CRL.MC NO. 8821 OF 2023 (Criminal Miscellaneous Case)

# **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ``` THE HONOURABLE MR. JUSTICE GOPINATH P. ``` ``` THURSDAY, THE 30[TH] DAY OF NOVEMBER 2023 / 9TH AGRAHAYANA, 1945 CRL.MC NO. 8821 OF 2023 ``` ``` CRIME NO.419/2014 OF CHERANELLOOR POLICE STATION, ERNAKULAM PROCEEDINGS IN C.P.NO.28/2023 OF JUDICIAL MAGISTRATE OF FIRST CLASS - IX, ERNAKULAM (TEMPORARY) ``` ## **`PETITIONER/ACCUSED:`** ``` XXXXXXXXXX XXXXXXXXXX BY ADVS. JERIN JOSEPH SRUTHY UNNIKRISHNAN SAQIB RIZWAN ELDHO BABY AMRUTHA P S VIJAY SANKAR V.H. AMRUTHA K P ARYA B. VENUGOPAL ``` ## **`RESPONDENTS/STATE:`** ``` 1STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, PIN – 682 031. 2ANTI-HUMAN TRAFFICKING UNIT, KOCHI CITY, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM, PIN – 682 031. ``` ``` SRI VIPIN NARAYAN (SR. PP) ``` ``` THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 30.11.2023, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: ``` CRL.MC NO. 8821 OF 2023 2 ## ORDER The petitioner is the accused in Crime No.419 of 2014 of Cheranalloor Police Station, Ernakulam District, which is now pending as C.P.No.28 of 2023 on the file of the Judicial First Class Magistrate Court – IX, Ernakulam (Temporary). The allegation against the petitioner is that on 24.04.2014 at 03.30PM, when the Anti Human Trafficking Unit, Kochi were on patrol duty in Edappally Region, they conducted inspection in a hotel owned by the petitioner and found that a 15 year old minor had been employed by the petitioner and therefore, the petitioner had committed the offence punishable under Section 26 of the Juvenile Justice (Care and Protection of Children) Act, 2000 (in short ‘2000 Act’). 2. The learned counsel for the petitioner would submit that the employment of children above 14 years in activities which are not hazardous in nature is not prohibited. The learned counsel place reliance on the judgments of this Court in Vinod S. Panicker v. Sub Inspector of Police and Another [2012 (4) KHC 224] as also to the judgment Faisal v. State of Kerala [2015 (5) KHC 335] in support of CRL.MC NO. 8821 OF 2023 3 his contention. 3. The learned Public Prosecutor submits that the crime was registered under the provisions of the 2000 Act by invoking the provisions of Section 26 of the said Act. It is not seriously disputed before me that the decisions relied on by the learned counsel for the petitioner also relate to the provisions of Section 26 of the 2000 Act. 4. Having heard the learned counsel appearing for the petitioner and the learned Public Prosecutor and having perused the statement of the juvenile forming part of the Anneuxre – I Final Report (internal page No.14 of Annexure – I), I am of the view that the petitioner is entitled to succeed. The statement of the child, who was allegedly employed in violation of the provisions contained in Section 26 of the 2000 Act, indicate that he was engaged for the purpose of cleaning tables and for washing vessels. The said activity cannot be termed as a hazardous activity. Though there is an allegation in the final report that the petitioner had not paid the proper wages, there is no further detail regarding the wages actually paid by the petitioner to the child in question. In Vinod S. Panicker (supra), this Court held as follows:- 5. The question to be considered is whether CRL.MC NO. 8821 OF 2023 4 employment of juvenile as such in any activity which is not of a hazardous nature falls within the mischief covered by Section 26 of the Act. Section 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. The aforesaid Section is analogous to Section 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 Section 26 of the new Act by additions, qualifying or restricting the applicability of exploitation to 'hazardous' employment with the CRL.MC NO. 8821 OF 2023 5 addition 'keeping in bondage', which was not there in Section 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 Articles 23 and 24 of the Constitution of India. Article 23 prohibits traffic in human beings and forced labour. Every form of forced labour, beggar or otherwise, is within the inhibition of Article 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 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 (AIR 1982 SC 1473) has considered the scope and ambit of Article 23 in detail, and it again came up for consideration in Bandhua Mukti Morcha v. Union of India (AIR 1983 SC 1155) . Whereas Article 23 prohibits all forms of forced labour, Article 24 speaks of prohibition of employment of children in factories, mines or in any hazardous occupation. Similarly, provisions under Article 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 CRL.MC NO. 8821 OF 2023 6 exploitation and against moral and material abandonment. Section 26 of the Act, which in effect reflects and imbibes the spirit of Articles 23, 24 and Section 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 him in bondage and withholds his earnings or uses such earning for his own purposes. 6. Section 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. Article 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 Section 26 of the Act has to be examined with reference to the prohibition covered by Article 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 Section 26 of the CRL.MC NO. 8821 OF 2023 7 Act. When there is no statutory inhibition in 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 Section 26 of the Act, but, with reference to prescriptions under different Statutes, as may be applicable. I say so since statutory interdictions as under Section 67 of the Factories Act, 1948, Section 45 of the Mines Act, 1952 etc. have significance only in relation to employment of children in hazardous activities. Whereas Section 67 of the Factories Act prohibits employment of a child who has not completed fourteenth year in any factory, it is seen, Section 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 Section 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 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 CRL.MC NO. 8821 OF 2023 8 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 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 Section 26 of the Act will not lie. CRL.MC NO. 8821 OF 2023 9 ## Again, in Faisal (supra), this Court held:- 2. On hearing both sides, I find that the prosecution is liable to be quashed. It is not known how merely employing a juvenile aged 16 years will come under Section 23 of the Juvenile Justice Act, or under Section 26 of the Juvenile Justice Act. To come under Section 23 of the Juvenile Justice Act, the alleged offence must have been committed by a person having actual charge or control over the juvenile, and the juvenile must have been subjected to mental or physical harassment. Anyway, the Court has now framed a charge against him under Section 26 of the Juvenile Justice Act. Even to come under Section 26 of the Juvenile Justice Act, the prosecution must have a case that the juvenile was employed by the accused for some hazardous job, without making adequate payment of salary or wages. Practically what is made punishable is exploitation of a juvenile by employing him for some hazardous job. In Vinod S.Panicker v. Sub Inspector of Police (2012 (4) KLT 314), this Court held that engaging a juvenile as an employee in a bakery cannot be viewed as one putting him to a hazardous employment. In Alice v. State of Kerala (2014(2) KLT 175), this Court held the term “hazardous” under Section 26 of the Juvenile Justice Act indicates the risk and heaviness of the job which the age of the child cannot bear. Anyway, it is now settled that a prosecution under Section 26 of the Juvenile Justice Act is possible only when a juvenile is employed for some hazardous job without making proper and adequate payment of wages, or salary. In this case, the prosecution does not have any such allegation. CRL.MC NO. 8821 OF 2023 10 3. The FIR 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 FIR. 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 Section 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 Section 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 Labor (Prohibition and Regulation) Act, provided the age of the child 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. Having regard to the law laid down in Vinod S. Panicker (supra) and Faisal (supra) and having perused the Final report including a statement of the child, who was allegedly employed in violation of CRL.MC NO. 8821 OF 2023 11 the provisions contained under Section 26 of the 2000 Act, I am of the view that the petitioner cannot be stated to have committed the offences alleged against him. Accordingly, this Crl.M.C is allowed and all further proceedings against the petitioner in C.P.No.28 of 2023 on the file of the Judicial First Class Magistrate Court – IX, Ernakulam (Temporary) will stand quashed as against the petitioner. Sd/GOPINATH P. JUDGE DK