Mathai v. Sub Inspector of Police, Puthencruze Police Station, Ernakulam; State of Kerala represented by Public Prosecutor, High Court of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT:** ## **THE HONOURABLE MR. JUSTICE A.HARIPRASAD** **TUESDAY, THE 19TH DAY OF AUGUST 2014/28TH SRAVANA, 1936** ## **Crl.MC.No. 266 of 2013 ()** **-------------------------CC. NO.732/2012 OF JUDICIAL FIRST CLASS MAGISTRATE COURT, KOLENCHERRY.** **.......** **PETITIONER/ACCUSED:** **------------------------------------** **MATHAI, S/O.KOCHUKURU, AGED 76 YEARS, THARAVATTATHIL HOUSE, THAMMANIMATTOM KARA, AIKKARANAD SOUTH VILLAGE.** **BY ADV. SRI.A.DINESH RAO.** **RESPONDENTS/COMPLAINANT:** **------------------------------------------------** **1. SUB INSPECTOR OF POLICE, PUTHENCRUZE POLICE STATION, ERNAKULAM -682 308.** **2. STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, PIN- 682 031.** **BY PUBLIC PROSECUTOR MR.N. SURESH.** **THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON 19-08-2014, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** **rs.** ## **Crl.MC.No. 266 of 2013** ## **APPENDIX** ## **PETITIONER'S ANNEXURES:-** **ANNEXURE 1 COPY OF THE FIR. ANNEXURE 2 CERTIFIED COPY OF THE FINAL REPORT.** ## **RESPONDENT'S ANNEXURES:-** **NIL.** **//TRUE COPY//** **P.A. TO JUDGE** **rs.** ## **A.HARIPRASAD, J.** **-----------------------------------------------Crl.M.C No.266 of 2013 -----------------------------------------------Dated this the 19[th] day of August, 2014.** ## **O R D E R** Petition filed under Section 482 Cr.P.C. Petitioner is the accused in C.C No.732/2012 on the file of Judicial First Class Magistrate Court, Kolencherry. Annexure 2 final report reveals a case against him under Section 23 of the Juvenile Justice (Care & Protection of Children) Act, 2000 (in short 'the J.J Act') that the accused/petitioner in violation of the provisions of the J.J Act forced a juvenile aged 16 years to bathe a cow and clean the stable. The child was taken in foster care by the son of the who was in a at petitioner, working military Thiruvananthapuram. 2. Heard the learned counsel for the petitioner and the learned Public Prosecutor. I have carefully perused the case diary submitted by the Public Prosecutor. 3. Section 23 of the J.J Act is extracted hereunder for clarity : **Crl.M.C No.266 of 2013 2** ## _“_ _**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 cases 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.”_ 4. It is an admitted case that the petitioner's son, who is working in military took the child in foster care as provided in Section 42 of the J.J Act. The relevant provisions in the Juvenile Justice (Care & Protection of Children) Rules is Rule 38. Learned Public Prosecutor submitted that the child was forced to do manual works like washing cows and cleaning stable. It is also submitted that the object of the Act will be defeated, if such activities are legalized. Per contra, learned counsel for the **Crl.M.C No.266 of 2013 3** petitioner submitted that his son, who took the child in foster care, had to return to his work place and at that time he left the boy in his family house. The petitioner is a person aged 76 years at the time of the alleged incident. Petitioner's wife, who is also aged, is residing in the family house with him. The child in question was never forced to do any manual labour. As a member in the household, the child also participated in domestic activities. No offence is made out in this case, contended the learned counsel for the petitioner. As seen above, in order to attract an offence under Section 23 of the J.J Act, there must be an allegation of assault or abandonment or exposive or willful neglect of a juvenile or a child by the accused. None of the ingredients of Section 23 of the J.J Act is attracted in this case is the submission made by the learned counsel for the petitioner. 5. To fortify the submissions, learned counsel for the **Crl.M.C No.266 of 2013 4** petitioner relied on a decision rendered by a learned Single Judge in Crl.M.C No.1619/2014 dated 25-03-2014. Facts therein would show that an accused charged under Sections 23 and 26 of the J.J Act, inter alia other provisions of I.P.C, approached this Court under Section 482 Cr.P.C. Learned Single Judge on the facts and circumstances of the case held that children, helping other persons in carrying out agricultural work as has been done in any agricultural family, cannot be said to be subjected to any ill-treatment, prohibited under Sections 23 and 26 of the J.J Act. Learned counsel for the petitioner submitted that the boy involved in this case has crossed 17 years and 09 months. This fact is revealed from the transfer certificate issued by the Head master of the school in which the child studied up to 6[th] standard. It is part of the case diary. It shows the date of birth of the child as 14-07-1995. It is therefore contended by the learned counsel for the petitioner that on going by the decision **Crl.M.C No.266 of 2013 5** of this Court in _**Vinod S.Panicker v. Sub Inspector of Police**_ ( _**2012(4) K.L.T 314),**_ no offence is made out. Following quotation is relevant : _“Section 2(k) of the Act defines a “juvenile” or “child” as a person who has not completed eighteenth year of age. “Juvenile” and “child” are not separately defined under the Act. So, in relation to the applicability of the Act, having regard to the definition, as indicated above, all human beings below the age of 18 years come within the sweep of children/juvenile. Art.24 of the Constitution, it has to be taken note of, restricts or prohibits employment of children below the age of 14 years in any factory or mine or engagement in any other hazardous employment. Necessarily, the scope and applicability of S.26 of the Act has to be examined with reference to the prohibition covered by Art.24 of the Constitution. A child or juvenile above the_ ## **Crl.M.C No.266 of 2013 6** _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 eke out his livelihood or that of his family. His right to such employment is insulated under the Constitution, and when that be so, the question has to be examined whether an employer, who provided employment, which is not of a hazardous nature, to a child or juvenile above the age of 14 years is liable to be prosecuted, for that reason alone, under S.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 be only in the negative. Perhaps in the employment of children below the age of 14 years, the question of employment of such children may require further scrutiny even if it is not so an offence under S.26 of the Act, but, with reference to prescriptions under_ **Crl.M.C No.266 of 2013 7** _different Statutes, as may be applicable. I say so since statutory interdictions as under S.67 of the Factories Act, 1948, S.45 of the Mines Act, 1952 etc., have significance only in relation to employment of children in hazardous activities. Whereas S.67 of the Factories Act prohibits employment of a child who has not completed fourteenth year in any factory, it is seen, S.45 of the Mines Act, there is an interdiction even in allowing the presence of any child below the age of 18 years in any place where any operation connected with or incidental to any mining operation is being carried of, but, subject to the exception provided under sub-s.(2) of S.40 of the Mines Act which permits of engaging of children as apprentices and other trainees not below the age of 16 years to work in any mining area under proper supervision by the manager. Even in respect of engaging of children or juvenile in operation of mines which is, no doubt,_ **Crl.M.C No.266 of 2013 8** _hazardous activity, what is noticed is that children above the age of 16 years could be engaged as apprentices or trainees under the supervision of a manager of the mine as per the statutory provisions covered by the Mines Act. Though the Parliament has enacted the Child Labour (Prohibition and Regulation) Act, 1986 (Act 61 of 1986), which came into force on 26.05.1993, to prohibit the children in certain employments and to regulate the conditions of work in certain other employments, it is noticed the “child” to whom such Act is applicable is defined thereunder as a person who has not completed his fourteenth year of age. So, the prohibition in engaging of children above the age of 14 years in areas other than involving hazardous activities, providing them remuneration for their work, for the time being, cannot be viewed as infringing the protection and rights afforded to such children. In the context, it is also to be_ **Crl.M.C No.266 of 2013 9** _noticed that the amendments proposed in the existing law against child labour are still to be enacted. A new Act titled as “Child and Adolescent Labour Prohibition Act” which contemplates of total ban of all forms of child labour under the age of 14 years and the employment of children in the 14-18 age group in hazardous activities prohibited and engagement of any child in such age group contrary thereto a cognizable offence, is yet to be passed by the Parliament though it is stated to have received the approval of the Union Cabinet. (See “The Hindu” dated September, 10, 2012 - 'Getting ready for the new law against child labour' - an article written by Kailash Satyarthi).”_ 6. Another decision relied on by the learned counsel for the petitioner in _**Joseph v. State of Kerala (2014(2) K.L.T 91)**_ , wherein yet another learned Single Judge of this Court held that **Crl.M.C No.266 of 2013 10** no offence is attracted, if a juvenile does some work to help the inmates of a house. Normally, it cannot be stated that washing a cow is a dangerous or hazardous activity. It depends on the nature of the cow. There is no allegation that any of the ingredients require to satisfy Section 23 of the J.J Act has been attracted in this case. Therefore, I am of the view that further prosecution of the case is an abuse of the process of court. In the result, the Crl.M.C is allowed. The final report in C.C No.732/2012 pending on the file of Judicial First Class Magistrate Court, Kolencherry is hereby quashed. All pending interlocutory applications will stand dismissed. **Sd/-** **A.HARIPRASAD, JUDGE.** amk //True Copy// P.A to Judge