JUDGMENT/ORDER 1. Heard Mr. P. Lotlikar, learned counsel for the applicants and Mr. S. G. Bhobe, learned Public Prosecutor for the respondents. 2. The challenge in this revision application filed under the provisions of Sec. 397 of Criminal Procedure Code, 1973 is to an order dtd. 24/4/2023 passed by the President of the Goa Children's Court in Special Case No.39 of 2022. 3. The complaint came to be registered against the present applicants on 5/9/2021 with the Mapusa Police Station for the offences punishable under Ss. 451, 352, 504, 506, 509 read with 34 of the Indian Penal Code 1860 and Sec. 8 of the Goa Children's Act 2003 ( "Children's Act" for short) 4. Pursuant to the complaint, an FIR was registered on 9/9/2021 against the applicants for the aforesaid offences. Chargesheet came to be filed before the Children's Court on 17/5/2022. On being served with the summons, the applicants appeared before the Children's Court and filed an application for discharge on 2/11/2022 under Sec. 227 of the Cr.P.C. By the impugned order dtd. 24/4/2023, the Children's Court rejected the application for discharge filed by the applicants. 5. It is the contention of the learned counsel for the applicants that offence under Sec. 8 of the Children's Act is not attracted in the present case as the offence is not directed against a child but the child was incidentally present with the complainant when the alleged incident took place. Reliance is placed on the decision of this Court in the case of Mr. Vibhav Faldessai and anr. Vs. Officer Incharge/Police Inspector Canacona Police Station, Canacona-Goa in Criminal Revision Application No. 482 of 2023(filing) 6. Opposing the revision, learned Public Prosecutor invited my attention to the impugned order to submit that the offence is alleged to have been committed against the child who at the relevant time was 16 years of age. In his submission, the Children's Court has rightly proceeded against the applicants under Sec. 8 of the Children's Act. According to him, there is no substance in the contention of the learned counsel for the applicants that Sec. 8 of the Children's Act is not attracted in the present facts. 7. Heard learned counsel for the parties. 8. The statement of the complainant which formed the basis for registration of FIR needs to be reproduced to appreciate the rival contentions. The same read thus:- 1. 7. Heard learned counsel for the parties. 8. The statement of the complainant which formed the basis for registration of FIR needs to be reproduced to appreciate the rival contentions. The same read thus:- 1. The undersigned is staying at H. No. 141, Feira - Baixa Waddo, Near Laxmi Narayan Temple, Mapusa, Bardez - Goa 2. It is stated that I am staying with my husband, son, his wife and my two grand childrens in the said house 3. It is stated my Daughter's younger son Master. Ayush Salgaonkar age 16 yrs has come to our house. 4. It is stated that my husband and my grandson Ayush Salgaonkar were fixing mosquito net and also to stop rats entering our house from the window. 5. It is stated that Mr. Sarvesh Anand Vernekar and Mr. Jitendra Anand Vernekar who are our neighbours started physical overpowering us and started saying, "TUMHI GHARACHE SAGLE PAAD GHATLE KHILE MARUN MARUN" AND further stated to my grandson Ayush Salgaonkar "BAND KAR RE TE KAAM, NA JALYAR MARTALO TUKA" and try to restrain us in our house by physically entering into our house and then proceeded to make video of our house without our permission thereby have invaded our privacy. Since being a women this amount to outraging my modesty as both were making indecent gestures which was vulgar in nature. 6. The undersigned states that Mr. Sarvesh Anand Vernekar and Mr. Jitendra Anand Vernekar who are our neighbours, without any notice barged into our house without our permission. 7. It is stated that they further threatened us they will come back again and have challenged us to file police complaint as said Pl of police station is his person. 8. It is stated that they further said no FIR would be registered against them as they have contact with some judges and also some ministers who are very influential and we would be not able to do anything. 9. Considering the aforementioned circumstances it is just and necessary kindly register complaint for criminal tresspass, criminal intimidation, outraging modesty and also under children court act for abusing child. 9. 9. Considering the aforementioned circumstances it is just and necessary kindly register complaint for criminal tresspass, criminal intimidation, outraging modesty and also under children court act for abusing child. 9. From the statement, even if it is to be taken at its face value, it is seen that the complainant and the family members were restrained from entering into their own house and what was stated to the grandson (the child) of the complainant is that "BAND KAR RE TE KAAM, NA JALYAR MARTALO TUKA'. The rough translation in English which means "stop the work otherwise I will beat you". 10. It is alleged by the aggrieved complainant that the applicants invaded their privacy and videographed the house of the complainant. Reading of the complaint would show that there are allegations of wrongful restraint and outraging the modesty of the complainant. According to me, merely because some threatening words are used against the child, will not by itself make these utterances sufficient to attract the provisions of the Children's Act. The incident mentioned in the complaint as a whole will have to be considered and not just some part of the allegations incidential to the overall incident in the present facts. 11. My attention is invited to the decision of this Court in the case of Mr. Vibhav Faldessai and anr. Vs. Officer Incharge/Police Inspector Canacona Police Station, Canacona-Goa(supra) in support of the applicants' contention. Paragraphs 6, 7, 8, 9, 11 and 14 of the said decision read thus:- 6 The Children's Act came to be enacted to protect, promote and preserve the best interests of children in Goa and to create a society that is proud to be child friendly. A reference to some of the relevant provisions of the Children's Act would be necessary to appreciate the controversy involved in the present case. 7 Sec. 2(d) defines, "Child" means any person who has not completed eighteen years of age unless any other law in force specifies otherwise or unless otherwise indicated in specific provisions in the Children's Act. Sec. 28 deals with the composition of the Children's Court stipulating that the Children's Court shall consist of a person who is or has been or is qualified to be a District Judge, who shall be its President. Sec. 28 deals with the composition of the Children's Court stipulating that the Children's Court shall consist of a person who is or has been or is qualified to be a District Judge, who shall be its President. The proviso to Sec. 28 says that the Government may also appoint any Sessions or Additional Sessions Judge as the President of the Children's Court, but no appointment under this Sec. shall be made except after consultation with the High Court. 8 Sec. 2(m)(i), (ii) and (iii) of the Children's Act defines 'child abuse' as under : "2(m) "Child abuse" refers to the maltreatment, whether habitual or not, of the child which includes any of the following:- (i) psychological and physical abuse, neglect, cruelty, sexual abuse and emotional maltreatment; (ii) any act by deeds or words which debases, degrades or demeans the intrinsic worth and dignity of a child as a human being: (iii) unreasonable deprivation of his basic needs for survival such as food and shelter' or failure to immediately give medical treatment to an injured child resulting in serious impairment of his growth and development or in his permanent incapacity or death;" 9 Sec. 8 of the Children's Act deals with child abuse and trafficking. The present is not a case of trafficking or sexual assault. The case of the prosecution is that the child has been abused. A reference to the relevant provisions of Sec. 8 is necessary, which reads thus :- "Sec. 8(1) All children should be assured of a safe environment. A safe environment is an environment in which he/she will not be abused in anyway and his/her development will be nurtured. [(1A) Child Trafficking shall be an offence punishable under this Act. Any person who commits or aids or abets in the child trafficking shall be punishable with imprisonment for a term which may extend to seven years and a fine which may extend to Rs.1, 00, 000.00;] (2)Whosoever commits any child abuse or sexual assault] as defined under this Act, shall be punished with imprisonment of either description for a term that may extend to three years and shall also be liable to fine of Rs.1, 00, 000.00. Whoever commits any Grave Sexual Assault shall be punished with imprisonment of either description for a term that shall not be less than [ten years] but which may extend to [life imprisonment] and shall also be liable to a fine of Rs.2, 00, 000..00 Whoever commits incest shall be punished with imprisonment of either description for a term that shall not be less than ten years but which may extend to life imprisonment and also a fine which may extend to Rs.2, 00, 000.00 i[Statement of the child victim shall be treated on par with the statement of a child rape victim] under Sec. 375 of the IPC, as laid down by the Supreme Court of India. (3) [In cases of sexual assault on a child, the investigating authorities shall ascertain the need to medically examine the child victim in consultation with the medical authority. In cases of child abuse or grave sexual assault on a child, such medical examination of the victim child shall be compulsorily done.]" 11 In my opinion, in the facts of the present case, for the reasons indicated hereafter, it is not possible for me to accept the submission of learned Public Prosecutor that the ingredients constituting offence under Sec. 8 of the Children's Act stands satisfied to proceed further against the applicants. The purpose and intent of enacting the Children's Act is to bring within its fold every offence committed against a child within the ambit of Sec. 8. In the instant case, it is the case of the prosecution that because the applicants had sprayed pepper spray in the eyes of several persons, amongst whom there is a child, this is a case of 'child abuse' within the meaning of Sec. 2(m) of the Children's Act. On a reading of the statement of the minor victim and other witnesses, it is revealed that in the course of the events that took place leading to the applicants spraying pepper spray in the eyes of those present, the minor boy happened to be present along with others. The act of spraying pepper spray in the eyes of the victim cannot be read in isolation but has to be considered in totality of the circumstances forming the entire incident. The incident in question on the basis of which the FIR came to be registered, cannot be said to be an incident involving 'child abuse'. The act of spraying pepper spray in the eyes of the victim cannot be read in isolation but has to be considered in totality of the circumstances forming the entire incident. The incident in question on the basis of which the FIR came to be registered, cannot be said to be an incident involving 'child abuse'. There was no intention on the part of the applicants to cause any harm to any child. As a part of the entire episode involving several persons, it is unfortunate that the child happened to be there. It is alleged that the applicants used abusive language against the complainant and his wife. The applicants are alleged to have used the pepper spray on some of the witnesses including the victim boy who formed a part of the episode. By no stretch of imagination can it be said that the accusations even if taken at its face value, satisfy the ingredients to constitute an offence under the provisions of the Children's Act. The applicants will undoubtedly face trial for the offences punishable under Ss. 324, 354 and 504 read with Sec. 34 of the Indian Penal Code (IPC). 14. I may also refer with profit the observations of this Court in the case of Smt. Smita Khaunte vs. Police Inspector and anr. No doubt, the observations were made by the Division Bench in the context of quashing of FIR. The principle laid down, however, will apply in full force even in the present facts. Further, I find that the Division Bench of this Court in the case of Smt. Priya Karekar vs. Police Inspector and anr. has taken a similar view. It is thus seen that this Court has taken a consistent view that merely because the victim is a child, by itself, cannot be a reason to take cognizance of the offence as such by the Children's Court. As to whether the alleged act involving the child constitutes an offence under the Children's Act has to be decided in the fact situation of each case. In the present case, incidentally the minor child happened to be present along with other victims who were major at the time when the applicants allegedly committed the act which otherwise constitutes an offence punishable under the Indian Penal Code. In the present case, incidentally the minor child happened to be present along with other victims who were major at the time when the applicants allegedly committed the act which otherwise constitutes an offence punishable under the Indian Penal Code. It must be borne in mind that the applicants cannot be prejudiced and proceeded against under the Children's Act only because one of the victims happens to be a child when the intention was not to commit an act which amounts to 'child abuse' within the meaning of the Children's Act. The totality of the circumstances and the nature of the accusations has to be considered while forming an opinion that the allegations are such that they are sufficient to attract the ingredients constituting offence under the Children's Act. As observed by this Court in the case of Suresh Narvekar vs. State of Goa (supra), invoking wrong provision and charging the applicants under the said provision, is likely to cause prejudice inasmuch as under the Children's Act, the burden is on the accused to prove that he has not committed the offence rather than on the prosecution to prove the guilt of the accused beyond reasonable doubt. His Lordship observed that the procedure under the said Act is also different obviously with a view to make it child friendly. I am not only in respectful agreement with the view of this Court in the case of Suresh Narvekar vs. State of Goa (supra) but I find that the Division Bench of this Court too has echoed a similar view in the decisions referred to herein above. It is too broad a proposition to state that in every case involving a child, dehors the materials on record, the accused must be charged under the Children's Act. Surely it is not the intention of the legislature that the Act becomes an object of misuse. The laudable intent in enacting the Children's Act, will have to be kept in mind while charging the accused under the provisions of the Children's Act. 12. In the present case, it is thus seen that as a part of the offence alleged which was mainly targetted against the complainant, the child incidentially happened to be present. Sec. 8 of the Children's Act, in the present facts according to me is not attracted. The observations in the case of Mr. Vaibhav Faldessai and anr. 12. In the present case, it is thus seen that as a part of the offence alleged which was mainly targetted against the complainant, the child incidentially happened to be present. Sec. 8 of the Children's Act, in the present facts according to me is not attracted. The observations in the case of Mr. Vaibhav Faldessai and anr. Vs Officer In charge/Police Inspector, Canacona Police Station, Canacona-Goa (supra) will apply. 13. The applicants, therefore stand discharged of the offence punishable under Sec. 8 of the Children's Act 2003. As a consequence, the proceedings now will have to be tried by the concerned Judicial Magistrate having jurisdiction to try offences under Ss. 451, 352, 504, 506, 509 read with 34 of the Indian Penal Code 1860. 14. It is made clear that an appropriate application if moved by the applicants for discharge before the concerned Court, the same shall be considered a fresh on its own merits and without being influenced by the observations made by the Children's Court in the impugned order. 15. Revision is allowed. The impugned order is set aside. 16. Criminal Revision Application stands disposed of accordingly.