Kerala High Court
Jyotimunna Soren vs State Of Kerala on 8 November, 2024
Author: P.V.Kunhikrishnan
Bench: P.V.Kunhikrishnan
Crl.M.C. No.6220 of 2019
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IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE P.V.KUNHIKRISHNAN
FRIDAY, THE 8TH DAY OF NOVEMBER 2024 / 17TH KARTHIKA, 1946
CRL.MC NO. 6220 OF 2019
CRIME NO.195/2018 OF AMBALAVAYAL POLICE STATION,
WAYANAD
AGAINST CC NO.479 OF 2018 ON THE FILE OF THE
JUDICIAL MAGISTRATE OF FIRST CLASS - I, SULTHANBATHERY
PETITIONER/ACCUSED:
JYOTIMUNNA SOREN,
AGED 46 YEARS
S/O.LATE J.C.SORESN, HOUSE NO.69, BACHA ANSH,
MANDRO, SHAHED GANJ, JHARKHAND, PRESENTLY
RESIDING AT W-174, FEDERAL PARK APARTMENTS,
VENNALA, PALARIVATTOM, ERNAKULAM.
BY ADVS.
S.RAJEEV
SRI.K.K.DHEERENDRAKRISHNAN
SRI.V.VINAY
SRI.D.FEROZE
SRI.K.ANAND (A-1921)
RESPONDENTS/STATE/DEFACTO COMPLAINANT:
1 STATE OF KERALA,
REP. BY PUBLIC PROSECUTOR, HIGH COURT OF
KERALA, ERNAKULAM-682031(CRIME NO.195/2018 OF
AMBALAVAYAL POLICE STATION, WAYANAD DISTRICT)
2 MUNSHI MURMU,
AGED 14 YEARS, S/O.CHAMU MURMU, SREERAM
CHOWKI, SAHEBENJ DISTRICT, JHARKHAND,
INDI(REPRESENTED BY HIS FATHER SRI.CHAMU
MURMU, SREERAM CHOWKI, SAHEBENJ DISTRICT,
Crl.M.C. No.6220 of 2019
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JHARKHAND, INDIA), PIN - 115004
BY ADV.
SRI.SANGEETHARAJ.N.R, PP
THIS CRIMINAL MISC. CASE HAVING COME UP FOR
ADMISSION ON 08.11.2024, THE COURT ON THE SAME DAY
PASSED THE FOLLOWING:
Crl.M.C. No.6220 of 2019
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P.V.KUNHIKRISHNAN, J.
--------------------------------
Crl.M.C. No.6220 of 2019
----------------------------------------------
Dated this the 08th day of November, 2024
ORDER
Petitioner is the accused in C.C. No.479/2018 on the
file of the Judicial First Class Magistrate Court-I, Sulthan
Batheri arising from Crime No.195/2018 of Ambalavayal
Police Station.
2. It is a prosecution initiated against the petitioner
alleging offence punishable under Section 79 of the
Juvenile Justice (Care and Protection of Children) Act, 2015
(for short 'JJ Act').
3. The prosecution case is that the petitioner had
brought the defacto complainant from his native place at
Jharkhand along with him and he was residing along with
the petitioner and it is claimed in the first information
report that sufficient remuneration was not given to the
child and he was compelled to do household work. Hence
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it is alleged that the accused committed the offence.
Annexure-I is the FIR and Annexure-II is the final report.
According to the petitioner, even if the entire allegations
are accepted, no offence is made out.
4. Heard the learned counsel appearing for the
petitioner and the learned Public Prosecutor.
5. This Court perused the final report filed against
the petitioner. It will be better to extract the relevant
portion of the final report:
"ജജാർഖണണ്ഡ് സസംസജാനതത്തിൽ സഹഹെബണ്ഡ് ഗഞ്ച ജത്തില
ശശ്രീറജാസം ചചൗകത്തി എന്ന സലതണ്ഡ് തജാമസത്തിക്കുന്ന കകേസത്തിഹല
പരജാതത്തികജാരനജായ മുൻഷത്തി മുർമു എന്ന കുടത്തിഹയ കകേസത്തിഹല പ്രതത്തി
കജജജാതത്തി മുന്ന കസജാറൻ എന്നയജാൾ വത്തിദജജാഭജജാസസം നൽകേത്തിഹകജാളജാസം
എന്ന വജവസയത്തിൽ പ്രതത്തി കജജാലത്തി ഹചയ്തുവരുന്ന ഹനകന്മേനത്തി അസംശസം
ആനപജാറ XXI/479 നമ്പർ വശ്രീടത്തിൽ 2016 ഒകകജാബർ മജാസസം മുതൽ
21-06-18 തശ്രീയ്യതത്തി വഹര കുടത്തികണ്ഡ് മതത്തിയജായ കവതനവസം,
വത്തിദജജാഭജജാസവസം നൽകേജാഹത തജാമസത്തിപത്തിചണ്ഡ് പ്രതത്തിയുഹടെ വശ്രീടത്തിഹല എലജാ
കജജാലത്തികേളസം ഹചയ്യത്തിപത്തിചത്തിട്ടുളതജായത്തി ഹവളത്തിവജാകുന്നതത്തിനജാൽ
കകേസത്തിഹല പ്രതത്തി ജുവനനൽ ജസത്തിസണ്ഡ് ആകണ്ഡ് (Care and Protection
of Children - 2015) 79 വകുപണ്ഡ് പ്രകേജാരസം ശത്തികജാർഹെമജായ കുറസം
ഹചയത്തിരത്തിക്കുന്നു എന്നണ്ഡ്."
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6. Section 79 of the JJ Act is extracted hereunder:
"Section 79 :- Exploitation of a child
employee.-- Notwithstanding anything contained in
any law for the time being in force, whoever
ostensibly engages a child and keeps him in bondage
for the purpose of employment or withholds his
earnings or uses such earning for his own purposes
shall be punishable with rigorous imprisonment for a
term which may extend to five years and shall also
be liable to fine of one lakh rupees.
Explanation-- For the purposes of this Section,
the term "employment" shall also include selling
goods and services, and entertainment in public
places for economic gain."
7. Whether the above allegation amounts to an
offence under Section 79 of the JJ Act is the question to be
decided in this case. This Court in Nizamudhin A. v.
Station House Officer, Kannur Town Station and
Another [2017 (3) KHC 790] considered this question. It
will be better to extract the relevant portion of the above
judgment:
"13. The words "keeps in bondage" in the Act
have some significance. The object of adding these
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words was clearly to expand the reach and content of
Art.23 of the Constitution of India which prohibits traffic
in human beings and beggar and other similar forms of
forced labour.
14. The upshot of the above discussion is that
bondage is synonymous to slavery, forced labour,
bonded labour or compulsory labour. Therefore, in
order to attract the offence under S.79 of the Act, there
must be allegation and materials to the effect that the
child was engaged and kept him in bondage for the
purpose of employment. The words "engages a child"
and "keeps him in bondage" have to be read in
conjuncture. Thus, it is clear from S.79 of the Act that
engaging a child for the purpose of employment as
such is not prohibited under S.79 of the Act, if the
engaging of the child for the employment is not by
keeping the child in bondage. The employment of a
child for the purpose of begging is prohibited under
S.76 of the Act. The using of a child for vending,
peddling, carrying supplying or smuggling or any
intoxicating liquor, narcotic drug of psychotropic
substance is also made an offence under S.78 of the
Act. This also makes it clear that the employment of a
child as such is not prohibited under S.79 of the Act.
What is prohibited under S.79 of the Act is the
employment of a child in bondage or employment of
the child withholding the earnings of the child or
utilizing the earnings of the child for the purpose of the
employer.
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15. The system of bondage implies the
infringement of basic human rights and destruction of
the dignity of human labour. In slavery or in forced
labour, or bonded labour, the labourer is not having the
liberty to leave the employment without the permission
of the employer. Therefore, if the labourer is having the
liberty to leave the employment without the permission
of the employer, the said employment cannot be said to
be an employment in bondage. Therefore, the cardinal
distinction between the employment in bondage and
the employment without any bondage is that the
labourer will not have the liberty to leave the
employment without the permission of the employer in
the former whereas the labourer will be having the
liberty to leave the employment without the permission
of the employer in the latter.
16. The statement of the child and her mother
appended to the final report in this case would show
that the child was being treated just like the daughter
of the petitioner in the house of the petitioner. The
father of the child expired and in order to meet both
ends, the mother of the child is doing the work of
selling fish. She also used to come to the house of the
petitioner for doing the work as a domestic servant.
The victim stated that everybody in the house of the
petitioner used to treat her with love and affection. The
victim was never mentally or physically harassed by the
petitioner or other inmates in the house. The victim
stated that the victim likes continuing residence with
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the petitioner and his family. The mother of the victim
collects Rs.3000/- per month for the work done by the
victim. The victim is aged above 14 years. She studied
up to VIII standard in Tamil Nadu. After the death of
the father of the girl, her mother had to come to Kerala
for doing domestic work and the business of selling fish
for the purpose of looking after the girl. In the said
circumstances, the mother of the victim left her
daughter in the house of the petitioner. It is true that
she occasionally used to clean vessels and broom the
floors of the house. There is absolutely no allegation
that the child was under bondage or she was doing
forced labour in the house of the petitioner. The
materials produced by the prosecution before the Court
also do not support the prosecution case.
17. Having gone through the entire materials
collected by the prosecution, I am satisfied that there is
absolutely no allegation or material before the Court to
indicate that the child was kept in bondage by the
petitioner for the purpose of employment. There is also
no material or allegation to the effect that the
petitioner withheld the earnings of the child or used her
earnings for his own purpose. In the said
circumstances, merely because there is allegation that
the victim was engaged in the house of the petitioner
as a maid servant, it cannot be said that there are
ingredients to constitute the offence under S.79 of the
Act, particularly when the victim is aged above 14
years. It may also be noted that Art.24 of the
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Constitution of India does not prohibit the employment
of children above the age of 14 years.
18. Now coming to S.75 of the Act, there is
absolutely no allegation or material to the effect that
the petitioner assaulted or abandoned or abused or
exposed or wilfully neglected the victim or caused or
procured the victim to be assaulted, abandoned,
abused, exposed or neglected in a manner likely to
cause the victim unnecessary mental or physical
suffering. In the said circumstances, there is no
ingredient to constitute the offence under S.75 of the
Act. Consequently, the offence under S.75 of the Act is
also not attracted against the petitioner.
19. In view of the above reasons, no successful
prosecution can be sustained against the petitioner. In
the said circumstances, no purpose will be served even
if the prosecution against the petitioner is permitted to
be continued. Consequently, I am inclined to quash
Annexure - 1 final report and further proceedings
against the petitioner in C. P. No. 67 of 2016 on the
files of the Court below, in exercise of the inherent
power under S.482 Cr.P.C. to meet the ends of justice
and accordingly, I order so.
In the result, this Crl. M. C. stands allowed."
8. In the light of the above principle, I am of the
considered opinion that, even if the entire allegations are
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accepted in toto, no offence is made out against the
petitioner.
Upshot of the above discussion is that the
continuation of the prosecution against the petitioner is not
necessary.
Therefore, this Criminal Miscellaneous Case is
allowed. All further proceedings against the petitioner in
C.C. No.479/2018 on the file of the Judicial First Class
Magistrate Court-I, Sulthan Batheri arising from Crime
No.195/2018 of Ambalavayal Police Station are quashed.
Sd/-
P.V.KUNHIKRISHNAN
DM JUDGE
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PETITIONER ANNEXURES
ANNEXURE I TRUE COPY OF THE FIRST INFORMATION
REPORT IN CRIME NO.195/2018 OF
AMBALAVAYAL POLICE STATION ALONG
WITH THE FIRST INFORMATION STATEMENT
ANNEXURE II ACCUSED COPY OF THE FINAL REPORT IN
CRIME NO.195/2018 OF AMBALAVAYAL
POLICE STATION WHICH IS NOW PENDING
AS CC NO.479/2018 ON THE FILE OF THE
JUDICIAL MAGISTRATE OF FIRST CLASS-
I, SULTHAN BATHERI
RESPONDENTS EXHIBITS: NIL
//TRUE COPY// PA TO JUDGE
