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CR.A/2577/2009 2/ 4 JUDGMENT
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
CRIMINAL
APPEAL No. 2577 of 2009
For
Approval and Signature:
HONOURABLE
MR.JUSTICE S.R.BRAHMBHATT
=========================================================
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
MUSTUFABHAI
ALIBHAI PATEL - Opponent(s)
=========================================================
Appearance
:
MS.
C.M. SHAH, ADDL.PUBLIC
PROSECUTOR for
Appellant(s) : 1,
None for Opponent(s) :
1,
=========================================================
CORAM
:
HONOURABLE
MR.JUSTICE S.R.BRAHMBHATT
Date
: 18/03/2010
ORAL
JUDGMENT
(1) Heard
learned Additional Public Prosecutor for the appellant-State.
(2) At
this stage it is required to be noted that this Court (Coram: Hon’ble
Mr. Justice Z.K. Saiyed,J.) on 23rd February,2010 allowed
the Criminal Misc. Application No.14537 of 2009 and granted leave to
appeal and called for R & P so as to reach this Court on or
before 16th March,2010 and matter was posted on 18th
March,2010 i.e. today. The R & P is received. The Court has
perused the R & P and heard the learned advocate for the state.
(3) The
facts in brief leading to file this appeal deserves to be set out as
under:
(4) On
8th May,1997, the concerned Mamlatdar along with his staff
member, visited the factory premises of the accused no.1 situated at
Amod. At that time, one person called Chaitram Dagaram Mali was
found to be working on machine. As the Mamlatdar found that the
child labour was employed, the offense was required to be registered
and accordingly the report was made and the case came to be
registered. The concerned Court after perusing the evidence on
record came to the conclusion that the prosecution could not prove
beyond doubt that said workman namely Chaitram Dagaram Mali was child
labour so as to attract the provisions of law and imposing conviction
and punishment upon the accused no.1. The accused no.2 has died
during the proceedings and, therefore, the proceedings were treated
to have been abated
against the accused no.2.
(5)
The learned Additional Public Prosecutor could not controvert
the findings of the Court, which are based upon material on record
that the complainant has lodged the complaint merely upon the report
received from the Mamlatdar and he had himself not visited the
factory premises. Now the Mamlatdar who had visited the factory
premises had not taken care to have the child been examined by the
competent medical practitioner so as to obtained evidence with regard
to the age of the child in question. The penal provisions is
attracted only when the child, below the age of 14 years is said to
have been engaged for carrying out the factory work. Section 10 of
the Act makes it clear that when the age of the child itself is
disputed and when the certificate of the age is not available then
the medical practitioner is to be consulted
for ascertaining the age of the child who is seems to have
been employed contrary to the provisions of the law. The prosecution
could not prove that there was any effort even to carry out days etc.
at the end of medical practitioner for ascertaining the age of the
child in question. When there was no such evidence available on
record and when it has come out on record that the Mamlatdar made
report with regard to engagement of child labour only on the strength
of his inference or belief and when the age of the child was
disputed, the Court rightly did not fastened any criminal liability
upon the accused no.1. This Court, therefore, is of the view that
the appeal does not deserve to be even admitted and it is required to
be rejected at the threshold as the reasoning and findings adopted by
the Trial Court cannot be said to be capable of being controverted in
any manner from the record available with this Court. The appeal,
therefore, fails and required to be dismissed and accordingly
dismissed.
(S.R.BRAHMBHATT,J.)
Vahid
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