Full Text
HIGH COURT OF DELHI
JUDGMENT
STATE NCT OF DELHI .....Petitioner
For the Petitioner : Mr. Ritesh Kumar Bahri, APP for the State with Mr. Kumar Gaurav, Mr. Vipin Kumar, Mr. Maman Singh, Mr. Mohit Siwas, Mr. Jitin Dabas & Mr. Bhushan, Advs.
SI Anil Khatana, PS- Lahori Gate For the Respondent : Through: Mr. Amit Punj & Mr. Cyril Ignatius, Advs.
1. The present petition is filed against the order dated 30.05.2016 (hereafter ‘impugned order’) passed by the learned Additional Sessions Judge (‘ASJ’), Central Delhi in SC No. 28/2016 titled State vs. Rakesh Dua.
2. By impugned order, the learned ASJ discharged the respondent of the offences under Sections 16, 17, 18 of the Bonded Labour System (Abolition) Act, 1976 (‘BLSA Act’), Section 22 of the Minimum Wages Act, 1948 (‘MW Act’) and Sections 344, 370, 374 of the Indian Penal Code, 1860 (‘IPC’).
3. The FIR No. 52/2014 dated 12.02.2014 was registered in the present case on a complaint made by one B L Meena. It is alleged that two persons namely Vinod Kumar, and Debideen were found working as bonded labourers. It is alleged further that the victims were illtreated and were made to work as bonded labourers for the respondent.
4. In the statement under Section 161 of the Code of Criminal Procedure, 1973 (‘CrPC’) dated 12.02.2014, victim Vinod Kumar stated that he had been working with the respondent for a salary of ₹5,000/-. He stated that he had taken an advance payment for a sum of ₹2,000/- in the year 1992, and had also taken a loan for a sum of ₹18,000/- from the respondent in the year 2000. He stated that the respondent had taken the signature of the victim on a blank paper.
5. He further stated that he visited his family once or twice in a month. He also stated that the respondent did not allow him to leave the service and also threatened of beating the victim should he decide to leave the service of the respondent. It is the case of the victim- Vinod Kumar that whenever he attempted to leave the job, the respondent would ask him to first repay the loan for a sum of ₹1,00,000/- allegedly taken from the respondent and then leave the job. The victim also stated that he had only visited his village three years ago.
6. The victim Debideen, in his statement under Section 161 of the CrPC, stated that he had been working with the respondent since the year 1992 and was working on a salary for a sum of ₹5,000/-. He stated that he had not visited his village in the last five years as the respondent did not allow him.He stated that he received an advance sum of ₹2,000/- from the respondent, and had also taken a loan for a sum of ₹5,000/- in the year 2007 from the respondent.
7. He stated that the respondent had also obtained his signature on a blank paper. He further stated that the respondent threatened of beating him should the victim decide to work anywhere else or leave the service of the respondent. It is also the case of the victim – Debideen that the respondent also demanded the repayment of ₹1,00,000/- allegedly taken by him.
8. The learned ASJ, vide the impugned order, discharged the respondent. It was noted that from the statement of the victims, it was apparent that they had taken a loan from the respondent, however, it was nowhere mentioned that the victims were being forced to work or that they were deprived of their freedom or means of livelihood. It was noted that from a perusal of the statement of the victims, it was evident that they were working for the respondent even prior to taking a loan from him. Consequently, the learned ASJ noted that the Sections 16, 17, 18 of the BLSA Act were not attracted in the present case.
9. The learned ASJ noted that the victims were visiting their families once or twice in a month. It was noted that the victims were living in tenanted accommodation and were travelling daily from their place of tenanted residence, going to the job and were also returning back to their tenanted accommodation in the evening. Consequently, it was noted that the offence under Section 344 of the IPC was not attracted against the respondent.
10. It was further noted that no prima facie allegations of there being any exploitation by using threats or force or abduction were made against the respondent. It was noted that victims had not made any allegation with respect to there being any physical or sexual exploitation suffered by them at the hands of the respondent.
11. The learned ASJ noted that the victims were grown up, who are moving freely between the place of residence and employment, and also carrying out their part time business after employment. It was noted that the victims were freely visiting their families and the CDR placed on record manifested that the victims were constantly in touch with their friends and family. In the light of the aforesaid, the learned ASJ consequently noted that prima facie offences under Sections 370 and 374 of the IPC were not made out against the respondent.
12. Insofar as Section 22 of the MW Act is concerned, the learned ASJ noted that as per the statement of the victims themselves, they were getting ₹5,000/- per month as salary in the year 2014 and it was not the case of the prosecution that these were not the wages prescribed by law at the stipulated time. Consequently, the respondent was discharged of the offences under Sections 16, 17, 18 of the BLSA Act, Section 22 of the MW Act and Section 344, 370, 374 of the IPC.
13. The learned Additional Public Prosecutor for the State submitted that the learned ASJ erred in discharging the respondent. He submitted that the learned ASJ failed to consider that the victims were not allowed to leave their service and were being underpaid and made to work in abject conditions.
14. He submitted that upon a consideration of the statement of the victims, a prima facie case under Sections 16, 17, 18 of the BLSA Act, Section 22 of the MW Act and Sections 344, 370, 374 of the IPC was made out against the respondent. He submitted that the victims had made a categorical statement that they had taken a loan from the respondent, who had obtained the signatures of the victims on blank paper.
15. He submitted that the learned ASJ failed to consider that the two victims were declared bonded labourers by the SDM since they were forced to work for 11-12 hours, and were given wages below the minimum wages.
16. Per contra, the learned counsel for the respondent submitted that the learned ASJ rightly discharged the respondent. He submitted that the learned ASJ took into consideration the fact that the victims were adults, living in a rented accommodation.
17. He submitted that as per the statements of the witnesses recorded by the IO, the victims were visiting their native village 5-6 times in a year. He submitted that the victims have themselves admitted that they were getting ₹5,000/- per month. He submitted that contrary to the contention made by the State, no examination was ever conducted by the SDM pursuant to which the victims were declared as bonded labourers.
18. He submitted that the learned ASJ took into consideration the fact that as per the victim’s own case, they had taken a loan from the respondent, however, they nowhere alleged that they were being deprived of their freedom. Analysis
19. At the outset, it is relevant to note that the scope of interference by High Courts while exercising revisional jurisdiction in a challenge to order framing charge is well settled. The power ought to be exercised sparingly, in the interest of justice, so as to not impede the trial unnecessarily. It is not open to the Court to misconstrue the revisional proceedings as an appeal and reappreciate the evidence unless any glaring perversity is brought to its notice.
20. Since the State has assailed the impugned order whereby the respondent was discharged of the offences under Sections 16, 17, 18 of the BLSA Act, Section 22 of the MW Act and Sections 344, 370, 374 of the IPC, it will be apposite to succinctly discuss the statutory law with respect to framing of charge and discharge as provided under Section 227 and 228 of the CrPC. The same is set out below:
before the Chief Judicial Magistrate, or, as the case may be, the Judicial Magistrate of the first class, on such date as he deems fit, and thereupon such Magistrate] shall try the offence in accordance with the procedure for the trial of warrant-cases instituted on a police report; (b) is exclusively triable by the Court, he shall frame in writing a charge against the accused. (2) Where the Judge frames any charge under clause (b) of subsection (1), the charge shall be read and explained to the accused and the accused shall be asked whether he pleads guilty of the offence charged or claims to be tried.”
21. The Hon’ble Apex Court, in the case of Sajjan Kumar v. CBI: (2010) 9 SCC 368, has culled out the following principles in respect of the scope of Sections 227 and 228 of the CrPC while observing that a prima facie case would depend on the facts and circumstances of each case. The relevant paragraphs read as under:
(v) At the time of framing of the charges, the probative value of the material on record cannot be gone into but before framing a charge the court must apply its judicial mind on the material placed on record and must be satisfied that the commission of offence by the accused was possible.
(vi) At the stage of Sections 227 and 228, the court is required to evaluate the material and documents on record with a view to find out if the facts emerging therefrom taken at their face value disclose the existence of all the ingredients constituting the alleged offence. For this limited purpose, sift the evidence as it cannot be expected even at that initial stage to accept all that the prosecution states as gospel truth even if it is opposed to common sense or the broad probabilities of the case.
(vii) If two views are possible and one of them gives rise to suspicion only, as distinguished from grave suspicion, the trial Judge will be empowered to discharge the accused and at this stage, he is not to see whether the trial will end in conviction or acquittal.” (emphasis supplied)
22. In a recent decision in State of Gujarat v. DilipsinhKishorsinh Rao: 2023 SCC OnLine SC 1294, the Hon’ble Apex Court has discussed the parameters that would be appropriate to keep in mind at the stage of framing of charge/discharge, as under:
committed the offence which is triable, then necessarily charge has to be framed. xxxx xxxx xxxx
12. The primary consideration at the stage of framing of charge is the test of existence of a prima-facie case, and at this stage, the probative value of materials on record need not be gone into. This Court by referring to its earlier decisions in the State of Maharashtra v. Som Nath Thapa, (1996) 4 SCC 659 and the State of MP v. Mohan Lal Soni, (2000) 6 SCC 338 has held the nature of evaluation to be made by the court at the stage of framing of the charge is to test the existence of prima-facie case. It is also held at the stage of framing of charge, the court has to form a presumptive opinion to the existence of factual ingredients constituting the offence alleged and it is not expected to go deep into probative value of the material on record and to check whether the material on record would certainly lead to conviction at the conclusion of trial.”
23. The Court at the stage of framing of charge is to evaluate the material only for the purpose of finding out if the facts constitute the alleged offence, given the ingredients of the offence. Thus, while framing of charges, the Court ought to look at the limited aspect of whether, given the material placed before it, there is grave suspicion against the accused which is not properly explained. Though, for the purpose of conviction, the same must be proved beyond reasonable doubt.
24. From a perusal of the impugned order, it is apparent that the learned ASJ took into consideration the contentions advanced by the State. Now what remains to be seen is whether there is any infirmity in the impugned order whereby the learned ASJ discharged the respondent of the offences under Sections 16, 17, 18 of the BLSA Act, Section 22 of the MW Act and Section 344, 370, 374 of the IPC. Allegations under the BLSA Act
25. The respondent herein had been charge sheeted under Sections 16/17/18 of the BLSA Act. The sections are reproduced as under:
26. The Hon’ble Apex Court in the case of Selvakumar v. Manjula and Another: (2022) 17 SCC 354 while examining the essentials to attract the offences under Section 16 and 17 of the BLSA Act observed as under:
27. Consequently, in order to attract the offence under Section 16 of the BLSA Act, it must be established that the accused forced/ compelled the victim to provide bonded labour. Likewise, to attract the offence under Section 17 of the BLSA Act, it must be shown by the prosecution that the accused had advanced a bonded debt. Further, Section 18 of the BLSA Act provides the punishment for extracting bonded labour under a bonded labour system. The terms “bonded debt”, “bonded labour”, “bonded labour system” are defined under Sections 2(d), 2(e) and 2(g) of the BLSA Act respectively as reproduced hereunder: (d) “bonded debt” means an advance obtained, or presumed to have been obtained, by a bonded labourer under, or in pursuance of, the bonded labour system (e) “bonded labour” means any labour or service rendered under the bonded labour system (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 that—
(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 any obligation devolving on him by succession, or
(iv) for any economic consideration received by him or by any of his lineal ascendants 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 marketvalue 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 subsection (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 subclause (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.]
28. In the present case, the victims, in their statements under Section 161 of the CrPC stated that they had taken a loan from the respondent. However, merely advancing a sum to the victims would not constitute ‘bonded debt’. In order for such debt to qualify as a ‘bonded debt’ such sum should have been advanced to a ‘bonded labourer’ pursuant to a ‘bonded labour system’. From a perusal of Sections 2(e) and 2(g) of the BLSA Act, it is apparent that when a debtor enters or is so presumed to have entered into an agreement with the creditor, in consideration of the advance obtained by him or by his lineal ascendants/ descendants, and such debtor thereby for the benefit of the creditor, renderslabour or service, by himself or any of the member of his family, to the creditor for a specified/unspecified period without wages or for nominal wages, or forfeits the freedom of employment or livelihood or the right to move freely, then such person would be called as a bonded labourer or that such person has entered into a bonded labour system.
29. In the present case, a perusal of the statement of the victims makes it clear that the victim – Vinod had taken a debt for a sum of ₹18,000/- in the year 2000 and the victim – Debideen had taken a debt for a sum of ₹5,000/- in the year 2007 from the respondent. However, it is the victims’ own case that they had started working for the respondent way back in the year 1992, even prior to the time when any debt was taken. It is not the case of the victims that they were being made to work without any wages or for nominal wages for an unspecified period. As per the statement of the victims made on 12.02.2014, they were working with the respondent for a salary of ₹5,000/-.
30. In that light, the learned ASJ noted that from the statement of the victims, it is nowhere clear that they were being forced to do the job or deprived of their freedom or means of livelihood for any specified or unspecified period. It was noted that the victims started working for the respondent prior to taking loan from the respondent. It was consequently noted that the case did not fall under Sections 2(e) and 2(g) of the BLSA Act. The learned ASJ noted that as per the statements of the victims, they were meeting their families once or twice a month, and there were no prima facie allegations of confinement or forcing the victim to remain at the premises of the respondent. In the light of the aforesaid, the learned ASJ, rightly noted that no prima facie case under Sections 16, 17, 18 of the BLSA Act is made out against the respondent. Wrongful Confinement
31. The respondent had been chargesheeted under Section 344 of the IPC that prescribes the punishment for wrongful confinement for 10 or more days. The term “wrongful confinement” is defined under Section 340 of the IPC as reproduced hereunder:
340. Wrongful confinement.—Whoever wrongfully restrains any person in such a manner as to prevent that person from proceedings beyond certain circumscribing limits, is said “wrongfully to confine” that person.
32. In accordance with Section 340 of the IPC, a wrongful confinement is a wrongful restraint in such manner that prevents a person from proceeding beyond certain circumscribed limits.[Ref: Shyam Lal Sharma v. State of Madhya Pradesh: (1972) 1 SCC 764]
33. In the present case, the learned ASJ noted that admittedly, the victims were visiting their families once or twice in a month. It was noted that the victims were living in tenanted accommodation. It was noted that they were travelling daily from their accommodation, going to their jobs, and were returning back to the tenanted accommodation. Since the victims were not restrained in any such manner so as to prevent them from proceeding beyond any place, there can be no wrongful confinement. The prosecution could not prima facie establish that the victims were in wrongful confinement for 10 or more days so as to attract Section 344 of the IPC. In that regard, the learned ASJ rightly discharged the respondent of the offence under Section 344 of the IPC. Offence under Section 370 of the IPC
34. Section 370 of the IPC deals with ‘trafficking of person’. Section 370 of the IPC is reproduced as hereunder:
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.
35. In accordance with Section 370 of the IPC, whoever, for the purpose of exploitation, recruits, transports, harbours, transfers or receives any person by doing any of the acts specified under Section 370, that is, by threat, force, abduction, fraud, abuse of power, or inducement, such individual would be liable for the commission of trafficking. The basic ingredient to attract the offence under Section 370of the IPC, however, is that such person should have been received for the purpose of exploitation. In accordance with the Explanation 1 to Section 370 of the IPC, the term “exploitation” connotes physical or sexual exploitation, slavery, servitude, or the forced removal of the organs.
36. From a perusal of the record, it is apparent that no allegations with regard to there being any form of physical/ sexual exploitation have been levelled against the respondent. The learned ASJ noted that the victims categorically stated that they started working with the respondent way back in the year 1992, and no allegations of physical or sexual exploitation have been made. It was noted that the only allegation was that after joining the job, the victims had taken some loan from the respondent who now demands the return of such amount. It was noted that the victims, in their statement under Section 161 of the CrPC, nowhere stated that they have already paid the amount to the respondent. Victims were being remunerated for the work done by them. The case of the prosecution is not that the victims were recruited by using threat or any form of coercion. They were working since the year 1992 and had joined on their own for which they were being compensated adequately. Considering that no allegations with regard to any form of exploitation was levelled by the victims against the respondent, the learned ASJ rightly noted that no case under Section 370 of the IPC was made out against the respondent. Offence under Section 374 of the IPC
37. Section 374 of the IPC provides as under:
374. Unlawful compulsory labour.—Whoever unlawfully compels any person to labour against the will of that person, shall be punished with imprisonment of either description for a term which may extend to one year, or with fine, or with both.
38. In order for the offence under Section 374 of the IPC to be attracted, any person must be unlawfully compelled to labour against their will. In the present case, the learned ASJ noted that the victims were grown up, and were free to move and commute from their place of residence and the place of employment. It was noted that the victims were even carrying out their part time business after the employment. It was noted that as per the statement of the witnesses and the family members of the victims, the victims freely visited their families at their native villages.
39. It was noted that the chargesheet itself mentioned that the victims were free to roam in the market of Naya Bans where the Police Station Lahori Gate too was situated. Had there been any threat or exploitation, the victims could easily have approached the police officials at any point in time. It was further noted that the victims even had their own mobile phones, and the CDR manifested that the victims were having frequent conversations with their families and friends. It was consequently noted that in the event of there being any restriction, the victims could easily have approached the police or have made a complaint to their friends or family who in turn could have lodged a complaint to the police. From a perusal of the aforesaid, it is apparent that the victims were not unlawfully compelled to labour beyond their will. Consequently, the learned ASJ, rightly discharged the respondent of the offence under Section 374 of the IPC. Allegations under Section 22 of the MW Act
40. Section 22 of the MW Act provides as under:
41. Insofar as Section 22 of the MW Act is concerned, it is prima facie evident that as per the own case of the victims, no allegation of the respondent not paying minimum wage to the victims were made. The learned ASJ rightly noted that the victims themselves admittedly stated that they were getting a salary of ₹5,000/- per month in the year
2014. It was noted that it was not the case of the prosecution that these were not the wages prescribed at the stipulated time. Consequently, prima facie the ingredients of Section 22 of the MW Act are not attracted. Conclusion
42. In the present case, from a perusal of the impugned order, and the material on record, it is apparent that there is no grave suspicion against the accused which was not properly explained. In the opinion of this Court, no prima facie case is made out against the respondent under Sections 16, 17, 18 of the BLSA Act, Section 22 of the MW Act and Sections 344, 370, 374 of the IPC.
43. In view of the above discussion, I do not find any infirmity in the impugned order, and the same cannot be faulted with.
44. The present petition is dismissed in the aforesaid terms. AMIT MAHAJAN, J