Shafeeque v. State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** **THE HONOURABLE MR. JUSTICE RAJA VIJAYARAGHAVAN V** **TUESDAY, THE 17TH DAY OF JANUARY 2017/27TH POUSHA, 1938** **Crl.MC.No. 64 of 2017 -----------------------** **SC 779/2013 OF ADDITIONAL SESSIONS COURT (POCSO), THIRUVANANTHAPURAM CRIME NO. 569/2011 OF ARYANAD POLICE STATION, THIRUVANANTHAPURAM** **.....** ## **PETITIONER(S)/ACCUSED:** **---------------------** **SHAFEEQUE, S/O.PEERUKANU, AGED 35 YEARS, NAZILA MANZIL, MARUTHUMMOODE, PARANGODE, KOTTAKKAKOM MURI, ARYANAD VILLAGE, THIRUVANANTHAPURAM DISTRICT.** ## **BY ADV. SRI.LATHEESH SEBASTIAN** ## **RESPONDENT(S)/STATE & COMPLAINANT:** **----------------------------------** **1. STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM PIN-682 031. 2. THE SUB INSPECTOR OF POLICE, ARYANAD POLICE STATION, THIRUVANANTHAPURAM DISTRICT, PIN-695 542.** **BY PUBLIC PROSECUTOR SMT.M.K.PUSHPALATHA** **THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 17-01-2017, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** **msv/** ## **Crl.MC.No. 64 of 2017 ----------------------** ## **APPENDIX** **PETITIONER(S)' ANNEXURES ------------------------ANNEXURE A1 TRUE COPY OF THE FIR IN CRIME NO.569/2011 OF ARYANAD POLICE STATION ANNEXURE A2 TRUE COPY OF THE FINAL REPORT SUBMITTED BY THE 2ND RESPONDENT IN ANNEXURE A1** **RESPONDENT(S)' ANNEXURE ----------------------NIL** **//TRUE COPY//** **P.S.TO JUDGE** **msv/** ## **RAJA VIJAYARAGHAVAN, V., J. -----------------------------------------Crl.M.C.No.64 of 2017** **-----------------------------------------** - Dated this the 17[th] day of January, 2017 ## **O R D E R ~~~~~~~~** 1.The petitioner is running a hollow bricks manufacturing unit. On 17.06.2011 at about 12.40 p.m., the Assistant Sub Inspector of Police, Aryanad Police Station inspected the premises of the brick manufacturing unit. He found three boys under the age of 18 years working in the unit. They were found mixing cement with gravel and sand. Out of the three boys , two were from West Bengal. The third boy was questioned and he revealed that one of the boy was aged 18 years and the other was 16years of age. They were working in the Hollow bricks manufacturing unit for the last three months and they were being given a sum of Rs. 150/- per day towards wages. A mahazar was prepared and later a crime was registered against the **Crl.M.C.No.64/2017** **-2-** employer under Section 26 of the Juvenile Justice (Care and Protection of Children) Act, 2000. Investigation was conducted and final report was laid before the jurisdictional Court . The Case is now pending on the files of the Additional Sessions Court, Thiruvananthapuram as S.C.No.779 of 2013. The said proceedings are sought to be quashed in this petition filed under section 482 of the Code of Criminal Procedure . - 2.Heard the learned Counsel appearing for the petitioner as well as the learned Public Prosecutor. - 3.The learned counsel appearing for the petitioner submits that the offence under Section 26 of the Act will not be attracted in the facts and circumstances. Inviting the attention of this Court to Annexure A2 final report, it is submitted that out of four witnesses cited, CW1 is the owner of the property who had rented out the premises to **Crl.M.C.No.64/2017** **-3-** the petitioner . The rest of the witnesses are the detecting officer and his subordinate officers. It is further submitted that the alleged juvenile who was allegedly subjected to hazardous employment or the person, who had given the information to the detecting officer that one of the workers was a juvenile has not been cited. Not even a scrap of paper has been produced along with the final report which would reveal that the worker who was allegedly working was a juvenile. Finally, relying on the decision of this Court in **Faisal v. State of Kerala** [2015 (4) KLT 450], it is submitted that prosecution under Section 26 of the Juvenile Justice Act can be sustained only when there is prima facie material to show that the juvenile or the child was kept in bondage for the purpose of subjecting him to any hazardous employment and also that the employer had withheld his earnings. In the absence of such allegations, the continuance of the **Crl.M.C.No.64/2017** **-4-** proceedings is an abuse of process is the submission advanced . - 4.The learned Public Prosecutor countered the submissions of the learned counsel and would contend that these are matters that can be taken up by the petitioner at the stage of trial. According to the learned Counsel, interference at this stage is unwarranted . 5.As narrated above, the case of the prosecution is that the petitioner had employed a juvenile in his brick manufacturing unit. 6. Section 26 of the Juvenile Justice Act reads as follows:- ## **“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 **Crl.M.C.No.64/2017** **-5-** which may extend to three years and shall also be liable to fine.” ## 7.This Court in **Faisal** (supra) had occasion to hold as ## follows : It is not known how merely employing a juvenile aged 16 years will come under S.23 of the Juvenile Justice Act, or under S.26 of the Juvenile Justice Act. To come under S.23 of the Juvenile Justice Act, the alleged offence must have been committed by a person having actual charge or control over the juvenile, and the juvenile must have been subjected to mental or physical harassment. Anyway, the Court has now framed a charge against him under S.26 of the Juvenile Justice Act. Even to come under S.26 of the Juvenile Justice Act, the prosecution must have a case that the juvenile was employed by the accused for some hazardous job, without making adequate payment of salary or wages. Practically what is made punishable is exploitation of a juvenile by employing him for some hazardous job. In Vinod S. Panicker v. Sub Inspector of Police [2012 (4) KLT 314] this Court held that engaging a juvenile as an employee in a bakery cannot be viewed as one putting him to a hazardous employment. In Alice v. State of Kerala [2014 (2) KLT 175], this Court **Crl.M.C.No.64/2017** **-6-** held the term "hazardous" under S.26 of the Juvenile Justice Act indicates the risk and heaviness of the job which the age of the child cannot bear. Anyway, it is now settled that a prosecution under S.26 of the Juvenile Justice Act is possible only when a juvenile is employed for some hazardous job without making proper and adequate payment of wages, or salary. In this case, the prosecution does not have any such allegation. 8.In the instant case, the final report does not contain anything regarding the hazardous nature of the job in which the juvenile or child employee was put to. Prosecution has no case that the juvenile or the child was put to any hazardous employment or that he was kept in bondage or that his salary was withheld. They also do not have a case that the petitioner had withheld such earnings or used it for his own purposes. Nothing has been produced before Court to show that the person employed was under the age of 18 years. Even the person **Crl.M.C.No.64/2017** **-7-** by name Sunil, who had given the information to the investigating officer has not been cited as a witness in the final report . 9.Having gone through the final report and the nature of allegations raised against the petitioner, I am of the view that none of the ingredients of the offence are attracted in the instant case. It is by now settled that while exercising inherent jurisdiction under S.482 Cr.P.C., it is not for the High Court to appreciate the evidence and its truthfulness or sufficiency inasmuch as it is the function of the Trial Court. This Courts inherent powers, is designed to achieve a salutary public purpose and that a Court proceeding ought not to be permitted to degenerate into a weapon of harassment or persecution. If the averments in the complaint do not constitute an offence, the Court would be justified in quashing the proceedings in the interest of justice. **Crl.M.C.No.64/2017** **-8-** In the result, this petition is allowed. Annexure-A2 final report and all proceedings pursuant thereto against the petitioner herein now pending as S.C.No.779 of 2013 on the file of the Additional Sessions Court (for Trial of Offences under the Protection of Offences from Sexual Offences Act), Thiruvananthapuram are quashed. Sd/- **RAJA VIJAYARAGHAVAN, V. JUDGE** Ps/18/1/17