Partly allowed

Kumar S/O Ashok Kadam v. the State of Karnataka through

Karnataka HC22 Dec 2020CRL.RP/2098/2012

Case brief

AI extract

What is this about?

The High Court of Karnataka partly allowed a criminal revision petition against a conviction for employing children. While the court disagreed with the description of the work as 'hazardous', it held the accused fell within the ban on child labour for repair and lathe work, confirming the conviction but modifying the fine and compensation amount.

What did the court decide?

Petition partly allowed; conviction confirmed; fine enhanced to Rs.40,000; compensation to child labourers increased to Rs.20,000 each.

Kumar S/O Ashok Kadam Vs the State of Karnataka… — Criminal Trial and Appeal | Karnataka HC (2020)

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IN THE HIGH COURT OF KARNATAKA DHARWAD BENCH

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DATED THIS THE 22^ND DAY OF DECEMBER, 2020

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BEFORE

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THE HON’BLE MR. JUSTICE PRADEEP SINGH YERUR

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CRIMINAL REVISION PETITION NO.2098/2012MOHANKUMARB SHELAR Digitally signedbyMOHANKUMARB SHELARDate:2020.12.2317:51:49 +0530

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BETWEEN:

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KUMAR S/O.ASHOK KADAM, AGE : 27 YEARS, OCC : OWNER OF JYOTI ENGINEERING WORKS, BADACHIKAR STREET, NEAR BUS STAND, BANAHATTI, TQ : JAMKHANDI, DIST : BAGALKOT.

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... PETITIONER

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(BY SRI SHIVARAJ P.MUDHOL, ADVOCATE)

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AND:

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THE STATE OF KARNATAKA THROUGH JAMKHANDI TOWN POLICE STATION, REPRESENTED BY STATE PUBLIC PROSECUTOR, HIGH COURT OF KARNATAKA, CIRCUIT BENCH, DHARWAD.

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... RESPONDENT

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(BY SRI RAMESH CHIGARI, H.C.G.P.)

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THIS CRIMINAL REVISION PETITION IS FILED UNDER SECTION 397 R/W. SECTION 401 OF CR.P.C., PRAYING TO SET ASIDE THE JUDGMENT DATED 11.04.2012 IN CRIMINAL APPEAL NO.70/2011 PASSED BY THE FAST TRACK COURT, JAMKHANDI AND JUDGMENT OF CONVICTION DATED 22.08.2011 IN

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C.C.NO.308/2009 PASSED BY CIVIL JUDGE AND J.M.F.C., BANAHATTI AND TO ACQUIT THE PETITIONER BY ALLOWING THIS PETITION.

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THIS PETITION COMING ON FOR ADMISSION THIS DAY, THE COURT MADE THE FOLLOWING:

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ORDER

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This petition is preferred by accused being

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aggrieved by the Judgment of conviction passed by Civil Judge and J.M.F.C., Banahatti in C.C.No.308/2009 dated 22.08.2011 convicting the

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accused for the offence punishable under Section 3 of Child Labour (Prohibition and Control) Act, 1986 (for short the ‘Act’) and sentencing the accused to undergo simple imprisonment for a period of three months and pay fine amount of Rs.15,000/-, in default to undergo simple imprisonment for a period of 22 days and out of fine amount, Rs.5,000/- each to be awarded as compensation amount to both child labourers, which is confirmed by Fast Track Court, Jamkhandi in Criminal Appeal No.70/2011.

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For the sake of convenience, parties herein

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shall be referred to as per their status before the trial Court.

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Brief facts leading to filing of this petition are as under :

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The petitioner/accused is running a business under the name and style of “Jyoti Engineering Works”, situated at Badachikar street, near Bus stand, Banahatti. On 20.12.2008, when complainant made joint inspection of the shop of the accused along with Labour Officers, Bagalkote, Medical Officer and Labour Inspector, Mudhol. They found two boys namely Ahamad Mubarak Mulla and Mahammad Mubarak Mulla aged below 13 to 14 years employed in the accused workshop. The Medical Officer examined the boys on the spot and issued age certificates in respect of said boys, Child Labourers. Thereafter, the statements of two child labourers were recorded separately at the spot and

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signatures of the child labourers and owner of workshop were taken. Though, notice was issued to the owner, accused herein, but no objections were submitted by accused within 07 days. Therefore, after the age certificate from the schools of the minor boys were secured and it was found that the child labourers were below the age of 14 years and accused had employed them for salary, thereby accused committed an offence punishable under Section 3 of the Act. After the complaint was presented, the sworn statement was dispensed with in view of the fact that complainant was a Government servant as per Section 200 of Cr.P.C. Thereafter, cognizance was taken and on receipt of summons, accused appeared before the Court and was released on bail. Thereafter, plea of the accused was recorded and he pleaded not guilty and claimed to be tried, accordingly, he was tried.

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In order to prove the guilt of accused,

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prosecution examined in all three witnesses as P.Ws.1 to 3 and got marked Exs.P.1 to 8 and closed the evidence. Thereafter, the statement of accused was recorded under Section 313 of Cr.P.C., wherein accused denied all the incriminating evidence against him and however, he has been examined as D.W.1.

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On the basis of material evidence and

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documents, the trial Court came to the conclusion that accused was running a hazardous workshop as contemplated in the Schedule of the Act and employed the two child labourers namely, Ahammad Mubarak Mulla and Mahammad Mubarak Mulla, who are below the age of 14 years in his workshop for salary and thereby committed an offence punishable under Section 3 of the Act; thereby convicted the accused for the aforesaid offence and sentenced to undergo simple imprisonment for a period of three

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months and pay a fine of Rs.15,000/-, in default, to to undergo simple imprisonment for a period of 22 days; further, it was ordered that out of the fine amount, a sum of Rs.5,000/- each was awarded as compensation to the child labourers.

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Aggrieved by the judgment of conviction, the accused filed an appeal before the Fast Track Court, Jamkhandi in Crl.A.No.70/2011. On appreciation of the entire material evidence and documents and on re-evaluating the evidence adduced by the parties, the Appellate Court came to the conclusion that the accused was unable to prove any of the grounds urged to set aside the judgment of conviction and dismissed the appeal by confirming the judgment of conviction passed by the trial Court.

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Heard Sri Shivaraj P.Mudhol, learned counsel for the petitioner and the learned High Court Government Pleader for the respondent-State.

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It is contended by the learned counsel for the petitioner that the judgment of conviction

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passed by the trial Court and affirmation of the same by the Appellate Court is contrary to the material evidence i.e. both oral and documentary and hence, the same is erroneous and not sustainable in law. He further contends that the finding of the trial Court that the accused is carrying on the hazardous work, is illegal and arbitrary in

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view of the fact that the accused is carrying on the work of repair of pump set and lathe work. Therefore, the business of doing lathe work and repair of pump set would not come within the definition of hazardous process. Therefore, the finding arrived by the trial Court is perverse, illegal and contrary to the material records.

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The learned counsel further contends that

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the prosecution is failed to prove the guilt of the accused beyond all reasonable doubt. He further

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contends that the evidence adduced by PW.2-Doctor is far from truth and the same cannot be believed, as PW.2-Doctor himself has testified that he has not conducted any dental examination of the minor boys, child labourers. The learned counsel further contends that no proper age certificate from the competent Authority has been produced by the prosecution to establish the correct age of the child labourers. He further contends that the prosecution has not examined any independent witnesses and therefore, the entire process of investigation is vitiated. He contends that doing lathe work and repair of pump set cannot be termed as hazardous process as concluded by the trial Court and the Appellate Court. Therefore, viewed from any angle, the judgment of conviction on the basis of the accused is involved in the hazardous process, is not correct and hence, the same deserves to be set aside and reversed. On the basis of these submissions, the learned counsel seeks to allow the

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petition and consequently, to set aside the judgment of conviction passed by both the Courts.

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Per contra , the learned High Court

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Government Pleader contends that the judgment of conviction passed by the trial Court and affirmed by the Appellate Court is based on the material evidence i.e. both oral and documentary and the same is in accordance with law. Hence, there is no requirement for this Court to interfere with the concurrent finding of both the Courts. He further contends that all the prosecution witnesses and Exs.P5 and P6-Medical Certificates issued by the

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Chief Medical Officer have supported the case. As per Section 16(2) of the Act, every certificate as to the age of a child which has been granted by a prescribed medical authority shall, for the purposes of this Act, be conclusive evidence as to the age of the child to whom it relates. He further contends that Exs.P7 and P8-Birth Certificates issued by the

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Head Master, Government School, Banahatti,

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Jamkhandi Taluk, Bagalkot District clearly show that the Date of Birth of both the children who are child labourers is 10.06.1996. Therefore, the age of the child labourers as on the date of the incident i.e. 20.12.2008 is 12 years 6 months 10 days. Therefore, as per Section 2(ii) of the Act, “child” means a person who has not completed his fourteenth year of age. He contends that in the present case, admittedly, as on the date of the incident, the minor children are aged about 12 years 06 months 10 days which falls within the definition of “child” as contemplated under Section 2(ii) of the Act. He further contends that it is also admitted by the accused that he has not made any entry in the books and does not maintain any books or ledger to show that these two minor children are not below the age of 14 years. The accused is also not having any licence to run the unit. However, he admits the signature in the statement made by him. He has also

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admitted the fact that he has done his education till II year Pre University.

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It is also contended by the learned

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Government Pleader that in the statement recorded under Section 313 of Cr.P.C., apart from denying all the questions, no explanation is given or defence is taken by the accused. In view of the fact that all the prosecution witnesses have supported the case, the trial Court has rightfully convicted the accused for the aforesaid offence. PW.1 is none other than the Labour Inspector, PW.2 is the Chief Medical Officer, who examined the child labourers and PW.3 is the Labour Inspector in Mudhol. Therefore, all these three witnesses are independent witnesses who do not have any ill-will against the accused. Therefore, the evidence of these witnesses cannot be doubted. PWs.1 to 3-the official witnesses are performing their duty as public servants and in the crossexamination, nothing worthwhile has been elicited

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by the accused to show before this Court that there

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is any malice against the accused. The important aspect according to the learned Government Pleader is the age of the child labourers is less than 14 years. When these two child labourers were apprehended from the spot, it is the duty of the accused to provide an explanation as to what these minor child labourers were doing in his place of business namely, Jyoti Engineering Works, which has not been stated by the accused. On the basis of these submissions, the learned Government Pleader seeks to dismiss the petition and confirm the judgment of conviction passed by both the Courts.

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Having heard the learned counsel for the petitioner and the learned High Court Government Pleader, the point that arises for consideration before this Court is:

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“Whether there is any illegality and perversity in the impugned

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judgment of conviction passed by both the Courts?”

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In order to answer this point, it is

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necessary to have a cursory look at the facts of the case and material placed before the Court.

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It is not in dispute that the accused is

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running a business under the name of style of ‘Jyoti Engineering Works’ situated Badachikar street, near bus stand at Banahatti. It is also not in dispute that when the joint inspection was made by the complainant along with the Labour Officer, Bagalkot, the Medical Officer and the Labour Inspector, Mudhol, two boys namely, Ahammad Mubarak Mulla and Mahammad Mubarak Mulla, who are below the age of 14 years were found in his workshop. It is also not in dispute that as per Exs.P5 and P6 – Medical Certificates issued by the Chief Medical Officer, as on the date of the incident, the age of the boys are 12 years 06 months 10 days. It is also

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not in dispute that as per Exs.P7 and P8- Birth Certificates issued by the Head Master, Government School, Banahatti, Jamkhandi Taluk, Bagalkot District, the age of the boys are less than 14 years.

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On the basis of inspection conducted, an inspection note was prepared and the accused was provided with an opportunity to file his objections. Since no objections were filed, the complaint came to be filed against the accused for the offence punishable under Section 3 of the Act. PWs.1 to 3 have supported the case of prosecution and the prosecution has got marked the documents as Exs.P1 to P8.

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Though accused has stepped into witness box and led-in evidence as DW.1, nothing worthwhile has been elicited by accused either in crossexamination of PW.1 to PW.3 or in his own evidence. It is also not the case of accused that he was not running business in the name of Jyoti Engineering

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Works. In fact it is admitted by accused that he is doing lathe work and repair of pump sets. The defence taken by accused is that business of lathe work and pump set repairs do not come within the definition of Part A and Part B of Schedule of the Act. Therefore, since he does not come within any of the business stipulated in Part A and B of Schedule of the Act, the provisions of section 3 of the Act would not be attracted and he has not committed any offence under the said provisions.

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It is further defence of accused that inspection was carried out by complainant along with PW.1 to PW.3, signatures were obtained on green paper and misused to implicate him in the false case. Apart from making bald vague statements, no cogent material evidence is produced by accused to substantiate his case and neither has he elicited any worthwhile evidence in his favour in crossexamination of prosecution witnesses. However it is

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not for accused to prove the case but it is for prosecution to prove the guilt of accused beyond all reasonable doubt. Let us see whether prosecution has proved the case beyond all reasonable doubt.

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Primarily to attract provisions of section 3 of the Act, prosecution will have to prove that accused has employed or permitted to work a child as defined under section 2(ii) of the Act as set forth in Part A and B of schedule stipulated in the Act. In view of the above, it is essential to extract definition of child which reads as under:

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“Section 2(ii) – ‘Child’ means a person who has not completed his 14 years of age.”

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In the present case as per Exs.P.5 and P.6 medical certificates issued by PW.2, Chief Medical Officer, the age of minor children, child labourers are 12 years 6 months. So also Exs.P.7 and P.8 which are the School Birth Certificates issued by

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Government School, Banahatti, the age of the

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children are below 14 years.

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In order to implicate accused for the

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offence stated above, prosecution will have to prove that accused is doing business or conducting any workshop wherein any process as set forth in Part A and B of schedule of the Act is carried out. Admittedly in cross-examination of DW.1 accused has admitted that he is involved in doing lathe machine work, pump set repair. On a careful examination of Part B of schedule to the Act, it is seen, as per Sl.No.(20) of part B of the Schedule to the Act states automobile repairs and maintenance including processes incidental thereto, namely, welding, lathe work dent beating and painting. As per this clause, accused is very well within this clause where he is doing business in the name of Jyoti Engineering Works in lathe work. So, admittedly the workshop that is run by accused is a

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process doing in lathe work. On going through the finding of trial Court, it is seen that trial Court and appellate court have come to a conclusion that accused is running hazardous workshop as contemplated in the Schedule to the Act. The definition ‘hazardous work’ is defined in clause (15) of Part B of Schedule of the Act is defined under section 2(cb) and ‘dangerous operations’ as notified in rules made under section 87 of the Factories Act.

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The definition ‘hazardous process’ which is defined in clause 2(cb) of the Factories Act means, any process or activity in relation to an industry specified in the First Schedule where, unless special care is taken, raw materials used therein or the intermediate or finished products, bye-products, wastes or effluents thereto would cause material impairment to the health of the persons engaged in or connected therewith or result in the pollution of the general environment.

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On perusal of the definitions described, I do not agree with the finding of the trial Court as well as appellate Court with regard to employment of workshop being carried out by accused or with of hazardous process as defined under the Act. However accused will come squarely within the definition of clause (20) of Part B of Schedule to the Act, wherein lathe work and automobile repairs and maintenance are involved. Therefore accused will certainly come within the purview of section 3 of the Act, where there is a prohibition for employment of children in certain activities and processes.

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Apart from the finding of fact with regard to whether petitioner comes within the definition of hazardous process or within the definition of lathe work and automobile repairs and maintenance, I do not find any other reason to interfere with the judgment of conviction passed by both Courts. Therefore I am of the opinion that the conclusion

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arrived at by trial Court that accused is running a hazardous workshop is not correct. But it is no doubt true that accused would squarely fall within the definition of processes as defined in part B to the Schedule of the Act. Nevertheless accused has certainly committed an offence punishable under section 3 of the Act though there has been variation in description of the work performed by accused. Therefore having considered all these materials, I do not find any reason to interfere with the conviction ordered by trial Court and affirmed by appellate Court. Hence, I answer point No.1 in the negative.

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However, as contemplated under section 14 of the Act, any offence punishable under section 3 of the Act are punishable with imprisonment which may extend to one year or with fine which shall not be less than Rs.10,000/- but which may extend to Rs.20,000/- or with both. In view of the above, the sentence of imprisonment ordered by trial Court

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requires to be modified. Accordingly I pass the following order.

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ORDER

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(i) Petition is partly allowed.

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(ii) The judgment of conviction dated 22.8.2011, passed by Civil Judge and JMFC, Banahatti, in C.C.No.308/2009 and confirmed by Fast Track Court, Jamakhandi, in Crl.A.No.70/2011, by judgment dated 11.4.2012 is hereby sustained and confirmed.

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(iii) Accused is sentenced to pay a fine of Rs.40,000/- and in default of payment of fine, accused shall undergo simple imprisonment for a period of three months for the offence punishable under section 3 of the Child Labour Prohibition and Regulation Act, 1986.

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(iv) Out of the fine amount, Rs.20,000/- each shall be paid as compensation to both children

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namely Ahmed Mubarak Mulla and Mohammad

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Mubarak Mulla.

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Sd/JUDGE

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CKK/LB/MRK

Kumar S/O Ashok Kadam v. the State of Karnataka through

Case brief

What is this about?

What did the court decide?

Kumar S/O Ashok Kadam v. the State of Karnataka through

Case brief

What is this about?

What did the court decide?

What the court decided

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