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1998 Supreme(Mad) 1170
High Court of Judicature at Madras
THE HONOURABLE MR. JUSTICE M. KARPAGAVINAYAGAM
N. Bhageerathan - Appellant
Versus
State - Respondents
Criminal Revision Case No. 946 of 1997
Decided On : 01 September 1998
The burden of proof is on the accused to prove that the children were not under the age of 14, which he failed to do.
Headnote:
CHILD LABOUR ACT - SECTION 14(1) AND 15 - TAMIL NADU FACTORIES ACT - SECTION 67 - SANCTION FOR PROSECUTION - VALIDITY - BURDEN OF PROOF - AGE OF CHILD.
Fact of the Case:
The petitioner challenged his conviction and sentence for employing children under the age of 14 in his factory, in violation of the Child Labour Act and the Tamil Nadu Factories Act. The prosecution alleged that the petitioner was found employing three children below the age of 14 in his factory. The petitioner argued that the complaint was filed without the necessary sanction from the Inspector of Factories and that the sanction did not authorize any specific person to file the complaint. He also argued that the evidence of a doctor who examined the children and confirmed their age was not mentioned in the complaint and should not be considered.
Finding of the Court:
The court held that the complaint was filed by an officer who was competent to do so, with the previous authorization from the sanctioning authority, even though it was not filed at the time of filing of the complaint. The court also held that the sanction order specifically authorized the complainant to file the complaint for the offences, and that the burden of proof was on the accused to prove that the children were not under the age of 14, which he failed to do.
Issues: 1. Whether the complaint was filed with the necessary sanction from the Inspector of Factories? 2. Whether the sanction authorized any specific person to file the complaint? 3. Whether the evidence of the doctor who examined the children and confirmed their age should be considered?
Ratio Decidendi: 1. Section 105(1) of the Factories Act provides that no Court shall take cognizance of any offence under this Act except with the previous sanction in writing of, an Inspector. 2. The sanction order specifically authorized the complainant to file the complaint for the offences. 3. Section 104(1) of the Tamil Nadu Factories Act provides that if an act of employing under age would be offence under this Act and such person is in the opinion of the Court prima facie under such age, the burden shall be on the accused to prove that such person is not under such age.
Final Decision: The court dismissed the revision petition and upheld the conviction and sentence of the petitioner.
The Order of the Court was as follows :
Mr. N. Bhageerathan, is the petitioner herein challenging the conviction and sentence imposed for the offences under section 67 of Tamil Nadu Factories Act and Rule 1 Section 14(1) and 15 of Child Labour Act and thereby sentenced to pay a fine of Rs. 10, 000/-, in default to undergo 2 months' simple imprisonment in C.C. No. 49 of 1995, on the file of Additional Sessions Judge-cum-Chief Judicial Magistrate, Nagercoil, confirmed in C. A. No. 45 of 1996 on the file of Principal Sessions Judge, Nagercoil.
2. The prosecution case is that on 22-3-1995 at about 2.00 p.m. the complainant/the Assistant Inspector of Factories along with other officials went and inspected the factory by name 'Raghul Cashews', dealing in the process of removing the cashewnuts from the shells and found three children namely Jayanthi, aged about 11 years, Therasamma, aged about 12 years and Punitha, aged about 11 years were working along with the other workers.
3. The complainant/P.W. 1 on the basis of the Inspector's report Ex. P. 1, sent a show cause notice Ex. P. 2 and received the reply Ex. P. 4 which was not satisfactory. Again P.W. 1 sent Ex. P. 5 the intimation to the accused for launching the prosecution and thereafter, the complainant requested through Ex. P. 6 requisition seeking for sanction and that after obtaining sanction in Ex. P. 7, the complainant had filed a complaint.
4. After having considered the materials produced by the prosecution through P.Ws. 1 and 2 and Exs. P. 1 to P. 10, the trial Court concluded that the offences referred to above were true and thereby, the petitioner was liable to be convicted and sentenced to pay a fine of Rs. 10, 000/- in default to undergo simple imprisonment of 2 months.
5. Having been aggrieved by the judgment of the trial Court, the petitioner had filed an appeal. In the appeal as well, the conviction and sentence were confirmed. Hence, this Revision.
6. Mr. Sairam, the learned counsel for the petitioner, while challenging the judgments of both the Courts below would press into service the following contentions :
(i) Section 105(1) of the Factories Act provides that no cognizance could be taken in respect of the offences under this Act by the Court, unless there is a complaint by the Inspector of Factories or by any other person with the previous sanction of the Inspector. In the instant case, the Assistant Inspector filed a complaint, without any previous sanction from the Inspector of Factories.
(ii) Though in this case, the previous sanction had been produced and marked as Ex. P. 7 only during the course of trial, this sanction does not authorise any specified person to file a complaint. Therefore, the said sanction is not valid and proper.
(iii) Admittedly, when the complaint was filed, P.W. 2, Dr. Balusamy, was not cited as a witness. P.W. 1 also would admit in the cross-examination that he did not examine P.W. 2. P.W. 2 was examined only in the Court to prove that the children, who were found working in the factory, were below the age of 14 years. Therefore, the evidence of P.W. 1 need not be given any importance.
7. In reply to the above submissions, the learned Government Advocate, in support of the impugned judgments would contend that though the complaint was not filed along with the sanction, the evidence had been let in before the trial Court through P.W. 1 and Exs. P. 6 and 7 to the effect that the sanction was sought and obtained from the sanctioning authority even prior to the date of the complaint. He would also submit by referring to the relevant Sections that P.W. 2's evidence assumed significance in this case, especially when the doctor certificate was issued even before the filing of the complaint and as such, the non-mentioning of the name of P.W. 2 in the complaint would not affect the credibility of the prosecution.
8. I have given my anxious consideration to the respective submission made on either side.
9. Mr. Sairam, the learned for the pe
