Eliyas v. State of Kerala

' **CR'** IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT THE HONOURABLE MRS. JUSTICE ANNIE JOHN MONDAY ,THE 26TH DAY OF NOVEMBER 2018 / 5TH AGRAHAYANA, 1940 ## Crl.MC.No. 2210 of 2018 CC 175/2010 of CHIEF JUDL.MAGISTRATE, ERNAKULAM ## PETITIONER/ACCUSED NO.1 ELIYAS, AGED 67, S/O.PATHROSE, PARASSERY HOUSE, GANDHI NAGAR, ELAMKULAM VILLAGE, ERNAKULAM-682 020. BY ADV. SRI.C.P.UDAYABHANU ## RESPONDENT/COMPLAINANT: STATE OF KERALA REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM (ON BEHALF OF THE S.I. OF POLICE, CENTRAL POLICE STATION) ## OTHER PRESENT: SRI. C.N. PRABHAKARAN, SR. PUBLIC PROSECUTOR THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON 04.04.2018, THE COURT ON 26.11.2018 PASSED THE FOLLOWING: Crl.M.C. No. 2210 of 2018 -2- ## **ORDER** In this petition filed under Section 482 Cr.P.C., the petitioner, who is the first accused in CC. No. 175 of 2010 on the file of the Chief Judicial Magistrate, Ernakulam for offences punishable under Section 3 of the Child Labour (Prohibition and Regulation) Act and Section 23 of the Juvenile Justice Act, seeks to quash Annexure A1 final report. 2. The case of the prosecution is that the petitioner is the owner of a shop room namely 'Anoop Stores' situated at Mullassery Canal Road, Ernakulam. He let out the shop room to accused Nos. 2 and 3, who are natives of Jharkhand State and they allegedly employed two juveniles. 3. CW14, the Inspector of Police, Central Police Station along with two childline workers, on getting some reliable information went to the shop and removed CWs 3 and 4, who were present in the shop and effected the arrest of the petitioner on 22.06.2010 and thereafter registered the FIR. After conducting the investigation, Annexure I final report was filed before the trial court. 4. The learned counsel for the petitioner submits that the petitioner was the owner of a shop room bearing No.910/40 situated near Mullassery Canal in P.T Usha Road at Ernakulam and that he Crl.M.C. No. 2210 of 2018 -3- rented out the same to accused Nos. 2 and 3 who were conducting a tea shop in the said room. He has also submitted that the petitioner did not have any nexus with the business of accused Nos. 2 and 3, who were in actual control and management of the petty tea shop. He has further submitted that it appears that accused Nos. 2 and 3 had engaged the services of two minor boys named Mohamed Kalam and Irshad (CWs 3 and 4), who were the natives of Andhra Pradesh to work in the shop. The petitioner's counsel contends that there are no allegations in Annexure A1 final report to attract the above provisions of law against the petitioner, and that to attract Section 3 of the Act, there must be a positive averment in the final report that the respective accused has employed or permitted to work in any of the occupation set forth in part A of the schedule to the Act or in any workshop. Only when the said Section stands attracted, the penalty under Section 14 of the Act would come into play. 5. Section 3 of the Child Labour (Prohibition and Regulation) Act, 1986 deals with the prohibition of employment of children in certain occupations and process. It reads thus: 3 Prohibition of employment of children in certain occupations and processes. —No child shall be employed or permitted to work in any of the occupations set forth in Part A of the Schedule or in any workshop wherein any of the processes set forth in Part B of the Schedule is carried on: Crl.M.C. No. 2210 of 2018 -4- Provided that nothing in this section shall apply to any workshop wherein any process is carried on by the occupier with the aid of his family or to any school established by, or receiving assistance or recognition from, Government. 6. The learned counsel for the petitioner has argued that either Section 3 of the Child Labour (Prohibition and Regulation) Act, 1986 or Sections 23 or 26 of the JJ Act is applicable in this case. Sections 23 and 26 of the J.J. Act read thus: 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, exposes or neglected in a manner likely to cause juveniles 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. _“_ 26. Exploitation of juvenile or child employee: - _whoever ostensibly procures a juvenile or child for the purpose of any hazardous employment keeps him in bondage and withholds his earnings or use such earnings or 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. According to the petitioner's counsel, Section 23 of the JJ Act is not applicable to this case as the petitioner was not in actual charge of the juvenile and there is no case that the child was assaulted, abandoned, exposed or wilfully neglected and procured him to be assaulted, abandoned, exposed or neglected in a manner likely to cause the child unnecessary mental or physical suffering. In this Crl.M.C. No. 2210 of 2018 -5- ## connection, I have gone through the charge sheet filed against the accused persons. In the charge, it was written thus: - “1 ആ� പത� നടത� വരന എർണ�കള� വ�ല�ജ� , ട� കരയ�ൽ, മ�ല�ര� കന�ൽ ല��ഡ�ൽ P.T. ഉഷ ല��ഡ� വന ല"രന ജ�ഗഷൻ വടക� വശ� വടക� ദർശനത�ൽ സ�ത� ച"യന - - C.C.910/40 ആ � നമർ അനപ� ല/�ഴ� എന "�യകടയ�ൽ 2 ഉ�, 3 ഉ� പത�കൾ 12 ഉ� 13-ഉ� വയസ� വ3ത� പ�യമള� കട�കള�യ 3 ഉ� 4 ഉ� സ�ക�കചള ന�ട�ൽ ന�ന� (ഝ�ർഖണ� ) കട�ചക�ണ വന, 1-അ� പത�യചട കടയ�ൽ ട� കട�കചളചക�ണ� ബ�ലലവല ച"യ�കനത 22.06.2010 ത3യത� വവക� 5.00 മണ�ക� 14-അ� സ�ക�യ�ൽ ക�ണചEട� പത�കൾ ലമൽ വകE� പക�ര� ശ�ക�കതക കറ� ച"യ�ര�കന എന�.” 8. It is only an allegation that the second and third accused has brought two minor children from their native place for the purpose of doing labour in the shop owned by the petitioner. According to the petitioner's counsel, there is no allegation that the juveniles were under the custody of the petitioner and there was no allegation that the petitioner had acted in any manner which would attract the provisions of the JJ Act. ## 9. In _**Faisal v. State of Kerala [2015 (4) KLT 450],**_ this ## Court has held thus: _“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.”_ ## 10. In _**Vinod S v Panicker v. Sub Inspector of Police**_ [2012 Crl.M.C. No. 2210 of 2018 -6- (4) KHC 224), it is held that the mere allegation that a juvenile aged 17 has been employed in a bakery does not follow that such employment constituted any threat or hazard to that juvenile and the same cannot be viewed as putting him to hazardous employment. It is true that the above acts are extensions of the reflection and in fact imbibing of the spirit of the Principles enunciated under Articles 23 and 24 of the Constitution of India. However, the mere allegation that the juvenile has been employed does not follow that there is any threat or hazard to that particular juvenile. 11. In the case of _**Khalid L.K. v. Sub Inspector of Police, Kasaragod and Another [2015 (4) KHC 180]**_ a boy aged 15 years was employed in a hotel for washing utensils and cleaning the tables. There it was held that the child has come for work in the establishment at the instance of his parents and in the absence of any evidence that juvenile was subjected to mental or physical suffering, it cannot be said that offence under the Act is attracted. Mere fact that the juvenile was aged 15 years and that he was made to work in an establishment, would not by itself attract offence under the Act. 12. In J _**oseph v. State of Kerala**_ [2014(2) KHC 48], it is held in paragraph 13 thus: “13. In order to attract an offence under S.23 of the Act, it must be Crl.M.C. No. 2210 of 2018 -7- proved by the prosecution that: a) person having the actual charge or control over a juvenile or child, b) assaults, abandons, exposes or wilfully 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.” 13. Now the question is whether the employment of the juvenile will come under the definition of the hazardous work. As per Section 26 of the J.J. Act, the prosecution has to establish that the juvenile was employed by the petitioner for doing some hazardous work without making adequate payment of salary or wages. So, what is punishable under Section 26 of the J.J.Act is that for the exploitation of the juvenile while employing him for some hazardous job. 14. On the strength of the aforesaid propositions, I am of the view that the prosecution under Section 26 of the J.J. Act is possible only when the juvenile is employed for some hazardous job without making proper and adequate payment of wages and salary. In _**Alice**_ _**v. State of Kerala [2014 (2) KLT 175]** , this Court held that the term “hazardous” indicates the risk and heaviness of the job which the age of the child cannot bear_ . _It need not always be some job causing threat to life._ Here, the prosecution has no case that the petitioner has employed the Crl.M.C. No. 2210 of 2018 -8- juvenile to do some hazardous work without making any payment of salary. As per Section 26 of the J.J. Act, there must be an evidence to prove that the juvenile was subjected to mental or physical sufferings. 15. None of the above grounds are incorporated in the charge sheet filed against the petitioner. According to the learned counsel for the petitioner, the allegations mentioned in Annexure A1 are not sufficient enough to attract the provisions of the aforesaid Acts and even if the trial of the case is carried on, there is no ground to convict the petitioner. Admittedly, the petitioner is not the guardian of the minor children. At best, the second and the third respondents are the person who brought the children from their native place and employed in the shop. 16. It is a well settled proposition that if the Court is satisfied and also found that the entire allegations raised against the accused is not true and those allegations will not constitute the ingredients of the offences alleged against him, the Court can invoke the power under Section 482 Cr.P.C to quash the entire proceedings. Here the charge sheet was filed under Section 3 of the Child Labour (Prohibition and Regulation) Act and Section 23 of the JJ Act. None of the ingredients of the aforesaid offences are attracted in this case. Therefore, I find that this is a fit case to invoke the power under Section 482 Cr.P.C. Crl.M.C. No. 2210 of 2018 -9- In the result, this petition is allowed and the further proceedings in C.C. No. 175 of 2010 pending before the Chief Judicial Magistrate, Ernakulam is hereby quashed. The Registry is directed to communicate this order to the court below. sd/- **ANNIE JOHN, JUDGE.** _Rv_ Crl.M.C. No. 2210 of 2018 -10- ## **APPENDIX** PETITIONER'S/S EXHIBITS: ANNEXURE A1- CERTIFIED COPY OF THE FINAL REPORT PENDING AS C.C.NO.175/2010 BEFORE THE CHIEF MAGISTRATE COURT, ERNAKULAM. ## **RESPONDENT'S ANNEXURES** : NIL /True Copy/ PS to Judge. rv