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2021 DIGILAW 1140 (ALL)

Rishipal @ Rishipal Singh v. State of U. P.

2021-09-29

UMESH KUMAR

body2021
JUDGMENT : Umesh Kumar, J. 1. Heard learned counsel for the applicant, learned counsel for the opposite party No. 2 and learned A.G.A. 2. This application under Section 482 Cr.P.C. has been filed with the prayer to quash the entire criminal proceeding initiated against the applicant as Criminal Case No. 4478 of 2019 under Section 16, 17, 18, 19, 20 of The Bonded Labour System (Abolition) Act, 1976, Police Station-Hastinapur, District-Meerut, pending in the Court of Additional Chief Judicial Magistrate, Court No. 7, Meerut including charge-sheet No. 183 of 2017 dated 27.8.2017 in case Crime No. 141 of 2017 and cognizance order dated 22.8.2019 and all its consequential orders and proceedings in respect of the present applicant with an alternative prayer to stay the further proceedings of the above mentioned case. 3. The main allegation of FIR is that one Sri Jaypal son of Sri Mohan R/o village Laharartu, P.S.-Rajpura, Tehsil Gannaur District-Sambhal moved an application before the National Human Commission New Delhi with the allegation that owner of Shree Ram Bricks Field village Dayalpur, Meerut is taking work from some labour without payment as Bonded Labours and on the direction of National Human Commissioner Sub-Divisional Magistrate Mawana District-Meerut issued release order of 39 persons from the brick-klin on 16.11.2016. 4. In this reference provisions of Section 13 (3) of the Bonded Labour System (Abolition) Act 1976 (herein after will be referred as ''the Act'') is relevant that appears as under: ''Section 13 (3) in the Bonded Labour System (Abolition) Act 1976: (3) Each Vigilance Committee, constituted for a Sub-Division, shall consist of the following members, namely: (a) the Sub-Divisional Magistrate, or person nominated by him, who shall be the Chairman; (b) three persons belonging to the Scheduled Castes or Scheduled Tribes and residing in the Sub-Division, to be nominated by the Sub-Divisional Magistrate; (c) two social workers, resident in the Sub-Division, to be nominated by the Sub-Divisional Magistrate; (d) not more than three persons to represent the official or non-official agencies in the Sub-Division connected with rural development to be nominated by the District Magistrate; (e) one person to represent the financial and credit institutions in the Sub-Division, to be nominated by the Sub-Divisional Magistrate; (f) one officer specified under Section 10 functioning in the Sub-Division.'' 5. Learned counsel for the applicant submits that the Act is a special law and Section 21 of the Act power of trial of offences has been given to the Executive Magistrate, are being quoted as under: ''21. Offences to be tried by Executive Magistrates? (1) The State Government may confer, on an Executive Magistrate, the powers of a Judicial Magistrate of the first class or of the second class for the trial of offences under this Act and, on such conferment of powers, the Executive Magistrate on whom the powers are so conferred, shall be deemed, for the purposes of the Code of Criminal Procedure, 1973 (2 of 1974), to be a Judicial Magistrate of the first class, or of the second class, as the case may be. (2) An offence under this Act may be tried summarily by a Magistrate.'' 6. He further submits that State of Utter Pradesh issued a notification on 12.12.1975 and in exercise of the power under Section 21 (10 of Act No. 19 of 1976) (then Ordinance) confer on the Sub-Divisional Magistrate in Utter Pradesh the power of Judicial Magistrate of the First class for the trial of offences under the Act. 7. Therefore, in view of Section 21 (1) of the Act, Notification of Utter Pradesh Government and Section 5 of Cr.P.C. learned Additional Chief Judicial Magistrate, Court No. 7, Meerut has no power to take cognizance and trial of the case and proceedings initiated against the applicant is without jurisdiction. 8. Learned counsel for the applicant further submitted that the Magistrate has passed cognizance order only by fill-up the blank of a printed Proforma without examining the evidence, which is non-speaking order and against the law. 9. Learned counsel for the opposite party No. 2 submits that the FIR of the present case has been lodged by the opposite party No. 2 on the basis of true and correct incident under the directions of the higher officers and National human Right Commission, New Delhi and that too after conducting spot inspection by the Joint Team of Labour Enforcement Officer and Naib Tehsildar; that after submission of the charge-sheet learned Additional Chief Judicial Magistrate after perusing the entire evidence contained in the case diary has rightly taken cognizance of the offence in accordance with law having its jurisdiction. 10. 10. I have heard learned counsel for the applicant, learned counsel for the opposite party No. 2, learned AGA. and have gone through the materials available on record carefully. 11. The act clearly bars the jurisdiction of the Judicial Magistrate of Civil Court (under the said Act) the case considering the provisions of Section 21 of the Special Act. 12. The present FIR has been lodged by the SDM, who is the head of the vigilence committee under the provisions of Section 13 (3), it clearly indicates that the SDM is the head of the Vigilance Committee whereas the case in hand he has lodged the FIR himself. Considering the said facts and circumstances in the light of Section 21 of the said Act, the case will be filed by the S.D.M. or nominated by him whereas the trial shall also be made by the Executive Magistrate himself. The case in hand the (Muddai) informant and the Judge (Munsif) will be the same person (Authority) it is nothing but the clear violation of natural justice, considering the above discussion Legislative is advised to move appropriate amendment in the Act to avoid the said violation of natural justice, so that this Act may be properly implemented to achieve their objective. 13. Under the Act the notification has been issued and Executive Magistrate has been nominated to try the cases for the offences under the Act. Hence, A.C.J.M. Court No. 7, Meerut has no jurisdiction to take the cognizance and try the case under the Act. 14. Hence, cognizance order and trial by the Additional Chief Judicial Magistrate, Court No. 7, Meerut is itself illegal and against the provisions of the said Special Act. 15. In view of the facts and circumstances, the present Criminal Misc. Application under Section 482 Cr.P.C succeeds and is allowed. The order dated 22.8.2019 passed by Additional Chief Judicial Magistrate, Court No. 7, Meerut is quashed arising out of Criminal Case No. 4478 of 2019 under Section 16, 17, 18, 19, 20 of The Bonded Labour System (Abolition) Act, 1976, Police Station-Hastinapur, District-Meerut. 16. Copy of the order be supplied to the learned A.G.A. to communicate the order to Government to take appropriate action to rectify/amendment in the Act itself to remove the ambiguity in such cases.