GOVIND SHANWAR GHATAL Vs. DATTATRAYA WAMAN BHANUSHALI

JUDGEMENT

(1.) THE Central Government realized in the year 1975 that there still exists in different parts of the country a system of usury under which the debtor or his descendants or dependants have to work for the creditor without reasonable wages or with no wages in order to extinguish the debt. At times, several generations work under bondage for the repayment of a paltry sum, which had been taken by some remote ancestor. The interest rates were exorbitant and such bondage cannot be interpreted as the result of any legitimate contract or agreement. The system implies the infringement of the basic human rights and destruction of the dignity of human Labour. Article 23 (1) of the Constitution prohibits forced Labour and further provides that any contravention of the said prohibition shall be an offence punishable in accordance with law. Article 35 of the Constitution confers power on Parliament to provide for punishment for the contravention of the provisions of Article 23 (1) of the Constitution. Accordingly, the Bonded Labour System (Abolition) Ordinance, 1975 was promulgated by the President on October 24, 1975. By the Ordinance, the bonded Labour system was abolished and the bonded labourers were freed and discharged from any obligation to render any bonded labour and their bonded debts were also extinguished. The ordinance was replaced by the Bonded Labour System (Abolition) Act, 1976, which came into force with retrospective effect from October 25, 1975.

(2.) THE expression "bonded labour system" is defined under section 2 (g) and means the system of forced or partly forced, labour under which a debtor enters, or has, or is presumed to have, enter, into an agreement with the creditor to the effect that in consideration of an advance obtained or in pursuance of any customary or social obligation, he would render, by himself or through any member of his family, or any person dependent on him, labour or service to the creditor for a specified period or for an unspecified period, and either without wages or for nominal wages. Section 4 of the Act provides that on the commencement of the Act, the bonded labour system shall stand abolished and every bonded labourer shall stand freed and discharged from any obligation to render any bonded labour. Section 13 of the Act provides that every State Government shall constitute Vigilance Committee shall consist of the District Magistrate, three persons belonging to the Scheduled Castes or Scheduled Tribes, two social workers, one person to represent the financial and credit institutions and not more than three persons to represent the official or non-official agencies in the district connected with rural development. Section 14 of the Act defines the functions of the Vigilance Committee and one of the function is to keep eye on the number of offences of which recognizance has been taken under the Act and also to make a survey as to whether there is any offence of which recognizance ought to be taken. Section 15 provides that whenever any debt is claimed by the bonded labourer, or a Vigilance Committee, to be a bonded debt, then the burden of proof that such debt is not a bonded debt shall lie on the creditor. Chapter VI of the Act deals with Offences and Procedure for trial and section 16 provides that whoever compels any person to render any bonded labour shall be punishable with imprisonment for a term which may extend to three years and also a fine which may extend to RS. 2000/ -. Section 22 prescribes that every offence under this Act shall be cognizable and bailable Section 21 reads as under:

(3.) THE Government of Maharashtra, in exercise of powers under section 13 of the Act has constituted a Vigilance Committee for Thane District and one Vivek Pandit, who is a Social Workers and President of Shetkari Sanghatana, is the member of the said Vigilance Committee. Shri Pandit visited the village Gaurapure in Wada Taluka of Thane District and the petitioner complained to him about the slavery imposed upon him by respondent No. 1 In pursuance of the complain, statement dated June 11, 1985 was prepared by Shri Pandit and was duly signed by the petitioner and counter-signed by Shri Pandit. The complaint was addressed to the Collector and the District Magistrate, Thane. The petitioner mentioned in the complaint that he was married about 13 years before and at the time of his marriage, respondent No. 1 gave him three sarees, blouses, a towel, a shirt and a trouser and two mounds of rice totally valued at about Rs. 600/- The petitioner complained that respondent No. 1compelled the petitioner and his wife to work as servant for over 13 years and was paying only Nominal Wage for the services rendered. The petitioner complained that respondent No. 1 even after rendering service for 13 years is not willing to release the petitioner and his wife by asserting that the loan along with interest is not yet repaid. The petitioner claimed that he should be released from bonded labour and appropriate action should be taken against respondent No. 1 The complaint was forwarded to the collector and District Magistrate and thereupon the Police recorded statements of various witnesses and then filed charge-sheet before the Executive Magistrate at Vasai and the case was registered as Criminal Case No. . 165 of 1985. . The Government of Maharashtra conferred on the Executive Magistrate, Vasai the powers of Judicial Magistrate, First Class or the Second Class of the trial of the offences under the Act in exercise of powers conferred by section 21 of the Act by Notification dated March 6, 1985. On September 15, 1987, on behalf of respondent No. 1 an application was filed before the executive Magistrate seeking discharge on the ground that the member of the Vigilance Committee was not empowered to record statement of the petitioner under the Code of Criminal Procedure and, therefore, the entire case deserves to be quashed. It was also claimed that the police had not recorded the statement of the petitioner and consequently there is not valid F. I. R. registered under section 154 of the Code of Criminal Procedure and, therefore, respondent No. 1 is entitled to be discharged. The application was resisted on behalf of the State of Maharashtra by pointing out that is open for the Police to commence investigation after being aware of the commission of recognizable offence and the accused cannot be discharged merely because of non-registration of F. I. R. The Executive Magistrate by order dated October 13, 1987 held that section 154 of the Criminal Procedure Code requires that the complaint must be reduced in writing and should bear the signature of the complainant before the Police Officer who has registered the offence. The Executive Magistrate held that the complaint was not recorded in the presence of the Police Officer and was also not signed in the presence of the Police Officer by the petitioner and consequently the offence cannot be tried and the accused is entitled to acquittal for an offence under section 16 of the Act. The order passed by the Executive Magistrate is under challenge in this petition.