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2023 DIGILAW 918 (BOM)

Vaibhav Faldessai v. Officer In Charge

2023-04-10

M.S.KARNIK

body2023
JUDGMENT/ORDER 1. Heard Mr. Keny, learned counsel for the applicants and learned Public Prosecutor Mr. Bhobe, for the respondent-State. 2. The challenge in this Criminal Revision Application preferred under Sec. 397 of the Code of Criminal Procedure (Cr.P.C.), is to the order dtd. 6/7/2022 passed by the Children's Court, for the State of Goa, at Panaji. The Children's Court framed charges against the applicants for the offences punishable under Ss. 324, 354 and 504 read with Sec. 34 of the Indian Penal Code (IPC) and under Sec. 2(m)(i) and 8(2) of the Goa Children's Act, 2003, (herein after referred to as the Children's Act for short). 3. At the outset, it is necessary to state that learned counsel for the applicant restricted his challenge to the extent of the charges framed by the Children's Court against the applicants under the provisions of the Children's Act. Learned counsel, on instructions, submitted that he does not press the petition so far as the impugned order framing charges against the applicants under Ss. 324, 354 and 504 read with Sec. 34 of the IPC. 4. In the complaint, it is alleged that on 30/9/2017 at about 3.00 hours, the complainant along with his wife, were present in the school when the applicants alighted from the car in front of the primary school. The applicant No.1 came from inside the primary school gate and applicant no.2 stood near the school gate. At that time, the applicant no.2 abused the complainant and his wife in filthy words thereby outraging her modesty. The applicants assaulted one Pankaj Warik (Cw.5). Thereafter both the applicants left from the spot. Further, after the other witnesses arrived at the school, the complainant along with his wife left the premises thereby proceeding to their residence. The complainant inquired about the incident with the minor victim. The victim narrated that at around 00.45 hours, the applicants came in the Government primary school in Patnem under the influence of alcohol and sprayed pepper spray in the eyes of the victim for no good reason due to which he was unable to see for quite sometime. The chargesheet was filed before the Children's Court. The applicants are arraigned as accused. Charges were framed against the applicants by the impugned order, apart from IPC offences, under the Children's Act as well. 5. I have heard learned counsel at length. The chargesheet was filed before the Children's Court. The applicants are arraigned as accused. Charges were framed against the applicants by the impugned order, apart from IPC offences, under the Children's Act as well. 5. I have heard learned counsel at length. A reading of the statements of the witnesses including that of the minor-victim reveals that the applicants were drunk. They took up a fight with the complainant and his wife. It is alleged that the applicants sprayed pepper spray in the eyes of those who were present as also on the victim who was then a minor boy aged 17 years. The question is as to whether in the present facts on the basis of the materials taken at its face value, are sufficient to satisfy the ingredients constituting the offence under the provisions of Sec. 2(m)(i) and 8(2) of the Children's Act. 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. 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. 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.]" 10. I notice that the Children's Court has been constituted under Sec. 27 of the Children's Act. A reading of the provisions indicate that the Children's Act was enacted with a laudable object of ensuring that the children in Goa are assured of a safe environment in which he/she will not be abused in anyway and his/her development will be nurtured. 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. 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'. 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). 12. In the contextual facts of the present case, it is useful to refer to the decision of this Court in the case of Suresh Narvekar vs. State of Goa, 2010 SCC OnLine Bom 2337. This Court had an occasion to consider Sec. 8 of the Children's Act. In paragraph 16 it is observed thus : "16. In the light of the Apex Court judgment in the matter of People's Union for Civil Liberties v. Union of India (supra) the said Act would also have to be interpreted in the light of the International Convention of the Rights of the Child. 1989. In paragraph 16 it is observed thus : "16. In the light of the Apex Court judgment in the matter of People's Union for Civil Liberties v. Union of India (supra) the said Act would also have to be interpreted in the light of the International Convention of the Rights of the Child. 1989. As mentioned ear lier in this judgment, the said convention culls out various provisions in the form of Articles to prevent child abuse. The raison d'etre of the said Act can be said to be to facilitate the full and harmonious development of the child's personality so that the child could grow up in a family environment with happiness, love and understanding. The entire endeavour there fore, is to protect the rights of the child and prevent child abuse. If such an interpretation is to be given to the provisions of Sec. 8(2) and especially the word child abuse the incident in question on the basis of which FIR came to be registered, cannot be said to be incident involving any child abuse. The incident has taken place purely by accident, with out there being any intention of any person to cause any harm to any child. It is unfortunate though that five children have died in the said incident, the said five children could therefore be said to be the victims of the unfortunate incident which has taken place without there being any intention on the part of the Accused No. 1 or Accused No. 2 to cause harm to them. In fact there could never have been any intention as the Accused No. 2 who was driving the vehicle and who is the owner of the vehicle, was sitting in the same vehicle with his own daughter. Moreover it is also required to be considered that one of the persons whose two sons expired has very fairly stated in his statement that the said incident was an accident and he does not want to blame anybody for the same. Therefore in my view the provision's of the said Act were not at all attracted and at the highest, it could be said that the Accused were liable to be charged under Sec. 304-A and Sec. 435 of the I.P.C. and were liable to be tried by the regular procedure prescribed by the Cr.P.C." 13. Therefore in my view the provision's of the said Act were not at all attracted and at the highest, it could be said that the Accused were liable to be charged under Sec. 304-A and Sec. 435 of the I.P.C. and were liable to be tried by the regular procedure prescribed by the Cr.P.C." 13. In Suresh Narvekar vs. State of Goa (supra), His Lordship also considered what prejudice would be caused to the petitioner if a wrong provision such as under the 'Children's Act' is invoked. I adopt the reasoning of His Lordship in support of the conclusion reached in this petition. At paragraph 19 it is observed thus : "19. There is merit in the submission of the learned Senior Counsel Mr. Dessai that invoking of a wrong provision and charging the Petitioner 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 of fence rather than on the prosecution to prove the guilt of the accused beyond reasonable doubt. The procedure prescribed under the said Act is also different obviously with a view to make it child friendly. However if an accused is not liable to be charged under the said Act, he then cannot be subjected to the procedure under the said Act and is entitled to be tried under the regular procedure which has been prescribed for the trial of offences under the Cr.P.C. The submission of the learned Senior Counsel therefore, that the Petitioner is entitled to be tried as per the procedure prescribed by law in terms of Article 21 of the Constitution of India, is required to be accepted." (emphasis mine) 14. I may also refer with profit the observations of this Court in the case of Smt. Smita Khaunte vs. Police Inspector & anr., 2015 SCC OnLine Bom 5633. 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 & anr., WPCR 141 of 2016 decided on 20/2/2017. has taken a similar view. 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 & anr., WPCR 141 of 2016 decided on 20/2/2017. 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. 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. 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. 15. The revision is partly allowed in terms of prayer clause (b). Consequently, the proceedings would now be tried by the concerned jurisdictional Magistrate having jurisdiction to try and entertain the offence under Ss. 324, 354 and 504 read with Sec. 34 of the IPC. 16. CRMA No. 483 of 2022(F) also stands disposed of.