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CR.A/2586/2009 4/ 4 ORDER
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
CRIMINAL
APPEAL No. 2586 of 2009
=========================================
STATE
OF GUJARAT - Appellant(s)
Versus
THAKORBHAI
AMBALAL PATEL - Opponent(s)
=========================================
Appearance
:
MS CM SHAH, ADDL.PUBLIC
PROSECUTOR for Appellant(s) : 1,
None for Opponent(s) :
1,
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CORAM
:
HONOURABLE
MR.JUSTICE S.R.BRAHMBHATT
Date
: 19/03/2010
ORAL
ORDER
1. Heard
learned Additional Public Prosecutor Ms. C.M.Shah for the appellant.
2. In
this appeal, the State has preferred Miscellaneous Criminal
Application No.14549 of 2009 in Criminal Appeal No.2586 of 2009
seeking leave to appeal challenging the order impugned in this appeal
and the same has been allowed by this Court ( Coram: Z.K. Saiyed, J.)
on 23.2.2010. The record and proceedings were called so as to reach
this Court on 18.3.2010 and the matter was posted for today. The
record and proceedings have been received and the same is perused by
the Court.
3. The
case of the prosecution in short was that on 8.5.1997 one Shri V.M.
Parekh, Talati-cum-Mantri, Sarbhan Gram Panchayat visited The Sarbhan
Co-operative M.P. Society Limited (Ginning Division), the premises of
the accused, and found one workwoman Gitaben Natubhai whom he
thought to be of 10 years of age and working as a child labourer on
the machine and hence as the workwoman has not attained the age of 14
years, employer was found guilty of committing offence punishable
under Sections 14 and 15 of [The] Child Labour ( Prohibition and
Regulation) Act, 1986.
4. The
Court, after appreciating the evidence on record, came to the
conclusion that the prosecution could not establish its case beyond
doubt with regard to age of the so-called child labourer and hence
acquitted the respondent vide order dated 2.7.2009 which is impugned
in this appeal.
5. Learned
Additional Public Prosecutor Ms. C.M. Shah took this Court to the
evidence on record. From the record and proceedings, however, she
could not controvert in any manner the findings recorded by the Court
with regard to serious doubt as to the age of the person who is said
to have been employed contrary to the provisions of law. The Court
has recorded that it was the duty cast upon the prosecution to
establish the case of age of said Gitaben Natubhai for bringing home
the guilt of the accused. The name of accused No.2 was deleted as per
order below Exh.1. The complainant was examined, who has stated that
he himself has not come to visit the factory and the complaint was
filed based upon the report made by Talati-cum-Mantri. The
complainant himself had not in any way ascertained the age of said
person Gitaben Natubhai, who as per the say of Talati-cum-Mantri had
been a child labourer employed contrary to the provisions of law.
Another witness, who was examined,namely, Shri B.J.Soni has also
deposed that he made the report on seeing said person Gitaben
Natubhai was working on the machine but he has collected neither the
certificate for establishing the age of said child nor the child had
been referred to the Medical Officer for Ossification Test etc. He
stated on oath before the Court that no evidence with regard to age
was sought to be collected or produced on record. One more witness
Shri M.U. Patel was examined at Exh.44 who happened to be working as
Accountant in Amod Gram Panchayat who had deposed that he had just
merely accompanied the Mamlatdar at Ginning factory but had not
accompanied Mamlatdar to Sarbhan and, therefore, he knows nothing
about the matter. Witness Shri V.M. Parekh who made the report was
examined at Exh. 45 but he also has deposed that he had not gone to
the place himself and merely signed the form.
6. As per
Section 10 of the Act prosecution and/or visiting Child Labour
Officer or the officer responsible for preventing the menace of child
labour is under duty to have the child labourer’s age verified and
ascertained after referring the child to the Medical Officer in case
if there is no evidence of the child’s age or child’s age is disputed
by the employer. In the instant case, it is clear from the evidence
on record that the prosecution could not establish the age of said
Gitaben Natubhai to be age of 10 years only and not more, so as to
attract conclusively penal provision of the [The] Child Labour
(Prohibition and Regulation) Act, 1986. The appeal, therefore, does
not merit admission and is required to rejected at the threshold as
could be seen from the record and proceedings which has arrived and
which has been perused by this Court. Accordingly, appeal is
dismissed.
(S. R.
Brahmbhatt, J. )
sudhir
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