Anuroop v. State of Kerala

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR. JUSTICE ALEXANDER THOMAS FRIDAY, THE 31ST DAY OF OCTOBER 2014/9TH KARTHIKA, 1936 Crl.MC.No.5321 of 2014 (A) --------------------------CP 37/2014 of J.M.F.C.-I, ALUVA CRIME NO.2492/2012 OF ALUVA POLICE STATION, ERNAKULAM PETITIONER/ACCUSED: --------------------------- ANUROOP, AGED 37 YEARS S/O.RAGHAVAN NAIR, VELIYATH HOUSE FEDERAL BANK JUNCTION, ALUVA. BY ADV. SRI.JAISON JOSEPH RESPONDENT/STATE: ------------------------- STATE OF KERALA REPRESENTED BY THE PUBLIC PROSECUTOR HIGH COURT OF KERALA, ERNAKULAM REPRESENTING SUB INSPECTOR OF POLICE ALUVA POLICE STATION. BY PUBLIC PROSECUTOR SRI.R.GITHESH THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 31-10-2014, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: ## Crl.MC.No.5321 of 2014 (A) ## APPENDIX ## PETITIONER'S EXHIBITS: ANNEXURE-A1: CERTIFIED COPY OF HE FIR ALONG WITH THE REPORT IN CRIME NO.2492/2012 OF ALUVA POLICE STATION. ANNEXURE-A2: CERTIFIED COPY OF THE CHARGE SHEET IN C.P.NO.37/2014 ON THE FILE OF THE JUDICIAL FIRST CLASS MAGISTRATE COURT-I, ALUVA. ANNEXURE-A3: CERTIFIED COPY OF THE 161 STATEMENT OF CW2. ANNEXURE-A4: CERTIFIED COPY OF THE 161 STATEMENT OF CW5. RESPONDENT'S EXHIBITS: NIL // TRUE COPY // P.A. TO JUDGE. ## **ALEXANDER THOMAS, J. ----------------------------Crl.M.C.No.5321 Of 2014 --------------------------------Dated this the 31[st] day of October, 2014.** ## **O R D E R** The prayer in this Criminal Miscellaneous Case, seeking invocation of the inherent powers conferred on this Court under Sec.482 Cr.P.C, is to quash the impugned Annexure-A2 Final Report/Charge Sheet filed in the impugned Annexure-A1 FIR in Crime No.2492/2012 of Aluva Police Station which has led to the pendency of committal proceedings, C.P.No.37/2014 on the file of the Judicial First Class Magistrate Court-I, Aluva. The petitioner is the sole accused in the above crime registered for offence punishable under Sec.23 of the Juvenile Justice (Care and Protection of Children) Act, 2000 (hereinafter referred to as 'the Act'). The brief of the prosecution case is that while the provisions of child labour prohibition law is in force, the accused, in violation of the aforesaid provisions therein, with intend to earn monetary benefits, had employed witness No.2, a minor below the age of 14 years, who is the son of witness No.5 for three days prior to 19.9.2012 as a helper for cooking in Annapoorna Vegetarian Hotel situated in door No.VIII/326 of Aluva Municipality, which is owned by the ::2:: ## **Crl.M.C.No.5321 Of 2014** accused situated on the western side of Sreekrishna Swami Temple at Federal Bank Junction. The aforesaid offence was witnessed by witness No.1 on 19.09.2012 at 3.45 p.m. Annexure-A1 is the copy of the impugned FIR in Crime No.2492/2012 of Aluva Police Station. The police, after investigation, submitted Annexure-A2 Final Report/Charge Sheet in the impugned Annexure-A1 Crime No.2492/2012 of Aluva Police Station which has led to the pendency of C.P.No.37/2013 on the file of the Judicial First Class Magistrate Court-I, Aluva. In the impugned Annexure-A2 Final Report/Charge Sheet it is stated therein as hereunder. “_methe \ntcm[\ \nbaw \nehnencnt¡ {]Xn BbXn\v hn]coXambn {]hÀ¯n¨v hcpam\w D- m¡Wsa¶pÅ Dt±i t¯mSp IqSn {]XnbpsS DSaØXbnepw ta t\m«¯nepw {]hÀ¯n¨p hcp¶ Beph shÌv hntÃPv Sn Icbn s^Ud _m¦v Ihebn \n¶pw kpamÀ 10 aoäÀ hS¡pamdn sX¡p hS¡mbn ØnXnsN¿p¶ {ioIrjvWkzman t£{X tdmUn\v ]Snªmdp hiw sX¡p ZÀi\¯n ØnXnsN¿p¶Xpw, Beph ap³kn¸menänbn \n¶pw VIII/326 F¶v \¼À DÅXpamb A¶]qÀ® shPntädnb³ tlm«en\ I¯v 5þmw km£nbpsS aI\pw 14 hbÊn Xmsg am{Xw {]mbw DÅXpw {] mb]qÀ¯nbmIm¯Xpamb cmw km£nsb ]mNI tPmen¡v klmbnbmbn 19.9.2012 XobXn¡v aq¶p Znhkw ap³]v apX Sn tlm«en tPmen¡mbn \nban¨v _methe sNbvXphcp¶Xmbn 19.09.2012 XobXn ]I 3.45 aWn¡v H¶mw km£nbmepw aäpw ImWs¸«v {]Xn ta hIp¸p {]Imcw in£mÀlamb Ipäw sNbvXncn¡p¶p F¶v ” ::3:: ## **Crl.M.C.No.5321 Of 2014** _“While the provisions of child labour prohibition law is in force, accused in violation of the aforesaid provision therein with intend to earn monetary benefits, employed witness No.2 a minor below 14 years, who is the son of witness No.5 for three days prior to 19.9.2012 as a helper for cooking, in Annapoorna Vegetarian Hotel which is owned by the accused bearing Door No.VIII/326 of Aluva Municipality on the western side of Sree Krishna Swami Temple at Federal Bank Junction. The aforesaid offence was witnessed by witness No.1 on 19.9.2012 at 3:45 p.m.”_ 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 ::4:: ## **Crl.M.C.No.5321 Of 2014** age of 14 years, which is not hazardous in nature and 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. 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 ::5:: ## **Crl.M.C.No.5321 Of 2014** if a person working voluntarily it cannot be said that he was 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. It is submitted by the petitioner that the only evidence that is available for roping the petitioner under the provisions of this Act is the statement given by the victim child ::6:: ## **Crl.M.C.No.5321 Of 2014** under Section 161 of the Cr.P.C. CW2, the victim has given statement under Section 161 Cr.P.C as per Annexure-A3, ## Question No.5 of which reads as follows: Q5 Beph A¶]qÀ® tlm«en F¯nt¨À¶Xv F§ns\bmWv.? Ans AÑt\msSm¸w s]cp¼mhqcn h¶ Rm³ Aѳ tPmen¡v t]mIp¶ kab¯v \mSv ImWm³ Id§n \S¡pw. Aѳ Xncn¨p hcpt¼mtgbv¡pw Rm\pw AhnsS Xncns¨¯pw. Ipd¨p Znhkw A§ns\ Id§n \S¶t¸mÄ ssI¿n Imiv Xocmdmbn. GsX¦nepw tlm«en tPmen sNbvXv `£Ww Ign¨v Ipd¨v \mÄ Ignbmsa¶v IcpXn NpänXncnªmWv Rm³ Beph A¶]qÀ® tlm«en tPmenbv¡mbn F¯nbXv. Based on that it is submitted by the petitioner that the statement of the victim clearly shows that he had voluntarily joined in the hotel for having food and for money and was working in the Annapoorna Hotel, Aluva. The statement of the victim clearly shows that he was not assaulted or any force has applied to him or he was compelled to do any hard work or for non-compliance he has been subjected to any cruelty by the employer of the hotel etc. It is in the light of these facts and circumstances, the petitioner has filed the instant Crl.M.C with the prayer to quash Annexure-A1 Final Report/Charge Sheet in the impugned Crime and all further proceedings arising therefrom. ::7:: ## **Crl.M.C.No.5321 Of 2014** 4. Heard Sri.Jaison Joseph, learned counsel for the petitioner and learned Public Prosecutor appearing for the respondent-State of Kerala. 5. 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_ ::8:: ## **Crl.M.C.No.5321 Of 2014** _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._ 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. 6. It was held by this Court in _**Joseph v. State of Kerala**_ that even assuming that the petitioner as in charge of control of the juvenile or child, the accusation only shows that ::9:: ## **Crl.M.C.No.5321 Of 2014** 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 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. 7. In the instant case, it is clearly stated by CW5, who is the father of the victim boy, in the statement given under Section 161 Cr.P.C before the police produced as Annexure-A4 in this Crl.M.C that the boy was of the age 14. From the accusations and charges made in the impugned Annexure-A2 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 ::10:: ## **Crl.M.C.No.5321 Of 2014** 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 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 case and therefore the impugned Annexure-A2 Final Report/Charge Sheet in the ::11:: ## **Crl.M.C.No.5321 Of 2014** impugned Annexure-A1 Crime No.2492/2012 of Aluva Police Station which has led to the pendency of C.P.No.37/2014 on the file of the Judicial First Class Magistrate Court-I, Aluva and all further proceedings arising therefrom in respect of the offence alleged against the petitioner under Sec.23 of the Juvenile Justice Act stand quashed. The petitioner shall produce certified copies of this order before the Station House Officer, Aluva Police Station as well as before the Judicial First Class Magistrate Court-I, Aluva. With these observations, the Crl.M.C stands finally disposed of. **ALEXANDER THOMAS, Judge.** bkn/-