Mumtaz Koya vs State Of Kerala

Bechu Kurian Thomas, J

Petitioner challenges the proceedings in S.C. No.140 of 2017 on the files of the Additional Sessions Court-I, Thalassery. The offences alleged against the petitioner are under sections 75 and 79 of the Juvenile Justice (Care and Protection of Children) Act, 2015 (for short 'the JJ Act').

A girl of 11 years and a native of Salem in Tamil Nadu was engaged by the petitioner as domestic help. Pursuant to information received by the Child Welfare Committee, a complaint was filed before the Kannur Town Police Station on the basis of which Crime No.1557 of 2016 was registered against the petitioner on 29.06.2016.

Petitioner, who claims to be suffering from cancer, has invoked the inherent jurisdiction of this Court to quash the proceedings contending that the child was never employed as domestic help and that she was only the daughter of her servant, who used to come to her house for employment purposes. It was further urged that the final report, which led to the proceedings in S.C. No.140 of 2017 on the files of the Sessions Court-I, Thalassery does not make out any case against the petitioner under sections 75 and 79 of the JJ Act and therefore, the prosecution is an abuse of the process of the court.

I have heard the arguments of Sri.Abdul Raoof P., learned counsel for the petitioner, as well as Smt.M.K.Pushpalatha, learned Public Prosecutor for the respondents.

Petitioner faces indictment for offences punishable under two sections of the JJ Act - section 75 and section 79. In order to appreciate the contention that the proceeding against the petitioner is an abuse of the process of the Court, it is essential to appreciate the scope of the two provisions.

Section 75 of the JJ Act provides punishment for cruelty to children. The provision specifies that whoever having the actual charge of or control over a child, assaults, abandons, abuses, exposes or willfully neglects the child or causes or procures the child for the aforementioned acts shall be punishable with imprisonment up to three years. A reading of the statement given by the child does not spell out any assault, abandonment, abuse, exposure or neglect by the petitioner. Thus, petitioner cannot be said to have treated the child with cruelty as contemplated under the Act. In such circumstances, section 75 of the JJ Act cannot apply, and incorporation of such a section is an abuse of the process of the court.

Section 79 of the JJ Act deals with punishment for exploitation of a child employee, reads as follows:-

“S.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.”

The ingredients of section 79 of the JJ Act are (i) engagement of a child and (2) keeping him in bondage for the purpose of employment or withholding his earnings or using the earnings for his own purposes.

In the decision in Nizamudhin v. Station House Officer (2017 (3) KLT 244), this Court held that the words 'keeps him in bondage' is synonymous with slavery, forced labour, bonded labour or compulsory labour and that in the absence of an allegation that child was engaged and kept in bondage for the purpose of employment, the offence is not attracted.

In the instant case, there is apparently no indication of any bondage or captivity or slavery, and therefore, that part of the ingredient of section 79 of the JJ Act cannot be said to be attracted.

A reading of the statement of the child shows that though she has been made to do household chores for the last seven months, the payment for her work was not paid for the last seven months. The learned counsel for the petitioner contended that there was no withholding of payment, but at the most, there was only a deferred payment, and hence an offence is not made out. It was also pointed out that since the child is a minor, the payment can only be made to the mother of the child and that the same was liable to be paid only when the child goes back home or when the mother comes and therefore, there is no withholding of payment, as contemplated under section 79 of the JJ Act.

The child has given a statement that she had been doing the household work and that payment had not been made to her. A reading of the statement of the child indicates that, the behaviour of the petitioner comes within the offensive conduct contemplated by the statutory provision, at least prima facie. Whether it was only a deferred mode of payment or was it a withholding of payment is a matter which can be considered only at the time of trial, after adducing evidence. Invoking the inherent jurisdiction of this Court under Section 482 of the Code of Criminal Procedure, 1973 arises only when there is an absence of any offending conduct, even when the entire allegations are admitted, as held in State of Haryana and Others v. Bhajan Lal and Others (1992 Supplement (1) SCC 335). I am of the view that, at this juncture, this Court cannot adjudicate on the question whether there was or was not any withholding of payment.

Since, prima facie, the offence under section 79 of the JJ Act is made out, this is not a fit case to invoke the inherent jurisdiction under section 482 Cr.P.C notwithstanding the alleged physical condition of the petitioner, to quash the entire proceedings.

In view of the above, the proceedings in S.C. No.140 of 2017 on the files of the Sessions Court-I, Thalassery arising out of Crime No.1557 of 2016 of Kannur Town Police Station to the extent it incorporates section 75 of the JJ Act shall stand quashed. However, the proceedings against the petitioner in S.C. No.140 of 2017 relating to section 79 of the JJ Act shall continue.

This Crl.M.C is thus allowed in part.