K.C. NINAN; ALEX K. NINAN; GEORGE K. NINAN v. State of Kerala

# **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ``` THE HONOURABLE MR. JUSTICE GOPINATH P. ``` ``` WEDNESDAY, THE 6[TH] DAY OF DECEMBER 2023 / 15TH AGRAHAYANA, 1945 CRL.MC NO. 4211 OF 2021 ``` ## **`CP 2/2021 OF JUDICIAL MAGISTRATE OF FIRST CLASS -II, KOCHI`** ## **`PETITIONER/ACCUSED NO.5:`** ``` K.C.NINAN AGED 87 YEARS MANAGING DIRECTOR, M/S. BABY MARINE INTERNATIONAL, RESIDING AT 18/101D, KALLUVILA HOUSE, BABY MARINE ROAD, THOPPUMPADY, KOCHI-682 005. BY ADVS. TOM K.THOMAS B.G.HARINDRANATH ``` ## **`RESPONDENT/S:`** ``` STATE OF KERALA REPRESENTED BY STATION HOUSE OFFICER, PALLURUTHY POLICE STATION, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM-682 031. ``` ## **`OTHER PRESENT:`** ``` SRI VIPIN NARAYAN (SR PP) ``` ``` THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 06.12.2023, ALONG WITH Crl.MC.5617/2021, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: ``` Crl.MC Nos.4211 and 5617 of 2023 2 # **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** # **`PRESENT`** ``` THE HONOURABLE MR. JUSTICE GOPINATH P. WEDNESDAY, THE 6[TH] DAY OF DECEMBER 2023 / 15TH AGRAHAYANA, ``` ## **`1945`** ## **`CRL.MC NO. 5617 OF 2021`** ## **`CRIME NO.1706/2016 OF Palluruthy Police Station, Ernakulam`** ## **`PETITIONERS/ACCUSED 3 & 4 :`** ``` 1ALEX K.NINAN AGED 42 YEARS S/O K C NINAN, DIRECTOR, M/S BABY MARINE INTERNATIONAL, RESIDING AT 18/101D, KALLUVILA HOUSE, BABY MARNE ROAD, THOPPUMPADY, KOCHI-682005. 2GEORGE K.NINAN AGED 45 YEARS S/O K C NINAN, DIRECTOR, M/S BABY MARINE INTERNATIONAL, RESIDING AT 18/101D, KALLUVILA HOUSE, BABY MARNE ROAD, THOPPUMPADY, KOCHI-682005. BY ADV TOM K.THOMAS ``` ## **`RESPONDENT/S:`** ``` STATE OF KERALA REPRESENTED BY STATION HOUSE OFFICER, PALLURUTHY POLICE STATION, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM-682031. BY SRI.NOUSHAD K.A., SR.PP ``` ``` THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 06.12.2023, ALONG WITH Crl.MC.4211/2021, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: ``` Crl.MC Nos.4211 and 5617 of 2023 3 ## **O R D E R** The petitioners in these cases are accused Nos.3, 4 and 5 in CP No.2 of 2021 on the file of the Judicial First Class Magistrate Court-II, Kochi. 2. The petitioners are Directors of a company incorporated under the Companies Act 1956 and engaged in the business of Seafood Export. CP No. 2 of 2021 arises from Crime No.1706 of 2016 of Palluruthy Police Station, which was registered on the allegation that 43 women workers from Odissa, Andra Pradesh and Assam had been employed in the company with the intention of exploiting them and without affording necessary facilities to them. It was further alleged that out of the aforesaid 43 persons, 27 persons were not adults, and they were below the age of 18. The offences alleged are those under Section 370(3) of the Indian Penal Code and Sections 75 and 79 of the Juvenile Justice (Care and Crl.MC Nos.4211 and 5617 of 2023 4 Protection of Children) Act. After filing of these Crl.M.Cs, it was reported before this Court that on further investigation, the Station House Officer, Palluruthy Police Station, Kochi City, has filed a report indicating that the offences under 370(3) IPC and Sections 75 and 79 of the Juvenile Justice (Care and Protection of Children) Act will not lie and seeking deletion of the aforesaid provisions from the final report filed in Court and instead seeking to add the provisions of Section 420 r/w Section 34 IPC. The said report was filed under Section 173(8) of the Code of Criminal Procedure and also sought to delete the petitioners, namely accused Nos.3 to 5, from the array of parties. However, the learned Magistrate did not consider the second report as the learned Magistrate was only acting as a committal court. 3. Sri. B.G. Harindranath, the learned counsel appearing for the petitioner in Crl.M.C.No.4211 of 2021 filed by (accused No.5) and Adv.Sri.Tom K.Thomas, the Crl.MC Nos.4211 and 5617 of 2023 5 learned counsel appearing for the petitioners in Crl.M.C.No.5617 of 2021 filed by (accused Nos.3 and 4) would contend that even ignoring the contents of the second report, the proceedings against the petitioners in CP No.2 of 2021 are liable to be quashed as the petitioners cannot be accused of having committed any offence under Section 370(3) of IPC or Sections 75 and 79 of the JJ Act. It is submitted that, in order to attract an offence under Section 370 IPC, there must be a specific allegation that the accused must have, for the purposes of exploitation, either recruited, transported, harboured, transferred or received a person or persons using threats, force, or any other form of coercion, by abduction, by practising fraud, or deception, or by abuse of power or by inducement, including the giving or receiving of payments or benefits, in order to achieve the consent of any person having control over the person recruited, transported, harboured, transferred or received. It is Crl.MC Nos.4211 and 5617 of 2023 6 submitted that none of these ingredients are made out in the final report filed before the learned Magistrate. It is submitted that the petitioners in these cases are only directors of the company that employed the persons in question. It is submitted that there is absolutely no allegation either in the final report or in the statements recorded from the concerned persons under Section 161 Cr.P.C., which would indicate that the petitioners had committed the offence of trafficking as defined in Section 370 IPC. Coming to the offence under Section 75 of the JJ Act, the learned counsel has placed reliance of the judgment of this Court in _**Nizamudhin A v. Station House Officer, Kannur Town Station and Another**_ ; 2017 (3) KHC 790 to contend that, in order to attract an offence under Section 75 of JJ Act, there must be an allegation that the accused had assaulted or abandoned or abused or exposed or wilfully neglected the victim or caused or procured the victim to be assaulted, Crl.MC Nos.4211 and 5617 of 2023 7 abandoned, abused, exposed or neglected in any manner which is likely to cause to the victim unnecessary mental or physical suffering. It is submitted that even if the entirety of the final report is accepted to be true, the petitioners cannot be stated to have committed the offence under Section 75 of the JJ Act. It is submitted that the only allegation insofar as the petitioners are concerned is that they were Directors of a company where the persons in question had been employed. Counsel also places reliance of the judgment of this Court in _**Jibin Joseph v. Union Territory of Lakshadweep**_ ; 2022 (4) KLT 144 to contend that, in order to attract an offence under Section 75 of the JJ Act, the accused must have actual control over the victim child. It is pointed out that, going by the allegations, there is no case that the petitioners, who are Directors of the company, had any control over the victims, who were allegedly below the age of 18. Coming to the offence under Section 79 of the Crl.MC Nos.4211 and 5617 of 2023 8 JJ Act, the learned counsel would submit that in order to attract the offence under Section 79 of the JJ Act; there must be allegations to the effect that the child was engaged and kept in bondage for the purposes of employment. It is also pointed out that the decision in **Nizamudhin A** (supra) is also authority for the proposition that engaging a child for the purposes of employment as such is not prohibited under Section 79 of the JJ Act if the act of engaging the child for the employment is not by keeping the child in bondage. It is submitted that since the learned Magistrate has not taken note of the further report filed under Section 173(8) Cr.P.C., the proceedings against the petitioners may be quashed in the exercise of jurisdiction vested in this Court under Section 482 of the Code of Criminal Procedure. 4. The learned Public Prosecutor has referred to the First Information Report as also to the statements Crl.MC Nos.4211 and 5617 of 2023 9 recorded from the persons who were employed (under Section 161 Cr.P.C) to contend that initially, the crime was registered and a final report was filed, including the offences under Section 370(3) IPC and Sections 75 and 79 of the JJ Act against the petitioners as well. It is submitted that, thereafter, on the finding that the petitioners, as Directors of the company, cannot be accused of having committed the offences under Section 370(3) IPC and Sections 75 and 79 of the JJ Act in the facts of the case, a further report was filed seeking to delete those offences and remove the petitioners/accused Nos.3 to 5 from the array of parties. However, it is submitted that the learned Magistrate had taken no action on the further report filed under Section 173(8) Cr.P.C. 5. Having heard the learned counsel appearing for the petitioners and the learned Public Prosecutor, I am certain that the petitioners are entitled Crl.MC Nos.4211 and 5617 of 2023 10 ## to succeed. The offence of trafficking is defined in Section 370(1) IPC. Section 370(1) IPC reads as follows; “ **370. Trafficking of person** -(1) Whoever, for the purpose of exploitation, (a) recruits, (b) transports, (c) harbours (d) transfers, or (e) receives, a person or persons, by - First.- using threats, or Secondly.-using force, or any other form or coercion, or Thirdly.- by practising fraud, or deception, or Fifthly.- by abuse of power, or Sixthly.-by inducement, including the giving or receiving of payments or benefits, in order to achieve the consent of any person having control over the person recruited, transported, harboured, transferred or received, commits the offence of trafficking. Explanation 1.- The expression “exploitation” shall include any act of physical exploitation or any form of sexual exploitation, slavery or practices similar to slavery, servitude, or the forced removal of organs. Explanation 2.- The consent of the victim is immaterial in determination of offence of trafficking.” Crl.MC Nos.4211 and 5617 of 2023 11 It is clear from the reading of the final report, as also the statements recorded under Section 161 Cr.P.C. that there is nothing to suggest that the employees in question were recruited, transported, harboured, transferred or received by using threat, force, or any other form of coercion or by abduction or by practising fraud, or deception, or by abuse of power or by inducement, including the giving or receiving of payments or benefits, in order to achieve the consent of any person having control over the person in question by the petitioner. Penal provisions are to be strictly interpreted; unless there are allegations to attract the offences alleged, the proceedings cannot be permitted to go on. In that view of the matter, the petitioners cannot be prosecuted, having committed the offence under Section 370(3) IPC. 6. Coming to the offences alleged under the provisions of the JJ Act, it is clear from the decision of this Court in **Nizamudhin A** (supra) that, in order to attract Crl.MC Nos.4211 and 5617 of 2023 12 an offence under Section 75 of the JJ Act, the accused must have assaulted or abandoned or abused or exposed or wilfully neglected the victim or caused or procured the victim to be assaulted, abandoned, abused, exposed or neglected in any manner which is likely to cause to the victim unnecessary mental or physical suffering. Those allegations are conspicuously absent as far as accused Nos.3 to 5 are concerned. Further, going by the decision of this Court in **Jibin Joseph** (supra), the offence under Section 75 of the JJ Act can be attracted only if the accused have actual control over the victim/victims. There is nothing to suggest that the petitioners had actual control over the victims in question in this case. Therefore, the petitioners cannot be accused of having committed the offence under Section 75 of the JJ Act. 7. Coming to the offence under Section 79 of the JJ Act, the decision in **Nizamudhin A** (supra) is authority for the proposition that there must be keeping Crl.MC Nos.4211 and 5617 of 2023 13 of the victim child in bondage for the purposes of employment. There is nothing in the final report which would suggest that the children in question, in this case, were kept under bondage by the petitioners herein. In that view of the matter, these Crl.M.Cs are allowed and all further proceedings against the petitioners in CP No.2 of 2021 on the file of the Judicial First Class Magistrate Court-II, Kochi, will stand quashed as against the petitioners. It is made clear that any finding or observation in this order shall not be treated as a finding or observation insofar as the other accused are concerned. Sd/- **GOPINATH P., JUDGE** rkj Crl.MC Nos.4211 and 5617 of 2023 14 ## **`APPENDIX OF CRL.MC 4211/2021`** ``` PETITIONER ANNEXURES ``` ``` Annexure ACERTIFIED COPY OF THE CHARGE SHEET NO.884/17 DATED 30.4.2017. Annexure BTRUE COPY OF THE ORDER DATED 16.12.2016 IN B.A.NO.6602/2016 BEFORE THE HON'BLE HIGH COURT OF KERALA. ``` Crl.MC Nos.4211 and 5617 of 2023 15 ## **`APPENDIX OF CRL.MC 5617/2021`** ``` PETITIONER ANNEXURES ``` ``` Annexure ATRUE COPY OF THE RELEVANT PAGES OF THE CHARGE SHEET GIVEN TO THE PETITIONERS. Annexure BTRUE COPY OF THE PROCEEDINGS OF THE LEARNED MAGISTRATE DATED 30.06.2021 AS AVAILABLE IN THE E-COURT PORTAL. Annexure CTRUE COPY OF THE PROCEEDINGS DATED 01.10.2021 OF THE JUDICIAL FIRST CLASS MAGISTRATE -II KOCHI IN CP NO.2/2021 AS AVAILABLE IN THE E- CORT PORTAL. Annexure DTRUE COPY OF THE REPORT SUBMITTED BY THE STATION HOUSE OFFICER DATED 25.09.2021. ```