(Prayer: Crl.P Filed U/S.438 Cr.P.C By The Advocate For The Petitioner Praying That This Hon'ble Court May Be Pleased To Enlarge Thel Petitioner On Bail In The Event Of Arrest, In Crime No.288/2014 Of Chamarajapet Police Station, Bangalore City, For The Offences P/U/S 370,370a Of Ipc And U/S 3,14 Of Karnataka Child Labour (Prohibition And Regulation) Act And U/S 23 and 26 Of Juvenile Justice Act, 1986 And Etc.)
1. This petition is filed under Section 438 of Cr.P.C. seeking anticipatory bail in respect of a case registered against the petitioners, who are accused Nos.1 and 2 in Cr.No.288/2014 by Chamarajpet Police Station. Offences are punishable under Sections 370, 370A of IPC, Sections 3 and 14 of the Child Labour (Prohibition and Regulation) Act, 1986 and Section 23, 25 of Juvenile Justice Act.
2. Bail application filed on behalf of the petitioners has already been dismissed by the Court of the Addl. City Civil and Sessions Judge, Bangalore on 2.2.2015 in Crl.Mis.Nos.1/2015 and 2/2015. The petitioners are apprehending arrest at the hands of the respondent police and hence they have approached this Court seeking anticipatory bail.
3. The learned Government Pleader has filed detailed objections opposing the bail application.
4. Heard the learned counsel for the parties and perused the records.
5. The case on hand relates to employment of about 8 children below 18 years in a factory manufacturing leather bags at Bangalore. Petitioner Nos.1 and 2 are stated to be the owners of factory run under the name and style of "Nine Dots" situated at Babuline Nizamuddin Mohalla, Mysore Road Cross, Bangalore. Oasis India is a Non Governmental Organization working for the welfare of the children and women. They gave information to the respondent police that the owners of this factory had engaged children to manufacture bags and these children have been brought from Bihar with the help of touts and that they have virtually been forced to work and it is in the form of servitude. On receipt of the said information from Oasis India, Police Inspector Smt.Chandrakala attached to AHTCID, CID wing of Police, Bangalore along with the legal advisor of Oasis India and the officers of the Karnataka Labour Department went near the factory and the factory was identified by the legal advisor of Oasis India. The factory was surrounded by these people and found as many as eight minor children being engaged in manufacturing travel bags. Out of them, two boys were aged 12 years and other boys were aged between 16 to 17 years. Out of the said eight boys, two boys were from Nepal and others were from Bihar. At that time, neither the owners nor touts, who had brought these children to work in the factory were available. All the eight children were taken to safe custody and subsequently restored to their parents.
6. A report was submitted by Smt.Chandrakala, Police Inspector, CID Bangalore to the respondent Police, on the basis of which, a case came to be registered in Crime No.288/2014. Since, petitioners who are the owners of the said manufacturing unit are apprehending arrest at the hands of the respondent police, they have filed this petition.
7. Sri.Mohammad Tahir, learned counsel for the petitioners has vehemently argued that prima facie provisions of Section 370 and 370A of IPC are not applicable to the facts of the present case and at the best provisions of Section 3 and 14 of Child Labour (Prohibition and Regulation) Act, 1986 are applicable. It is further argued that only two children out of eight children were below 14 years and hence Sections 3 and 14 of the above Act are not applicable to the children who are aged above 14 years. It is argued that by no stretch of imagination, provisions of Section 370 and 370A of IPC as amended by Act 13 of 2013 could be made applicable in the present case. It is argued that maximum punishment that could be awarded under Section 14 of the Act could extend upto one year with fine it shall not be less than Rs.10,000/- and could extend to Rs.20,000/- or with both and that the case is exclusively triable by the learned JMFC. Hence, he requests to allow the bail application and grant anticipatory bail as prayed for.
8. Per contra Sri.B.Venkatesh, SPP has opposed the bail application on the ground that provisions of Section 370 and 370A of IPC are prima- facie applicable to the facts of the case more particularly in the light of amendment carried out to Section 370 of IPC vide Act 13 of 2013. He has argued that whoever is involved in trafficking of a minor, such person will be punished with rigorous imprisonment for a term which shall not be less than ten years which may extend to imprisonment for life along with fine. He has further argued that if more than one minor is trafficked, such person will be punished with rigorous imprisonment for a term which shall not be less than fourteen years and punishment may extend to imprisonment for life along with fine. It is better to look to Section 370 of IPC as amended vide Act 13 of 2013.
"370. Trafficking of person: (1) Whoever, for the purpose of exploitation, (a) recruits, (b) transports, (c) harbours, (d) transfers, or (e) receives, a person or persons, by--
First.-- using threats, or Secondly.-- using force, or any other form of coercion, or Thirdly.-- by abduction, or Fourthly.-- by practising fraud, or deception, or Fifthly.-- by abuse of power, or Sixthly.-- by inducement, including the giving or receiving of payments or benefits, in order to achieve the consent of any person having control over the person recruited, transported, harboured, transferred or received, commits the offence of trafficking.
Explanation 1.-- The expression "exploitation" shall include any act of physical exploitation or any form of sexual exploitation, slavery or practices similar to slavery, servitude, or the forced removal of organs Explanation 2.-- The consent of the victim is immaterial in determination of the offence of trafficking.
(2) Whoever commits the offence of trafficking shall be punished with rigorous imprisonment for a term which shall not be less than seven years, but which may extend to ten years, and shall also be liable to fine.
(3) Where the offence involves the trafficking of more than one person, it shall be punishable with rigorous imprisonment for a term which shall not be less than ten years but which may extend to imprisonment for life, and shall also be liable to fine.
(4) Where the offence involves the trafficking of a minor, it shall be punishable with rigorous imprisonment for a term which shall not be less than ten years, but which may extend to imprisonment for life, and shall also be liable to fine.
(5) Where the offence involves the trafficking of more than one minor, it shall be punishable with rigorous imprisonment for a term which shall not be less than fourteen years, but which may extend to imprisonment for life, and shall also be liable to fine.
(6) If a person is convicted of the offence of trafficking of minor on more than one occasion, then such person shall be punished with imprisonment for life, which shall mean imprisonment for the remainder of that person's natural life, and shall also be liable to fine. (7) When a public servant or a police officer is involved in the trafficking of any person then, such public servant or police officer shall be punished with imprisonment for life, which shall mean imprisonment for the remainder of that person's natural life, and shall also be liable to fine.
9. On a plain reading of Section 370 which has come into effect from 3.2.2013 vide Act 13 of 2013, age of any trafficked person is immaterial. Quantum of punishment increases if the person trafficked is minor.
10. What is argued before this Court by Mr. Mohammed Tahir, learned counsel is that the minority or majority will have to be understood in the light of definition found in the Child Labour (Prohibition and Regulation) Act, 1986. Section 2(ii) of the Child Labour (Prohibition and Regulation) Act, 1986 defines "child" means person a person who has not completed his fourteenth year of age. If the above Act of Child Labour (Prohibition and Regulation) Act, 1986 is made applicable without applying Section 370 of IPC, "child" means a person below 14 years of age irrespective of sex.
11. Child Labour (Prohibition and Regulation) Act, 1986 has not been amended by the Parliament. The Child Labour (Prohibition and Regulation) Amendment Bill, 2012 was presented to the Lok Sabha on 13.12.2013 and laid in Rajya Sabha on 13.12.2013. It is yet to become an Act. Proposal made to amend Section 2 of Child Labour (Prohibition and Regulation) Act, 1986 is twofold. "Adolescent" means a person who has completed his fourteenth year of age but has not completed his eighteenth year and "child" means a person who has not completed his fourteenth year of age or such age as may be specified in the Right of Children to Free and Compulsory Education Act, 2009, whichever is more.
12. New definition of adolescent (between age group of 14 to 18) is intended to be included to prohibit the employment of adolescent in scheduled occupations and regular the condition of their working in another occupations.
13. What is argued before this Court by the learned counsel for the petitioners is that manufacturing travel bags or leather bags is not hazardous as per Schedule 2 of Child Labour (Prohibition and Regulation) Act, 1986 and therefore engaging the child above 14 years is not punishable under Act 61 of 1986 i.e., Child Labour (Prohibition and Regulation) Act, 1986.
14. After the gang rape of Nirbhaya in Delhi, the Parliament thought it fit to drastically amend several provisions of IPC and in this regard it had appointed a Committee under the Chairmanship of Late Justice J.S.Verma, Former Chief Justice of India and the committee submitted a detailed report. Consequent upon the said report, sub-clause (2) of Section 370 of IPC has been amended and Section 370A of IPC has been introduced providing minimum imprisonment of 5 years with fine if a traffic person is exploited sexually. Section 370A of IPC is relevant and same is extracted below:
370A. (1) Whoever, knowingly or having reason to believe that a minor has been trafficked, engages such minor for sexual exploitation in any manner, shall be punished with rigorous imprisonment for a term which shall not be less than five years, but which may extend to seven years, and shall also be liable to fine.
(2) Whoever, knowingly by or having reason to believe that a person has been trafficked, engages such person for sexual exploitation in any manner, shall be punished with rigorous imprisonment for a term which shall not be less than three years, but which may extend to five years, and shall also be liable to fine.]
15. Amendment so carried to IPC is in the year 2013 and sexual exploitation of children is one form of exploitation found in Section 370 of IPC. In explanation (1) of Section 370 of IPC it has specifically held that the expression of "exploitation" is an inclusive definition and therefore explanation (1) found in Section 370 of IPC is relevant and it has extracted below.
"370. Trafficking of person: .........................
Explanation 1.-- The expression "exploitation" shall include any act of physical exploitation or any form of sexual exploitation, slavery or practices similar to slavery, servitude, or the forced removal of organs"
16. How a penal statute has to be interpreted has been dealt with by the Hon'ble apex court in the case of STATE OF TAMILNADU .V. KANDASWAMY ([1975] 4 SCC 745). Relying on the said decision, the Hon'ble apex court in the case of LAXMI DYECHEM .v. STATE OF GUJARAT and OTHERS ([2012] 13 SCC 375) has reiterated as follows:
'11. Relying upon the decision ion the case of STATE OF T.N. .v. M.K.KANDASWAMY, this court in MAGMA ([1999] SCC 524) , declared that while interpreting a penal provision which is also remedial in nature, a construction that would defeat its purpose or have the effect of obliterating it from the statute book should be eschewed and that if more than one constructions are possible, the court ought choose a construction that would preserve the workability and efficacy of the statute rather than an interpretation that would render the law otiose or sterile. The court relied upon the much quoted passage from Seaford Court Estates Ltd. .v. Asher ([1949] 2 KB 481) wherein Lord Denning, L.J. observed: ....'
17. In the present case, the Parliament has thought it fit to include trafficking of any type as a punishable offence. If the same is done for the purpose of exploitation, the Parliament has thought it fit to provide greater punishment when trafficking relates to minors. The degree of punishment will be more if trafficked minors are more than one. In such event, the maximum punishment could be life imprisonment and the minimum punishment shall not be less than 14 years along with fine.
18. In the present case, serious investigation has been made as to the persons who brought these children from Bihar and Nepal. The persons who brought these children from different states will also have to be apprehended and will have to be custodially interrogated.
19. The children who are found in the said factories were all below 18 years and they are from different states. They could not have come on their own from their respective native places. What was the payment given to these children and what was the facility provided to them by the owners and what was the nature of trafficking that was done will have to be ascertained and this can be done only through custodial interrogation. Hence these petitioners are absolutely required for further investigation which includes custodial investigation. This assumes more importance in the light of the fact that these petitioners are owners of the said factory engaged in the manufacture of travel bags by using children below 18 years, that too, brought from different states by employment.
20. Taking into consideration the gravity of the offences and the nature of allegations made against these petitioners and the persons involved in securing these children are yet to be apprehended, this is not a fit case to exercise discretionary power under Section 438, Cr.P.C. at this stage. Accordingly the present petition is liable to be dismissed.
21. In the result, the following order is passed:
ORDER
The petition is dismissed.
Notwithstanding the dismissal of this petition, petitioners are at liberty to approach this Court directly after surrendering before the Police.