Vanju Kamal v. State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT:** **THE HONOURABLE MRS. JUSTICE ANNIE JOHN** **FRIDAY, THE 16TH DAY OF FEBRUARY 2018 / 27TH MAGHA, 1939** **Crl.M.C.No. 2189 of 2016** **-------------------------** **AGAINST THE ORDER IN SC 539/2015 of ADDL.SUB COURT, KOLLAM AGAINST THE JUDGMENT IN CC 517/2014 of JUDICIAL FIRST CLASS MAGISTRATE COURT, KADAKKAL** **CRIME NO. 1250/2014 OF KADAKKAL POLICE STATION, KOLLAM** **PETITIONER/ 1ST ACCUSED : -------------------------** **VANJU KAMAL, S/O. KAMALASANNAN, AGED 34 YEARS, MANJU VILLA, KADAKKAL, KOLLAM DISTRICT** **BY ADV.SRI.SAJU.S.A** **RESPONDENTS/ STATE : ---------------------** **STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM - PIN 682 031** **BY PUBLIC PROSECUTOR SMT. K.K. SHEEBA** **THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON 16-02-2018, THE COURT ON THE SAME DAY PASSED THE FOLLOWING :** ## **RKM** **-2-** **Crl.MC.No. 2189 of 2016 -----------------------** **APPENDIX** ## **PETITIONER'S ANNEXURES : -------------------------** **A1 TRUE COPY OF FIR IN CRIME NO 1250/14 DATED 25-08-2014 OF KADAKKAL POLICE STATION A2 TRUECOPY OF FINAL REPORT IN CRIME NO 1250/14 DATED 25-09-2014 OF KADAKKAL POLICE STATION A3 TRUE COPY OF ORDER IN C.M.P 1665/2015 IN C.C 517/2014 OF JFCM COURT, KADAKKAL DATED 24-4-2015. RESPONDENTS' ANNEXURES : NIL ------------------------** **TRUE COPY PA TO JUDGE** **RKM** **C.R.** ## **ANNIE JOHN, J.** =-=-=-=-=-=-=-=-=-=-=-=-= ## **Cr.M.C.No.2189 of 2016** =-=-=-=-=-=-=-=-=-=-=-=-= **Dated this the 16[th] day of February, 2018** ## **ORDER** The petitioner is the first accused in S.C.No.539/2015 on the file of the 1[st] Additional Sessions Court, Kollam. The above case is registered under Section 24 of the Juvenile Justice (Care and Protection of Children) Act (for short, 'the J.J. Act'). The gist of the prosecution case is that on 25.08.2014, the Sub Inspector of Police, Kadakkal got secret information that a minor boy, aged 16 years was employed in “Hill way Pump, Kadakkal”. The Sub Inspector, on reaching the petrol pump found a boy filling petrol and diesel to various vehicles. When he was taken into custody and asked about his age, it was understood that the boy was aged only 16 years and he was working there for the last one and half months. On enquiry, it was understood that the petitioner is the owner of the pumb and one Sukumaran is the manager of the pump. The Kadakkal police then registered FIR against the petitioner and the said Sukumaran under Section 24 of the J.J. Act. True copy of the FIR in Crime No.1250/2014 dated 25.08.2014 of the Kadakkal Police Station is produced and marked as Annexure-1. The Kadakkal Police, after investigation, filed final report against the accused. The JFCM Court, Kadakkal took cognizance of the case and numbered the case as Cr.M.C.No.2189 of 2016 2 C.C.No.517/2014. True copy of the final report in Crime No.1250/2014 dated 25.09.2014 of the Kadakkal Police Station is produced and marked as Annexure-2. The petitioner, along with the 2[nd] accused filed C.M.P.No.1665/2015 in C.C.No.517/2014 for discharge of the accused. The court below, by virtue of the order dated 24.04.2015 held that the charge under Section 24 of the J.J.Act will not lie against the petitioner and altered the charge to one under Section 26 of the J.J. Act. True copy of the order in C.M.P.No.1665/2015 in C.C.No.517/2014 of the JFCM Court, Kadakkal dated 24.04.2015 is produced and marked as Annexure-3. Now the matter is pending as S.C.No.539/2015 on the file of the Additional Sessions Court, Kollam. The petitioner has sought for quashing the entire proceedings and Annexure-A2 proceedings by invoking Section 482 of the Cr.P.C. According to the petitioner, charge under Section 26 of the J.J. Act will not lie against the petitioner. There is no evidence to show that the petitioner is the owner of the petrol pump. 2. Heard both sides. The petitioner has approached this Court inorder to quash Annexure -2 final report filed by the Kadakkal Police Station. It was alleged that the temporary Judicial First Class Magistrate Court, Kadakkal has found the charge under Section 24 of the J.J. Act, which is not applicable in this case. Instead of that, Section 26 of the J.J. Act is applicable. Before the Cr.M.C.No.2189 of 2016 3 Temporary Judicial First Class Magistrate Court, Kadakkal, the petitioners have filed C.M.P.No.1665/2015 in C.C. No.517/2014 in order to discharge them from the charges made against them. Originally, Annexure-2 charge sheet was filed under Section 24 of the J.J. Act and it was alleged that the investigating officer has found the juvenile, who was working in a petrol pump on 25.08.2014, at 23.15 hours. The child was only 16 years old in the Indian Oil petrol pump at Kadakkal, which is under the ownership of the first petitioner and the management of the 2[nd] petitioner. The Sub Inspector of Police, Kadakkal Police Station filed charge sheet in this case against the accused alleging commission of offences punishable under Section 24 of the J.J. Act. When the case was posted for framing charge, the petitioners have filed petition to discharge them under Section 239 of the Cr.P.C. The lower court found that Section 24 of the J.J. Act is not applicable. Section 24 of the J.J. Act, 2000 states that (i). _“whoever employs or uses any juvenile or the child for the purpose or causes any juvenile to beg shall be punishable with imprisonment for a term which may extend to 3 years and shall also be liable to fine. (ii). Whoever, having the actual charge of or control over, a juvenile or the child abets the commission of the offences punishable under sub section (i) shall be punishable with imprisonment for a term which may extend to one year and shall also be liable to fine”._ As per Annexure-2 charge sheet, it was alleged that Cr.M.C.No.2189 of 2016 4 the child was employed in an Indian Oil Pump at Kadakkal under the ownership of the first petitioner. The statement was given by the child before the investigating officer, who was an employee in the said pump. The investigating officer has stated that the child, who was aged 16 years was employed in an Indian Oil Petrol Pump at Kadakkal for a monthly salary of Rs.7,500/-. The statement was recorded, which was given by the child before the investigating officer. So definitely Section 24 of the J.J. Act is not attracted as he was not employed for begging. Accordingly, the lower court found that section 24 of the J.J. Act is not attracted in this case. After hearing, the lower court found that instead of Section 24, Section 26 of the J.J. Act is attracted in this case. The case of the prosecution is that the petitioners have employed the child having aged 16 years in the petrol pump owned by the first petitioner. From the documents produced by the prosecution, it has turned out that the child, aged 16 years was employed in the Indian Oil Pump for a monthly salary of Rs.7500/- per month. Section 25 of the Commission of Protection of Child Rights, 2005 says that _“for the purpose of providing speedy trial of offences against children, or of violation of child rights, the State Government may, with the concurrence of Chief Justice of the High Court, specify at least a Court in the State or specify, for each district, a Court of Session to be a Children's Court to try the said offences : Provided that nothing in this section apply if,-(a)_ Cr.M.C.No.2189 of 2016 5 _Court of Session already specified as a Special Court; or a Special Court is already constituted, for such offences under any other law for the time being in force.”_ 3. So, on the strength of Section 25 of the Commission for Protection of Child Rights Act, 2005, the learned Magistrate has found that this case was not maintainable before the magistrate court. Accordingly, he dismissed the application. He has also found that instead of invoking Section 26 of the J.J. Act, the investigating agency inadvertently charged the accused under Section 24 of the Act. The JFCM Court, Kadakkal dismissed the application by stating that the magistrate has no jurisdiction to proceed with the case in the light of Section 25 of the Protection of Child Rights Act, 2005. Now the petitioners have approached this Court by stating that the learned Magistrate has found that Section 24 of the J.J. Act is not applicable in this case and altered charge under Section 26 of the J.J. Act. Section 26 of the J.J. Act says that _“whoever ostensibly procures a juvenile or child for the purpose of any hazardous employment keeps him in bondage and withholds his earnings or use such earnings or his own purposes shall be punishable with imprisonment for a term which may extend to three years and shall also be liable to fine.”_ Now the question is whether the child was employed in the first petitioner's petrol pump for the purpose of doing hazardous employment. In this connection, the petitioner has produced a ruling held in Cr.M.C.No.2189 of 2016 6 ## _**Faisal v. State of Kerala [2015 (4) KLT 450]**_ wherein it has held by this Court that _“the very fact of employing a child below 14 years, for some job enumerated in the Schedule to the said Act will constitute an offence under the Child Labour (Prohibition and Regulation) Act. But to come under Section 26 of the Juvenile Justice Act, something more is required. What is made punishable is employing a juvenile aged below 18 years for some hazardous job without making payment of adequate wages or salary. The nature of the job is very important under Section 26 of the Juvenile Justice Act”._ It has also held in _**Vinod S.**_ ## _**Panicker v. Sub Inspector of Police [2012 (4) KLT 314]** ._ In fact the Child Labour (Prohibition and Regulation) Act, 1986, which comes into force on 26.05.1993 to prohibit children in certain employment and to regulate the condition of work in other employment. As per the above said Act the child is defined “as a person, who is not attained the age of 14 years”. Employing a person above the age of 14 years and below 18 years in the area other than hazardous activity providing them remuneration for their work cannot be treated as infringing to, protection and rights afforded to such children. Section 24 of the J.J. Act prohibits employment of the children in factories or employing in any hazardous occupation. Article 39 (e) of the Constitution of India stipulates that the “ _State shall, in particular, direct its policy towards securing “that the health and strength of the workers, men and women,_ 7 Cr.M.C.No.2189 of 2016 _and the tender age of children are not abused and that childhood is to be protected against exploitation and against moral and material ” abandonment_ . 4. So it is stated that child at the age of 14 years is also prohibited from doing hazardous work especially in mines and or any factories with the hazardous nature. Petitioners' counsel has also cited a ruling held in _**Khalid L.K. v. Sub Inspector of Police, Kasaragod and Another [2015 (4) KHC 180]**_ wherein it has held that “a boy aged 15 years employed in hotel for washing utensils and cleaning the tables”. There it has found that the child has come for work in the establishment at the instance of his parents and in the absence of any evidence that juvenile was subjected to mental or physical suffering, it cannot be said that offence under the Act is attracted. Mere fact that the juvenile was aged 15 years and that he was made to work in an establishment, **-** would not by itself attract offence under the Act. In Annexure 2 it was stated that the juvenile, aged 16 years was employed in a petrol pump at Kadakkal and it has also stated that he was getting Rs.7500/- per month. He was employed to fill the petrol in the vehicles. Now the question is whether the employment of the juvenile will come under the definition of the hazardous work. As per Section 26 of the J.J. Act, the prosecution has to establish that the juvenile was employed by the petitioners for doing some Cr.M.C.No.2189 of 2016 8 hazardous work without making adequate payment of salary or wages. So, what is punishable under Section 26 of the J.J.Act is that for the exploitation of the juvenile while employing him for some hazardous job. In _**Alice v. State of Kerala [2014 (2) KLT 175]** , this Court held the term “hazardous” under Section 26 of the J.J. Act which indicates the risk and heaviness of the job which the age of the child cannot bear_ . Here, on the strength of the finding entered by this Court, it is understood that the prosecution under Section 26 of the J.J. Act is possible only when the juvenile is employed for some hazardous job without making proper and adequate payment of wages and salary. Here, the prosecution has no case that the petitioner has employed to do some hazardous work without making any payment of salary. As per Section 26 of the J.J. Act, there must be an evidence to prove that the juvenile was subjected to mental or physical sufferings. Mere fact that the juvenile was aged 16 years and that he was ready to work in the petroleum pump could not attract offence under Section 26 of the J.J. Act. As per Annexure-2 charge sheet, there is no evidence to show that there was no exploitation of the juvenile by not giving, by withholding savings and used such earnings for his own purpose. 5. In the absence of such evidence, I find that the finding entered by the learned Magistrate under Section 26 of the J.J. Act is not attracted. However, he has not been employed for Cr.M.C.No.2189 of 2016 9 doing any hazardous works as per Annexure A2 charge sheet and he was not exploited by not giving salary due to him. Therefore, I find that the mere allegation that the juvenile at the age of 16 years has been employed in petrol pump does not indicate that such employment would constitute any threat or hazard to that juvenile. Engaging a juvenile in a petrol pump cannot be viewed as employing him in hazardous job. Therefore, I find that the charge imputed against the petitioners for having employed a juvenile, aged 16 years in the petrol pump for the offences under Section 26 of the J.J. Act would not lie. Therefore criminal proceedings, which is pending as S.C.No.539/2015 on the file of the Additional Sessions Court, Kollam, is hereby quashed by invoking the inherent power under Section 482 of the Cr.P.C. Sd/- **ANNIE JOHN JUDGE** True Copy PA to Judge ## RKM