for the purpose or causes any juvenile to beg shall be punishable with imprisonment for a term which may extend to three years and shall also be liable to fine._ _(2) Whoever, having the actual charge of, or control over, a juvenile or the child abets the commission of the offence punishable under sub-section (1), shall be punishable with imprisonment for a term which may extend to one year and shall also be liable to fine._ Section 26 of the said Act reads as follows: ## _**Section 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 earning 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._ ::7:: ## **Crl.M.C.No.5057 Of 2014** Section 27 of the said Act proves as follows: ## _**Section 27: Special offences.**_ _The offences punishable under sections 23, 24, 25 and 26 shall be cognizable._ The only offence alleged against the petitioner as per the impugned Annexure-A2 Final Report/Charge Sheet in the impugned Crime is one under Section 23 of the Juvenile Justice Act. A bare reading of the above said provisions of Sec.23 of the Act makes it clear that following are the ingredients to constitute the criminal offence thereunder, viz, (i) person having the actual charge or control over a juvenile or child, (ii) such person assaults, abandons, exposes or willfully neglects the juvenile or (iii) cause or procures him to be assaulted, abandoned, exposed or neglected, (iv) in a manner likely to cause such juvenile or the child unnecessary mental or physical suffering. 5. It was held by this Court in _**Joseph v. State of Kerala**_ that even assuming that the petitioner was in charge of control of the juvenile or child, the accusation only shows that the accused was only providing shelter to the child and looking after her and she was helping the inmates of the house in the kitchen, voluntarily, it cannot be said that she was put ::8:: ## **Crl.M.C.No.5057 Of 2014** to hazardous work or exposed to danger and further that the victim has no such case in her statement before the police. According to the petitioner, even if the entire allegations made against the accused was admitted to be true, the allegations will not attract the offence under Section 23 of the Juvenile Justice Act and therefore this Court invoked the power under Section 482 Cr.P.C to quash the impugned proceedings of the offence alleged under Sec.23 of the Juvenile Justice Act. 6. In the instant case, it is not disputed even by the respondents that the age of the boy is about 16 years as evident from the SSLC certificate. From the accusations and charges made in the impugned Annexure-II Final Report/Charge Sheet, it can be seen that there are no allegations therein that the accused had assaulted, abandoned or exposed or willfully neglected the victim or procured him to be assaulted, abandoned, exposed or neglected in any manner likely to cause such victim unnecessary mental or physical suffering within the provisions of Sec.23 of the Juvenile Justice Act. As held by this Court in _**Vinod S.Panicker v. SI of Police and another**_ reported in 2012 (4) KHC 224 there is no ::9:: ## **Crl.M.C.No.5057 Of 2014** statutory inhibition under the Juvenile Justice Act in employment of the children above the age of 14 years, which is not hazardous in nature. As the only offence alleged against the petitioner in the impugned Final Report is one under Sec.23 of the Juvenile Justice Act, it is clear that none of the vital ingredients for attracting the said offence under Sec.23 is attracted in the facts and circumstances of the case. Therefore, in the light of the decision of this Court in _**Joseph v. State of Kerala**_ reported in 2014 (2) KHC 48, _**Vinod S.Panicker v. SI of Police and another**_ reported in 2012 (4) KHC 224, order dated 12.3.2013 in Crl.M.C.No.1118/2013 and order dated 5.8.2014 in Crl.M.C.No.3408/2014 etc, this Court is of the considered opinion that the offence alleged under Section 23 of the Juvenile Justice Act is not attracted in the facts and circumstances of the present case. 7. In the result, the impugned Annexure-A2 Final Report/Charge Sheet filed in the impugned Annexure-A1 FIR in Crime No.510/2011 of Kasaragod Police Station which has led to the pendency of S.C.No.1034/2012 on the file of the Sessions Court, Kasaragod and all further proceedings arising ::10:: ## **Crl.M.C.No.5057 Of 2014** therefrom as against the petitioner in respect of the offence alleged under Sec.23 of the Act stand quashed. The petitioner shall forward certified copies of this order to the Station House Officer, Kasaragod Police Station as well as to the Sessions Court, Kasaragod. With these observations, this Crl.M.C stands finally disposed of. **ALEXANDER THOMAS, Judge.** bkn/-