Prakash and Marimuthu v. State of Kerala

## **`IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT THE HONOURABLE MR. JUSTICE BECHU KURIAN THOMAS WEDNESDAY, THE 12[TH] DAY OF OCTOBER 2022/20TH ASWINA, 1944`** ``` CRL.MC NO. 5854 OF 2013 ``` ``` AGAINST THE CC NO.595/2013 OF JUDICIAL MAGISTRATE OF FIRST CLASS,WADAKKANCHERRY WHICH IS ARISEN FROM CRIME NO.746/2012 OF CHELAKKARA POLICE STATION, THRISSUR DISTRICT ``` ## **`PETITIONERS/ACCUSED NO.1 &2:`** ``` 1PRAKASH AGED 33 YEARS S/O.DURAI RAJ, NAMBIUR ROAD, VI/6, KOLAPPALUR, GOBI TALUK, ERODE, TAMILNADU. 2MARIMUTHU AGED 29 YEARS S/O.PALANI SWAMI, XX/13, GETTISEVIYUR P.O, GOBI TALUK, NICHAMAPALAYAM, ERODE, TAMILNADU. BY ADVS. SRI.NIREESH MATHEW SRI.MATHEW JACOB ``` ## **`RESPONDENT/COMPLAINANT:`** ``` STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM ``` ``` BY SRI.NOUSAHD K.A, PP ``` ``` THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON 12.10.2022, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: ``` CRL.MC. No.5854 OF 2013 2 **” “C.R** . ## **BECHU KURIAN THOMAS, J. =========================== CRL.MC. No. 5854 of 2013 ============================ Dated this the 12[th] day of October, 2022** ## **O R D E R** A juvenile is alleged to have been carried in a lorry for employing him in the construction work of a bore well. On 22.12.2012, the accused were found transporting, in a lorry, equipment for drilling a bore well along with the juvenile for the purpose of engaging him in hard employment. 2. Alleging that the 1[st] petitioner, who is the driver and the 2[nd] petitioner, who is the manager of the lorry bearing No.KA-05/AA-6923, committed the offences under Sections 23 and 26 of the Juvenile Justice (Care and Protection of Children) Act, 2000 (for brevity ‘the JJ Act’), Crime No.746/2012 of Chelakkara Police Station was registered. Pursuant to investigation, a final report was filed alleging that the accused committed the offences under the aforementioned provisions. The Judicial Magistrate of the First Class, Wadakkanchery took cognizance of the offences and numbered the case as CRL.MC. No.5854 OF 2013 3 ## C.C.No.595/2013. 3. Petitioners have approached this Court under Section 482 of the Code of Criminal Procedure, 1973 (for brevity Cr.P.C.) seeking to quash all further proceedings. 4. Sri.Mathew Jacob, learned Counsel for the petitioner appearing on behalf of Adv.Nireesh Mathew submitted that the entire prosecution allegations, even if admitted in toto, does not make out any offence as contemplated under the JJ Act. The learned Counsel in support of his contentions argued that the final report does not indicate anything to prove that the alleged juvenile was a child. It was also contended that the final report failed to adduce any evidence to justify a prosecution against the petitioner since the Investigating Officer had not even questioned the child or the parents of the child. It was also argued that the materials collected by the investigation fell woefully short of the required materials to implicate the petitioners in a crime under Section 23 and 26 of the JJ Act. 5. Adv. Mathew Jacob further contended that the final report does not refer to who is the person in charge of the alleged juvenile. According to him, the owner of the establishment, though initially arrayed as the 3[rd] accused, was CRL.MC. No.5854 OF 2013 4 subsequently deleted from the array of accused when the final report was filed. Thus, the learned counsel contended that the person in charge of or who had actual control over the alleged juvenile was not even arrayed as an accused and therefore, petitioners who themselves are only employees cannot be prosecuted under any circumstances whatsoever. 6. The learned Counsel further contended that in any event, the offences alleged are not made out as there is no allegation of any assault, abandonment, exposure or willful neglect of the juvenile in a manner likely to cause any unnecessary mental or physical suffering. He also pointed out that there is not even a whisper that the child was under any bondage, to attract the offence under Section 26 of the JJ Act. Lastly, learned counsel argued that the entire investigation was so shawdy and done in haste that, for a crime registered on 22.12.2012, the final report was filed on 25.12.2012, indicating total non-application of mind. Learned counsel relied upon the decisions in **Ujala Patra & Ors. v. State of Orissa** [2018 Cri.L.J. (NOC) 459] and in **Eliyas v. State of Kerala** [2018 (5) KHC 841] in support of his contentions. 7. Sri.Noushad K.A., learned Public Prosecutor contended that petitioners are accused Nos.1 and 2 against CRL.MC. No.5854 OF 2013 5 whom after proper investigation, final report has been filed. The learned Public Prosecutor contended that the exercise of the inherent power under Section 482 of the Cr.P.C should be sparingly used and the prosecution is entitled to adduce sufficient evidence to prove the guilt of the accused. Whether the accused were in charge or control of the juvenile and the other ingredients of the offence can be proved during trial. According to the Public Prosecutor, it is too premature a stage to interfere under Section 482 of the Cr.PC and therefore he sought for the dismissal of the petition. 8. I have considered the rival contentions. Section - 23 of the JJ Act reads as below: - _**“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 extend to six months, or fine, or with both.”_ 9. On a perusal of the afore-extracted provision, it is explicit that the provision is intended to punish the person who is in actual charge of or control over a juvenile and who assaults, abandons, exposes or wilfully neglects the said CRL.MC. No.5854 OF 2013 6 juvenile or procures him to be assaulted, abandoned, exposed or neglected in a manner likely to cause such juvenile, mental or physical suffering. As contended by Adv. Mathew Jacob, the final report falls miserably short of even alleging whether the petitioners were the persons in charge of or in control over the alleged juvenile. No material has been collected to indicate that the petitioners were the persons in charge of or in control of the juvenile. It is apposite in this context to observe that the prosecution has also not alleged that the accused had assaulted, abandoned, exposed or even willfully neglected the juvenile. The basic ingredients for bringing home a charge under Section 23 of JJ Act are thus totally absent. 10. In the decision in **Amal v. State of Kerala** (2020 (6) KLT 445), this Court had observed that “It is not the scheme and spirit of S.23 that every doing of an act by the person in charge or control of the juvenile, which affects the body and mind of the child would constitute an offence punishable under the section despite it lacks criminal intention. The expression 'willfully' in S.23 of the JJ Act must be given meaningful consideration. Likewise, the expression 'unnecessary' preceding the words 'mental or physical suffering' is also relevant. In short, what Section must be deemed to convey is that unless the alleged act which has resulted in mental suffering of the child is preceded by mens rea also, it CRL.MC. No.5854 OF 2013 7 cannot be treated as a criminal act made punishable u/s.23 of the Act”. 11. It is thus evident that the offence under section 23 of the JJ Act is not made out based on the allegations in the final report. Therefore, the prosecution of the petitioners for the offence under Section 23 of JJ Act is undoubtedly an abuse of the process of Court. 12. The next Section charged against the petitioners is under Section 26 of the JJ Act which 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.”_ 13. A glance at the aforesaid provision is sufficient to come to the conclusion that the intent behind the provision is not against procuring a child for hazardous employment alone but procuring a child for hazardous employment and keeping him in bondage, withholding his earnings. The final report is silent about the necessary ingredients required for attracting the offence. There is no whisper about any hazardous CRL.MC. No.5854 OF 2013 8 employment or an allegation on keeping the juvenile in bondage or even about the withholding of earnings. 14. Hazardous employment is different from hard work. The allegation in the final report is that the juvenile was employed for ‘hard work’. There are no allegations that he was employed for any hazardous employment or that he was kept in bondage. In such circumstances, even the offence alleged under Section 26 of the JJ Act is not made out. 15. In this context, it is relevant to refer to the decision in **Faisal v. State of Kerala** (2015 (4) KLT 450), it was held that to come under section 26 of the Juvenile Justice Act, something more is required. What is made punishable is employing a juvenile below 18 years for some hazardous job without making payment of adequate wages or salary. It was also observed that the nature of the job is very important under section 26 of the Juvenile Justice Act. Similarly in the decision in **Eliyas v. State of Kerala** [2018 (5) KHC 841] this Court held that the burden is upon the prosecution to establish that the juvenile was employed by the petitioner for doing some hazardous work without making adequate payment of salary or wages. CRL.MC. No.5854 OF 2013 9 16. In view of the above, I am of the considered view that the offences alleged against the petitioners are not made out, even if the entire prosecution case is admitted. Therefore, the prosecution of the petitioners in C.C. No.595/2013 on the files of the Judicial Magistrate of First Class, Wadakkanchery is an abuse of process of Court and is liable to be quashed. Ordered accordingly. In the result, this Crl.M.C. is allowed. **Sd/BECHU KURIAN THOMAS JUDGE** nk CRL.MC. No.5854 OF 2013 10 ## **`APPENDIX OF CRL.MC 5854/2013`** ## **`PETITIONER ANNEXURES`** ``` ANNEXURE-A: ``` ``` PHOTOCOPY OF THE FIR IN CRIME NO.746/2012 OF CHELAKKARA POLICE STATION. ``` ``` ANNEXURE-B:CERTIFIED COPY OF THE FINAL REPORT ALONG WITH MEMORANDUM OF WITNESSES IN CRIME NO.746/2012 OF CHELAKKARA POLICE STATION. ``` ``` ANNEXURE-C: PHOTOCOPY OF THE BIRTH CERTIFICATE OF THE SO CALLED JUVENILE, UMESH. ``` ``` ANNEXURE-C(1):ENGLISH TRANSLATION OF ANNEXURE-C. ``` ``` ANNEXURE-D:PHOTOCOPY OF THE JOB CARD ISSUED TO THE FAMILY OF THE SO CALLED JUVENILE. ANNEXURE-D(1):ENGLISH TRANSLATION OF ANNEXURE-D. ```