VANJU KAMAL Vs. STATE OF KERALA

JUDGEMENT

(1.) The petitioner is the first accused in S.C.No.539/2015 on the file of the 1st 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 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 2nd 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., 1973 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 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 2nd 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., 1973 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 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)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 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, and the tender age of children are not abused and that childhood is to be protected against exploitation and against moral and material abandonment".