Ganesan H. v. State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE ALEXANDER THOMAS** **MONDAY, THE 09TH DAY OF NOVEMBER 2020 / 18TH KARTHIKA, 1942** ## **Crl.MC.No.3600 OF 2020(H)** ## **AGAINST CP 12/2020 OF ADDITIONAL CHIEF JUDICIAL MAGISTRATE COURT, ERNAKULAM CRIME NO.913/2016 OF ERNAKULAM TOWN NORTH POLICE STATION** ## **PETITIONER:** **GANESAN .H AGED 58 YEARS, S/O.H.HARIHARAN, 37/1733, NORTH PALATHURUTHY LANE, KALOOR, KOCHI-682 017.** ## **BY ADV. SRI.T.R.RAJESH** ## **RESPONDENTS:** **1 STATE OF KERALA REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM, KOCHI, KERALA-682 031. 2 THE INSPECTOR OF POLICE, TOWN NORTH POLICE STATION, ERNAKULAM, KOCHI, KERALA-682 018.** ## **OTHER PRESENT:** ## **SRI.SAIGI JACOB PALATTY, PUBLIC PROSECUTOR** **THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON 09.11.2020, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** Crl.MC.No.3600 OF 2020(H) 2 ## **ALEXANDER THOMAS, J.** ------------------------------------------Crl.M.C. No.3600 of 2020 ---------------------------------------------Dated this the 09[th] day of November, 2020 ## **O R D E R** The prayer in the aforecaptioned Criminal Miscellaneous Case filed under Section 482 of the Code of Criminal Procedure (Cr.P.C.), is as follows:- _"….......to quash Annexure A-6 final report and all further proceedings in C.P. No.12/2020 on the files of the Additional Chief Judicial Magistrate Court, Ernakulam, arising out of Crime No.913/2016 dated 18.06.2016 of Town North Police Station, Ernakulam so as to secure the ends of justice.”_ 2. The subject crime is one registered as per Annexure A-2 FIR in Crime No.913/2016 of Ernakulam Town North Police Station, which has been registered for offences punishable under Secs.370(3), 370(4) read with Sec.34 of the Indian Penal Code and Sec.79 of the Juvenile Justice (Care and Protection of Children) Act, 2015 (JJ Act). Altogether there are 4 accused persons arrayed therein and the petitioner herein is the 4[th] accused therein. The 1[st] accused is now no more. The Crl.MC.No.3600 OF 2020(H) 3 only allegation raised against the petitioner is the one as per Section 79 of the JJ Act. The Police, after investigation has filed the impugned Annexure A-6 Final Report/Charge Sheet in the abovesaid Crime No.913/2016 of Ernakulam Town North Police Station, which has now led to the pendency of committal proceedings, CP No.12/2020, on the file of the Additional Chief Judicial Magistrate Court, Ernakulam. 3. The gist of the allegations in the above case is that accused 1 to 3 with the intention to bring a minor girl, then aged 17 years, named Jirumu Majhi, from the State of Orissa, had conferred together and brought to Ernakulam and that the 3[rd] accused handed over to accused 1 & 2 after receiving Rs.6,000/and thereafter, the minor girl/juvenile was employed as a housemaid in the residence of the 4[th] accused and that the petitioner has thus, subjected the juvenile to child labour and thereby the accused persons have committed the abovesaid offences. 4. The case of the petitioner is that he is totally innocent of the allegations and that he is an employee of the State Bank of India, working as a Cashier in a branch at Crl.MC.No.3600 OF 2020(H) 4 Ernakulam and that at the time of the alleged incidence the petitioner's wife was suffering from chronic Liver Cirrhosis and was on the continuous treatment during the abovesaid period and the petitioner being a Bank employee, had to deal with various cash transactions and could not attend to her the wife's needs properly. In such a case he was advised by his brother to arrange the service of a female maid to look after the day-to-day affairs of the petitioner's wife and that the petitioner's brother had accordingly informed him that he has arranged a female maid named Jirumu Majhi, alien from the state of Orissa. That the petitioner and his wife then desperately needing the assistance of a female attendant as otherwise the care and attention could not have been given to the petitioner's wife, who was suffering from serious disease. It is in these circumstances that the abovesaid female attendant, Jirumu Majhi, was engaged by the petitioner and that she was treated as a member of the family with all love and affection and that the petitioner has given her full remuneration as can be seen from Annexure A-4 demand draft dated 19.08.2016 for an amount of Rs.40,000/- and Annexure A-5 cheque dated 13.07.2016 for an Crl.MC.No.3600 OF 2020(H) 5 amount of Rs.10,500/-, etc. That later, the abovesaid female attendant was diagnosed with Tuberculosis and she was then taken to the hospital and someone had then informed the Child Welfare Committee that the female attendant is a juvenile being employed in the petitioner's house and the Child Welfare Committee had in turn, instructed the Sub Inspector of Police, Ernakulam Town North Police Station to register the FIR and report back to the Committee. That, thereafter the abovesaid Jirumu Majhi, was treated in Lissie Hospital, Ernakulam, for two weeks and she was discharged on the afternoon of 07.06.2016 and the petitioner had to expend more than one Rs.1,00,000/- for the treatment of the abovesaid female attendant and immediately after discharge the petitioner had produced Jirumu Majhi, before the Child Welfare Committee and thereafter she was allowed to go back to Orissa along with her mother by the Child Welfare Committee. 5. The petitioner's counsel would point out that it has been held by this Court in decisions as in _**Nizamudhin v. SHO**_ [2017 (3) KLT 244=2017(3) KHC 790] that engaging a child for the purpose of employment as such is not prohibited Crl.MC.No.3600 OF 2020(H) 6 under Sec.79 of the JJ Act and the engagement of the child for the employment is not for keeping the child in bondage by no offence is made out and that what is prohibited under Sec.79 of the Act is employment of the child in bondage for employment of the child without the earnings of the child or utilising the earnings of the child for the purpose of the employer, etc. Sec.79 of JJ Act, reads as follows:- _“79._ _**Exploitation of a child employee.-** - Notwithstanding anything contained in any law for the time being in force, whoever ostensibly engages a child and keeps him in bondage for the purpose of employment or withholds his earnings or uses such earning for his own purposes shallbe punishable with rigorous imprisonment for a term which may extend to five years and shall also be liable to fine of one lakh rupees.”_ 6. It has been held by this Court in various decisions including the one in _**Nizamudhin's**_ case (supra) that the engagement of bondage under Sec.79 of the JJ Act is synonymous to slavery, post labour, bonded labour, or compulsory labour and therefore, inorder to attract the offence under Sec.79 of the JJ Act, there must be a specific allegation materials to the effect that the child was engaged and kept in bondage for the purpose of employment and that the words Crl.MC.No.3600 OF 2020(H) 7 'engages a child' and 'keeps him in bondage' have to be read in conjunction and so it is clear from Sec.79 of the JJ Act that the engaging of a child for the purpose of employment as such is not prohibited under Sec.79 of the Act, if the engagement of the child is for employment and if the engagement of the child for employment is not by keeping the child in bondage or the accused withhold the earnings of the child or uses such earning for his own purposes, etc. 7. Going by the impugned prosecution witnesses, there is no allegations that the petitioner had kept the child in bondage or that the petitioner has kept employed the child without earnings, without giving earnings to the child or that the petitioner has utilised the earnings of the child for his own purpose, etc. Moreover, there are no allegations that the petitioner has employed the juvenile for any hazardous purposes. 8. The admitted allegations of the prosecution allegation is to the effect that the juvenile was being engaged to look after the household affairs of the petitioner. That petitioner has a specific case that he is indeed given her wages Crl.MC.No.3600 OF 2020(H) 8 as can be seen from Annexures A-4 & 5. Further that the petitioner had to even incur more than Rs.1,00,000/- for the treatment of the child to ensure suffering from tuberculosis and was admitted to the local hospital, etc. 9. In the light of these aspects, this Court is of the considered view that the allegation of the impugned criminal proceedings which has been initiated against the petitioner mainly for the offence as per Sec.79 of the JJ Act, will not lie and the same is liable for interdiction. 10. Accordingly, it is ordered in the interest of justice that the impugned Annnexure A-6 Final Report/Charge Sheet, filed in crime No.913/2016 of Ernakulam Town North Police Station, to the extent it is directed as against the petitioner herein (A4) and all consequential proceedings emanating therefrom will stand quashed and set aside. The proceedings as against the remaining accused persons (A1 to A3) will not be affected in any manners by this order which relates only to the case of the petitioner herein (A4) and such proceedings should be unfettered and uninfluenced in any manner by any of the observations made and orders passed by this Court here and Crl.MC.No.3600 OF 2020(H) 9 above. The petitioner will produce certified copies of this order before the Investigating Officer concerned, as well as to the Chief Judicial Magistrate Court, Ernakulam, who is dealing with CP No.12/2020, for necessary information. With these observations and directions, the above criminal miscellaneous case will stand disposed of. ## **Sd/-** **ALEXANDER THOMAS, JUDGE** Skk//20112020 Crl.MC.No.3600 OF 2020(H) 10 ## **APPENDIX** ## **PETITIONER'S EXHIBITS:** **ANNEXURE A1 TRUE COPY OF THE DISCHARGE BILL ISSUED BY THE LISIE HOSPITAL, ERNAKULAM DATED 17.06.2016.** **ANNEXURE A2 CERTIFIED COPY OF THE FIR NO.913/2016 DATED 18.06.2016. ANNEXURE A3 TRUE COPY OF THE DEATH CERTIFICATE OF THE PETITIONERS WIFE ISSUED BY THE KOCHI CORPORATION DATED 22.11.2017. ANNEXURE A4 TRUE COPY OF THE DEMAND DRAFT ISSUED IN FAVOUR JIRUMU MAJHI DATED 19.08.2016. ANNEXURE A5 TRUE COPY OF THE CHEQUE ISSUED IN FAVOUR JURUMU MAJHI DATED 13.07.2016. ANNEXURE A6 CERTIFIED COPY OF THE FINAL REPORT DATED 29.09.2018 IN CRIME NO.913/2016 DATED 18.06.2016 OF TOWN NORTH POLICE STATION, ERNAKULAM SUBMITTED BEFORE THE ADDITIONAL CHIEF JUDICIAL MAGISTRATE COURT, ERNAKULAM.** **RESPONDENTS' EXHIBITS: NIL**