IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 11TH DAY OF JULY 2019 BEFORE THE HON’BLE MR. JUSTICE JOHN MICHAEL CUNHA CRIMINAL PETITION NO.3583 OF 2015 BETWEEN:
1. SMT P R NAGAVENI AGED ABOUT 75 YEARS, W/O LATE P.V.RADHAKRISHNA GUPTA, 2. SRI.P.R.BALAJI AGED ABOUT 44 YEARS, S/O LATE P.V.RADHAKRISHNA GUPTA, 3. SRI.P.R.BHASKAR AGED ABOUT 42 YEARS, S/O LATE P.V.RADHAKRISHNA GUPTA, ALL ARE RESIDENTS OF THE PREMISES BEARING NO.88/77, SHIVARAMA KARANTH ROAD, CHIKKALASANDRA, PADMANABHANAGAR, KANAKAPURA MAIN ROAD, BANGALORE-560 061.
... PETITIONERS (BY SRI: C.V.NAGESH, SENIOR ADVOCATE A/W SRI: RAGHAVENDRA K, ADVOCATE) AND 1. STATE OF KARNATAKA BY THE STATION HOUSE OFFICER, KAGGALIPURA POLICE STATION, HAROHALLI CIRCLE, RAMANAGAR DISTRICT-571511.
2. THE TAHSILDAR BANGALORE SOUTH TALUK, BANGALORE-560002.
... RESPONDENTS (BY SRI: VIJAYAKUMAR MAJAGE, ADDL. SPP FOR R1; Ms. NEHA MARIA RAVICHANDER, ADVOCATE FOR SRI: RUTH THOMAS, ADVOCATE FOR R2) THIS CRL.P IS FILED U/S.482 CR.P.C PRAYING TO QUASH THE FIR FILED IN CR.NO.183/2015, DATED 28.5.2015, FOR OFFENCES WHICH ARE MADE PENAL UNDER SECTIONS 344,370(4), 374 OF IPC, U/S 4 OF CHILD LABOUR PROHIBITION AND REGULATION ACT-1986, U/S 23 & 26 OF JUVENILE JUSTICE ACT-1976 AND UNDER SECTIONS 16,17 AND 18 OF THE BONDED LABOUR SYSTEM ABOLITION ACT-1976, PENDING ON THE FILE OF II ADDL. CHIEF JUDICIAL MAGISTRATE, BANGALORE RURAL DIST., BANGALORE.
THIS CRL.P COMING ON FOR ADMISSION THIS DAY, THE COURT MADE THE FOLLOWING:-
O R D E R FIR registered against the petitioners in Crime No.183/2015 for the offences punishable under Sections 344, 370(4), 374 of Indian Penal Code, 1860; Section 4 of the Child Labour (Prohibition & Regulation) Act, 1986; Sections 23, 26 of the Juvenile Justice Act, 1986 and Sections 16,17,18 of the Bonded Labour System (Abolition) Act, 1976 is challenged in this petition.
2. The contention of the Petitioners is that they are businessmen by profession. They are engaged in the business of manufacturing and selling of Agarbathies. They are partners of a business establishment by name M/s.Balaji Agarabathi Company which was established nearly six decades ago by their forefathers. It is a cottage industry and has been carrying on its business activities strictly in terms of the Rules and Regulations that govern the business in which it is engaged. The establishment has been maintaining books of accounts and such other records as required to be maintained. Payments are made to its employees and the same is being acknowledged by them. None of the workmen of the institution have filed any complaint before any authority complaining that they have been asked to work beyond working hours and without any additional benefits or that they have been asked to work and stay in unhygienic conditions. That being the case, on 28.5.2015 certain officials attached to Kaggalipura Police Station along with some revenue officials forcibly entered into the premises of the petitioners’ institution and woke up almost all the employees of the institution who were sleeping in their respective quarters and carried away registers, ledgers, files and other records and papers found in the administrative block of the Institution; the second petitioner was taken to the police station and was detained till next day morning and a false case was filed against the petitioners.
3. Learned Senior Counsel appearing for the petitioners has raised the following contentions:
i) Registration of the crime and investigation undertaken by respondent No.1 is illegal and is liable to be quashed;
ii) Crime has been registered against the petitioners under four different enactments viz;
(a) Sections 344, 370(4), 374 of Indian Penal Code, 1860;
(b) Section 4 of the Child Labour (Prohibition & Regulation) Act, 1986;
(c) Sections 23, 26 of the Juvenile Justice Act, 1986;
(d) Sections 16, 17, 18 of the Bonded Labour System (Abolition) Act, 1976.
iii) Sections 23 and 26 of the Juvenile Justice Act, 1986 do not define any offence. These provisions are applicable only to juvenile offenders. The petitioners not being juvenile offenders, the provisions of the said Act cannot be made applicable to the petitioners and hence registration of FIR under Sections 23 and 26 of the Juvenile Justice Act 1986 cannot have any legal sanctity.
(iv) Section 16 of the Bonded Labour System (Abolition) Act, 1976 makes the conduct of the person who compels other persons to render any bonded labour punishable with imprisonment for the term specified in the Section. In view of Sub Sections (g)(i) to (v) of Section 2 of the Act, without the existence of creditor-debtor relationship, the provisions of the said Act could not have been invoked against the petitioners. It is not the case of the complainant or any of the workmen of the Institution that they had received any sum by way of advance which could be termed as bonded debt. The averments made in the complaint and the contents of the panchanama disclose that the workmen employed by the petitioners were not working in the Institution for any advance obtained by them and therefore, complaint could not have been registered against the petitioners as a crime for the offence which is made penal under Sections 16,17 and 18 of the Bonded Labour System (Abolition) Act, 1976.
(v) Insofar as the invocation of the provisions of Child and Adolescent Labour (Prohibition and Regulation) Act, 1986 is concerned, no “child” as defined under Section 2(ii) of the said Act was found employed in the Institution and as such, registration of FIR under Section 4 of the Act is also illegal and deserves to be quashed.
vi) Insofar as registration of the crime under the provisions of the Indian Penal Code is concerned, it is not the case of the complainant that at any point of time, the petitioners have imported, exported, removed, bought, sold or disposed off any person as a slave. As such, the basic ingredients constituting the offence under Section 370 of Indian Penal Code having been lacking, registration of FIR under Section 370 of the Indian Penal Code is bad in law.
(vii) Section 374 of Indian Penal Code mandates that whoever unlawfully compels any person to labour against the will of that person is liable for imprisonment; but the crime is registered against the petitioners despite there being no averment to the effect that the workman who were found in the institution were compelled to work in their institution against their will.
(viii) Lastly, complaint does not contain any information that the workmen of the Institution were wrongfully confined for a period of more than 10 days so as to attract the offence under Section 344 of Indian Penal Code.
4. To buttress his argument, learned senior counsel has relied on the decision of the Division Bench of this Court in Sri Girishchandra and Another vs. The State by Lokayuktha Police, Yadgir reported in ILR 2013 KAR 983, and emphasized that the FIR having been registered after the search, seizure and arrest of the petitioners, proceedings initiated against the petitioners are vitiated and are liable to be quashed on that score also.
5. Per contra, learned Additional SPP appearing for respondent No.2 argued in support of the impugned action contending that the respondent police has not committed any illegality either in conducting the raid or in registering the FIR.
Referring to the specific averments made in the complaint, learned Additional SPP highlighted that as per the scheme of the Bonded Labour System, the District Magistrate is required to ensure that the provisions of the Act are properly carried out and for the said purpose, he is entitled to exercise all or any of powers under the Act. In the said circumstance, the raid having been conducted under the instructions of the Deputy Commissioner and during the raid, the authorities having confirmed the commission of the offence, there is no illegality in the procedure adopted by the respondents.
6. Insofar as the provisions of law quoted in the FIR, learned Additional SPP would submit that even though the provisions are wrongly quoted in the FIR, the averments made in the complaint as well as the facts recorded in the panchanama clearly make out the offences under the provisions of the Child Labour (Prohibition & Regulation) Act, 1986 and the Juvenile Justice Act, 1986 as well as the Bonded Labour System (Abolition) Act, 1976. The facts averred in the complaint clearly make out the ingredients of the offences under Sections 344, 370(4), 374 of Indian Penal Code, 1860 and since the matter is under investigation, he prayed for dismissal of the petition.
7. Learned counsel appearing for respondent No.2 has filed a detailed memorandum of objections to the criminal petition and inter alia submitted that the facts and circumstances of the case make out strong prima facie case warranting investigation and trial of the petitioners for the offences alleged in the FIR. Relying on the circular issued by the Government of Karnataka No.RDP.13 RBL 2003 dated 29.4.2004, learned counsel further submitted that as per the powers conferred under the Bonded Labour System (Abolition) Act, 1976, the Deputy Commissioner is empowered to file criminal cases against the concerned owners in every confirmed case of bonded labour. In the Instant case, only after confirming that the petitioners herein have committed the alleged offences, FIR has been registered against them; therefore, there is no illegality in the raid conducted by the competent authorities and consequent registration of the FIR as contended by the learned counsel for the petitioners.
8. Referring to the contents of the panchanama, learned counsel highlighted that during raid, large number of migrants and labourers trafficked from various villages in Arunachalpradesh, Assam, Jharkhand, Nepal were found exploited as bonded labourers. None of the labourers found in the factory were from Karnataka which shows that the victims who were unfamiliar with language were engaged in forced labour and as such, none of the victims were on a position to complain to the police or the authorities under the Bonded Labour Act. Contending that the facts averred in the complaint as well as the contents of the panchanama clearly disclose rampant violations of the J.J. Act, Bonded Labour Act as well as the provisions of the Indian Penal Code, learned counsel prayed for dismissal of the petition.
9. Having heard the learned counsels appearing for the respective parties and on examination of the material on record, I find that prima-facie case is made out by the respondents to proceed with the investigation against the petitioners for the offences mentioned in the FIR.
10. The primary objections raised by the learned Senior counsel for the petitioners that raid having been conducted prior to the registration of FIR has vitiated the entire proceedings is concerned, it is noticed from the record that the FIR in question has been registered based on the complaint lodged by the Tahasildar of Bangalore South. The raid was conducted by the Tahasildar pursuant to the directions of the Deputy Commissioner. Though police officials attached to Koggalipura Police Station were part of the raiding team, raid was not conducted by the police as projected by the learned Senior counsel. There are clear recitals in the panchanama that pursuant to the directions of the Deputy Commissioner, the Tahasildar proceeded to the spot along with the panchas and the officials of Kaggalipura Police Station and found 107 people kept in bondage by the petitioners and accordingly he drew up a panchanama and produced the victims as well as the accused before the station house officer Kaggalipura Police Station and lodged the first information report regarding the incident.
11. Section 10 of the Bonded Labour System (Abolition) Act, 1976, confers power on the District Magistrate for implementing the provisions of this Act. As per the said provision, the District Magistrate either by himself or through his subordinates is required to ensure that the provisions of this Act are properly carried out. Further, Section 12 of the said Act casts a duty on the District Magistrate and every officers specified under Section 10 to enquire whether, any bonded labour system or any other form of forced labour is being enforced by, or on behalf of, any person resident within the local limits of his jurisdiction and if, as a result of such inquiry, any person is found to be enforcing the bonded labour system or any other system of forced labour, he shall forthwith take such action as may be necessary to eradicate the enforcement of such forced labour. It is also a matter of record that in terms of the aforesaid provisions of law, the Government of Karnataka has issued a Circular bearing No.RDP.13 RBL 2003 dated 29.04.2004, whereby the Deputy Commissioner is empowered to file criminal cases against the concerned owners in every confirmed case of bonded labour. In the instant case, the Tahasildar having acted in terms of the above Circular and as per the directions of the Deputy Commissioner in terms of Section 10 and 12 of the Act, the proceedings conducted by the Tahasildar cannot be construed as investigation within the meaning of the chapter XII the Criminal Procedure Code. Since the FIR was registered against the petitioners based on the first information report lodged by the Tahasildar, and formal investigation having been commenced only after the registration of the FIR, there is no illegality either in the registration of the FIR or in the investigation carried out by respondent No.1. As a result, the objection raised by the petitioners in this regard is liable to be rejected and is accordingly rejected.
12. Coming to the next contention that the facts of the case do not prima-facie make out the ingredients of the Bonded Labour System (Abolition) Act, 1976 is concerned, suffice to note that Section 2(g) of the Act defines “bonded labour system” as under:
2(g). “bonded labour system” means the system of forced, or partly forced, labour under which a debtor enters, or has, or is presumed to have, entered, into an agreement with the creditor to the effect than,-
(i) in consideration of an advance obtained by him or by any of his lineal ascendants or descendants (whether or not such advance is evidenced by any document) and in consideration of the interest, if any, due on such advance, or (ii) in pursuance of any customary or social obligation, or (iii) in pursuance of an obligation devolving on him by succession, or (iv) for any economic consideration received by him or by any of his lineal ascendant or descendants, or (v) by reason of his birth in any particular caste or community, - he would -
(1) render, by himself or through any member of his family, or any person dependent on him, labour or service to the creditor, or for the benefit of the creditor, for a specified period or for an unspecified period, either without wages or for nominal wages, or (2) forfeit the freedom of employment or other means of livelihood for a specified period or for an unspecified period, or (3) forfeit the right to move freely throughout the territory of India, or (4) forfeit the right to appropriate or sell at market value any of his property or product of his labour or the labour of a member of his family or any person dependent on him, and includes the system of forced, or partly forced, labour under which a surety for a debtor enters, or has, or is presumed to have, entered, into an agreement with the creditor to the effect that in the event of the failure of the debtor to repay the debt, he would render the bonded labour on behalf of the debtor;
[Explanation- For the removal of doubts, it is hereby declared that any system of forced or partly forced labour under which any workman being contract labour as defined in clause (b) of sub-section (1) of section 2 of the Contract Labour (Regulation and Abolition) Act, 1970 (37 of 1970), or an Inter- State migrant workman as defined in clause (e) of sub-section (1) of section 2 of the Inter-State Migrant Workmen (Regulation of Employment and Conditions of Service) Act, 1979 (30 of 1979), is required to render labour or service in circumstances of the nature mentioned in sub-clause (1) of this clause or is subjected to all or any of the disabilities referred to in sub-clauses (2) to (4), is “bonded labour system” within the meaning of this clause] 13. Explanation to the above provision leaves no manner of doubt that every case of forced or partly forced labour under which any workman being Contract Labour (Regulation and Abolition) Act, 1970 or an Inter-State migrant workman as defined in clause (e) of sub-section (1) of section 2 of the Inter- State Migrant Workmen, fall within the ambit the bonded labour system. In the instant case, though the petitioners have taken up a contention that all the victims were lawfully employed by the petitioners in the business activity carried out in the manufacture and sale of Agarbathies and none of the employees had lodged any complaint either to the police or to any competent authority constituted under the Act, yet, the contents of the panchanama and the statements of the victims as well as the release certificate issued by the Sub-Divisional Magistrate prima-facie indicate that all the victims were forced to work in the business of manufacturing activities against their wish and without reasonable wages. Almost all the victims were migrants unfamiliar with the local language and were kept in sheds. In the wake of these allegations and the material relied on by the respondents, which prima-facie disclose rampant violations of the above Act, I am not inclined to accept the argument of the learned counsel for the petitioners that the provisions of Bonded Labour System (Abolition) Act 1976 are not attracted to the facts of the case. As a result, even this contention is also rejected.
14. The next line of argument advanced by the learned counsel for the petitioners based on the provisions of law quoted in the FIR also does not merit acceptance. No doubt, it is true that the FIR is registered against the petitioners under Sections 23 and 26 of Juvenile Justice Act 1986 which has been repealed as on the date of registration of the FIR and Sections 23 and 26 of Juvenile Justice Act 1986 does not define any offence as rightly pointed out by the learned counsel for the petitioners. But, that by itself cannot be a reason to quash the FIR. Mere quoting of wrong provisions of law does not lead to the quashing of the entire FIR, if the investigating agency has inherent powers to enquire to the allegations constituting the criminal offences. A reading of first information report lodged by the Tahasildar clearly discloses the ingredients of the offences under Sections 23 and 26 of the Juvenile Justice (Care and Protection of Children) Act, 2000 (56 of 2000) which read thus:
“23. Punishment for cruelty to juvenile or child. – Whoever, having the actual charge of, or control over, a juvenile or the child, assaults, abandons, exposes or wilfully neglects the juvenile or causes or procures him to be assaulted, abandoned, exposed or neglected in a manner likely to cause such juvenile or the child unnecessary mental or physical suffering shall be punishable with imprisonment for a term which may extend to six months, or fine, or with both.”
“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 and 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 and shall also be liable to fine.”
15. There are clear averments in the FIR to the effect that the victims found in the sheds were aged between 13 and 40 years. Under the Act of 2000, a “Juvenile” is defined as a person who has not completed 18 years above the age. As there are clear averments that a “Juvenile” within the meaning of the Act of 2000 were exposed to mental and physical sufferings and were exploited, even the ingredients of these provisions are attracted to the facts of this case.
16. Though it is argued by the learned counsel for the petitioner that the victims were not employed in any hazardous employment, yet the said issue cannot be determined at this stage. Having regard to the age of the victims, whether their employment in the manufacture of agarbathies is hazardous to the health and welfare of the victims could be decided only after the investigation is completed. As a result, this plea is also liable to be rejected.
17. Lastly, coming to the registration of the FIR under Sections 344, 370(4) and 374 of IPC is concerned, the facts discussed above in my view, clearly make out the ingredients of the above offences. There are clear allegations that 107 persons including children aged between 13 and 18 years were kept in wrongful confinement for more than 10 days and that they were induced to work in the manufacturing unit without giving proper payments or benefits and were unlawfully compelled to work against their will. These allegations squarely attract the ingredients of Sections 344, 370(4) and 374 of IPC. As a result, I do not find any justifiable reason to quash the FIR as sought for in the petition. Consequently, the petition is liable to be rejected and is accordingly rejected.
Sd/- JUDGE rs