Ayesha v. State of Kerala

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** # **PRESENT** **THE HONOURABLE MR. JUSTICE ALEXANDER THOMAS** **FRIDAY, THE 28TH DAY OF JUNE 2019 / 7TH ASHADHA, 1941** ## **Crl.MC.No.7274 of 2018** **AGAINST THE ORDER/JUDGMENT IN CC 2730/2017 of JUDICIAL MAGISTRATE OF FIRST CLASS ,THALASSERY** ## **PETITIONER/S:** **AYSHA, AGED 53 YEARS W/O. ABDUL RAHIMAN, KARIYAT POYIL HOUSE, PULIYANAMBRAM, KANNUR.** **BY ADVS. SMT.K.DEEPA (PAYYANUR) SRI.V.R.NASAR** ## **RESPONDENT/S:** **1 STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM - 31.** **2 SUNDARI @ SAHIRA, 20 YEARS, D/O.NOHAMMA, NEAR CHIDAMBARAM BUS STAND, TAMILNADU, PIN - 608 001.** ## **OTHER PRESENT:** **SMT.PRIYA SHANAVAS, PUBLIC PROSECUTOR** **THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON 28.06.2019, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** ## **ALEXANDER THOMAS, J.** ================== Crl.M.C.No. 7274 of 2018 ================== Dated this the 28[th] day of June, 2019 ## **O R D E R** The petitioner (A-2) has been arrayed as the accused in the impugned Anx.I Crime No.5/2015 of Chokli Police Station, registered for offences punishable under Sec.23 of the Juvenile Justice (Care and Protection of Children) Act, 2000 (J.J. Act for short). 2. The prosecution case in short is that on 1.1.2015, for about one year the accused had caused to make the defacto complainant to do the household work and harassed physically and mentally and that the accused have thereby the abovesaid offence. 3. The Police, after investigation has filed the impugned Anx. II final report/charge sheet in the said Crime No. 5/2015 of Chokli Police Station, which has now led to the pendency of Calendar Case, C.C.No.2730/2017 on the file of the Judicial First Class Magistrate's Court, Thalassery. The petitioner's husband Sri.Abdul Rehman, and the petitioner have been arrayed as accused 1 and 2 in the above criminal proceedings. 4. After investigation the Police submitted the final report/charge sheet against the petitioner alone under Sec. 23 of the Crl.M.C.7274/18 - : 3 :- JJ Act after deleting her husband from the accused array, as is clear from Anx. II final report/charge sheet. The petitioner would contend that the petitioner is totally innocent of all the charges and that the above criminal proceedings have been initiated only on the basis of the wrong information and that she has been falsely implicated. As a matter of fact, there was a lady by named, Nohamma, a native of Tamil Nadu, to assist the petitioner accused in her household work and the said Nohamma, brought the defacto complainant girl to the house of the petitioner accused and introduced her as her daughter. That while so, around one week before the alleged incident, both the defacto complainant and her mother had left the petitioner's home without informing anybody. That the petitioner suspects that the defacto complainant and her mother have been trapped by some politicians of the rival party of the petitioner and persuaded them to prefer a complaint before the Police, against the petitioner and her husband. That those elements are trying to use the child as a weapon as against the petitioner and her husband. That from the accusations and allegations made in Anx. II final report/charge sheet, it can be seen that there is no allegation that the petitioner had assaulted, abandoned or exposed or willfully neglected the defacto complainant, Crl.M.C.7274/18 - : 4 :- in any manner, etc. 5. Heard Smt.K.Deepa, learned counsel appearing for the petitioner accused and Smt.Priya Shanavas, learned Prosecutor appearing for the respondent State. 6. The only offence alleged against the petitioner is one as per Sec. 23 of the Juvenile Justice Act, 2000, which reads as follows: _**“Sec.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.”_ 7. In the judgment of this Court in _**Joseph v. State of Kerala**_ reported in 2014 (2) KHC 48, this Court has held that unless it is established by the prosecution that (a) person having actual charge or control over a juvenile or child, (b) assaults, abandons, exposes or willfully 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, it cannot be held that the offence under the said provision would be attracted. Further in various decisions of this Court as in _**Vinod S.Panicker v. S.I. Of Police**_ , reported in 2012(4) KHC 224, it has been held that there is no statutory Crl.M.C.7274/18 - : 5 :- inhibition under the JJ Act in employment of children above the age of 14 years, which is not hazardous in nature and engaging children above the age of 14 years and providing them with remuneration for their work cannot be viewed as infringing the protection and rights afforded to such children and at any rate, such engagement would not attract an offence under the JJ Act, 2000. It has been held in _**Joseph's case**_ supra that even assuming that the petitioner therein, as in charge or control of the juvenile or child, he is only providing shelter to the child and looking after her and 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, etc. 8. A bare reading of the impugned Anx.I and Anx. II prosecution materials would show that the allegations raised therein are very vague that for about one year prior to 1.1.2015, the juvenile girl was kept in the house of the accused for doing the house-hold works and that she has been thus mentally and physically harassed, etc. This Court has held in the decision in _**Joseph v. State of Kerala**_ , reported in 2014 (2) KHC 46 that merely because the girl 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 Crl.M.C.7274/18 - : 6 :- danger and in the absence of evidence that the girl was assaulted or any force was applied on her or she was completed to do any hard work or subjected to cruelty, no offence under the JJ Act is attracted. Accordingly, this Court had quashed the impugned criminal proceedings as per Sec. 23 of the Juvenile Justice Act, in that case. 9. This Court in the decisions as in _**Vinod S.Panicker v. S.I. of Police**_ , reported in 2012 (4) KHC 224 has held that even the prohibition in the provisions of the Child Labour (Prohibition and Regulation) Act 1986 is only in a case where a person, who has not completed the age of 14 years, is being employed and that the provision in engaging children above the age of 14 years, in areas other than involving hazarding activities, providing them with remuneration for their work for the time being, cannot be viewed as infringing the protection and rights afforded to such children. That as per Sec.26 of the JJ Act, 2000, there is no statutory inhibition in employment of children above the age of 14 years, which is not hazardous in nature, etc. 10. The first information statement, which has been given by the victim girl in the instant case, which has led to Anx.II final report/ charge sheet filed in Anx.I in Crime No. 5/2015 of Chokli Police Crl.M.C.7274/18 - : 7 :- ## Station, reads as follows: **"ഉമയ�� ക�സ��ബ� എന ബ�ബ�കറ�� ക�ട� എനന ന�ഗർബക�വ�ല�ല�� എറണ�ക�ളത�� ക�ഞ�പള�യ�ല�� വ ട"ബ#�ല�ക$ ന�ർത�. അബപ�ൾ എന�ക$ 10 വയസ�ണ �)�യ� എന$ ഉമ )റഞ�ര�ന� . )�നന എനന ന)ര�ങത�ര�ള കര�വ�ട"ന)�യ�ൽ അ�-�കയ�നട വ ട�ൽ 3 വർഷബതനകന�� )റഞ$ )ണ�ക$ ന�ർത�. ഉമയ�� ബ�ബ�കറ�� ക�ട� പ)സയ�� വ�ങ� ബ)�യ�. എന�ക$ 15 വയസ�നയന�ണ ഉമ ആ വ ട"ക�ബര�ട )റഞത. 18 വയസ�വ�ന3 ബ#�ല� ന4യ�ച�ൽ ബ)�ല സ )�ട�ക�ന8ന$ ആള"കൾ അ�-�കയ�നട വ ട"ക�ബര�ട )റയ�ന ബകട�ട�ണ ഞ�ൻ ബ;ഷന�ൽ നവച$ എന�ക$ 18 വയസ�നണന� ബ)�ല�സ�ബന�ട )റഞത. അ�-�കയ�നട വ ട�ൽ അട�ച" വ�രല��, 8�റ� അട�കല�� )��3� കഴ�കല�8�ണ )ണ�.” "ഞ�ൻ അ�-�കയ�നട വ ട�ൽ വന�ട$ ഏകബ?ശ� ഒര� നക�ലB ബത�ള8�യ� .”** From a reading of the abovesaid FIS, it can be seen that the main allegation is that the victim girl has been made to do domestic works in the house of the accused. The offence alleged in the instant case is as per Sec. 23 of the Juvenile Justice (Care & Protection of Children) Act, 2000. In view of the dictum laid down by this Court in the aforestated judgments, this Court is inclined to take the view that the impugned criminal proceedings could be interdicted and as permission of its further continuance would amount an abuse of the process of the court. Moreover, this Court has held in _**Faisal v. State of Kerala**_ [2015 (4) KLT 450] that only the act of employing a child below the age of 14 years for the jobs enumerated in the schedule to the Child Labour (Prohibition and Regulation) Act would attract offence thereunder and to come under Sec. 26 of JJ Act, 2000 something more is required and what is made punishable is Crl.M.C.7274/18 - : 8 :- employing a juvenile below the age of 18 years for some hazardous job without making payment of adequate wages or salary. The nature of the job is very important under Sec.26 of the JJ Act, 2000 and that employment of the child for hazardous works will constitute offence under the Child Labour (Prohibition & Regulation) Act, provide the age of the child is below 14 years and if the child is above the age of 14 years, then the said Act will have no application, etc. Paragraph 3 of the abovesaid decision of this Court in _**Faisal's case**_ supra, reads as follows: _“3. The F.I.R. or the final report does not contain anything regarding the hazardous nature of the job. It appears that the Sub Inspector of Police had the Child Labour (Prohibition and Regulation) Act in his mind when he registered the F.I.R. The Sub Inspector had some confusion regarding the said Act and the Juvenile Justice Act. The very fact of employing a child below 14 years, for some job enumerated in the Schedule to the said Act will constitute an offence under the Child Labour (Prohibition and Regulation) Act. But to come under S.26 of the Juvenile Justice Act, something more is required. What is made punishable is employing a juvenile aged below 18 years for some hazardous job without making payment of adequate wages or salary. The nature of the job is very important under S.26 of the Juvenile Justice Act. This Court has explained that the said job must be hazardous in nature. Here, the prosecution has no case anywhere in the prosecution records that the juvenile was employed for any hazardous job, or that he was not given proper and adequate wages or salary. Merely employing a child will constitute an offence only under the Child Labour (Prohibition and Regulation) Act, provided the age of the child is below 14 years. If the child is aged above 14 years the said Act will have no application. Thus I find that the prosecution is liable to be quashed because it is legally unsustainable.”_ 11. Moreover, it is the admitted case of the victim girl that her own mother had told the accused persons that her age (victim's age) is 15 years, etc. In the light of these aspects, the impugned criminal Crl.M.C.7274/18 - : 9 :- proceedings could be interdicted. Accordingly, it is ordered that the impugned Anx. A-II final report/charge sheet filed in Anx. A1 FIR in Crime No. 5/2015 of Chokli Police Station, which has led to the institution of Calendar Case, C.C.No. 2730/2017 on the file of the Judicial First Class Magistrate's Court, Thalassery, and all further proceedings arising therefrom pending against the accused will stand quashed. The petitioner will produce certified copies of this order before the investigating officer concerned and the competent court below concerned. The office of the Advocate General will forward copy of this order to the investigating officer concerned for information. With these observations and directions, the above Criminal Miscellaneous Case stands finally disposed of. sdk+ Sd/- **ALEXANDER THOMAS, JUDGE** Crl.M.C.7274/18 - : 10 :- ## **APPENDIX** ## **PETITIONER'S/S EXHIBITS:** **ANNEXURE I CERTIFIED COPY OF THE FIR OF CRIME NO.05/2015 OF THE CHOKLI POLICE STATION, KANNUR.** **ANNEXURE II CERTIFIED COPY OF THE FINAL REPORT OF CRIME NO.05/2015 OF THE CHOKLI POLICE STATION, KANNUR.**