Joseph v. State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** ## **THE HONOURABLE MR. JUSTICE K.RAMAKRISHNAN** **MONDAY, THE 24TH DAY OF FEBRUARY 2014/5TH PHALGUNA, 1935** ## **Crl.MC.No. 5778 of 2013 ()** **--------------------------ST. NO.779/2012 OF JUDICIAL FIRST CLASS MAGISTRATE COURT, ETTUMANUR. ........** **PETITIONER/ACCUSED: -----------------------------------** **JOSEPH, AGED 65 YEARS, S/O. MARSHAL, KADAVUNKAL VEEDU, AMMANCHERI, MANNANAM, ATHIRAMPUZHA, KOTTAYAM DISTRICT.** **BY ADVS.SRI.S.RAJEEV, SRI.K.K.DHEERENDRAKRISHNAN.** **RESPONDENT/COMPLAINANT/STATE:** **--------------------------------------------------------** **STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM - 682 031, (CRIME NO. 844/2011 OF GANDHI NAGAR POLICE STATION, KOTTAYAM DISTRICT).** **BY PUBLIC PROSECUTOR SMT.S. HYMA.** **THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 24-02-2014, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** **rs.** ## **Crl.MC.No. 5778 of 2013** ## **APPENDIX** ## **PETITIONER'S ANNEXURES:-** **ANNEXURE I COPY OF THE FINAL REPORT IN ST. NO.779/2012 PENDING ON THE FILE OF THE OF JUDICIAL MAGISTRATE OF FIRST CLASS, ETTUMANUR.** ## **RESPONDENT'S ANNEXURES:-** **NIL.** **//TRUE COPY//** **P.A. TO JUDGE** **rs.** ## K. RAMAKRISHNAN, J. -------------------------------------------------------------- **[C.R]** Crl. M.C. No.5778 of 2013 --------------------------------------------------------------------Dated this the 24[th] day of February, 2014 ## O R D E R This criminal miscellaneous case is field by the petitioner, who is the accused in S.T.No.779/2012 on the file of the Judicial First Class Magistrate Court, Ettumanoor, to quash the proceedings under Section 482 of the Code of Criminal Procedure (hereinafter called the 'Code'). 2. It is alleged in the petition that he was made an accused in Crime No.844/2011 of Gandhi Nagar Police Station, alleging that he had committed the offence punishable under Section 23 of Juvenile Justice (Care and Protection of Children) Act, 2000 (hereinafter called the 'Act'). The crime was registered on the basis of the allegation that, the girl child aged below 18 years was brought to the house of the petitioner and without 2 Crl. M.C. No.5778 of 2013 providing education, kept in the house for three years and she was asked to do some work in the house, thereby he had committed the offence punishable under section 23 of the above said Act. After investigation, final report was filed before the Judicial First Class Magistrate Court, Ettumannoor, and it was taken on file as S.T.No.779/2012. Even assuming that the entire allegations are accepted as true, there is no offence under section 23 of the Act is attracted. Further the victim girl has no case before the police that she was subjected to cruelty and in fact her statement will go to show that she has been looked after by them affectionately. So under the circumstances, even if the case is allowed to proceed, there is no possibility of conviction, as no offence is made out. It will only an abuse of process of court. So he prayed for the intervention of this court to quash the proceedings and filed this application, seeking the following relief: “In the above circumstances, it is most humbly prayed that this Hon'ble Court may be pleased to quash all Crl. M.C. No.5778 of 2013 3 further proceedings of S.T.No.779/2012 pending on the file of the Judicial Magistrate of First Class, Ettumanoor, as it is an abuse of process of court.” 3. Heard the counsel for the petitioner and the learned Public Prosecutor. 4. The counsel for the petitioner submitted that even going by the allegations in the final report and also the statement of the victim girl, no offence under Section 23 or any other Provisions of the Act can be attracted. So, there is no purpose in allowing the prosecution to continue and he prayed for quashing the proceedings. 5. On the other hand, the learned Public Prosecutor submitted that, since the child has been kept in the house without providing any basic necessity of education and making her to do house hold work will amount to an offence under the Act. So it is not a question to be considered at this stage to quash the proceedings. 6. It is an admitted fact that, the victim girl was found in the house of the petitioner and she was helping them in the house hold work. It is also seen from 4 Crl. M.C. No.5778 of 2013 the documents produced that she was below the age of 18 years and so she is a child, who requires care and protection under the Juvenile Justice (Care and Protection of Children) Act, 2000. The allegation in the final report, namely Annexure-A1 reads as follows: “Nkf] j]poLjOyqeU NkLpkP¡¾]pLp]Ÿ]sæL¾ mLYæP¡ y~Shw]pLp kOx× IÐ Rk¦WOŸ]Rp Nkf]pOU oãOU WOaOmoLp] fLoy]\ÿOvqOÐ Af]qÒOu v]Ssæ^V oLjLjU Wqp]¤ Af]qÒOu kµLp¾V VII&LU vL¡c]¤ 390&LU jÒ¡ v}Ÿ]¤ DSÇwU 3 v¡xS¾LtU of]pLp v]h|Ln|LyU j¤WLRfpOU v}ŸOS^Ls]WtOU oãOU R\á]Õ]\ÿV k} d]Õ]\ÿO vqOÐfLp] 15.9.11 f}pf] RRvW]ŸV 6 oe]¨V 7&LU yLƒ]pL¤ WLeRÕŸV Cf]Rs Nkf] SEC. 23 of Juvanal Justice (Care and Protection) Act NkWLqU w]ƒL¡zoLp WOãU R\pÅ]q]¨OÐO IÐOçfV. ” 7. Admittedly, the petitioner is not the guardian or parent of the victim girl. So there is no possibility of this petitioner being giving any education to the victim arises. 8. Section 23 of the Act reads as follows: “ **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 Crl. M.C. No.5778 of 2013 5 extend to six months, or fine, or with both. ## 9. Section 24 of the Act reads as follows: “ **24. Employment of juvenile or child for begging.** (1) Whoever employs or uses any juvenile or the child for the purpose or causes any juvenile to beg shall be punishable with imprisonment for a term which may extend to three years and shall also be liable to fine. (2) Whoever, having the actual charge of, or control over, a juvenile or the child abets the commission of the offence punishable under sub-section (1), shall be punishable with imprisonment for a term which may extend to one year and shall also be liable to fine.” ## 10. Section 26 of the Act reads as follows: **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 earning 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. 11. The only evidence that will be available for roping the petitioner under the provisions of this Act, is the statement given by the victim girl under Section 161 of the ## Code of Criminal Procedure, which itself reads as follows: > “KÐLU WæLy]¤ `L¢ SkLp]ŸOºV. IR£ A±Rj Ij]àV Wº KL¡Úp]sæ. IR£ AÚàV `LjOU KqO S\\ÿ]pOU o¨tLp] DºV. AÚ A±Rj DSkƒ]\ÿV qºLofV v] vLzU R\pÅ BtLeV x¦oOX¢. B m̾]¤ 2 Aj]pÓLqOºLp]qOÐO. Af]¤ KqL¥ oq]\ÿO SkLp]. AÚpOU Aj]pjOU AvqORa A±jOU KÐ]\ÿLeV fLoyU. Crl. M.C. No.5778 of 2013 6 IRÐpOU S\\ÿ]SppOU AÚ mLUYæPq]sOç KqO v}Ÿ]¤ v}ŸOS^Ls]àLp] RWLºOR\ÐL¨]. S\\ÿ] CSÕL¥ Iv]RapLReÐV Ij]àr]p]sæ. `L¢ 2[1] /2 v¡xU vRq Av]Ra S^Ls] R\pÅO. B v}Ÿ]Rs S\\ÿ]pORa DkNhvU WLqeoLeV `L¢ B v}Ÿ] ¤ j]ÐOU SkLÐfV. CaàV vu]p]¤ v\ÿLeV mLUYæPqOç SWLŸpUWLqLp AË]t]SjpOU B£]SppOU kq]\pRÕŸfV. AvSqLRaLÕU `LjOU SkLÐO. S^LylË]tOU SNYy]pL£] pOU WPa] mLUYæPq]sOU fOa¡ÐV jLŸ]Rs¾] Cv]RapOU fLoyoLp]. DSÇwU 3[1] /2 v¡xoLp] CvSqLRaLÕU fLoy]¨OÐO. IRÐ oWRtSÕLRspLeV AË]tOU B£]pOU yUqƒ]\ÿ]qOÐfV. IRÐ wLq}q]WoLSpL oL-jy]WoLSpL k}cj°RtLÐOU R\pÅ]Ÿ]sæ. `L¢ v}Ÿ]Rs AaO¨tS^Ls] oLNfSo R\áLrOçO. `L¢ ySÍLxvf]pLp]ŸLeV AvSqLRaLÕU ^}v]\ÿOvÐfV. Ij]àV CvSqLRaLÕU fRÐ ^}v]¨LjLeV JRr ” fLs×q|U. 12. In the decision reported in **2012 (4) KLT 314 Vinod S. Panicker v. Sub Inspector of Police** , this court has considered the question as to whether engaging a juvenile or child as an employee in a bakery can be considered to be an offence under Section 26 of this Act and found that this will not come under the purview of section 26 of the Act and quashed the proceedings. 13. In order to attract an offence under Section 23 of the Act, it must be 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, Crl. M.C. No.5778 of 2013 7 (d) in a manner likely to cause such juvenile or the child unnecessary mental or physical suffering. 14. Even assuming that the petitioner as in charge or control of the juvenile or child, he is only providing shelter to the child and looking after her. 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. She has no such case in her statement before the police as well. In fact when she was found in an abandoned state, the petitioner took her and gave shelter to her and protected her. If she does some work to help the inmates, it cannot be said that she was treated cruelly either physically or mentally so as to attract the provision of this Act. 15. It is true that Juvenile Justice (Care and Protection of Children) Act, 2000 has been enacted to protect the interest of juvenile or child, who require care and protection and also to reform the juvenile, who is in 8 Crl. M.C. No.5778 of 2013 conflict with law. In this case, on going through the allegations in Annexure-A1 final report and also the statement of the victim girl herself will go to show that, she was abandoned by her parents and she was left in a house at Bangalore by her mother to work as a servant maid and due to ill-treatment in that house, she was forced to leave that house and thereafter she was taken care of by the petitioner, while they were working at Bangalore and thereafter she was brought to Kerala and she was living with them. The statement of the victim girl also will go to show that, she was not assaulted or any force has been applied on her or she was compelled to do any hard work and for non-complaince by the girl, she has been subject to any cruelty by the inmates of the house. But her statement will go to show that, after she was taken over by the petitioner, she is being looked after affectionately like their child. So under the circumstances, even if the entire allegations in the evidence collected by the investigating 9 Crl. M.C. No.5778 of 2013 officer is admitted to be true, the ingredients of any of offences provided under the Juvenile Justice (Care and Protection of Children) Act, either under Section 23 or under Section 24 or under Section 26 is attracted in this case. No purpose will be served by allowing the prosecution to continue in such circumstances and it will only be a waste of judicial time. 16. It is settled law, if this court is satisfied that, even if the entire allegations made against the accused was admitted to be true and if, those allegations will not attract or constitute the ingredients of the offence alleged against them, then this court can invoke the power under Section 482 of the 'Code’, to quash the proceedings. In view of the discussions made above, this court feels that, it is a fit case where the power under Section 482 of the 'Code' has to be invoked to quash the proceedings. So the application is allowed and further proceedings in S.T.No.779/2012 on the files of the Judicial First Class Magistrate Court, Crl. M.C. No.5778 of 2013 10 Ettumanoor, as against the petitioner is quashed. Office is directed to communicate this order to the concerned magistrate court, for further action. Sd/K. Ramakrishnan, Judge // True Copy // P.A. to Judge ss