[FLASHBACK] On the International Day for Abolition of Slavery, read how Orissa High Court Decoded the terms ‘Slave’ and ‘Slavery’ in the context of ‘Forced Labour’

Orissa High Court: P.K. Tripathy, J., decoded the meaning of the terms ‘slave and ‘slavery’ in the context of Forced labour.

Petitioners in the instant case were stated to be the accused persons. The Magistrate took cognizance of the offence under Section 367 of Penal Code, 1860 read with Section 25 of the Inter-State Migrant Workmen (Regulation of employment and Condition of Services Act), 1979.

Contentions

Petitioners Counsel argued that so far as the offence under Section 367 IPC was concerned, a case of kidnapping or abduction for slavery having not been made out from the statements of the victims, therefore, cognizance of the offence under Section 367 IPC was legally unsustainable.

‘Slave’ and ‘Slavery’ have not been defined in IPC

Standing Counsel, Aswini Kumar Mishra countered the above argument by stating that the terms ‘slave’ and ‘slavery’ have not been defined in the Penal Code. Even if the prosecution allegation did not amount to using the victims as slaves as per the meaning attributed in the Abolition of Slavery Act, then also the dictionary meaning made it arguable whether the alleged conduct of the petitioners in inducing and abducting the labourers outside the State for exploitation with no right and liberty amounts to slavery and therefore, while in seisin of the matter, Section 482 of Criminal Procedure Code, 1973 the prosecution case shouldn’t be throttled at its threshold with respect to an offence under Section 367 IPC.

Order of Cognizance: When can it be interfered or not?

Law is well settled on the fact that an order of cognizance is subject to interference by Superior Courts when it finds lack of prima facie case to constitute the ingredients of the offence complained of or any other offence punishable under law.

If prima face materials are there or the point is debatable as to whether a particular fact constitute an offence or not and that will be dependent of collection of evidence at the time of trial, then in such case the order of cognizance is not to be interfered with.

Section 367 of Penal Code, 1860

It provides for punishment for the offence of kidnapping or abducting in order to subject the person to grievous hurt, slavery or for satisfying unnatural lust of any person.

If the act done facilitating that purposes or knowing it likely that the act done will tend to subject the victims for such purposes then the offence under Section 367 IPC is said to have been committed.

In the instant case, the issue is in regard to the abduction of labourers for the purpose of exploitation on payment of the meagre amount and without providing them with any right or remedy in that respect.

What does Section 370 IPC provide?

It provides punishment for buying or disposing of any person as a slave.

Section 371 IPC provides punishment in case of habitual dealings in slaves.

Section 362 IPC: ‘Abduction’ — Whoever by force compels, or by any deceitful means induces, any person to go from any place, is said to abduct that person.

Petitioners Counsel argued that by making payment of advance money to the labourers, i.e., the victims and taking them to another State for employment and realising the advance money from such amount earned through such labourers will not qualify to the term abduction. Hence the offence under Section 367 IPC could not have been made out.

Analysis

DECEIT

It means cheating or misleading and one of the ingredients of cheating, as in Section 415 IPC is intentionally inducing a person so deceived to do or omit to do anything which he would not do or omit if he were not do deceived, and which act or omission causes or is likely to cause damage or harm to that person in body, mind, reputation or property.

Prosecution’s allegation that the victims were induced to leave the State to another State while being asked to prepare 1500 bricks per day on a fixed payment of Rs 30 till adjustment of the advance amount paid to them and thereafter to prepare 1000 bricks per day by taking a labour charge of Rs 30, a factual finding has to be recorded what is the amount of labour required for a person to prepare 1000 bricks or 1500 bricks per day and what could have been the adequate wage for that amount of labour.

Humanly it’s not possible for a single person to prepare 1000 or 1500 bricks by devoting a legitimate eight working hours a day for which, according to the Minimum Wages Act he had to be paid nothing less than Rs 50.

ABDUCTION

Bench stated that As per the above allegation, prima facie case for abduction is made out, since inducement was made by making payment of money in advance to a needy person and exploiting him with the thrust of compulsion to leave his home and go outside the State for making bricks.

Whether exitence of a prima facie case of abduction is sufficient to maintain the order of cognizance with respect to offence under Section 367 IPC?

[To be noted: Mere abduction is not punishable under Section 367 IPC, but the act of abduction with the purpose and intention to do slavery (in the instant matter) is punishable under Section 367 IPC.]

Understanding the terms ‘Slave’ and ‘Slavery’

The term ‘slave’ and ‘slavery’ would mean deprivation of the freedom of movement and right to expression with respect to person or property

How does the term ‘SLAVERY’ fit into the present context?

As per the prosecution allegation, when a person is allowed to put in labour of 18 hours a day with a paltry sum of Rs 30 may be with the assistance of his family members and yet shall not have the freedom of expressing his grievance against the exploitation and meagre payment, High Court finds no better example of satisfying the requirement of ‘Slavery’.

Court cannot go on adopting the principle of exclusion but it has to adopt the principle of inclusion to take into gammut all the possible offences which are made out in prima facie appreciation of material on record.

Further, the Court observed that even if the Act of 1979 and 1976 take care of some aspect of the complained act yet that facade does not render non-existence of a prima facie case for the offence punishable under Section 367 IPC.

Hence, trial court cannot be totally guided by the above findings while deciding the case but that Court shall decide the case on the basis of evidence on record and the provision of law.

Therefore application under Section 482 CrPC was dismissed. [Dhanurjaya Putel v. State of Orissa, 2002 SCC OnLine Ori 225, decided on 21-08-2002]

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