CR.A/22/1999 1/13 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD CRIMINAL APPEAL No. 22 of 1999 To CRIMINAL APPEAL No. 24 of 1999 For Approval and Signature: HONOURABLE MR.JUSTICE J.C.UPADHYAYA ====================================== 1 Whether Reporters of Local Papers may be allowed to see the judgment ? 2 To be referred to the Reporter or not ? 3 Whether their Lordships wish to see the fair copy of the judgment ? 4 Whether this case involves a substantial question of law as to the interpretation of the constitution of India, 1950 or any order made thereunder ? 5 Whether it is to be circulated to the civil judge ? ====================================== STATE OF GUJARAT - Appellant(s) Versus NAVINBHAI SHANTILAL PATEL - Opponent(s) ====================================== Appearance : MR MR MENGDE, APP for Appellant(s) : 1, MR VH THAKORE for Opponent(s) : 1, MR ASPI M KAPADIA for Opponent(s) : 1, ====================================== CORAM : HONOURABLE MR.JUSTICE J.C.UPADHYAYA Date : 10/03/2008 ORAL COMMON JUDGMENT : CR.A/22/1999 2/13 JUDGMENT Being aggrieved and dissatisfied with the impugned judgment and order passed by the learned Judicial Magistrate First Class, Wagra [for short 'the learned Magistrate'] on 7/11/1998 in Criminal Case Nos. 486, 487 and 488 of 1997, the State of Gujarat preferred these appeals under section 378 of the Code of Criminal Procedure [for short 'the Code']. 2. The original complainant Mr. K R Kantaria, a Factory Inspector [for short 'the complainant'], filed three different criminal complaints in the Court of the learned Magistrate for the offences punishable under section 14 of the Child Labour [Prohibition and Regulation] Act, 1986 read with section 67 of the Factories Act. In the private complaints instituted by the complainant against the respondent – accused, it was alleged that on 2/5/1997 Talati-cum-Secretary Gandhar and Talati-cum-Secretary Paldi, Mr. Ramanbhai P. Vankar and Mr. Dhanjibhai N. Parmar respectively visited the factory premises called “Gandhar Salt Works, Gandhar, Taluka Wagra, District Bharuch, belonging to the respondent – accused. That when M/s. Ramanbhai and Dhanjibhai visited the factory, in the factory labourers were working and upon inspection, 3 child labourers were found working, namely Smt. Sarojben Raisangbhai, aged 12 years, Bhanuben Nakabhai, aged about 12 years and Shantaben Naranbhai, aged about 12 years. The Inspectors Ramabhai and Dhanjibhai sent reports regarding their visit to the complainant. After receiving the reports, the complainant filed 3 different private criminal complaints pertaining to each of the 3 child labourers in the Court of the learned Magistrate. In the 3 complaints, as an accused the name of present respondent – accused Mr. Navinbhai Shantilal Patel was mentioned as owner and occupier of the factory. CR.A/22/1999 3/13 JUDGMENT 2.1. Perusing the record and proceedings of the matters, it transpires that the entire case proceeded for trial before the learned Magistrate against Maheshbhai Shantilal Patel. Even the learned Magistrate recorded the plea of Maheshbhai Shantilal. Evidence was recorded in presence of Maheshbhai Shantilal. Perusing the impugned judgment delivered by the learned Magistrate, in para. 1 it is stated that after receipt of 3 private complaints, the learned Magistrate issued summons against the accused Navinbhai Shantilal Patel, but the summons could not be served. Thereupon, the learned Magistrate issued notice to the original complainant. On 8/10/1998 the original complainant remained present before the learned Magistrate and presented Maheshbhai Shantilal Patel before the learned Magistrate in capacity as the person in charge of the factory. Thereupon, it appears that the learned Magistrate recorded plea of Maheshbhai Shantilal Patel. Since Maheshbhai Shantilal did not plead guilty, the prosecution adduced oral and documentary evidence. The deposition of complainant was recorded at exh. 10. He examined as his witness Ramanbhai Punjabhai Vankar at exh. 17 and also examined Dhanjibhai Nathabhai Parmar at exh. 24 as the witnesses for the prosecution. No more witnesses were examined by the complainant. Inspection reports and extracts of relevant registers were produced as documentary evidence. 2.2. The learned Magistrate by virtue of the impugned judgment and order dated 7/11/1998 came to the conclusion that the prosecution failed to prove beyond reasonable doubt the exact age of the 3 so called child labourers. He relied upon certain medical evidence regarding age of the 3 so called child labourers and observed that their age was beyond 14 years i.e., 15 to 18 years. Ultimately the learned Magistrate acquitted the CR.A/22/1999 4/13 JUDGMENT accused. However, at the same time, in the impugned judgment and order the learned Magistrate directed the original complainant to pay Rs.2,000/- in each case by way of compensation under section 250 [2] of the Code of Criminal Procedure to the accused person for filing false complaints. 3. In light of the above factual background, it becomes clear that the complainant filed 3 private complaints against present respondent – accused Navin Shantilal alleging that when Ramanbhai and Dhanjibhai visited the factory premises, said Navinbhai Shantilal was the owner, occupier and in charge of the work of the factory. However, when the 3 criminal cases came up for trial from the stage of recording plea till the conclusion of trial, the trial proceeded against Maheshbhai Shantilal as observed by the learned Magistrate in para. 1 of the impugned judgment. 4. On behalf of the appellant - State the learned APP Mr. Mengde submitted that serious irregularities have been committed by the learned Magistrate in this case in the sense that the complaints were filed against accused Navinbhai Shantilal; whereas from the stage of recording plea till the conclusion of the trial, by virtue of the impugned judgment and order delivered by the learned Magistrate, the trial proceeded against Maheshbhai Shantilal and virtually by virtue of the impugned judgment and order, who is acquitted by the learned Magistrate was Maheshbhai Shantilal. Therefore, it is submitted that this is a fit case to remand the matter before the trial Court with direction to proceed with the matters against right accused by setting aside the impugned judgment and order delivered by the learned Magistrate. 4.1. As against this, Mr. VH Thakor, learned counsel for the respondent – accused submitted that perusing the record of all the 3 cases, CR.A/22/1999 5/13 JUDGMENT it clearly transpires that the person in capacity as owner and occupier as well as in charge of the work of the factory was Maheshbhai Shantilal. Even considering the documentary evidence produced by the complainant before the trial Court, in the column of name of owner and occupier of factory, name of Maheshbhai Shantilal is shown. That even considering the depositions of the witnesses, it clearly transpires that at the time when the factory premises were inspected by Ramanbhai and Dhanjibhai, at that time said Maheshbhai was present and not Navinbhai Shantilal, against whom the complaints were instituted by the original complainant. That therefore, the complaints were filed by the complainant from very beginning against the wrong person. In fact the complaints should have been filed against Maheshbhai Shantilal. However, it is submitted that the so called incident occurred on 2/5/1997 approximately before 11 years from today. Admittedly, the complainant filed complaints against Navinbhai Shantilal, who was neither owner, occupier or in-charge of the work of the factory on 2/5/1997 when Mr. Ramanbhai and Dhanjibhai visited the factory. Even if 3 criminal cases will be remanded for afresh trial in the Court of the learned Magistrate, the trial would be naturally against Navinbhai Shantilal as he is joined as accused in all the 3 complaints. The documentary evidence produced by the complainant himself before the trial Court reveals the name of Maheshbhai Shantilal as owner and occupier of the factory and it is supported by oral evidence. Therefore, the complaints were filed against wrong person and if the criminal cases are to be remanded to the Court of the learned Magistrate for fresh trial, again the matters shall proceed against the wrong accused and not against Maheshbhai Shantilal. It is submitted that even after the lapse of 11 years, if the matters are remanded to the Court of the learned CR.A/22/1999 6/13 JUDGMENT Magistrate with direction that all the matters shall be proceeded further against Maheshbhai Shantilal Patel, then admittedly considering the extent of punishment prescribed for the alleged offences, the complaints shall become time barred. The learned counsel Mr. Thakor for the respondent – accused submitted that on 17/5/1997 it was Maheshbhai Shantilal who had sent a reply to the show cause notice issued by the complainant Factory Inspector wherein it was stated that the so called 3 labourers were not in fact child labourers. Despite receipt of such reply from Maheshbhai Shantilal Patel, the complainant on 1/8/1997 filed the aforesaid 3 criminal complaints against Navinbhai Shantilal. Under such circumstances, it is requested that for the reasons stated above in his arguments, all the 3 appeals be dismissed, no fruitful result would come if at all 3 cases will be remanded to the Court of the learned Magistrate as requested by the Ld. APP Mr. Mengde. Therefore, it is submitted that even as a special case considering the peculiar facts and circumstances involved in this case, 3 appeals deserve to be dismissed by setting aside the impugned judgment and order delivered by the learned Magistrate against the wrong accused person. 5. Now about the aforesaid factual background there is no dispute between the parties. It becomes clear that the 3 complaints were filed by the complainant. Considering the documentary evidence produced by the complainant before the trial Court, in the inspection reports prepared by Ramanbhai and Dhanjibhai, the name of Maheshbhai Shantilal is shown as owner and occupier of the factory. Even considering the relevant extracts from the registers produced by the complainant in the trial Court, the name of Maheshbhai Shantilal is shown as owner and occupier of the factory. It becomes clear that the CR.A/22/1999 7/13 JUDGMENT complainant has no personal knowledge about the incident, in the sense that on 2/5/1997 he had not visited the factory premises along with Dhanjibhai and Ramanbhai. He initiated the criminal prosecution on the basis of the reports submitted to him by Ramanbhai and Dhanjibhai, which are produced and proved on record before the trial Court. However, the complainant in his deposition at exh. 10 deposed about the incident took place in presence of Ramanbhai and Dhanjibhai. In his cross- examination he admitted that at the time when Ramanbhai and Dhanjibhai visited factory premises, he was not present. He further admitted that he instituted criminal prosecution against the accused on the basis of the reports prepared by Ramanbhai and Dhanjibhai. Under such circumstances, the oral evidence adduced by Ramanbhai and Dhanjibhai is required to be considered. 5.1. Deposition of witness Ramanbhai Punjabhai was recorded at exh. 17. If his deposition is considered in light of the above controversy as to whether the complaints were filed against correct accused or not, in that context he stated that when he visited the factory, at that time Maheshbhai Shantilal was in-charge of the administration of the factory and he knows Maheshbhai. He no-where stated that at the time when he visited the factory Navinbhai Shantilal was managing the affairs of the factory or that said Navinbhai was present at the time of his visit. Even considering the deposition of Dhanjibhai Nathabhai exh. 24, he stated that when Ramanbhai and he himself visited the factory, at that time Maheshbhai Shantilal was present there. Considering the depositions of witnesses Ramanbhai and Ramanbhai, it transpires that they had prepared 3 different reports each in connection with one of the so called child labourer, which were produced by them during the course of their CR.A/22/1999 8/13 JUDGMENT depositions at exhs. 18, 19 and 20. As stated earlier, considering the 3 reports, the name of Maheshbhai Shantilal is shown as owner and occupier of the factory. No-where the name of Navinbhai Shantilal is mentioned in the reports and even as deposed by both these witnesses, at the time of their visit, Maheshbhai was found, who was managing the affairs of the factory. 5.2. Under such circumstances, the submission made by the learned counsel Mr. Thakore for the respondent – accused that from the very beginning the complainant had initiated criminal prosecution against the wrong accused gets support from the oral and documentary evidence on record. From the very beginning the complainant should have initiated criminal action against Maheshbhai Shantilal and not against Navinbhai Shantilal. Virtually after appreciation of evidence on record, who was acquitted by the learned Magistrate, was Maheshbhai Shantilal, because during the course of trial from the stage of recording of plea till the final conclusion of the cases, Maheshbhai appeared. The learned Magistrate proceeded further in the 3 cases only against Meshbhai and not against original accused Navinbhai. Appreciating oral and documentary evidence on record, in the result, who was acquitted by the learned Magistrate was Maheshbhai though the complaints were filed against Navinbhai. 6. Therefore, the impugned judgment and order delivered by the learned Magistrate deserves to be set aside, in the sense that the criminal cases were filed against Navinbhai Shantilal, but virtually the cases were proceeded further for trial against Maheshbhai Shantilal and ultimately who came to be acquitted by the learned Magistrate was Maheshbhai Shantilal. Under such circumstances the usual course would have been to CR.A/22/1999 9/13 JUDGMENT remand the matters before the trial of learned Magistrate, but after the remand, the natural consequences would be a fresh trial against the original accused Navinbhai Shantilal. As stated above, from the oral and documentary evidence adduced by the complainant before the learned Magistrate, it becomes crystal clear that the complaints were filed against wrong person. In none of the reports prepared by Ramanbhai and Dhanjibhai, the name of Navinbhai Shantilal appears as owner, occupier or person managing the affairs of the factory. Even during the course of oral evidence adduced by Ramanbhai and Dhanjibhai, when they visited the factory, Maheshbhai was present and not said Navinbhai. The complainant in his deposition no-where clarified the situation as to why he instituted criminal prosecution against Navinbhai Shantilal and not against Maheshbhai Shantilal, though when Dhanjibhai and Ramanbhai who visited the factory, at that time Maheshbhai was found present in capacity of owner and occupier of factory and even in their reports exhs. 18, 19 and 20 submitted by them to the Factory Inspector, the name of Maheshbhai Shantilal was shown as owner and occupier of the factory. Thus, from the very beginning the complainant launched criminal prosecution against wrong person and virtually if the matters will be remanded back for a fresh trial in the court of the learned Magistrate, the trial would naturally proceed against Navinbhai Shantilal, who was not at all responsible for any act as from the very beginning he was wrongly joined as accused in the 3 complaints by the complainant. 6.1. If the alternative which is suggested by the learned APP Mr. Mengde is accepted, in the sense that the 3 criminal cases are remanded for a fresh trial with specific direction that the 3 cases shall be proceeded further by the learned Magistrate only against Maheshbhai Shantilal, then CR.A/22/1999 10/13 JUDGMENT also the fact remains that in the original complaints the name of Navinbhai Shantilal is shown as the sole accused. Moreover, learned counsel Mr. Thakore for the respondent – accused submitted that considering the extent of punishment prescribed for the alleged offence after the lapse of 11 years by now, even the criminal prosecution against Maheshbhai Shantilal would be outright time barred. It is further submitted that though the criminal prosecution was launched by the complainant against wrong person, but considering the impugned judgment and order delivered by the learned Magistrate appreciating oral and documentary evidence as well as medical evidence on record, the learned Magistrate came to the conclusion that the prosecution failed to prove beyond reasonable doubt that the so called 3 labourers in connection with whom the 3 criminal complaints were filed, were child labourers. Therefore, it is submitted by the learned counsel Mr. Thakore for the respondent – accused that said impugned judgment and order delivered by the learned Magistrate was admittedly in a case instituted by the complainant against wrong person, the same deserves to be set aside. However, it is further submitted by learned counsel Mr. Thakore that admittedly the 3 criminal complaints were filed by the complainant – Factory Inspector against the wrong accused person i.e., against Navinbhai Shantilal, those complaints themselves deserve to be quashed and dismissed. Considering the facts and circumstances of the case and even in light of the oral and documentary evidence adduced by the complainant – Factory Inspector before the learned Magistrate, the above arguments advanced by the learned counsel Mr. Thakore deserve serious consideration. The impugned judgment and order delivered by the learned Magistrate in the criminal complaints filed against the wrong accused CR.A/22/1999 11/13 JUDGMENT persons cannot be upheld and sustained. The complaints filed against the wrong accused person i.e., Navinbhai Shantilal deserve to be quashed and dismissed as submitted by the learned counsel Mr. Thakore for the respondent – accused. 7. Now, the next question would be whether, in the peculiar facts and circumstances of this case and in light of the oral and documentary evidence on record of the case and the appreciation thereof by the learned Magistrate, is this a fit case to remand the matter to the Court of the learned Magistrate for afresh trial against Maheshbhai Shantilal? As discussed above, the learned Magistrate while appreciating oral and documentary evidence on record observed that the complainant failed to prove the age of the so called child labourers to be 12 years; that the medical evidence revealed that their age was between 15 years to 18 years. Moreover, after the lapse of about 11 years from the date of commission of the alleged offence, the question of limitation may arise for launching prosecution against Maheshbhai Shantilal. On 8/10/1998 when the complainant – Factory Inspector remained present before the learned Magistrate and also kept present Maheshbhai Shantilal before the learned Magistrate, posing said Maheshbhai as owner, occupier and managing affairs of the factory, the proper course which was open for the complainant – Factory Inspector was to apply to the learned Magistrate to permit him to delete the name of wrong accused Navinbhai and in its place to insert the name of Maheshbhai Shantilal. Nothing whatsoever was done at that time. Now at such belated stage, after the lapse of about 11 years, it would not be in the interest of justice to rectify the said mistake which Factory Inspector committed 11 years back and to direct the learned Magistrate to conduct afresh trial against Maheshbhai CR.A/22/1999 12/13 JUDGMENT Shantilal even by ignoring the provisions of limitation in launching such prosecution against Maheshbhai Shantilal. Even taking into consideration the observations made by the learned Magistrate in the impugned judgment pertaining to the age of the so called child labourers, after appreciating the oral and documentary evidence on record including the medical certificate showing the correct age of the labourers and coming to the conclusion by him that the complainant failed to prove his case, it would be futile exercise to remand the matter to the Court of the learned Magistrate for afresh trial against Maheshbhai Shantilal. 8. For the reasons stated by this Court in this judgment in the foregoing paragraphs and considering the peculiar facts and circumstances of the case, the impugned judgment and order passed by the learned Magistrate in the 3 criminal complaints, admittedly filed against the wrong accused person, the same cannot be sustained and deserve to be set aside. Simultaneously, the said 3 criminal complaints filed against admittedly the wrong accused person by the complainant – Factory Inspector deserve to be dismissed, and same are hereby dismissed. As stated above, no fruitful or useful purpose would be achieved by the prosecution if at such belated stage the 3 criminal cases are remanded to the Court of the learned Magistrate to conduct afresh trial against Maheshbhai Shantilal, as it would be a futile exercise. Consequently, all these three appeals are hereby disposed of accordingly in light of the above findings. These appeals are hereby disposed of accordingly. CR.A/22/1999 13/13 JUDGMENT ( J .C. UPADHYAYA, J. ) *Pansala.