Rashmita Rana vs State of Orissa

S.K. Sahoo, J. - This is an application under Section 438 Cr.P.C. for grant of anticipatory bail to the Petitioners in connection with Kharavel Nagar PS. Case No. 262 of 2014 corresponding to C.T. Case No. 3722 of 2014 pending in the Court of Learned SDJM, Bhubaneswar for alleged commission of offences under Sections 323/324/34 of the IPC & Section 23 & 26 of the Juvenile Justice (Care & Protection of Children) Act, 2000 (herein after "J.J.Act, 2000").

Learned Counsel for the Petitioners Mr. Manoj Bihari Das submitted that the mother of the victim girl, namely, Geetalata Mati is distantly related to the Petitioner No.2 for which the victim girl was left by her mother in the company of the Petitioners as she could not properly take care of the victim girl on account of her financial difficulty & accordingly the victim was living with the Petitioners. Further he submits that the allegations of torture & cruelty are not correct & it has been presented in an exaggerated manner & the ingredients of offence under Section 26 of J.J. Act, 2000 is not made out.

Learned Counsel for the State has produced the case diary & places the statement of Geetalata Mati which indicates that after her husband left her, she was unable to maintain her two children & accordingly, she left the victim in the house of the Petitioners as Petitioner No.2 was her distant relation. She has further stated that she visited the house of the Petitioners on several occasions but her daughter (victim) had never complained before her about any torture in the hands of the Petitioners.

Learned Counsel for the State places the statement of the victim, who stated her age to be 12 years & further stated that the Petitioners engaged her in different household works & used to torture her both physically & mentally. Learned Counsel for the State has produced the injury report of the victim which indicates that she has sustained three scars on the hand & the finger which are opined to be simple in nature. Though she was medically examined on 24.9.2014 but the doctor opined the age of her injuries to be 7 days or more.

Learned Counsel for the Petitioners has submitted that the ingredients of offence under Section 26 of J.J.Act, 2000 is not made out.

Section 26 of J.J. Act, 2000 is quoted herein below:

"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 & withholds his earnings or uses such earning for his own purposes shall be punishable with imprisonment for a term which may extend to three years & shall also be liable to fine."

The ingredients of offence under Section 26 of J.J. Act, 2000 are as follows:

(i) The accused must have ostensibly procured a juvenile or the child for the purpose of any hazardous employment;

(ii) The accused must have kept such juvenile or child in bondage & withheld his earnings or use such earnings for his own purpose.

Thus 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 & above the nature of such employment, the Section also contemplates of keeping the juvenile or child in bondage & withholding his earning or using of such earnings by his employer. Article 23 of Constitution of India prohibits traffic in human beings & forced labour. Article 24 of Constitution of India speaks prohibition of employment of children in factories, mines or in any hazardous occupation. Article 39(e) & (f) of the Constitution enunciate the directive principles that health & strength of workers, men & women & the tender age of the children are not to be abused & that childhood & youth are to be protected against exploitation & against moral & material abandonment. The scope & applicability of Section 26 of J.J. Act, 2000 has to be examined with reference to the prohibition covered by Article 24 of the Constitution.

Perused the statement of the victim as well as her mother Geetalata Mati. It is not the case of the prosecution that the victim girl was being forced to work in the house of the Petitioners rather the victim girl was doing the household works after she was left by her mother. There ''is no material that she was employed in any hazardous work. Thus the ingredients of offence under Section 26 of the J.J.Act, 2000 Act is not made out. So far as the 23 of the said Act is concerned, it is a bailable offence.

Considering the nature of allegations & the statement of the victim as well as mother of the victim & the facts & circumstances of the case, this Court directs that in the event of arrest of the Petitioners in connection with the aforesaid case, they shall be released on bail on furnishing bail bond of Rs.5,000 (Rupees five thousand) with one surety each for the like amount to the satisfaction of the arresting officer with further conditions that they shall make themselves available for interrogation by the I.O. as & when required & they shall not directly or Indirectly make any inducement, threat or promise to any person acquainted with the facts of the case so as to dissuade them from disclosing any facts to the courts or to the Investigating Officer.

Violation of any of the above conditions shall entail cancellation of bail.

The BLAPL is accordingly disposed of.