Point of Law: Burden is upon prosecution to establish that juvenile was employed by petitioner for doing some hazardous work without making adequate payment of salary or wages.

ORDER :

A juvenile is alleged to have been carried in a lorry for employing him in the construction work of a bore well. On 22.12.2012, the accused were found transporting, in a lorry, equipment for drilling a bore well along with the juvenile for the purpose of engaging him in hard employment.

2. Alleging that the 1st petitioner, who is the driver and the 2nd petitioner, who is the manager of the lorry bearing No.KA-05/AA-6923, committed the offences under Sections 23 and 26 of the Juvenile Justice (Care and Protection of Children) Act, 2000 (for brevity ‘the JJ Act’), Crime No.746/2012 of Chelakkara Police Station was registered. Pursuant to investigation, a final report was filed alleging that the accused committed the offences under the aforementioned provisions. The Judicial Magistrate of the First Class, Wadakkanchery took cognizance of the offences and numbered the case as C.C.No.595/2013.

3. Petitioners have approached this Court under Section 482 of the Code of Criminal Procedure, 1973 (for brevity Cr.P.C.) seeking to quash all further proceedings.

4. Sri.Mathew Jacob, learned Counsel for the petitioner appearing on behalf of Adv.Nireesh Mathew submitted that the entire prosecution allegations, even if admitted in toto, does not make out any offence as contemplated under the JJ Act. The learned Counsel in support of his contentions argued that the final report does not indicate anything to prove that the alleged juvenile was a child. It was also contended that the final report failed to adduce any evidence to justify a prosecution against the petitioner since the Investigating Officer had not even questioned the child or the parents of the child. It was also argued that the materials collected by the investigation fell woefully short of the required materials to implicate the petitioners in a crime under Section 23 and 26 of the JJ Act.

5. Adv. Mathew Jacob further contended that the final report does not refer to who is the person in charge of the alleged juvenile. According to him, the owner of the establishment, though initially arrayed as the 3rd accused, was subsequently deleted from the array of accused when the final report was filed. Thus, the learned counsel contended that the person in charge of or who had actual control over the alleged juvenile was not even arrayed as an accused and therefore, petitioners who themselves are only employees cannot be prosecuted under any circumstances whatsoever.

6. The learned Counsel further contended that in any event, the offences alleged are not made out as there is no allegation of any assault, abandonment, exposure or willful neglect of the juvenile in a manner likely to cause any unnecessary mental or physical suffering. He also pointed out that there is not even a whisper that the child was under any bondage, to attract the offence under Section 26 of the JJ Act. Lastly, learned counsel argued that the entire investigation was so shawdy and done in haste that, for a crime registered on 22.12.2012, the final report was filed on 25.12.2012, indicating total non-application of mind. Learned counsel relied upon the decisions in Ujala Patra & Ors. v. State of Orissa [2018 Cri.L.J. (NOC) 459] and in Eliyas v. State of Kerala [2018 (5) KHC 841] in support of his contentions.

7. Sri.Noushad K.A., learned Public Prosecutor contended that petitioners are accused Nos.1 and 2 against whom after proper investigation, final report has been filed. The learned Public Prosecutor contended that the exercise of the inherent power under Section 482 of the Cr.P.C should be sparingly used and the prosecution is entitled to adduce sufficient evidence to prove the guilt of the accused. Whether the accused were in charge or control of the juvenile and the other ingredients of the offence can be proved during trial. According to the Public Prosecutor, it is too premature a stage to interfere under Section 482 of the Cr.PC and therefore he sought for the dismissal of the petition.

8. I have considere