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2012 DIGILAW 393 (PAT)

Srikant Mallik v. State of Bihar

2012-03-02

RAKESH KUMAR

body2012
ORDER Heard Shri Laxmi Narayan Das, learned counsel for the petitioner and Shri Jharkhandi Upadhyay, learned Additional Public Prosecutor. 2. The sole petitioner, while invoking inherent jurisdiction of this Court under Section 482 of the Code of Criminal Procedure, has prayed for quashing of an order dated 10.12.2007 passed in Case No.4101/(M)/07, whereby the learned Judicial Magistrate Ist Class, Patna has taken cognizance of offence under Section 14(1) of the Child Labour (Prohibition and Regulation) Act,1986 (hereinafter referred to as the ‘Act’). 3. Short fact of the case is that on 24.10.2007, Labour Superintendent with team came to Jagat Ambika Apartment where the petitioner resides in Flat No.C/4. It was claimed that when the team arrived, it was noticed that one Rabindra Kumar aged about 12 years was employed with the petitioner in contravention of Section 3 of the Act. Thereafter, complaint was filed alleging commission of offence under Section 14(1) of the Act. The complaint dated 27.11.2007 was filed in the court of learned Magistrate and since it was a complaint filed by the public servant, the learned Magistrate, by its order dated 10.12.2007, has taken cognizance of offence under Section 14(1) of the Act. 4. Learned counsel for the petitioner, while assailing the impugned order, submits that neither the child, who was allegedly employed by the petitioner, was a child within the meaning of Section 2(ii) because of the fact that he was above the age of 14 years nor the complainant in its complaint petition, has specifically mentioned regarding the employment of the child as prescribed in Schedule-A or even B of Section 3 of the Act. He further submits that right from the very beginning the petitioner had raised dispute regarding the age and immediately after the raid was conducted, the petitioner suo motu got examined the boy by a Medical Officer to ascertain correctly his age. 5. Learned counsel for the petitioner has drawn my attention to Annexure-2 to the petition, which is a certificate issued by one Dr. Praful Kumar Das, Associate Professor, Department of Forensic Medicines and Toxicology, Nalanda Medical College, Patna, which was issued on 26.10.2007 regarding the age of the boy, namely, Rabindra Kumar, son of Narayan Das. 5. Learned counsel for the petitioner has drawn my attention to Annexure-2 to the petition, which is a certificate issued by one Dr. Praful Kumar Das, Associate Professor, Department of Forensic Medicines and Toxicology, Nalanda Medical College, Patna, which was issued on 26.10.2007 regarding the age of the boy, namely, Rabindra Kumar, son of Narayan Das. It was submitted that the Medical Officer has indicated in its certificate that the boy had completed 15 years of age and as such in absence of basic ingredients i.e. the age below the 14 years of the concerned boy, the entire proceeding has vitiated. It has further been asserted that petitioner is an old man and he was a retired University Professor and after retirement, he was residing in Flat No.C/4, Jagat Ambika Apartment, Patna. 6. On the other hand, Shri Jharkhandi Upadhyay, learned Additional Public Prosecutor has vehemently opposed the prayer of the petitioner. He has also filed a counter affidavit duly sworn by the complainant. He submits that the so-called medical report, which has been brought on record, has been issued by an un-authorized officer. He was not competent to grant such certificate. Learned Additional Public Prosecutor further submits that whatever plea has been taken by the petitioner can be taken at appropriate stage not at initial stage of cognizance and accordingly, the petition may be dismissed. 7. Besides hearing learned counsel for the parties, I have perused the materials available on record. On perusal of the complaint petition, it is very much evident that the complainant has not asserted in its complaint petition as to whether the boy was employed in an establishment or employment specifically provided in Part-A or Part-B of the Schedule as prescribed under Section 3 of the Act. Secondly, while filing prosecution, the complainant has miserably failed to indicate regarding the mode of ascertainment of the age of alleged boy. A bald statement has been made that the boy was aged 12 years. No certificate relating to date of birth nor any certificate issued by the any Medical Officer was filed along with the complaint petition. In such cases, the court is of the opinion that it was specifically required on the part of the complainant to bring on record certificate reasonably to show that the alleged boy was a child below 14 years age as prescribed under Section 2(ii) of the Act. In such cases, the court is of the opinion that it was specifically required on the part of the complainant to bring on record certificate reasonably to show that the alleged boy was a child below 14 years age as prescribed under Section 2(ii) of the Act. At the same time, it was also required to specifically mention in the complaint petition regarding establishment or employment as prescribed by the Act. Nothing has been stated in the complaint petition nor even at the time of filing counter affidavit before this Court, the complainant has brought on record any material to show that age of alleged boy was below 14 years, save and except a bald statement made in the complaint petition describing the age of boy as 12 years. 8. In absence of aforesaid material, the court is satisfied that the learned Magistrate has incorrectly passed order of cognizance. It is required to be interfered with at this stage. 9. Accordingly, the impugned order i.e. order dated 10.12.2007 passed in Case No.4101/(M)/07 passed by learned Judicial Magistrate, Ist Class, Patna is hereby set aside and petition stands allowed. ?