-1- IN THE HIGH COURT OF BOMBAY AT GOA CRIMINAL WRIT PETITION NO. 4 OF 2010 Mr. Suresh Narvekar, S/o. Dasharath Narvekar, H. No. 717, Near R. N. D. Work Shop, Bardez – Goa. …... Petitioner V e r s u s State of Goa, Through P.I., Porvorim Police Station, Porvorim, Bardez – Goa. .….. Respondent Mr. S. G. Dessai, Senior Advocate for the Petitioner. Ms. Winnie Coutinho, Public Prosecutor for the State/Respondent. CORAM: R. M. SAVANT, J. DATE : 28 th January, 2010. JUDGMENT Rule, made returnable forthwith and heard with the consent of the parties. 2. This Petition is filed by the Accused no.1 in Special Case no. 46/2008, pending on the file of the learned President of the Children's Court established under the Goa Children's Act, 2003, (hereinafter referred to as the “said Act”), for the offences punishable under Sections 435 and 304-A of the I.P.C. and Section 8(2) of the said Act. 3. The Petitioner, by this Petition, seeks to challenge the Order -2- dated 26.08.2009, by which Order, charge came to be framed against the Petitioner under Section 8(2) of the said Act The Petitioner also seeks to challenge the Order dated 02.12.2009, by which Order, the application dated 26.11.2009, filed by the Petitioner for deleting the charge framed under Section 8(2) of the Act, came to be rejected by the learned President of the Children's Court. 4. The Petitioner has been charged on the basis of the complaint dated 01.05.2006, lodged by one Anand Sawant. The said complaint is to the effect that on 09.04.2008, around 17.15 hours, near Malim Jetty, the Committee Members of Vithoba Rukmini Temple and one Suresh Narvekar i.e. the Petitioner above named, bursted fire crackers during Palkhi procession of Vithoba Rukmini in a negligent manner without exercising proper care and caution. The Petitioner, who is the Accused no.1, at the relevant time, was seated in the dicky compartment of the Maruti van which was driven by the Accused no.2 in the Palkhi procession of Lord Vithoba Rukmini Temple on 09.04.2006. The deceased children were seated in the Maruti van along with other minor children. The lid of the dicky was open and fire crackers were stored in the dicky portion where the Accused no.1 was lighting the fire crackers with the help of paper roll torch and he was throwing the lighted crackers on the road behind the van. Suddenly, the fire crackers kept in the dicky got ignited and started bursting in quick succession, due to which, the inner portion of the van caught fire. The accused no.1, who was in the dicky, jumped out and he closed the lid of the dicky. The Accused no.2, who was -3- driving the vehicle ran away from the vehicle by taking his own minor daughter who was on the front side and one more person and one girl child sitting on the front left side also got down and ran away from the spot. The side doors of the van were closed at that time due to which, five children who were sitting in the middle portion and in the dicky, sustained severe burn injuries and subsequently succumbed at the hospital. 5. Based on the aforesaid facts, the learned President of the Children's Court, by his Order dated 26.08.2009, directed the framing of charge under Sections 435 and 304 of I.P.C. read with Section 8(2) of the said Act. The learned President by the said Order, however, discharged the Accused nos.3, 4 and 5 on the ground that there was no material against them to frame such charges. 6. The Petitioner and the Accused no.2 thereafter filed application for questioning the jurisdiction of the Children's Court to try and decide the said case on the ground that the incident described in the chargesheet, is an accident caused during the Palkhi procession of the Devalaya and there is no offence committed against any child but the children were the victims. At the most and at the highest it could be said that the act or omission is negligence and nothing more. The said applications questioning the jurisdiction of the Goa Children's Court, was considered by the learned President of the Children's Court and by the Order dated 02.12.2009, which is also impugned in the present Petition, the said applications came to be rejected. The learned -4- President in so rejecting the applications, has relied principally on Section 2(m) of the said Act which, inter alia, defines what is meant by “child abuse”. The learned President also seemingly relied upon Section 30 of the said Act to hold that the provisions of the Act were applicable and, therefore, the Children's Court had jurisdiction in the matter. As mentioned herein above, the Order dated 26.08.2009, directing the framing of charge against the Petitioner and the Accused no.2 under Section 8(2) of the Act and the Order dated 02.12.2009, are impugned in the present Petition. 7. I have heard the learned Senior Counsel Shri S. G. Dessai, for the Petitioner and Ms. W. Countinho, Public Prosecutor for the State. 8. The learned Senior Counsel for the Petitioner submitted that the Petitioner is entitled to be tried by the procedure established by law in view of the mandate of Article 21 of the Constitution of India and the procedure established by law according to him, could be only the one under the Criminal Procedure Code as the said Act has no application in the facts of the present case. The learned Senior Counsel contended that the incident, on the basis of which the chargesheet has been filed, is an accident caused during Palkhi procession of Lord Vithoba Rukmini Temple and there is no offence committed against any children but the children were the victims and at the most it could be said that the act or omission would amount to negligence for which the Petitioner could at the highest be charged under Sections 304-A and 435-A of the I.P.C. The learned Senior Counsel further submitted that Section 8(2) of -5- the said Act envisages any child abuse or sexual assault as defined under the said Act. Child abuse which can be said to apply in the instant case, is defined under Section 2(m), which refers to the maltreatment whether habitual or not of the child which includes neglect. Section 2(m) is relevant, which postulates “neglect of the child”. The learned Senior Counsel submitted that the word “neglect” envisaged in Section 2(m) is not synonymous with the word “negligence” which appears in Section 304-A of the I. P. C. The word “neglect” in so far as the said Act is concerned, has a different connotation then the word “negligence”, which appears in the I.P.C. “Neglect”, according to the learned Senior Counsel, would mean disregard to duty, a failure to provide food, water, shelter, etc., to the child which is under the care of a particular person, whereas “negligence”, as envisaged in the I.P.C., entails a failure to exercise a degree of care. The learned Senior Counsel, therefore, submitted that the learned President of the Children's Court has erred in taking one for the other. The learned Senior Counsel submitted that the said words are not interchangeable as the context in which they have been used in the two statutes, is different. The learned Counsel further submitted that the said Act has been framed pursuant to the International convention of the Rights of the Child 1989. The said International convention obligates the participating states to take all appropriate legislative, administrative, social and educational measures to protect the child from all forms of physical or mental violence, injury or abuse, neglect or negligence, treatment, maltreatment or exploitation, including sexual abuse, while in the care of parents, legal guardians or any other person who has the care of the child. The principles entwined in the -6- various Articles of the Convention of the rights of the child have been embodied by virtue of Section 35 of the said Act and are declared to be part of the law and it shall be the duty and responsibility of the State Government to ensure that the rights of the child as declared and enumerated are protected all over within the territory of Goa. The learned Senior Counsel in the matter of the interpretation of the provisions of the said Act, relied upon the Judgment of the Apex Court reported in 2005 (2) S.C.C. 436, in the matter of People's Union for Civil Liberties vs. Union of India and Ors. The Apex Court has held in the said Judgment that the International treaties and instruments have been relied by the Supreme Court for statutory interpretation where the terms of any legislation are not clear or are reasonably capable of more than one meaning. In such cases, the Courts have relied upon the meaning which is in consonance with international treaties or instruments in the absence of any law to the contrary, for there is a prima facie presumption that the Parliament did not intend to act in breach of international law including State treaty obligations. Though there was a dissenting note by one of the learned Judges of the Apex Court, in so far as the principles which could be applied for interpreting the laws based on international treaties and conventions, there was no divergence of views. The learned Counsel, therefore, submitted that the interpretation of Section 8(2) would have to be in consonance with the background in which the said Act has been framed. 9. The learned Counsel lastly submitted that on account of Section 8(2) of the said Act being roped in, great prejudice is likely to be caused to the -7- Petitioner as the nature of the trial under the said Act has got different parameters then the one under the general law of the land i.e. the Cr.P.C. The learned Senior Counsel, therefore, submitted that since Section 8(2) of the said Act has no application, it strikes at the very root of the Children's Court to try the said case and, therefore, both the Orders are required to be set aside and the charge under Section 8(2) is required to be deleted and, resultantly, Petitioner is required to be tried for the offences punishable under Section 304-A and 435 of I.P.C. under the regular procedure prescribed by the Cr.P.C. 10. On the other hand, the learned Public Prosecutor submitted that, as per the facts disclosed in the said chargesheet, the Petitioner failed to exercise proper care and caution whilst bursting the crackers knowing fully well that the said crackers have the potential to cause harm. The Accused, therefore, according to the learned Public Prosecutor, have shown neglect towards the children who were sitting in the car during the said Palkhi procession. The learned Public Prosecutor submitted that the neglect envisaged in Section 2(m) of the said Act and the word “negligence” are interchangeable and have the same meaning as that of lack of due care and caution. The learned Public Prosecutor drew the Court's attention to Section 30 of the said Act, and contended that the Children's Court has the jurisdiction to try all offences against the children whether they are defined under the said Act or not, the learned Public Prosecutor submitted that since five children have died, an offence against the children has been committed and, therefore, Section 8(2) and Section 30 of the said Act are attracted. The learned Public -8- Prosecutor relied upon an unreported Division Bench Judgment of this Court dated 20.11.2009 in Criminal Appeal no. 54/2008 in the matter of Nagraj Bajannath vs. State. In support of her contention that where an offence is made out under the Children's Act, the person could be tried both under the said Act as well as under the provisions of I.P.C. The facts of the said case were that the Accused who was the Appellant in the said Appeal was charged under Section 376 of the I.P.C. as well as Section 8(2) of the said Act for the rape committed on a minor girl. The contention of the Accused was that he could not be tried under both the Acts for the same offence as it would amount to double jeopardy and, therefore, would be in violation of Article 21 of the Constitution of India. In the context of the facts of the said case, it was held that if the act is an offence under the said Act, then the person could be tried under the I.P.C. as well as the said Act as the trial is one and the same. There was no dispute in that case that the act alleged was an offence under both the statutes i.e. the I.P.C. as well as Goa Children's Act and it is in the said context that the Division Bench has held that the Accused could be tried under both the statutes. Relying upon the said Judgment, it was contended by learned Public Prosecutor that in the instant case also, the Petitioner is being tried under both the Acts and, therefore, in the light of the Division Bench Judgment, no fault could be found with the chargesheet. 11. The learned Public Prosecutor lastly submitted that there is no prejudice likely to be caused to the Petitioner as his trial would be one and the same. The learned Public Prosecutor submitted that no case for interference -9- has been made out by the Petitioner and the Petition is, therefore, liable to be dismissed. 12. I have heard the learned Counsel for the parties and bestowed my anxious consideration to the rival contentions. The question which arises for consideration is whether Section 8(2) of the said Act is applicable in the facts of the present case. In the said context, it would be relevant to recapitulate the incident on the basis of which the FIR came to be registered. The incident took place during the Palkhi procession of Lord Vithoba Rukmini Temple on 09.04.2006. In the said procession, it appears that there were number of cars which were forming part of the procession. The Accused no.2, who was the owner of a Maruti Van also got the said vehicle to facilitate people from participating in the said Palkhi procession. The Accused no.2 was driving the said Maruti van and even his child was sitting in the said car. It appears that the said Maruti van came to be occupied by number of children who were possibly knowing the Accused no.2. The Accused no. 1 was sitting in the dicky of the car. The lid of the dicky was open and the Accused no.1 was lighting fire crackers with the help of one paper roll torch and he was throwing the lighted crackers on the road behind the van. The fire crackers were also stored in the dicky portion of the said Maruti van. As per the FIR, suddenly the fire crackers kept in the dicky compartment got ignited and started bursting in quick succession, due to which the inner portion of the van caught fire. The Accused no.1, who was in the dicky, jumped out and he closed the lid of the dicky. Accused no.2, who was driving the vehicle also ran -10- away from the vehicle by taking his own minor daughter who was in the front side. One more person and one girl child sitting on the front left side also got down and ran away from the spot. Since the side doors of the van were closed at that time, on account of this, five children who were sitting in the middle portion and in the dicky sustained severe burn injuries and subsequently succumbed at the hospital. 13. The facts as disclosed above, therefore, do not indicate in any manner that it is the Accused no.2 or the Accused no.1 who had made the children to sit in the said Maruti van. As happens in such religious processions, the children on their own volition got in to the said van and occupied the seats. It was nobody's intention to harm the children or that the children were made to sit in the car so that they could be harmed. Nobody also expected that the crackers stored in the dicky of the car would be ignited and it was only by sheer accident that the said crackers in the dicky of the said Maruti van ignited resulting in the van catching fire and the children sitting in the middle portion suffering burn injuries. The incident was purely accidental and was not on account of the design of either the Accused no.1 or the Accused no.2. At the highest, it could be said that the Accused were negligent in not taking proper precautions knowing that the Accused no. 2 was lighting crackers sitting at the end of the dicky and throwing the lighted crackers behind the van. The question as mentioned herein above, therefore, arises whether the Accused could be charged under Section 8(2) of the said Act. It would, therefore, be relevant to reproduce Section 8(2), Section 2(m), Section -11- 2(s) and Section 30 of the said Act : “8. Child Abuse and trafficking. 1. … 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/-. 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. Whoever commits incest shall be punished with imprisonment of either description for a term of one year 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/-. Statement of the child victim shall be treated on par with the statement of a child rape victim under Section 375 of the IPC, as laid down by the Supreme Court of India. ... Section 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 -12- immediately give medical treatment to an injured child resulting in serious impairment of his growth and development or in his permanent incapacity or death; … (s) “Offence” means an act or omission made punishable under any law for the time being in force. ... Section 30 : Jurisdiction of the Children's Court.- (1) Subject to the provisions of this Act, the Children's Court shall have jurisdiction to try all offences against children whether such offence is specified under this Act or not, (2) ... (3) The powers of the Competent Authority and the Special Officers under this Act shall not fall within the jurisdiction of the Children's Court. 14. Since Section 8(2) involves child abuse and sexual assault and since sexual assault is not in contention in the present case, the question is only as regards child abuse. Child abuse is defined in Section 2(m). Section 2(m) which defines child abuse postulates that child abuse refers to the maltreatment whether habitual or not of the child which includes any of the following. Clause (i) is relevant, which postulates “neglect of the child.” The essence of the child abuse, therefore, is the maltreatment of the child which maltreatment in terms of the Section includes neglect. Therefore, a reading of the said Section indicates that maltreatment is a genus of which neglect is the specie. The word “neglect” would also have to be construed in the context of -13- the other maltreatments which are mentioned in clause (i). “Neglect” would, therefore, have to mean a maltreatment in the nature of a child being deprived of food, shelter, clothing, etc., by a person who is in care of the child. 15. It would also be relevant to refer to the dictionary meaning of the word “neglect” from the Merriam Webster's Dictionary of Law. “neglect n : a disregard of duty resulting from carelessness, indifference, or willfulness; esp : a failure to provide a child under one's care with proper food, clothing, shelter, supervision, medical care, or emotional stability – compare ABUSE 2, NEGLIGENCE “ In Juxtaposition, the word “negligence” has been defined in the said Dictionary thus : “negligence\'ne-gli-jens\n: failure to exercise the degree of care expected of a person of ordinary prudence in like circumstances in protecting others from a foreseeable and unreasonable risk of harm in a particular situation; also : conduct that reflects this failure – called also ordinary negligence, simple negligence; compare ABUSE 2, DUE CARE, INTENT, Negligence may render one civilly and sometimes criminally liable for resulting injuries.” 16. In the light of the Apex Court Judgment in the matter of People's Union for Civil Liberties vs. Union of India and Ors. (supra), the said Act would also have to be interpreted in the light of the International convention of -14- the Rights of the Child, 1989. As mentioned earlier 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, therefore, is to protect the rights of the child and prevent child abuse. If such an interpretation is to be given to the provisions of Section 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, without 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 provisions 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 Section 304-A and Section 435 of the I.P.C. and were liable to be tried by the regular procedure prescribed by -15- the Cr.P.C. 17. The reliance of the learned Public Prosecutor, Ms. Coutinho, on Sections 2(s) and 30 of the said Act, in my view, is misconceived. The offence postulated in Section 2(s) and Section 30 have to be against children though not defined under the said Act. Such is not the case in the instant matter as the incident has taken place purely by accident and there was no intention to harm any child. If the offence was against the children, then the Accused were liable to be tried under the Children's Act. 18. The reliance of the learned Public Prosecutor on the Judgment of the