Guest Post: Section 187 of the BNSS

(This is a guest post by Aadi Belhe)

The President gave assent to the Bharatiya Nagarik Suraksha Sanhita Bill, 2023 (‘BNSS’) on the 25th of December, 2023. This Act is intended to replace the Code of Criminal Procedure, 1973 (‘Code’) due to its “colonial” nature. Section 187 of the BNSS deals with pre-trial detention in cognizable cases and is the equivalent of section 167 of the Code. This piece argues that the text of section 187 suffers from a fundamental issue brought about by an attempt on the part of Parliament to change the existing legal position on pre-trial custody. Further, I point out that the text of section 187 is such that courts cannot salvage it.

Bewildering Nature of Section 187

The Supreme Court has held in multiple cases such as CIT, Agri. v. Keshab Chandra Mandal and Kanailal Sur v. Paramnidhi Sadhu Khan that the words of a statute must be given effect to, irrespective of the consequences, if their meaning is plain. I would argue that this rule of interpretation cannot be applied to section 187 since a plain reading of this section is impossible.

To discuss the issue, it is necessary to first look at the relevant parts of section 187:

(1) Whenever any person is arrested and detained in custody, and it appears that the investigation cannot be completed within the period of twenty-four hours fixed by section 58, and there are grounds for believing that the accusation or information is well-founded, the officer in charge of the police station or the police officer making the investigation, if he is not below the rank of sub-inspector, shall forthwith transmit to the nearest Magistrate a copy of the entries in the diary hereinafter specified relating to the case, and shall at the same time forward the accused to such Magistrate. 

(2) The Magistrate to whom an accused person is forwarded under this section may, irrespective of whether he has or has no jurisdiction to try the case, after taking into consideration whether such person has not been released on bail or his bail has been cancelled, authorise, from time to time, the detention of the accused in such custody as such Magistrate thinks fit, for a term not exceeding fifteen days in the whole, or in parts, at any time during the initial forty days or sixty days out of detention period of sixty days or ninety days, as the case may be, as provided in sub-section (3), and if he has no jurisdiction to try the case or commit it for trial, and considers further detention unnecessary, he may order the accused to be forwarded to a Magistrate having such jurisdiction. 

(3) The Magistrate may authorise the detention of the accused person, beyond the period of fifteen days, if he is satisfied that adequate grounds exist for doing so, but no Magistrate shall authorise the detention of the accused person in custody under this sub-section for a total period exceeding—

(i) ninety days, where the investigation relates to an offence punishable with death, imprisonment for life or imprisonment for a term of ten years or more; 

(ii) sixty days, where the investigation relates to any other offence, 

and, on the expiry of the said period of ninety days, or sixty days, as the case may be, the accused person shall be released on bail if he is prepared to and does furnish bail, and every person released on bail under this sub-section shall be deemed to be so released under the provisions of Chapter XXXV for the purposes of that Chapter.

The issue with section 187 is present in section 187(2) and its interplay with 187(3). A corollary of the power to grant detention “at any time during the initial forty days or sixty days” is that the 15 days of detention ordered under 187(2) need not be the first 15 days of the detention period. In other words, out of the total detention period of 60 or 90 days provided for under section 187, it is not necessary that the first 15 days of detention be ordered under section 187(2). Further, this detention can be in "such custody" as the court thinks fit.

This gives rise to a conundrum, and flowing from it are some serious problems. The conundrum is that now a court has power to grant custody at any time during the first 40 or 60 days of one's detention, such that detention may be from Day 11 to Day 20 only, or this period coupled with Day 25 to Day 28. Which brings the question — what about detention prior to Day 11, and what about the intervening period between Day 25 and Day 28? Section 187(2) seems to assume the existence of some other power-conferring provision under which detention can be ordered during those periods in the first 15 days of detention when the accused is not detained under sub-section (2). Section 187(3) cannot be used to plug these gaps since it becomes applicable only after the 15th day of detention under section 187(2) is over. 

The conundrum may seem a theoretical problem, but is arguably quite a serious problem as it undermines what appears to be the legislative intent behind section 187(2). It can be inferred this intent was to change the position obtaining under Section 167(2) of the Code since it would not have otherwise made Section 187(2) a modified version of section 167(2). Currently, as clarified by the Supreme Court in CBI v. Anupam J. Kulkarni (‘Anupam’), police custody cannot be granted beyond the initial period of 15 days provided under section 167(2). While a division bench of the Court has expressed its reservations regarding the correctness of this view in V. Senthil Balaji v. State, no judgment has overruled Anupam. It would thus seem to be the case that the main purpose behind the changed wording of section 187(2) was to ensure the nullification of Anupam by extending the period during which detention in police custody could be ordered. Get rid of the first fifteen days by expanding it statutorily to the first forty or sixty days. 

If we are correct to assume that this was the intent, it has gotten severely muddied through the drafting of section 187. Sub-clause (2) does not clarify the only detention in police custody is being conceived of, and just says that the court may authorise detention in "such custody" as deemed fit. Similarly, sub-clause (3) does not specify the kind of detention beyond fifteen days i.e., whether detention will be in police custody or judicial custody. Read together then, section 187(2) and (3) make very little sense, because while section 187(2) talks of fifteen day remands up to a certain period (first 40 / 60 days) to possibly take us beyond the first fifteen day logic, sub-clause (3) says that detention beyond fifteen days is possible and to an extent renders 187(2) redundant. 

Courts Cannot Fix the Clause

Arguably, the only sensible way to apply section 187 would be to use it exactly like section 167 of the Code is used. This entails using section 187(2) for the first 15 days of detention and section 187(3) for the rest of the detention period. Still, this would not resolve the problem fully, creating serious gaps which can result in scenarios such as authorising detention in police custody for much more than fifteen days.

The text of the section is such that nothing short of adding or subtracting words from the section is going to clear up this confusion. Thus, this situation fits well within the rule laid down in Bhavnagar University v. Palitana Sugar Mill (Pvt) Ltd. In this case, the Supreme Court had laid down that the wording of a provision can be altered only if restraining from doing so would lead to absurdity or unworkability.

However, this gives rise to a further difficulty. In what manner should section 187 be altered by courts? In Inco Europe Ltd. v. First Choice Distribution (A Firm) (‘Inco’), the House of Lords stated that the driving aim of alteration must be conformity with the purpose of the provision. This case also laid down that courts should keep in mind the wording which might have been used by Parliament had it noticed the error before enactment happened. While not binding on Indian courts, it provides a sound principle of statutory interpretation. As mentioned earlier, section 187 is so incomprehensible that the manner in which Parliament intended to change existing law is not clear. Thus, it is not possible to arrive at any reasonably certain conclusion regarding the words which might have actually been used by Parliament.

However, it has been laid down in cases such as Commissioner of Income Tax v. M/s Hindustan Bulk Carriers that statutory provisions have to be interpreted in such a manner that they are workable in nature. Thus, the Supreme Court will have to give some interpretation to section 187 to make it coherent if a case revolving around that section were to come before it. I would argue that subtracting the words “at any time during the initial forty days or sixty days out of detention period of sixty days or ninety days” from section 187(2) would be the best possible way forward. This would bring the law back to the position under the Code. While this would not be in consonance with the intention of Parliament, it would not be possible for the Supreme Court to do anything else since this intention is itself unascertainable.

Due to the above reasons, it would be best if Parliament itself passed an amendment as soon as possible to rectify section 187. This is unfortunate given the fact that sections like section 187 are going to be heavily used once the BNSS comes into force on 1st of July 2024. It seems probable that the implementation of the BNSS is going to be rough when it comes to the pre-trial stage due to section 187.

Conclusion

Keeping aside the merits of the change which Parliament intended to bring about through section 187(2), it is clear that it has failed to bring it about in a comprehensible manner. The propensity of Parliament to pass poorly drafted laws had been criticised a few years ago by the then Chief Justice of India N.V. Ramana. It is rather perturbing that Parliament is not willing to take such criticism to heart. One can only hope that Parliament soon amends section 187 and does not hastily pass laws in the future, at least insofar as crucial legislations like the BNSS are concerned.

Guest Post: The judgment in S. Harish and the CSAM Conundrum in India

(This is a guest post by Aaditi Sinha)

Introduction

The case of S. Harish v. Inspector of Police (2024) (“S. Harish”) brings to light critical questions regarding the interpretation and application of Indian law concerning possession of child sexual abuse material (“CSAM”). I will primarily use the term CSAM to mean any material that depicts or gives the impression of children in a sexually explicit or obscene manner. While the term child pornography is also used here when referring to legal provisions, it is preferable to use CSAM, as calling it pornography implies a level of consent that is absent in such material. Further, it is a result of exploitation and sexual abuse that is inflicted on children rather than being the primary reason for it. Calling it porn would disregard the children involved in it as victims and the gravity of their abuse.

In this piece, I critique the judgment for its incorrect application of the law concerning CSAM and argue for bringing consistency in law by criminalising intentional possession of CSAM. I first look at the incorrect application of S.67B of the Information Technology Act, 2000 (“IT Act”) by the court in S. Harish. Secondly, I will point out the inconsistency in those legal provisions, namely the IT Act and the Protection of Child from Sexual Offences Act, 2012 (“POCSO Act”). This section is divided in three whereby in the first subsection I will mention the current Indian law regarding CSAM. The second subsection will deal with vagueness apparent in S.67B and the third subsection will cover the problems arising from S.15 of POCSO. Lastly, I will make a case for criminalization of intentional possession of CSAM.

What S. Harish gets wrong

The case involves the prosecution's assertion that the petitioner downloaded pornographic material related to children onto his mobile phone. During the investigation, the petitioner's mobile phone was seized and analyzed by the Forensic Science Department, which identified two files containing child pornography involving preteen boys. A final report was filed, leading to the court taking cognizance of the offences. The petitioner challenged these proceedings in the Madras High Court. The charges against the petitioner were under Ss. 67-B of the IT act and 14(1) of the POCSO act. The High Court found that no offence was established on either charge. It held that for S.14(1) of POCSO, the necessary requirement was to “use a child for pornographic purposes” which was not fulfilled here as the petitioner had simply watched a video. It was only a “moral decay” on his part, not an illegal act. Furthermore, an offence under S.67B was not made out as according to the court, it does not criminalise downloading and watching child pornography.

This is in ignorance of the law by the court which can be seen by a bare reading of S.67B. It seems that the court only partially looked at the provision and overlooked clause (b) which is reproduced here–

“Whoever,...(b) creates text or digital images, collects, seeks, browses, downloads, advertises, promotes, exchanges or distributes material in any electronic form depicting children in obscene or indecent or sexually explicit manner; shall be punished…” 

The section thus punishes even browsing and downloading child pornographic material. Hence, it is difficult to understand why the court observed that this provision “does not make watching child pornography, per se, an offence”. In Imran Shabbir Gauri v. State of Maharashtra (2021) with a similar charge under S.67B, the appellant had taken nude photographs of his own daughter on his mobile handset but had not published or transmitted them. Even when there was no fulfilment of requirements in clause (a), i.e., publication or transmission, the court took notice of clause (b) to convict the appellant as he was in possession of implicating material.

The court in S. Harish also referred to Aneesh (2023) to observe that an act done by a person in private is not illegal if that act does not affect or influence anyone. The underlying requirement for this to hold true must be that the act done in private in itself must not be illegal. This case can be distinguished from the present one on many grounds. Firstly, Aneesh dealt with the scope of S.292 of the IPC, i.e., sale, etc., of obscene books, etc., while the present case concerned a special act (POCSO) and a special provision (S.67B of the IT act) for child pornographic material in electronic form. Secondly, while Aneesh was talking about adult porn, here the petitioner was accused of downloading child porn of pre-teen boys. There must be a different standard for the two because while consuming the former, i.e., adult porn, in private, is not illegal per se, the latter, i.e., child porn, is. Although Aneesh held that consensual sex or watching porn in private is well within the legal domain, there are legal provisions in both the IT Act and POCSO that criminalise bare possession of child pornography. The act of the petitioner here was an illegal one in itself and hence, it cannot be argued against on the grounds of privacy.

Inconsistency in Indian law regarding CSAM

At this stage, it is imperative to look at the legal provisions we have regarding CSAM. Currently we have provisions in both IT Act (2000) and POCSO Act (2012). S.2(da) of the POCSO Act defines child pornography as “any visual depiction of sexually explicit conduct involving a child which include photograph, video, digital or computer generated image indistinguishable from an actual child and image created, adapted, or modified, but appear to depict a child.” S.15 of POCSO makes it an offence to store child pornographic material only if it is done:

(1) with an intention to share or transmit,

(2) for transmitting or propagating or displaying or distributing in any manner at any time except for the purpose of reporting,

(3) for commercial purposes

This is significantly different from S.67B of the IT Act that criminalises various aspects of child pornography listed in five clauses, (a) to (e). Among these clauses, the most relevant one is clause (b) which punishes acts including collecting, seeking, browsing, and even downloading CSAM without any qualification of commercial use. In all, S.67B criminalizes even the possession of CSAM which is clearly different from S.15 of the POCSO which focuses only on the commercial use of CSAM.

Vagueness inherent in S.67B

It is interesting that S.67B, under clause (b), makes it illegal to even possess such electronic material which depicts children in an obscene or indecent or sexually explicit manner. S.67 and 67A which deal with adult pornography do not have the same standard which implies that the legislative intent was for the law to be stricter in the case of child pornography. One problem which might originate from S.67B is the vagueness surrounding what constitutes as, say, “browsing”, because it can be argued that someone who had no intention of watching or downloading CSAM but accidentally did so while surfing the internet and came across a pop-up. To counter this and ensure effective implementation of the law, words like “collect”, “seek”, “browse”, and “download” must be read with a requirement of the basic standard of criminal intention.

Furthermore, such terms must be defined properly so as to not render the law ineffective. Such clear wording of the law can be seen in the 18 U.S. Code § 2252A (5B) which makes it criminal to knowingly possess or access material containing child porn if it is with the intent to view. How to determine that intention is the next problem for the prosecution. Downloading volumes of CSAM and/or regularly accessing a source for the same can more conclusively imply criminal intention. But this becomes difficult to prove in more isolated circumstances.

This also involves a mammoth task for the prosecution and courts to determine whether the person depicted in the material was adult or not, specially when a child is defined as anyone under the age of 18. The person in question might belong in the age group of, say, 16-20, making it difficult to ascertain for sure whether they are an adult or not. Hence, the basis on which this dichotomy between legal possession of adult pornography and illegal possession of CSAM is created, lies on a slippery slope if one considers the problem involved in determining the knowledge or intention of the offender and age of the person present in the material. Though one might ask how the authorities can even trace the private use of CSAM, companies and developers have been on the task to fine tune their detection systems.

How POCSO becomes a roadblock

Since POCSO focuses on storage of CSAM for commercial purposes contrary to bare possession in S.67B of IT act, effectively, an accused who stored child pornographic material for private use will not be held guilty under POCSO but can very well be charged successfully under the IT Act. Hence, it is difficult to understand why a 2012 act, aimed at the welfare of children, added these requirements of commercial use when a 2008 amendment, bringing a special provision through S.67B, did not envisage such a requirement and applied a blanket ban on possession of CSAM.

The preamble of the POCSO bill reads that the act is to “protect children from offences of sexual assault, sexual harassment and pornography” and that it is “necessary for the proper development of the child that his or her right to privacy and confidentiality be protected and respected”. This is because the “best interest and well being of the child are regarded as being of paramount importance at every stage, to ensure the healthy physical, emotional, intellectual and social development of the child”. Then, an important question must be asked: What benefit does it bring to the welfare of children if only that storage of CSAM is criminalised which is for commercial purpose while excluding the one done for private use because both involve a violation of child rights and result from exploitation of children?

It can be argued that the idea behind criminalising commercial use is linked to the extent of harm directly caused by distributing and selling of and profiting from CSAM, which directly fuels the market for this illegal material. For this, it is important to understand how intentional possession of CSAM, even for private consumption, causes harm to the children, the very group that the state is responsible for protecting.

A case for criminalisation of intentional possession of CSAM

Once a material enters the CSAM market, even if one simply watches or stores it without sharing, there is a violation of the rights of the child depicted in that material. The same was reiterated by a High Court in South Africa when the judges observed that possession of the prohibited material creates a trading platform or market for this illegal 'industry'. It reflects the sexual violation of and the impairment of the dignity of a child. Hence, every time that it is viewed there is a revictimization of the child involved. The fact that Indian judges seem to take a lenient view regarding watching and possessing CSAM, as can be seen through a distinction made by Madras High Court between “one time consumer” and those who transmit it in the digital domain, is simply worrying from the perspective of child rights.

CSAM is a permanent record of child sexual abuse and its harm to the child involved is exacerbated by its circulation. The market for such material cannot be effectively dealt with if the law only concerns those who produce and distribute it while leaving out those who consume it. To eradicate the entire market for something illegal and as heinous as CSAM, there is a need to criminalise its demand as well which actually encourages its production.

The moral attitude that the law ends up promoting by not criminalising intentional possession for private use is that it is considered “normal” to consider children as sexualised objects that can be exploited for personal sexual satisfaction. This is completely contrary to the duty that the state takes upon itself, i.e., to protect children, as it is empowered to make special provisions for children under Art.15(3) of the Constitution. India, being a signatory to the UN Convention on Rights of the Child, has ratified the Second Optional Protocol under it. The protocol mentions the growing availability of child pornography on the Internet and under Art. 3 calls for worldwide criminalization of the production, distribution, exportation, transmission, importation, intentional possession and advertising of child pornography (emphasis added). Not only that, the statement of object and reasons of POCSO amendment bill mentions the increasing number of cases of child abuse and child pornography which can be further substantiated with NCRB data on crimes against children. It is harrowing to note that crimes against children have been on a steady rise and there has been an increase in demand for CSAM as well. The fact that this continues to exist even where there are operations like 'Megha Chakra' by CBI and resultant raids speaks of the gravity of the problem.

Guest Post: Legal Pitfalls in Combating Manual Scavenging

(This is a guest post by Nachiketh Patil)

On 20 October 2023, the Supreme Court in Balram Singh v. Union of India issued various directions to ensure the proper enactment of provisions in laws to eradicate manual scavenging in India. The judgement highlighted various issues, such as inaccuracies in surveys conducted to establish the number of people involved in manual scavenging labour as well as shortcomings in the implementation and functioning of institutions arising from the acts.

Seemingly in the face of these efforts comes the Judgment and Final Order dated 14.12.2023 passed by the Hon’ble High Court of Karnataka at Bengaluru in Crl. Petition No. 103546/2023, wherein the Ld. Single Judge quashed proceedings in P.S. Vidyanagar against the Accused, on the sole ground that the complaint should have been filed before the Magistrate and not the police as per Section 10 of the PEMSR Act. The High Court does so without giving any clear reasoning or taking into consideration relevant aspects of criminal procedure relating to offences of a cognizable nature.

In the present case, FIR No. 150 / 2023 was filed against Smt. Saroja Bhairi at P.S. Vidyanagar alleging offences under Section 5 of the Prohibition of Employment as Manual Scavengers and their Rehabilitation Act, 2013 (PEMSR Act). During the inspection of the scene, it was found that the accused personally lowered a labourer into a manhole without safety equipment, breaching sections 5 and 7 of the Act. Section 9 considers contravention of Section 7 as an offence and section 8 considers contravention of sections 5 and 6 as an offence respectively.

Section 22 outlines the specific procedural aspects concerning the cognizance and bail provisions within the framework of this legislation. In accordance with this section, irrespective of the stipulations in the Code of Criminal Procedure, 1973 (2 of 1974), it is mandated that all offences falling under the purview of this Act are to be treated as cognizable and non-bailable.

This means that law enforcement authorities are empowered to take immediate action upon the commission of an offense under this Act, without the need for a warrant, and to initiate the necessary investigation procedures promptly. Furthermore, the provision establishes that individuals accused of offenses covered by this Act are not eligible for bail as a matter of right, emphasizing the seriousness with which such offenses are regarded under the law.

This piece tries to argue that, firstly, the High Court erred in quashing the proceedings solely by reason of a mistaken and restrictive reading of the term ‘complaint’ as under Section 10 the PEMSR Act, without any consideration of the FIR and merits of the case. Secondly, the interpretation of ‘complaint’ under Section 10 of the PEMSR Act is erroneous and contrary to established principles of statutory interpretation. Thirdly, it failed to appreciate the cognizable nature of offences under the PEMSR Act, and hence failed to consider meaningful differences in procedure envisaged for the role of the police in such cases. Lastly, by conducting an overtly narrow and restrictive construction of the PEMSR Act, the High Court went against the legislative intent and beneficial nature of the legislation

The High Court erred in quashing the entirety of the criminal proceedings by mistakenly equating ‘complaint’ under Section 10 of the PEMSR Act and ‘complaint’ as defined under Section 2(d) of the CrPC, and without giving any cogent reasons for drawing such an equivalence. The High Court also failed to appreciate the cognizable nature of the offence punishable under the PEMSR Act, as clearly laid out under Section 22 of the Act. Section 2(c) of the CrPC clearly defines a “cognizable offence” to be one in which “a police officer may….arrest without warrant”. 

Furthermore, the Supreme Court in Neeharika Infrastructure (P) Ltd. v. State of Maharashtra observed that Section 156 “provides that any officer in charge of a police station may without the order from a Magistrate investigate any cognizable offence…”. Additionally, the Court also noted that Section 156(2) of the CrPC “declares that the proceedings of a police officer in a case of cognizable offence shall not at any stage be called in question on the ground that….he was not empowered to investigate under the provision”. Similarly, in Union of India v. Ashok Kumar Sharma & Ors, the Supreme Court specifically held that: “police have the statutory right to investigate into the circumstances of any alleged cognizable offence”. 

In the instant case, despite it being in the nature of a cognizable offence, the High Court does not make reference to any of these provisions and instead only makes a selective and mistaken reference to Section 2(d) of the CrPC which is meant to deal with non-cognizable offences. Therefore, the order of the High Court erroneously equates procedure envisaged for a non-cognizable offence with one that is of a cognizable nature. The construction of Section 10 of the PEMSR Act by the High Court is incorrect, in light of principles of statutory interpretation and previous decisions of the Supreme Court.

Section 22 of the Mines and Minerals (Development and Regulation) Act 1957 (“MMDR Act”) is similarly worded to Section 10 of the PEMSR Act, and reads: “No court shall take cognizance of any offence punishable under this Act or any rules made thereunder except upon complaint in writing…”. The Supreme Court, in State of NCT of Delhi v. Sanjay observed that “Section 21 does not begin with a non-obstante clause”, and that the legislative intent of the provision must be ascertained by considering the “nature, its design, and the consequences which would follow from construing it the one way or the other”. The Supreme Court, in that case, went on to hold that considering “the principles of interpretation and the wordings used in Section 22…the provision is not a complete and absolute bar for taking action by the police…”. Therefore, by preliminarily quashing the proceedings in the instant case on the ground that the complaint itself should be filed before the Magistrate, the order of the High Court is contrary to established precedents by the Supreme Court. 

Interestingly a different bench of the High Court has itself in National Institute of Rock Mechanics v. Assistant Commissioner and Executive Magistrate and Others while dealing with the question of whether a complaint has to be lodged with the Executive Magistrate held that: “As there is not provision in the PEMSR Act corresponding to Section 17(3) of the 1993 Act, I find it hard to give acceptability to the submissions urged on behalf of the petitioner that the State Commission for Safai Karmacharis cannot lodge any first information report with the Police. Section 21 of the PEMSR Act only enables the Government to confer certain powers on the Executive Magistrate.” In the instant case, the High Court did not refer to its own precedent, and moreover mistakenly equated the enabling power conferred on to the Magistrate under the PEMSR Act to be a mandatory and restrictive one.

The High Court here also failed to give full meaning and effect to the object and purpose of the Act, as mandated by a catena of binding precedents of the Supreme Court. The object of the PEMSR Act, as mentioned in its preamble, is inter alia to “provide for the prohibition of employment as manual scavengers” and for “rehabilitation of manual scavengers and their families”. Furthermore, the Supreme Court explicitly held in Union of India v. Prabhakara Vijaya Kumar & Ors that: “beneficial or welfare statutes should be given a liberal and not literal or strict interpretation”. The Supreme Court also observed in the same case that “it is well settled that if the words used in a beneficial or welfare statute are capable of two constructions, the one which is more in consonance with the object of the Act and for the benefit of the person for whom the Act was made should be preferred”. Here, a more reasonable interpretation of Section 10 that is in line with the legislative intent of the PEMSR Act would be to allow for taking cognizance of complaints made either to the police or the Magistrate, subject to it being made within 3 months from the date of the occurrence of the offence. By preferring a technical interpretation which creates more barriers for victims of offences punishable under the PEMSR Act in accessing remedies, the High Court has erred to abide by well-settled and binding principles of interpretation with regard to welfare statutes.

Lastly, the High Court does not consider practical realities, and the dangerous implications of restricting the scope of filing a complaint to only the Magistrate. Most victims of manual scavenging and hazardous cleaning, or their families, have the police as the most accessible point of filing a complaint, and would not have the necessary wherewithal to seek out the Magistrate exclusively. Moreover, this also takes away the power of the police to suo moto investigate heinous offences that are punishable under the scheme of the PEMSR Act. In Hindustan Lever Ltd v. Ashok Vishnu Kate the Supreme Court held that a construction of a welfare legislation should be such that it effectuates “the purpose for which such legislation is enacted and does not efface its very purpose of prevention…”. In the instant case, the order of the High Court not only is mistaken in its interpretation of Section 10 of the PEMSR Act, but also goes against the very purpose of enacting the legislation.