Allowed

Santosh Kolanki v. State of U.P.

Allahabad HC2 Aug 2019CRLR/1948/2002

Case brief

AI extract

What is this about?

This court allowed the criminal revision, setting aside the conviction and sentence for violating the Child and Adolescent Labour Act. The court held that the prosecution failed to produce an age certificate under Rule 17 of the 1988 Rules and could not establish the place of business, rendering the conviction unsustainable.

What did the court decide?

The conviction and sentence are set aside. The accused is on bail; bail bonds cancelled and sureties discharged.

Santosh Kolanki Vs State of U.P. — Constitutional and Fundamental Rights | Allahabad HC (2019)

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Reserved On 15.07.20119

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Delivered on 02.08.2019

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Court No. - 28

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Case :- CRIMINAL REVISION No. - 1948 of 2002 Revisionist :- Santosh Kolanki Opposite Party :- State Of U.P. Counsel for Revisionist :- Apul Misra,G.S.Gupta,G.S.Mishra,Hemendra Pratap Singh,S.C. Singh,Sujan Singh,Suresh Chandra Pandey

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Counsel for Opposite Party :- Govt. Advocate, ,Puneet Mishra,Puneet Srivastava,Suresh Chand Pandey,Vikrant Neeraj

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Hon'ble Rajeev Misra,J.

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The present criminal revision has been filed challenging the judgement and order dated 27.11.2002 passed by the Special Judge (E.C. Act)/Additional Sessions Judge, Aligarh in Criminal Appeal No. 82 of 2001 (Santosh Kalanki Vs. State of U.P.) whereby the above mentioned appeal has been dismissed and the order dated 10.08.2001 passed by the Chief Judicial Magistrate, Aligarh in Case No. 1908 of 1997 (State Vs. Santosh Kalanki) under Section 14 of the Child and Adolescent Labour (Prohibition and Regulation) Act, 1986 convicting the revisionist for three years imprisonment and fine of Rs.2000/- has been affirmed.

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I have heard Mr. Hemendra Pratap Singh, learned counsel for the revisionist and the learned A.G.A. for the State.

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It transpires from the record that a complaint under Section 14 of the Child and Adolescent Labour (Prohibition and Regulation) Act, 1986 was filed by the Labour Enforcement Officer, Aligarh against the accused/revisionist Santosh Kalanki. It is the case of the prosecution that on 18.03.1997, the complainant L. S. Gupta, Labour Enforcement Officer, Aligarh visited the premises of the accused/revisionist alongwith Pradeep

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Kumar, Senior Clerk and Girish Chandra, Junior Clerk, respectively, four children who were less than 14 years of age were found to be working in the said premises. It was further alleged that the sheet containing the details of the child labourers was snatched and torn. An F.I.R. to that effect had been lodged at the concerned police station. On the aforesaid factual premised, it was prayed that the accused/revisionist be punished. 4. The complaint proceeded like a summary trial and the statement of the accused/revisionist was recorded on 06.03.1999. The accused denied the engagement of child labour. P.W.-1 Laxmi Narayan Gupta, Labour Enforcement Officer and P.W.-2 Pradeep Kumar Saxena, Senior Office Assistant in the Office of the Assistant Labour Commission Aligarh were examined. The accused/revisionist in his statement under Section 313 Cr.P.C. denied the engagement of any child labour and further alleged that both the prosecution witnesses had demanded Rs.500/- from the accused/revisionist and on failure to pay the same, a false complaint has been filed. Accused/revisionist does Cloth Business and to harass him, false criminal proceedings have been initiated. P.W.-1, Laxmi Narayan Gupta in his statement before the court below stated that the commercial organization of the accused revisionist was inspected on 18.03.1997 and four child workers were found to be working. The paper on which details of the children were noted has been torn by the accused/revisionist and therefore, the details of the child workers could not be entered. Accordingly, the photocopy of the inspection memo has been filed which has been proved by P.W.-1 and consequently, marked as Ext.1. Similar statement was made by P.W.-2. The court below considered the defence of the accused/revisionist and on that basis convicted the accused/revisionist and consequently, sentenced him to three month rigorous imprisonment alongwith fine of Rs.20,000/-

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Feeling aggrieved by order dated 08.08.2001 the passed by the C.J.M., Aligarh, the revisionist filed an appeal, which was dismissed by Special Judge (E.C. Act)/ Additional Session Judge, Aligarh.

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Learned counsel for the revisionist has invited the attention of the Court to the provisions of Section 11 of the Child and Adolescent Labour (Prohibition and Regulation) Act, 1986, (hereinafter referred to as Act, 1986) which is as under:-

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“ 11. Maintenance of register.-- There shall be maintained by every occupier in respect o[ (adolescent] employed or permitted to work in any establishment, a register to be available for inspection by an Inspector at all times during working hours or when work is being carried on in any such establishment, showing--

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(a) the name and date of birth of every [adolescent] so employed or permitted work;

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(b) hours and periods of work of any such [adolescent] and the intervals of rest to which he is entitled;

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(d) such other particulars as may be prescribed. ”

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On the basis of the provisions contained in Section 11 of Act, 1986 learned counsel for the revisionist submits that there was no such material collected by the complainant on the basis of which it could be proved that the accused/revisionist had employed child labourers in his commercial organization.

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Reference was also made to Section 14 (c) of Act, 1986. On the basis of the aforesaid, it is submitted that in case any child labourer was employed by the accused revisionist it was the duty of the complainant to recover such child and rehabilitate him as per the mandate of Section 14(C) of Act, 1986. There is no evidence in that regard. Simply on the basis of hearsay evidence the accused revisionist has been convicted of the offence alleged against him. It is further submitted that in the absence of any material to show that the age of the alleged child labourers was

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below the prescribed minimum of Rule 17 of The Child and Adolscent Labour (Prohibition and Regulation) Rules, 1988 (hereinafter referred to as 1988 Rules) was not complied with. Thus, merely on the basis of hearsay evidence, the accused revisionist has been convicted. For ready reference Rule 17 of 1988 Rules is reproduced herein under:-

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“ 17. Certificate of Age.-- (1) Where an Inspector has an apprehension that any adolescent has been employed in any of the occupation or processes in which he is prohibited to be employed under Section 3-A of the Act, he may require the employer of such adolescent to produce to the Inspector a certificate of age from the appropriate medical authority.

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(2) The appropriate medical authority shall while examining an adolescent for issuing the certificate of age under sub-rule (1), take into account--

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(i) The Aadhaar card of the adolescent, and in the absence thereof;

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(ii) the date of birth certificate from school or the matriculation or equivalent certificate from the concerned examination Board of the adolescent, if available, and in the absence thereof;

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(iii) the birth certificate of the adolescent given by a corporation or a municipal authority or a Panchayat;

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and only in the absence of any of the methods specified in clauses (i) to (iii), the age shall be determined by such medical authority through an ossification test or any other latest medical age determination test.

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The ossification test or any other latest medical age determination test shall be conducted on the order of the appropriate authority of the rank of Additional Labour Commissioner, as may be specified by the Central Government in this behalf, and such determination shall be completed within fifteen days from the date of such order. \

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(4) The certificate of age referred to in sub-rule (1) shall be issued in From B.

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(5) The charges payable to the medical authority for the issue of the certificate of age shall be same as specified by the Central Government or the State Government, as the case may be, for their Medical Boars.

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(6) The charges payable to the medical authority shall be borne by the employer of the adolescent whose age is determined under this rule.”

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Having gone through the re cord, I find that except for the photocopy of the alleged inspection memo no other document was filed by the complainant before the court below. The mandatory provisions of Rule 17 of 1988 Rules were not complied with to ascertain the age of the child labourers. Consequently, there was no material before the court below to assume that child labourers were employed in the commercial organization of the accused/revisionist. Once the prosecution could not prove the age of the alleged child labourers alleged to be employed by the accused/revisionist as required by 1988 Rules, the accused revisionist cannot be guilty of the offence alleged against him.

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Apart from the above the court finds that the place of commercial organization of the accused/revisionist could not be specifically established by the complainant or his witnesses. Thus the conviction awarded to the accused/revisionist by the court below is unsustainable in law and therefore, liable to be set aside.

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For all the reasons given herein above, the present criminal revision succeeds and is allowed. The conviction and sentence awarded to the revisionist vide judgement and order dated 18.08.2001 passed by the C. J.M. Aligarh as affirmed by the Special Judge (E.C.Act)/Additional Sessions Judge, Aligarh are set aside. The accused/revisionist is on bail. His bail bounds are cancelled and the sureties are discharged.

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Order Date :- 02.08.2019 YK

Santosh Kolanki v. State of U.P.

Case brief

What is this about?

What did the court decide?

Santosh Kolanki v. State of U.P.

Case brief

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What did the court decide?

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