T. Navas and Mohad Irshad Alam v. State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT:** ## **THE HONOURABLE MR. JUSTICE RAJA VIJAYARAGHAVAN V** ## **TUESDAY, THE 24TH DAY OF JANUARY 2017/4TH MAGHA, 1938** ## **Crl.MC.No. 244 of 2017** ## **----------------------------------** ## **S.C.NO. 976/2015 OF ADDITIONAL DISTRICT AND SESSIONS FOR THE TRIAL OF CASES RELATING TO ATROCITIES AND SEXUAL VIOLENCE TOWARDS WOMEN AND CHILDREN, KOZHIKODE** ## **-----------------** ## **PETITIONER(S)/ACCUSED 1 & 2 :** ## **-------------------------------------------------** **1. T.NAVAS,** - **AGED 28 YEARS, S/O.MUHAMMED, THAIKKOTTATHIL VEEDU, KUTTIKKATTOOR, KOZHIKODE DISTRICT.** **2. MOHAD IRSHAD ALAM,** - **AGED 25 YEARS, S/O.INDRISH, PAHASUL TOWN, KATTARA, MUSAFARPOOR, BIHAR STATE.** ## **BY ADVS. SRI.R.SUDHISH SMT.M.MANJU** ## **RESPONDENT(S)/COMPLAINANT :** **---------------------------------------------------** **STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM.** ## **BY PUBLIC PROSECUTOR SMT. M.K.PUSHPALATHA** **THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 24-01-2017, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** Msd. **Crl.MC.No. 244 of 2017** ## **----------------------------------** ## **APPENDIX** ## **PETITIONER(S)' ANNEXURES :** **ANNEXURE A1 TRUE SERVED ACCUSED COPY OF THE FINAL REPORT ALONG WITH THE CHARGE IN CRIME NO. 932/2014 OF NALLALAM POLICE STATION, KOZHIKODE. ANNEXURE A2 CERTIFIED COPY OF THE ORDER IN SC.NO. 976/2015 OF COURT OF ADDITIONAL DISTRICT AND SESSIONS FOR THE TRIAL OF CASES RELATING TO ATROCITIES AND SEXUAL VIOLENCE TOWARDS WOMEN AND CHILDREN, KOZHIKODE DATED 29.12.2016.** **RESPONDENT(S)' ANNEXURES :** ## **NIL** **//TRUE COPY//** **P.A.TO JUDGE** Msd. ## **RAJA VIJAYARAGHAVAN, V., J.** ------------------------------------------ **Crl.M.C. No. 244 of 2017 ----------------------------------------Dated this the 24[th] day of January, 2017** ## **O R D E R** - 1.The petitioners herein are the accused Nos. 1 and 2 in S.C.No.976 of 2015 on the file of the Additional Sessions Court (for the Trial of Cases relating to Atrocities and Sexual Violence Against women and Children), Kozhikode. In the aforesaid case they face indictment under section 26 of the Juvenile Justice (Care and Protection of Children) Act , 2000. - 2.Based on reliable source information that Juveniles were being employed in the establishment of the 1[st] petitioner, a team of officers led by the Sub Inspector of Police, Nallalam Police Station, the Co-ordinator of Child Line Center and the Joint Labour Commissioner conducted a joint inspection of M/s Footmate, a foot wear manufacturing unit run by the 1[st] petitioner. Two **Crl.M.C. No. 244 of 2017 -2-** juveniles, who were from West Bengal, were found employed in the establishment. On questioning, they disclosed that they had been working in the establishment for the past 6 days and no wages had been paid. The juveniles were immediately shifted to the children’s Home at Vellimad. A crime was registered and after investigation final report was laid before the jurisdictional Court . - 3.Contending that the allegations raised in the charge would not constitute an offence against the petitioner, an application was filed seeking discharge . By Annexure A2 order dated 29/12/2016 the said petition was dismissed. The said order is impugned in this petition. - 4.The learned counsel appearing for the petitioner as well as the public prosecutor were heard. - 5.The learned counsel appearing for the petitioners **Crl.M.C. No. 244 of 2017** **-3-** submitted that juveniles were aged 16 years and the work to which they were put cannot be regarded as hazardous. 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 proceedings is an abuse of process is the submission advanced. According to the learned counsel, though the juveniles had stated that no wages were paid, that was against actual facts. - 6.The learned public prosecutor on the other hand referred to the final report and submits that the Juveniles were aged just over 14 years and they have been cited as CW7 **Crl.M.C. No. 244 of 2017** **-4-** and CW8 in the report submitted before Court. It is further argued that there are materials to conclude that they were subjected to hazardous employment and their wages were withheld by the employer. The question whether they were subjected to hazardous work and the reason for withholding their wages are matters which can be considered only at the stage of trial. Placing reliance on a catena of decisions, the learned public prosecutor reminded this court of the contours of its power under section 482 of the Code. It was argued that the contentions now advanced are in the realm of appreciation of evidence. - 7.It is by now settled that while exercising jurisdiction under Section 482 of the Code, the High Court would not ordinarily embark upon an enquiry whether the evidence in question is reliable or not or whether on a reasonable appreciation of it , the accusation could be sustained. That **Crl.M.C. No. 244 of 2017** **-5-** is the function of the trial Court. Section 482 of the Code is not an instrument handed over to an accused to shortcircuit a prosecution and brings about its closure without a full-fledged enquiry. Though High Court may exercise its power to prevent abuse of process of any Court or otherwise to secure the ends of justice, the power has be exercised sparingly and with circumspection. The interference must be on sound principles and the inherent power cannot be exercised to stifle a legitimate prosecution. - 8.After going through the final report and the accompanying materials, I am of the view that this is not a fit case in which, the powers under section 482 can be exercised. I do not find any reason to interfere with the impugned order passed by the learned Sessions Judge. I refrain from passing opinion on the merits of the allegations at this stage lest it affect the case of either the prosecution **Crl.M.C. No. 244 of 2017 -6-** or the accused. I find no reason to interfere with the impugned order. In the result, this petition will stand dismissed sd/- **RAJA VIJAYARAGHAVAN, V. JUDGE** ps/24/1/2017