Khalid L.K. v. Sub Inspector of Police, Vidyanagar Police Station, Kasaragod and State

## IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR. JUSTICE RAJA VIJAYARAGHAVAN V WEDNESDAY, THE 1ST DAY OF JULY 2015/10TH ASHADHA, 1937 Crl.MC.No. 2293 of 2014 --------------------------SC 240/2012 of DISTRICT & SESSIONS COURT,KASARAGOD CRIME NO. 315/2011 OF VIDYA NAGAR POLICE STATION , KASARGOD PETITIONER(S)/ACCUSED: ------------------------ KHALID L.K S/O.K.E.MUHAMMED, SAJITH MANZIL, PADANNAKKAD KANHANGAD, KASARAGOD. BY ADV. SRI.T.G.RAJENDRAN RESPONDENT(S): ------------- ## 1. SUB INSPECTOR OF POLICE VIDHYA NAGAR POLICE STATION, KASARAGOD-673 121. 2. STATE REPRESENTED BY THE PUBLIC PROSECUTOR HIGH COURT OF KERALA, ERNAKULAM-682 031. BY PUBLIC PROSECUTOR SMT. LISHA M.G. THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON 01.07.2015, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: Crl.MC.No. 2293 of 2014 --------------------------- ## APPENDIX ANNEXURE ---------------- ANNEXURE-I.TRUE COPY OF THE FIR AND FINAR REPORT IN SC NO.240/2011 ON THE FILE OF THE DISTRICT AND SESSION JUDGE, KASARAGOD. //True Copy// P.S.To Judge ## **RAJA VIJAYARAGHAVAN.V. J** - - - - - - - - - - - - - - - - - - - - Crl.M.C. 2293 of 2014 - - - - - - - - - - - - - - - - Dated 1[st] July, 2015 - - - - - - - - - - - - - - - - - - - - - - - - ## **ORDER** **==> picture [33 x 10] intentionally omitted <==** 1. The petitioner is the sole accused in S.C.No.240 of 2012 on the file of the Sessions Court, Kasargode. He is being prosecuted for having committed offence punishable under Section 23 of the Juvenile Justice (Care and Protection of Children) Act, 2000 (for short 'the Act'). 2. On 2.6.2011, at 9.15 pm, the Sub Inspector of Police, Vidyanagar police station, while on law and order patrol duty, received reliable information that juveniles were being employed in the “Milan” hotel run by the petitioner. He, along with his subordinate officers, reached the hotel and found that a 15 year old boy was engaged in washing utensils and cleaning the tables in the said hotel. On enquiry, it was revealed that the boy was a native of Jharkand and that he was being employed by the petitioner. On finding that the petitioner had engaged a child in his establishment in violation of the **Crl.M.C.2293/14** 2 letters of law, the Sub Inspector rushed to the police station and registered the aforesaid crime. Later, investigation was conducted by questioning witnesses, which included the father of the juvenile and employees of the shop , and a final report was laid before Court charging the petitioner under Section 26 of the Act. 3. The petitioner has filed this Criminal Miscellaneous Case for quashing the pending proceedings on the ground that the prosecution is nothing but an abuse of process of law as none of the ingredients of Section 23 of the Act is attracted. 4. I have heard the learned counsel for the petitioner and also the learned Public Prosecutor. 5. The learned counsel for the petitioner has submitted that a perusal of Annexure-I final report will not reveal that the offence under Section 23 of the Act is attracted in the facts and circumstances of the case. It **Crl.M.C.2293/14** 3 was submitted that in order to attract the offence under Section 23 of the Act, there should be a definite allegation in the final report that the person in actual charge of or control over a juvenile of the child has assaulted, abandoned, exposed or willfully neglected the juvenile or causes or procure him to be assaulted, abandoned, exposed or neglected in a manner which is likely to cause the juvenile or the child unnecessary mental or physical suffering. 6. Elucidating further, the learned counsel took this Court through the FIR and the final report and it was submitted that the allegations against the petitioner in the final report is only that he had provided employment to a juvenile aged 15 years and nothing else. According to the learned counsel, there is no interdiction under Section 23 of the Act in employing a juvenile or a child in any act which is not hazardous in nature. The learned counsel also invited the attention of this Court to the statement of witnesses produced along with the final **Crl.M.C.2293/14** 4 report. It was submitted that the statement of father and also the co-workers in the hotel will only show that the juvenile had voluntarily come to the hotel for employment and that remuneration was duly being paid by the petitioner to the juvenile. It is further submitted that the prosecution has not placed any material to show that the petitioner had provided employment to the juvenile with the knowledge that Samir was under 18 years, as, according to the counsel, the father has stated in his statement , that the child had not attended School. 7. Per contra, the learned Public Prosecutor has submitted that the juvenile from out of State was aged just 15 years when the offence was detected by the Sub Inspector and it was revealed on investigation that, the conditions of employment was not satisfactory. The learned Public Prosecutor submitted that the invocation of powers under Section 482 of the Code was not warranted in the facts and circumstances of the instant case. **Crl.M.C.2293/14** 5 8. I have gone through the FIR and also the final report which has been produced by the petitioner. It has to be mentioned that the police have questioned the father of the juvenile and he has been cited as CW8 in the charge sheet. His statement reveals that he is a native of Jharkand and that he is aware of the fact that his son Samir was working in a hotel at Kasargode. It is further stated by the said witness that, his son is aged 15 years and he has never attended school. Pertinently he has stated that, his son had come along with the other people from his native place and that his son sends a portion of his remuneration back home. The police have also questioned two workers who are employed in the same hotel and in their 161 statement and they have stated that they are aware of the fact that a sum of Rs.200/- per day is being paid to the juvenile. None of the statement of the witnesses reveals that the child was subjected to assault, or that he was abandoned, exposed or willfully neglected or that he was procured to be assaulted, **Crl.M.C.2293/14** 6 abandoned, exposed or neglected in a manner likely to cause unnecessary mental or physical suffering to the child. For reasons best known to the investigating officer, he has not recorded the statement of the juvenile to ascertain the nature of employment and its conditions. The Investigating Agency has rested the prosecution on the mere fact that the juvenile was aged 15 years and that he was made to work in an establishment. The question is whether that alone is sufficient to attract the penal provision. ## 9. 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 willfully 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 extend to six months, or fine, or with both.” 10. In order to attract Section 23 of the Act, there should be specific allegation that the petitioner was **Crl.M.C.2293/14** 7 having actual charge or control over the juvenile and that he had assaulted, abandoned, exposed or willfully neglected the juvenile or causes or procures him to be assaulted, abandoned, exposed or neglected in a manner likely to cause the said juvenile or the child unnecessary mental or physical suffering. The statement of witnesses appended to the charge do not not reveal the ingredients of the offence. Further, the Investigating Officer also has not recorded the statement of the juvenile who is said to have been exploited by the petitioner. ## 11. In **Vinod S. Panicker v. Sub Inspector of Police and another (2012 (4) KLT 314)** this Court has held as follows:- “............A child or juvenile above the age of 14 years at any rate, cannot be prevented or restrained from getting employment in any work which is not of a hazardous nature for remuneration, to get out of hazardous or that of his family. His right of a child insulated in the **Crl.M.C.2293/14** 8 Constitution, and when that be so, the question has to be examined, whether an employer who provide employment, which is not of a hazardous nature to a child or a juvenile above the age of 14 years is liable to be prosecuted for that reason alone under Section 26 of the Act. When there is no statutory inhibition in employment of children above the age of 14 years, which is not of a hazardous nature, the answer can only be in the negative”. .................... So, the prohibition in engaging of children above the age of 14 years in areas other than the involving hazardous activities, providing them remuneration for their time being cannot be viewed as infringing the protection and rights afforded to such children. ................. A mere allegation that a juvenile aged 17 years has been employed in a Bakery, it does not follow that such employment constitute any threat or hazardous to that juvenile.” ## 12. In **Joseph v. State of Kerala (2014 (2) KLT** **Crl.M.C.2293/14** 9 **91),** it was held by a single Judge of this Court that, if a juvenile over the age of 14 years voluntarily takes up work in an establishment and when the prosecution case did not disclose the ingredients of the offence under Section 23 of the Act, this Court would be justified in invoking the powers under Section 482 to bring the criminal proceedings to a termination. Similar views have been taken in the judgment dated 12.3.2013 in Crl.M.C.1118 of 2013 and also in the judgment dated 18.12.2014 in Crl.M.C.5057 of 2014. 13.The learned public prosecutor has brought to the notice of this court, the judgment rendered in **Alice V State of Kerala(2014 (2) KLT 175)** where this court had held that it when there are definite allegation in the final report and also in the statement of the minor girls that they were subjected to grave hardship, the proceedings cannot be quashed. In the said case there was definite allegation in the statement furnished by the minor girls that they were subjected to manual hard labour without paying them **Crl.M.C.2293/14** 10 adequate salary . No such allegation is there in the final report and the juvenile was not even questioned and his statement taken as far as this case is concerned. 14. After meticulously analysing the final report and the statements in the instant case, it is revealed that the juvenile had voluntarily come to the establishment of the petitioner from the State of Jharkand and was employed for the purpose of cleaning plates and tables. It was at the instance of his parents that he had worked and he was being paid daily wages as per the statement of the prosecution witnesses. It has also come out that the juvenile used to send a portion of the remuneration received by him, back home to his parents. The juvenile was over the age of 14 years when the offence was detected. There is no allegation whatsoever in the final report or in the statement of the witnesses that the petitioner has committed any of the objectionable acts as is detailed in Section 23 of the Act. **Crl.M.C.2293/14** 11 15. As held by this Court in the decisions cited supra, it does not appear to me that the prosecution has made out the ingredients of the offence under Section 23 as against the petitioner herein. It cannot be said from the allegations in the report submitted that the petitioner has assaulted, abandoned, exposed or has willfully neglected the juvenile or has subjected the juvenile to unnecessary mental or physical suffering. It also cannot be stated that the juvenile was ostensibly procured for the purpose of any hazardous employment or that he was kept in bondage or that his earnings were withheld or that his earnings were used for the petitioner's purpose to bring the act of the petitioner alternatively within the ambit of S.26 of the Act. After going through the entire allegations against the petitioner, it does not appear to me that the same would constitute the ingredients of the offence alleged. 16. In view of the above, I am of the considered view that this Court will be justified in terminating the criminal 12 ## **Crl.M.C.2293/14** proceedings against the petitioner by invoking extraordinary powers under Section 482 of the Code. 17. In the result, this Crl.M.C is allowed. All further proceedings in S.C.No.240 of 2012 on the file of the District & Sessions Court, Kasargode are quashed. Sd/- **RAJA VIJAYARAGHAVAN.V. Judge** Mrcs //True Copy//