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2002 DIGILAW 1242 (AP)

C. Prakash Rao v. Government Of A. P.

2002-10-23

B.S.A.SWAMY, G.YETHIRAJULU

body2002
B. S. A. SWAMY, J. ( 1 ) THE facts leading to the filing of these three writ petitions seeking writs of Habeas corpus are almost similar and the question raised in the petitions is also similar. Hence they are being disposed of by a common order. ( 2 ) THE detenus in these petitions were arrested on the ground of violation of the provisions of the Bonded Labour System (Abolition) Act, 1976 and Child Labour (Prohibition and Regulation) Act, 1986. Though nothing survives in these petitions after the release of the petitioners on bail, having noticed the thrust of the Government in implementing the provisions of the above two Acts and the illegalities committed by the investigating agencies and the Executive magistrate in all the three matters, we are inclined to give this judgment explaining the scope and ambit of these two Acts and action for implementation of the provisions of the two Acts. W. P. No. 15948 of 2002: ( 3 ) ON 22-8-2002 one A. Srinivasa Rao filed this petition seeking a writ of Habeas Corpus directing the respondents to produce his father Appa Rao, who was arrested by the police of P. S. Aspari, Kurnool District on 20-8-2002 in Crime No. 35 of 2002 registered under Sections 16 to 18 and 20 of Bonded labour System (Abolition) Act, 1976, before this court and set him at liberty. ( 4 ) ACCORDING to the petitioner, though the alleged offences under the Act are non- cognizable and bailable, the respondents have illegally detained his father without setting him at liberty. ( 5 ) THE facts of the case are not in dispute. During "chaduvula Panduga" programme one Jagannatha Rao, the Mandal Revenue officer (MRO) visited the lands of the accused where cotton seed plants are being raised and found some labourers, who are alleged to be minors, working in the field along with others. The MRO recorded their statements wherein they stated that they are working in the fields on daily wages of Rs. 30/- and their parents were paid some advances for utilizing their services. The MRO recorded their statements wherein they stated that they are working in the fields on daily wages of Rs. 30/- and their parents were paid some advances for utilizing their services. Basing on the above statements of the child labourers the MRO came to the conclusion that they are working as labourers in the accused s fields to clear of the debts given to their parents, which is an offence under the Act, and forwarded a complaint to the Station House Officer, Aspari Police station on 3-8-2002 to register a crime against the accused and take action according to law. Basing on the above complaint, the SHO of p. S. Aspari has registered a case in Crime no. 35 of 2002 under Sections 16 to 18 and 20 of the Act on the same day, arrested the accused on 20-8-2002 and produced him before the Executive Magistrate, who in turn remanded him to judicial custody for 10 days i. e. , upto 29-8-2002. ( 6 ) AGGRIEVED by the above order of the executive Magistrate (3rd respondent), the petitioner herein filed the present petition seeking a writ of Habeas Corpus contending that the action of the Executive Magistrate in sending his father to judicial remand for ten days is illegal and as such the court may direct the respondents to produce him before the court and set him at liberty. W. P. No. 15949 of 2002: ( 7 ) DURING "chaduvula Panduga" programme the Mandal Revenue Officer (MRO) of Nandavaram Mandal, Kurnool district visited the cotton seed fields of one mr. Y. Koteswara Rao of Mugathi Village, situated in that Mandal, at 11. 30 a. m. on 8-8-2002 and found 17 labourers, including four minor children, working in the fields. Thereafter he lodged a complaint with the 2nd respondent to register a crime against the said Koteswara Rao and take action as per the provisions of the Bonded Labour system (Abolition) Act, 1976 ( the Act for brevity ). The 2nd respondent accordingly registered a case in Crime No. 65 of 2002 under Sections 14 to 16 of the Act, issued FIR, and arrested Mr. Koteswara Rao on 19-8-2002 and produced him before the Executive magistrate-3rd respondent along with remand report. The 2nd respondent accordingly registered a case in Crime No. 65 of 2002 under Sections 14 to 16 of the Act, issued FIR, and arrested Mr. Koteswara Rao on 19-8-2002 and produced him before the Executive magistrate-3rd respondent along with remand report. On the said day, some one in the office of the 3rd respondent made an endorsement directing the 2nd respondent to produce the accused on 20-8-2002 stating that the 3rd respondent was on camp. On 20-8-2002 when he was produced, the 3rd respondent simply signed on the proceedings sheet without passing any orders. On 21-8-2002 the accused was again produced before the 3rd respondent at 4. 00 p. m. and on that day the following order was passed: the accused namely Sri Koteswara Rao has requested time up to 22-8-2002 4. 00 p. m. for production of D. D. for rs. 80,000/- being the welfare of the four children. Accordingly time granted up to 4. 00 p. m. dt. 22-8-02. Produce the accused along with D. D. on 22-8-02 by 4. 00 p. m. ( 8 ) ON 22-8-2002 when the accused was produced, someone in the office of the 3rd respondent made the following endorsement: the accused escorted by P. C. 742 of nandavaram P. S. came at 4. 00 p. m. and expressed his inability to pay the amount and produce the D. D. Since the SDM has already left the HD. Qrs. the P. C. is directed to produce him tomorrow i. e. , 23-8-02. ( 9 ) THE accused was again produced before the 3rd respondent on 23-8-2002 at 11. 00 a. m. and again someone in the office of the 3rd respondent made the following endorsement: attended to S. D. M. Court, Adoni on 23rd August 2002 in connection with cr. No. 65/2001 of Nandavaram P. S. ( 10 ) THEREAFTER, the accused has been sent to Sub-Jail, Adoni and the Gatekeeper has received him along with warrant. ( 11 ) FROM the record it is also seen that a bail application was filed before the 3rd respondent on 23-8-2002 on behalf of the accused and the 3rd respondent simply adjourned the matter to 26-8-2002. ( 12 ) IN this background, we are called upon to adjudicate whether the action of the police and the 3rd respondent are in consonance with the provisions of the Act. ( 12 ) IN this background, we are called upon to adjudicate whether the action of the police and the 3rd respondent are in consonance with the provisions of the Act. ( 13 ) SINCE the accused was charged with offences punishable under Sections 16 to 18 of the Act, we would like to refer the definitions of the words "ascendant" or "descendant", "bonded debt", "bonded labour", "bonded labourer" and "bonded labour system" as defined in Sec. 2 (c) to (g) of the Act. 2. ( 13 ) SINCE the accused was charged with offences punishable under Sections 16 to 18 of the Act, we would like to refer the definitions of the words "ascendant" or "descendant", "bonded debt", "bonded labour", "bonded labourer" and "bonded labour system" as defined in Sec. 2 (c) to (g) of the Act. 2. Definitions:- In this Act, unless the context otherwise requires, xxx xxx (c) "ascendant" or "descendant", in relation to a person belonging to a matriarchal society, means the person who corresponds to such expression in accordance with the law of succession in force in such society;- (d) "bonded debt" means an advance obtained, or presumed to have been obtained, by a bonded labour under, or in pursuance of the bonded labour system; (e) "bonded labour" means any labour or service rendered under the bonded labour system; (f) "bonded labourer" means a labourer who incurs, or has, or is presumed to have, incurred, a bonded debt; (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 an 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 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 subsection (1) of Section 2 of the 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 (Regulation of Employment and Conditions of Service) Act, 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, xxx ( 14 ) ON a careful reading of the definitions as extracted supra, it is seen that a person who is working as a labourer shall be considered as bonded labour if he is working in that capacity in consideration of an advance obtained or the interest for the advance that was paid by the employer either in cash or kind. To put it aptly, unless a person works as a labourer in lieu of the advance obtained or interest payable for the advance taken by him or by his guardian, he cannot be considered as a bonded labour. Admittedly, in this case, there was no whisper whether any amount was advanced by the employer, or whether the minor children were working as labourers in the fields of the employer in lieu of the interest payable to him. The minor children have categorically stated that they were working on daily wages of Rs. 25/ -. Hence, they cannot be treated as bonded labourers and the provisions of the Act are not attracted to punish the employer. ( 15 ) ASSUMING for a moment that the accused are liable for action under Section 22 of the Act, since the offence is non-cognizable and bailable, the respondents 2 and 3 are expected to release the accused on bail immediately after his arrest with or without condition. But, unfortunately, the 3rd respondent did not pass any orders till 23-8-2002 though the accused was produced before him from 19-8-2002. The action of the 3rd respondent in not offering to release the accused on bail is highly illegal and itamounts to interfering with the personal liberty of the accused without any authority of law. ( 16 ) AT any rate, the 3rd respondent committed another gravest error by not passing any orders on the remand report filed by the 2nd respondent seeking remand of the accused from 19-8-2002 to 23-8-2002, though not required in a bailable offence. Under Section 21 of the Act, the offence is summarily triable and after completing the trial of Executive Magistrate is supposed to pass an order or give a judgment convicting the accused and sentencing him to suffer imprisonment or fine. But the Executive magistrate (3rd respondent) without conducting any enquiry whether the accused committed any offence as alleged by the mro, simply directed the accused on 21-8-2002 to produce a Demand Draft for rs. 80,000/- for the welfare of the children and when the accused expressed his inability to pay the amount, the 3rd respondent remanded him to judicial custody on 23-8-2002 till 1-9-2002. 80,000/- for the welfare of the children and when the accused expressed his inability to pay the amount, the 3rd respondent remanded him to judicial custody on 23-8-2002 till 1-9-2002. ( 17 ) IT is interesting to note that under section 16 of the Act, the punishment prescribed is imprisonment for a term, which may extend to three years and also with fine, which may extend to two thousand rupees. In this case if the 3rd respondent wants to convict the accused and sentence him, the maximum fine that can be imposed under the Act would be Rs. 2,000/-, but not rs. 20,000/- as ordered by him. On this ground also the order of the 3rd respondent is liable to be set aside. ( 18 ) WHEN we summoned the 3rd respondent to find out under what authority he directed the accused to pay Rs. 20,000/- towards welfare fund to each of the minor child, he has shown a judgment of the supreme Court whereunder their Lordships imposed a fine of Rs. 20,000/- under Child labour (Prohibition and Regulation) Act, 1986 ("the Child Labour Act" for brevity ). ( 19 ) IT is true that Section 14 of the Child labour Act indicates the penalties to be imposed for violation of the provisions of the said Act. Under Section 14 of the Child Labour act, whoever employs any child or permits any child to work in contravention of the provisions of Section 3 shall be punishable with imprisonment for a term which shall not be less than three months but which may extend to one year or with fine which shall not be less than ten thousand rupees, but which may extend to twenty thousand rupees or with both. Under Section 3 of the 1986 Act no person shall be employed or permitted to work in any of the occupations set forth in part-A of the Schedule or in any workshop wherein any of the processes set forth in part-B of the Schedule is carried on. ( 20 ) WE have seen the Schedule given under Section 3 of the Child Labour Act. Only under Item No. 43 of Part-B, the employment of child labour is prohibited in agriculture where tractors, threshing and harvesting and chaff cutting machines are used. ( 20 ) WE have seen the Schedule given under Section 3 of the Child Labour Act. Only under Item No. 43 of Part-B, the employment of child labour is prohibited in agriculture where tractors, threshing and harvesting and chaff cutting machines are used. On a plain reading of Item No. 43 it is clear that the employment of child labour in agricultural operations is not altogether prohibited. It is only in case of mechanized farming or mechanized process in harvesting of crops, the employment of child labour was prohibited so that they may not be involved in major accidents where mechanized tools are under use. Hence, we have no difficulty in holding that the employment of the child labour in the fields for raising cotton seed plantations is not prohibited under the provisions of the 1986 act. ( 21 ) IN the cases on hand, the accused were charge-sheeted under the provisions of the bonded Labour System (Abolition) Act, 1976, but were sentenced under the provisions of the Child Labour (Prohibition and regulation) Act, 1986. ( 22 ) MS. Vijayalakshmi appearing onbehalf of the learned Advocate General has strenuously contended that employment in the fields of cotton seed plantations is hazardous to the health of the minors where large scale pesticides and powerful chemicals are used in maintenance of the fields. Hence, the provisions of Section 3 of the 1986 Act prohibiting the employment of child labour in these fields will definitely attract. ( 23 ) WE do not see any merit in the contention of Ms. Vijayalakshmi since under item No. 43 of Part 13 of the Schedule appended to Section 3 of the 1986 Act only the employment in agricultural operations done through mechanized process alone were prohibited. At any rate, it is an allegation made by the MRO and there was no decision after trial that the employment of the minors independence of judiciary is an essential attribute of Rule of Law, which is the basic feature of the Constitution and the judiciary must be free not only from executive pressure, but also from other pressures. At any rate, it is an allegation made by the MRO and there was no decision after trial that the employment of the minors independence of judiciary is an essential attribute of Rule of Law, which is the basic feature of the Constitution and the judiciary must be free not only from executive pressure, but also from other pressures. We hope and trust that having seen the way in which the revenue Divisional Officers are exercising the powers of Executive Magistrates, the central Government shall take immediate steps to withdraw the powers from the executive Magistrates under these Acts and entrust them to the Judicial Magistrates to ensure fair play in the implementation of the provisions of the Acts. In this connection, we may also bring to the notice of the Central government a decision of the Full Bench of punjab and Haryana High Court in Sukhdev singh v. State of Punjab wherein their lordships deprecated the practice of entrusting judicial functions to the Executive magistrates, which reads thus: article 50 of the Constitution gives a mandate to the State to take steps to separate the judiciary from the Executive in the public services of the State. After the enactment of the 1973 Code, there has been complete separation of Judiciary and Executive and in this manner the directive principle as contained in Art. 50 of the Constitution stands complied with. Having thus separated the judiciary from the executive and having achieved the directive principle as embodied in Art. 50 of the Constitution Sec. 4 of the Amending act now enacted for the trial of certain offences by the Executive Magistrates is neither fair nor just nor reasonable, the provisions of Sec. 4 of the Amendment act empowering an Executive magistrate, to the exclusion of any other magistrate, to take cognizance of and to try and dispose of cases relating to specified offences are therefore ultra vires of Art. 21 of the Constitution and are liable to be struck down, (paras 25,27) the power of the Legislature to withdraw trial of certain offences from the Courts and give the same to some other authority cannotbe disputed. But then, the accused should have the satisfaction that the authority trying him is not biased and that he will get a fair and just trial. But then, the accused should have the satisfaction that the authority trying him is not biased and that he will get a fair and just trial. As is evident from the aims and objects of enacting the Code of Criminal Procedure, 1973, the main emphasis was that an accused person should get a fair and just trial in accordance with the accepted principles of natural justice. In the present setup when there is complete separation of judiciary from the Executive after 1973 code and especially when the Executive magistrates are completely under the control of the Government their promotion, increments and seniority of services, etc. are all dependent on their higher officers, who belong to the executive, it is very difficult to hold that an accused person charged of the offences which are now triable by the Executive magistrates, shall ever have a feeling that he would have fair and just trial. Merely the fact that the appeal or revision is to be heard by the Sessions Court or the high Court would not give any satisfaction to the accused as it is of the greatest importance that the basic trial should inspire the confidence of the accused and when under a procedure prescribed confidence cannotbe inspired, then such a procedure is to be held as unjust, unreasonable and unfair and violative of the provisions of Art. 21. (paras 26,27) 32. A copy of this judgment be marked to (1) The Chairman, Law Commission of India, new Delhi, (2) Secretary, Ministry of Law and Justice, New Delhi; (3) Chief Secretary, government of Andhra Pradesh; and (4) the director General of Police, Andhra Pradesh, hyderabad, for their perusal and for taking necessary steps as indicated above.