Vinod S. Panicker Vs. Sub Inspector of Police
Citation(2012) 272 KLR 207 ;2013 CR LJ 833kerala
IN THE HIGH COURT OF KERALA AT ERNAKULAM
S.S.SATHEESACHANDRAN, J.
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Crl.M.C.NO.2181 OF 2012
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Dated this the 5th day of September, 2012
Head Note:-
Juvenile Justice (Care & Protection of Children) Act, 2000 - Section 26 - Exploitation of juvenile or child employee - A child or juvenile above the age of 14 years at any rate cannot be prevented or restrained from getting employment in any work which is not of a hazardous nature, for remuneration, to eke out his livelihood or that of his family.
Held:- A mere allegation that a juvenile, aged 17 years, has been employed in a bakery, it does not follow that such employment constituted any threat or hazard to that juvenile. Engaging a juvenile as an employee in a bakery cannot be viewed as one putting him to a hazardous employment. I find, charge imputed against the petitioner for having employed a juvenile, aged 17 years, in his bakery for the offence under Section 26 of the Act will not lie.
Petitioner is the accused in a pending case on the file of the Sessions Court, Thiruvananthapuram. He is being prosecuted for the offence punishable under Section 26 of the Juvenile Justice (Care & Protection of Children) Act, 2000, for short, 'the Act'.
2. Petitioner is operating a bakery. He employed in that bakery a juvenile, aged 17 years, who hailed from Nepal, is the gist of the accusation to proceed against him for the aforesaid offence, on a report filed by the Sub Inspector of Police, Peroorkada Police Station. During the course of law and order patrol duty, the aforesaid Sub Inspector got information of the employment of a juvenile in the bakery of petitioner. He reached that bakery and, then, found a juvenile employed in that business concern, is the case of the prosecution for registration of the crime and, later, indictment of the petitioner for the offence under Section 26 of the Act. Petitioner has filed the above petition for quashing the criminal proceedings against him contending that none of the ingredients of the offence under Section 26 of the Act has been made out to prosecute him. Employment of a juvenile, that too aged 17 years, in a bakery, by itself, is not sufficient to prosecute him for the aforesaid offence, is the challenge projected to quash Annexure 2 final report and cognizance of the offence taken thereunder by the Sessions Court to proceed against him.
2. I heard the learned counsel for the petitioner and also the learned Public Prosecutor.
3. Annexure 2 is the final report filed before the court after conducting investigation in the crime. That report includes some other annexures - statements recorded from the material witnesses during the investigation of the crime. Going through the report and statements, it is evidently clear that the prosecution against the petitioner solely rests on the allegation that he has employed a juvenile aged 17 years in his bakery shop. Whether employment of a juvenile who is stated to be aged 17 years in a bakery shop by itself would constitute an offence under Section 26 of the Act, is the question emerging for consideration.
4. The question to be considered is whether employment of juvenile as such in any activity which is not of a hazardous nature falls within the mischief covered by Section 26 of the Act. Section 26 of the Act reads thus:
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 earnings 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."
A reading of the Section clearly spells out that the employment of juvenile or child to constitute an offence must be one which by its nature is hazardous. Over and above the nature of hazardous employment the section also contemplates of keeping the juvenile or child in bondage and withholding his earnings or using of such earnings by his employer. The aforesaid Section is analogous to Section 44 of the Juvenile Justice Act, 1986, which read thus:
44: Exploitation of Juvenile employees:- Whoever ostensibly procures a juvenile for the purpose of any employment and withholds the earnings of the juvenile or uses such earnings 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.
Changes brought about under Section 26 of the new Act by additions, qualifying or restricting the applicability of exploitation to 'hazardous' employment with the addition 'keeping in bondage', which was not there in Section 44 of the Juvenile Justice Act, 1986, definitely have some significance. The aforesaid expressions newly added in the section, no doubt, are the extension of the reflection and in fact imbibing of the spirit of the principles enunciated under Articles 23 and 24 of the Constitution of India. Article 23 prohibits traffic in human beings and forced labour. Every form of forced labour, beggar or otherwise, is within the inhibition of Article 23 of the Constitution of India, with the sole exception in the case of State imposing compulsory service for public purposes. Otherwise in the case of the State exacting compulsory labour for public purposes from the citizen of the performance of his supreme and noble duty of contributing to the defence of the rights and honour of the nation, all other forms of forced labour comes within the sweep of inhibition under the above Article. It makes no difference, whether the person who is forced to give such labour or services is remunerated or not. The Apex Court in Peoples Union for Democratic Rights v. Union of India (AIR 1982 SC 1473) has considered the scope and ambit of Article 23 in detail, and it again came up for consideration in Bandhua Mukti Morcha v. Union of India (AIR 1983 SC 1155). Whereas Article 23 prohibits all forms of forced labour, Article 24 speaks of prohibition of employment of children in factories, mines or in any hazardous occupation. Similarly, provisions under Article 39(e) and (f) of the Constitution enunciate the directive principles that health and strength of the workers, men and women, and the tender age of the children are not to be abused and that childhood and youth are to be protected against exploitation and against moral and material abandonment. Section 26 of the Act, which in effect reflects and imbibes the spirit of Articles 23, 24 and Section 39(e) and (f) imposes punishment extending a term of three years and also fine to any person who procures any juvenile or child for the purpose of any hazardous employment, keeps him in bondage and withholds his earnings or uses such earning for his own purposes.
5. Section 2(k) of the Act defines a "juvenile" or "child" as a person who has not completed eighteenth year of age. "Juvenile" and "child" are not separately defined under the Act. So, in relation to the applicability of the Act, having regard to the definition, as indicated above, all human beings below the age of 18 years come within the sweep of children/juvenile. Article 24 of the Constitution, it has to be taken note of, restricts or prohibits employment of children below the age of 14 years in any factory or mine or engagement in any other hazardous employment. Necessarily, the scope and applicability of Section 26 of the Act has to be examined with reference to the prohibition covered by Article 24 of the Constitution. A child or juvenile above the age of 14 years at any rate cannot be prevented or restrained from getting employment in any work which is not of a hazardous nature, for remuneration, to eke out his livelihood or that of his family. His right to such employment is insulated under the Constitution, and when that be so, the question has to be examined whether an employer, who provided employment, which is not of a hazardous nature, to a child or juvenile above the age of 14 years is liable to be prosecuted, for that reason alone, under Section 26 of the Act. When there is no statutory inhibition in employment of children above the age of 14 years, which is not of a hazardous nature, the answer can be only in the negative. Perhaps in the employment of children below the age of 14 years, the question of employment of such children may require further scrutiny even if it is not so an offence under Section 26 of the Act, but, with reference to prescriptions under different Statutes, as may be applicable. I say so since statutory interdictions as under Section 67 of the Factories Act, 1948, Section 45 of the Mines Act, 1952 etc. have significance only in relation to employment of children in hazardous activities. Whereas Section 67 of the Factories Act prohibits employment of a child who has not completed fourteenth year in any factory, it is seen, Section 45 of the Mines Act, there is an interdiction even in allowing the presence of any child below the age of 18 years in any place where any operation connected with or incidental to any mining operation is being carried of, but, subject to the exception provided under sub section (2) of Section 40 of the Mines Act which permits of engaging of children as apprentices and other trainees not below the age of 16 years to work in any mining area under proper supervision by the manager. Even in respect of engaging of children or juvenile in operation of mines which is, no doubt, hazardous activity, what is noticed is that children above the age of 16 years could be engaged as apprentices or trainees under the supervision of a manager of the mine as per the statutory provisions covered by the Mines Act. Though the Parliament has enacted the Child Labour (Prohibition and Regulation) Act, 1986 (Act 61 of 1986), which came into force on 26.05.1993, to prohibit the children in certain employments and to regulate the conditions of work in certain other employments, it is noticed the "child" to whom such Act is applicable is defined thereunder as a person who has not completed his fourteenth year of age. So, the prohibition in engaging of children above the age of 14 years in areas other than involving hazardous activities, providing them remuneration for their work, for the time being, cannot be viewed as infringing the protection and rights afforded to such children. In the context, it is also to be noticed that the amendments proposed in the existing law against child labour are still to be enacted. A new Act titled as "Child and Adolescent Labour Prohibition Act" which contemplates of total ban of all forms of child labour under the age of 14 years and the employment of children in the 14-18 age group in hazardous activities prohibited and engagement of any child in such age group contrary thereto a cognizable offence, is yet to be passed by the Parliament though it is stated to have received the approval of the Union Cabinet. (See "The Hindu" dated September, 10, 2012 - 'Getting ready for the new law against child labour' - an article written by Kailash Satyarthi).
6. A mere allegation that a juvenile, aged 17 years, has been employed in a bakery, it does not follow that such employment constituted any threat or hazard to that juvenile. Engaging a juvenile as an employee in a bakery cannot be viewed as one putting him to a hazardous employment. I find, charge imputed against the petitioner for having employed a juvenile, aged 17 years, in his bakery for the offence under Section 26 of the Act will not lie.
Criminal proceedings against the petitioner in S.C.No.37 of 2012 on the file of the Sessions Court, Thiruvananthapuram are quashed under Section 482 of the Code of Criminal Procedure. Petition is allowed.
S.S.SATHEESACHANDRAN JUDGE
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