Eldhose Elias v State of Kerala & Others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE RAJA VIJAYARAGHAVAN V** **TUESDAY, THE 18TH DAY OF DECEMBER 2018 / 27TH AGRAHAYANA, 1940** ## **Crl.MC.No. 4454 of 2016** ## **CC 650/2016 of JUDICIAL FIRST CLASS MAGISTRATE COURT, KOTHAMANGALAM** **CRIME NO. 277/2016 OF Kothamangalam Police Station, Ernakulam** ## **PETITIONER:** **ELDHOSE ELIAS, AGED 39 YEARS, S/O. ELIAS, RESIDING AT AMBAZHACHALIL, KARUKADAM PO, KOTHAMANGALAM, ERNAKULAM DISTRICT-686691.** **BY ADVS. SRI.C.V.MANUVILSAN SMT.K.VIDYA SRI.M.V.VIPINDAS SRI.P.C.ANIL KUMAR** ## **RESPONDENTS:** - **1 STATE OF KERALA, REPRESENTED BY THE SUB INSPECTOR OF POLICE, KOTHAMANGALAM, THROUGH THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA-682031.** - **2 SUDHEER MANOHAR, (AGE AND FATHER'S NAME UNKNOWN TO THE PETITIONER) SUB INSPECTOR OF POLICE, KOTHAMANGALAM-686691.** - **3 PRAVEEN, AGED 15 YEARS, S/O. UNNIKRISHNAN,KOMBARA HOUSE, MANALOOR PO., THRISSUR, REPRESENTEDBY HIS FATHER UNNIKRISHNAN, KOMBARA HOUSE, MANALOOR PO.THRISSUR-680617.** - **4 AKASH EBY, AGED 16 YEARS, S/O. EBY MATHEW, MANIYIRICKAL HOUSE, KUNNACKAL PO., MUVATTUPUZHA, ERNAKULAM-682316, REPRESENTED BY HIS MOTHER JOEMOL EBY, W/O.EBY MATHEW, MANIYIRICKAL HOUSE, KUNNACKAL PO., MUVATTUPUZHA, ERNAKULAM-682316,** **Crl.MC.No. 4454 of 2016** **2** **5 SHUAIB P.Y., AGED 17 YEARS, S/O. P.K. YOUSAFALI, PUTHIYAVEETTIL HOUSE, KIZHUPILLIKARA PO.,THRISSUR-680704. REPRESENTED BY HIS MOTHER SHEEBA YOUSAFALI, W/O. P.K. YOUSAFALI, PUTHIYAVEETTIL HOUSE, KIZHUPILLIKARA PO., THRISSUR-680704.** - **6 DEVAMANAS S., AGED 15 YEARS, S/O. SURESH, ADUMARI HOUSE, KOYOLERY PAYYAMPALLY PO., MANANTHAVADY, WAYANAD, REPRESENTED BY HIS MOTHER SEEMA SURESH, ADUMARI HOUSE, KOYOLERY PAYYAMPALLY PO., MANANTHAVADY, WAYANAD-670646.** **7 RAHUL P.R., AGED 15 YEARS, S/O. RAVEENDRAN, P.T, PUTHALATHUTHAZHAM HOUSE, NADAVAYAL PO., CHITTALUR KUNNU, PANAMARAM, WAYANAD-670721, REPRESENTED BY HIS FATHER RAVEENDRAN P.T. PUTHALATHUTHAZHAM HOUSE,NADAVAYAL PO., CHITTALUR KUNNU,PANAMARAM, WAYANAD-670721.** **8 AJIN B.JOSE., AGED 15 YEARS, S/O. JOSE B.I, BRAHMAKULATH THEKKATH HOUSE, MANALUR PO., THRISSUR,REPRESENTED BY HIS MOTHER SABEENA JOSE,W/O. JOSE B.I, BRAHMAKULATH THEKKATH HOUSE, MANALUR PO., THRISSUR,** **9 SUMESH C.H., AGED 16 YEARS, S/O.HARIDASAN,CHEMPAMPADAM HOUSE, KATAMAHIPURAM,PALAKKAD -678633, REPRESENTED BYHIS MOTHER SUDHA HARIDASAN W/O.HARIDASAN,CHEMPAMPADAM HOUSE, KATAMAHIPURAM,PALAKKAD -678633** **10 MOHAMMED JUNAID C.K., AGED 17 YEARS, S/O MOIDEEN C.K, MATTATHURHOUSE, MONGAM PO., MALAPPURAM-678642.REPRESENTED BY HIS FATHER MOIDEEN C.K,MATTATHUR HOUSE, MONGAM PO., MALAPPURAM-678642** - **11 MOHAMMED FARIS E.C., AGED 16 HEARS, S/O. ISHACK A,ELANCHOLA HOUSE, UTHARAMPAYIL, PULLANGODE PO., KALIKKAVU, MALAPPURAM-676525.REPRESENTED BY HIS FATHER ISHACK A. ELANCHOLA HOUSE, UTHARAMPAYIL, PULLANGODE PO., KALIKKAVU, MALAPPURAM-676525** **Crl.MC.No. 4454 of 2016** **3** - **12 SOORAJ.R., AGED 14 YEARS, S/O. RAVINDRAN,MANKARA VEEDU HOUSE, MANAPPADAMPO., PALAKKAD, DISTRICT, REPRESENTED BY HIS FATHER RAVINDRAN MANKARA VEEDUHOUSE, MANAPPADAM PO.,PALAKKAD -6878687** - **13 ARUN MATHEW,** **AGED 15 YEARS, S/O. MATHEW P.V,PULLENKUNNEL HOUSE, KOORANCHUNDU,KAKKAYAM PO., KOZHIKODE-673615REPRESENTE BY HIS FATHER MATHEW P.V,PULLENKUNNEL HOUSE, KOORANCHUNDU,KAKKAYAM PO., KOZHIKODE-673615** - **14 ANOOJ.V,** **AGED 14 YEARS, S/O.VENU .K,PULINARAKODE HOUSE, PERUVEMBA PO., PALAKKAD DISTRICT-678531. REPRESENTED BY HIS FATHER VENU K, PULINARAKODEHOUSE, PERUVEMBA PO., PALAKKAD-678531** **BY ADVS. SRI.T.M.SUDHEER SMT.SANDHYA RAJU SRI.G.SUDHEER (THURAVOOR) SRI.K.S.ARUN KUMAR SMT.RESMI THOMAS SRI.G.SUDHEER (THURAVOOR)** ## **OTHER PRESENT:** **PP. SMT. M.K. PUSHPALATHA** **THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON 18.12.2018, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** **Crl.MC.No. 4454 of 2016** **4** ## **ORDER** The petitioner herein is the sole accused in C.C.No.650 of 2016 on the file of the Judicial First Class Magistrate Court, Kothamangalam. In the aforesaid case, he faces accusations of having committed offences punishable under Sections 75 and 76 of the Juvenile Justice (Care and Protection of Children) Act, 2015 and under Section 370 of the IPC. ## 2. Allegation against the petitioner can be summed up thus:- A football academy in the name “Beausyfalace International School of Football” was setup by the petitioner herein at Kothamangalam, in the State of Kerala. By giving advertisements, young students were enticed to join the football academy. Students were selected by holding camps and they and their parents were induced to believe that the academy had good facilities to impart sports training. However, the academy lacked even the basic facilities. They were housed in confined spaces and were subjected to gross hardship. Rithik.K.P., a student who got himself enrolled in **Crl.MC.No. 4454 of 2016** **5** the academy, lodged a complaint before the Juvenile Police Unit, Alwaye, wherein he alleged that the students, who had joined the academy, were being subjected to unnecessary mental and physical suffering. They were made to water the football ground and were forced to do various chores like cleaning the building, cut logs etc. Their services were also used by the petitioner for selling coupons. It is further alleged that the act of the petitioner in recruiting and harboring the students by practicing fraud or deception for the purpose of exploiting them would amount to trafficking, punishable under Section 370 of the IPC. 3. It is evident from Annexure-A17 that the FIR was _suo motu_ registered by Sri.Sudheer Manohar, the Sub Inspector of Police Kothamangalam, who conducted the investigation and laid Annexure-A20 final report before the jurisdictional Court. 4. The learned counsel appearing for the petitioner submitted that the none of the offences alleged against the petitioner would be made out against him. He would refer to Annexures-A1 to A7 and submitted that the petitioner is a reputed football coach with impeccable credentials. He is also a practicing lawyer. The learned **Crl.MC.No. 4454 of 2016** **6** counsel would submit that the witnesses, who are alleged to have been subjected to hardship, have been arrayed as respondents 3, 5 to 11, 13 & 14. They have entered appearance and filed a statement asserting that the allegations in the final report are baseless. They have also filed an affidavit stating that they have no grievance against the petitioner. The learned counsel further submitted that the Sub Inspector, who registered the crime, has himself conducted the entire investigation and have laid the final report. Reliance is placed on a decision of the Apex Court in **Mohan Lal** v. **State of Punjab** [2018 (4) KHC 387] and it is contended that fair investigation, which is the very foundation of fair trial, necessarily postulates that the informant and the investigator must not be the same person. The said principle having been violated, the continuance of criminal proceedings on the strength of AnnexureA20 Final report cannot be sustained, argues the learned counsel. 5. Heard the learned Public Prosecutor, who opposed the prayer, and the learned counsel appearing for the 4[th] respondent. 6. I have anxiously considered the submissions advanced. It appears that it is based on a written complaint filed by one Rithik **Crl.MC.No. 4454 of 2016** **7** K.P. that the crime was _suo motu_ registered by the Sub Inspector of Police, Kothamangalam Police Station. The aforesaid Rithik K.P. has not been cited as a witness. The students of the academy, who have been cited as witnesses in the final report, have been arrayed as respondents in this petition. They have appeared before Court through their respective counsel and they have vociferously asserted that the allegation raised against the petitioner is without any semblance of truth. The 4[th] respondent, on the other hand, would submit that the facilities in the football academy was below par and the recruited children were being confined in inadequate spaces without imparting proper training. However, his assertion was denied by the counsel appearing for the other respondents. 7. Admittedly, the students were being imparted training in a football academy. The records show that they were admitted in the academy after conducting a selection process. They have participated in various competitions and have brought home laurels as well. None of the respondents, except the 4[th] respondent, have a case that they were admitted in the academy for the purpose of exploitation. The students, who got themselves voluntarily admitted in a football academy for obtaining training with the consent of their **Crl.MC.No. 4454 of 2016** **8** parents, must have full knowledge that they would have to undergo strenuous training for an extended period to make themselves fit for competition and to excel themselves in the particular sports discipline. Section 75 of the JJ Act is not intended for prosecuting a sports trainer, who imparts training to prepare him for sports or games competition. Section 370 of the IPC will have no application in the instant case as the students had joined the academy voluntarily with the consent of their parents for getting themselves trained in a particular game. No one has a case that they were coerced to join the academy or that they were made to do any other act than participate in sports. A student of the academy, who volunteers to water the ground or clean up his own room, cannot be said to have been exploited as provided under Section 370 of the IPC. Furthermore, in **Mohan Lal** v. **State of Punjab** (supra) the Apex Court had held the very foundation of fair trial, necessarily postulates that the informant and the investigator must not be the same person. The prosecution has to be held to be vitiated for infraction of the constitutional guarantee for fair investigation. 8. Having considered the entire facts, I am of the view that the continuance of the criminal proceedings against the petitioner **Crl.MC.No. 4454 of 2016** **9** herein is clearly an abuse of process. Annexure-A20 final report and all further proceedings pursuant thereto against the petitioner in C.C.No.650 of 2016 on the file of the Judicial First Class Magistrate Court, Kothamangalam are quashed. This petition is allowed. ## **SD/-** **RAJA VIJAYARAGHAVAN V., JUDGE** Dsv/- //TRUE COPY// P.A. TO JUDGE **Crl.MC.No. 4454 of 2016** **10** ## **APPENDIX** ## **PETITIONER'S/S EXHIBITS:** **ANNEXURE A1: TRUE COPY OF THE CERTIFICATE DATED 23/03/2010, ISSUED BY THE DISTRICT SPORTS COUNCIL,ERNAKULAM ANNEXURE A2: TRUE COPY OF THE CERTIFICATE DATED 07/04/2010 ISSUED TOTHE PETITIONER FOR HIS PARTICIPATION IN THE FOOTBALL TRAINING CAMP 2010, HELD AT COCHIN, CONDUCTED BY HARALD BRANER AND DR FRANK BRANER FROM GERMANY. ANNEXURE A3: TRUE COPYOF THE CERTIFICATE OF SAFE GUARDING CHILDREN, ISSUED BY THE ENGLISH FOOTABALL ASSOCIATION ANNEXURE A4; TRUE COPY OF THE EMERGENCY AID AWARD CERTIFICATE AWARDED BY THE EENGLISH FOOTBALL ASSOCIATION ANNEXURE A5: TRUE COPY OF THE INTERNATIONAL COACHING LICENSE AWARDED BY THE ENGLISH FOOTBALL ASSOCIATION ANNEXURE A6: TRUE COPY OF THE COACHIN CERTIFICATE, VIDE THE 'C' CERTIFICATE DATED 31.10.2011 FROM SINGAPORE, ISSUED BY THE ASIAN FOOTBALL ASSOCIATION AFC ANNEXURE A7: TRUE COPY OF THE CERTIFICATE AWARDED WITH THE BEST COACH AWARD, IN A TOURNAMENT CONDUCTEDBY THE REGIONAL SPORTS CENTRE ERNAKULAM ANNEXURE A8: TRUE COPY OF THE NEWS ITEM PUBLIC IN EXPRESS NEWS SERVICE DATED 12.07.2014 ANNEXURE A9: TRUE COPY OF THE ORDER DATED 18.03.2016 IN HRMP NO.96522/15 ERNAKULAM ANNEXURE A10 TREU COPY OF THE NEWS PUBLISHED IN THE MALAYALAMANORAMA DAILY DATED 2015 JULY 7 ANNEXURE A11: TRUE COPY OF THE COMPLAINT GIVEN BY THE PETITIONER TO THE DPI, THIRUVANANTHAPURAM, TOGETHER WITH THE POSTAL RECEIPT DATED** **Crl.MC.No. 4454 of 2016** **11** ||**24.06.2015.**| |---|---| |**ANNEXURE A12:**|**TRUE COPY OF THE PAGE NO.16 OF THE ADMISSION**| ||**REGISTER PERTAINING TO THE ADMISSION OF**| ||**RITHIK.**| |**ANNEXURE A13:**|**TRUE COPY OF THE REPLY ISSUE DBY THE SCHOOL**| ||**PRINCIPLE OF THE SAID RITHIK K.P. TO THE**| ||**PETITIONER UNDER THE RTI ACT REGARDING**| ||**ATTENDANCE AND THE MARKS SECURED BY THE SAID**| ||**RITHIK K.P.**| |**ANNEXURE A14:**|**TRUE COPY OF THELETTER DATED 30.01.2016**| ||**ISSUED BY THE DIRECTOR TO THE PARENT OF THE**| ||**RITHIK;**| |**ANNEXURE A15:**|**TRUE COPY OF THE ENDORSEMENT ON THE COVER OF**| ||**THE LETTER DATED 30.01.2016 AS"REFUSED"**| |**ANNEXURE A116:**|**TRUE COPY OF THE COMPLAINT WAS SUBMITTED**| ||**BEFORE THE KOTHAMANGALAM POLICE BY THE**| ||**DIRECTOR OF THE BEAUSYFALACE FOOTBALL SCHOOL**| ||**ON 10TH FEBRUARY, 2016 FOR SECURING THE**| ||**PRESENCE OF THE PARENTS OF THE SAID RITHIK**| ||**ON 11.02.2016**| |**ANNEXURE A17:**|**TRUE COPY OF THE FIR IN CR.NO.277/2016 OF**| ||**KOTHAMANGALAM POLICE STATION**| |**ANNEXURE A18:**|**ATRUE COPY OF THE FIS IN CR. NO.277/2016 OF**| ||**KOTHAMANGALAM POLICE STATION**| |**ANNEXURE A19:**|**TRUE COPY OF THE REPORT OF KOTHAMANGAAM**| ||**POLICE IN CR.NO.277/2016 REQUESTING TO**| ||**REMOVE THE DIRECTOR OF THE BEAUSYFALACE**| ||**FOOTBALL SCHOOL FROM THE ARRAY OF ACCUSED.**| |**ANNEXURE A20:**|**FINAL REPORT SUBMITTED BEFORE THE JFCM**| ||**KOTHAMANGALAM IN CR.277/2016 DATED 24.5.2016**| |**ANNEXURE A21:**|**THE AFFIDAVIT SOLEMNLY AFFIRMED AND SIGNED**| ||**BY THE PARENTS OF THE OTHER STUDENTS IN**| ||**FOOTBAL SCHOOL DATED 5.3.2016**| |**ANNEXURE A22:**|**THE AFFIDAVIT SOLEMNLY AFFIRMED AND SIGNED**| ||**BY THE PARENTS OF THE OTHER STUDENTS IN**| ||**FOOTBALL SCHOOL DATED 8/3/2016**| **Crl.MC.No. 4454 of 2016** **12** ## **RESPONDENTS' EXHIBITS:-** **ANNEXURE-R4(A):- A COPY OF THE W.P.C NO.8635/16 FILED BY THE 4TH RESPONDENT BEFORE THIS HON'BLE COURT.** **ANNEXURE-R4(B):- A COPY OF THE STATEMENT FILED BY THE PUBLIC PROSECUTOR IN W.P.C.8635/16.** **ANNEXURE-R4(C):- A COPY OF THE JUDGMENT IN W.P.C NO.8635/16 DATED 08.07.2016.** **ANNEXURE-R5(1):- THE TRUE PHOTOCOPY OF THE PAGE NO.12 OF THE ADMISSION REGISTER PERTAINING TO THE ADMISSION OF THE 5TH RESPONDENT.** **ANNEXURE-R6(1):- THE TRUE PHOTOCOPY OF THE PAGE NO.61 OF THE ADMISSION REGISTER PERTAINING TO THE ADMISSION OF THE 6TH RESPONDENT.** **ANNEXURE-R7(1):- THE TRUE PHOTOCOPY OF THE PAGE NO.72 OF THE ADMISSION REGISTER PERTAINING TO THE ADMISSION OF THE 7TH RESPONDENT.** ## **ANNEXURE-R8(1):- THE TRUE PHOTOCOPY OF THE PAGE NO.74 OF THE ADMISSION REGISTERE PERTAINING TO THE ADMISSION OF THE 8TH RESPONDENT.** **ANNEXURE-R9(1):- THE TRUE PHOTOCOPY OF THE PAGE NO.75 OF THE ADMISSION REGISTER PERTAINING TO THE ADMISSION OF THE 9TH RESPONDENT.** **ANNEXURE-R10(1): THE TRUE PHOTOCOPY OF THE PAGE NO.76 OF THE ADMISSION REGISTER PERTAINING TO THE ADMISSION OF THE 13TH RESPONDENT.** **ANNEXURE-R11(1):- THE TRUE PHOTOCOPY OF THE PAGE NO.80 OF THE ADMISSION REGISTER PERTAINING TO THE ADMISSION OF THE 11TH RESPONDENT.** **ANNEXURE-R13(1):- THE TRUE COPY OF THE PAGE NO.90 OF THE ADMISSION REGISTER PERTAINING TO THE ADMISSION OF THE 13TH RESPONDENT.** **ANNEXURE-R14(1):- THE TRUE PHOTOCOPY OF THE PAGE NO.91 OF THE ADMISSION REGISTER PERTAINING TO THE ADMISSION OF THE 14TH RESPONDENT.**