Back
2013 Supreme(Bom) 1555
IN THE HIGH COURT OF BOMBAY AT GOA
R.C. CHAVAN, J.
Atul Anant Pathak
Versus
State through Chandrakant L. Naik
Criminal Writ Petition No. 28 of 2013
Decided On : 14-08-2013
For the Petitioner:G. Sardessai, Advocate.
For the Respondent: D. Lawande, Additional Public Prosecutor.
Headnote:GOA CHILDREN‘S ACT, 2003 - Sections 8, 30, 32 and 34 - Indian Penal Code, Section 304-A - Jurisdiction of Children‘s Court. - Where deceased, a girl aged 16-1/2 years, died while working in factory due to absence of safety equipments therefore case of accidental death to be tried by regular Criminal Court and not by Children‘s Court. - The provisions of sub-section (1) of Section 30 the Goa Children‘s Act, 2003 are only an enabling provisions and not provisions which would exclude the jurisdiction of other Courts. The argument about exclusion of jurisdiction based on Section 34 of the Goa Childrens‘ Act has to be rejected because Section 34 would come into play only if some question or dispute or liability is required by Goa Children‘s Act to be decided by Children‘s Court alone.
Though the word “alone“ is not to be found in Section 34 of the Goa Children‘s Act, 2003, the words “is to be decided“ used in Section 34 would clearly imply that unless the question is required to be decided under the Act by the Children‘s Court alone the jurisdiction of other Courts would not be excluded. An enabling provisions cannot be equated to a provision requiring the Children‘s Court to decide the dispute or the question or liability. Therefore since in this case the offending act was of negligence in providing necessary safety equipments to workers in a factory and not that such equipments was not provided because the victim happened to be a child, the case was required to be tried by the regular Criminal Court and not by the Children‘s Court.
GOA CHILDREN’S ACT, 2003 - Sections 30 and 34 - Jurisdiction of Courts. - Provisions of Section 30(1) of Act being only an enabling provision, not excludes jurisdiction of other Courts. - The provisions of sub-section (1) of Section 30 the Goa Children’s Act, 2003 are only an enabling provision and not provision which would exclude the jurisdiction of other Courts. The argument about exclusion of jurisdiction based on Section 34 of the Goa Children’s’ Act has to be rejected because Section 34 would come into play only if some question or dispute or liability is required by Goa Children’s Act to be decided by Children’s Court alone.
Though the word "alone" is not to be found in Section 34 of the Goa Children’s Act,2003, the words "is to be decided" used in Section 34 would clearly imply that unless the question is required to be decided under the Act by the Children’s Court alone the jurisdiction of other Courts would not be excluded. An enabling provisions cannot be equated to a provision requiring the Children’s Court to decide the dispute or the question or liability.
The petitioner in this petition has invited this trouble of being required to move this Court because he questioned before the Sessions Court an order passed by the learned Judicial Magistrate, First Class, Sattari in Criminal Case No.9/S/2011 issuing process against the petitioner for the offence punishable under Section 304-A of Indian Penal Code.
2. A sixteen and half years old girl was employed in a factory of which the petitioner was Factory Manager. It was alleged that the petitioner did not supply necessary safety equipments to the victim who was caught in a conveyor belt. She suffered injuries which led to her death. A report was made and after investigation, charge-sheet was sent to the Court of learned Judicial Magistrate, First Class Sattari, who issued process against the petitioner. Aggrieved by the said order, the petitioner approached Court of Sessions at Mapusa for having the order of issuance of process set aside.
3. The learned Additional Sessions Judge, who heard the revision application allowed the digression initiated by the Public Prosecutor and rather than dealing with the question whether the process was properly issued or not, proceeded to hold that the learned Judicial Magistrate, First Class had no jurisdiction to entertain the charge-sheet. The learned Additional Sessions Judge accepted the contention of the Public Prosecutor that since the victim was sixteen and half years old girl the offence was required to be tried by the Children's Court under the Goa Children's Act, 2003.
Therefore, the learned Additional Sessions Judge set aside the order directing issuance of process and ordered the learned Magistrate to return the charge-sheet to the prosecution for presenting it before the Children's Court. This is why the petitioner is before this Court.
4. I have heard the learned counsel for the petitioner and also the learned Additional Public Prosecutor and have gone through the entire charge-sheet, copy whereof has been filed on record.
5. Charge-sheet shows that the victim was serving in the factory of which the petitioner was Factory Manager and an accident occurred in which the victim suffered injuries which led to her death. The charge-sheet does not shows that the act complained of were committed or omission attributed to the petitioner were allowed by the petitioner because the victim was a child. The victim happened to be a worker in the factory and any other worker in the factory could have also suffered same fate. Therefore, there is nothing to show that the petitioner neglected in discharge of his duty of care because the victim happened to be a child. The learned Additional Sessions Judge, however held that since the victim was a child, cognizance of the offence could have been taken only by the Children's Court and for this purpose seems to have placed reliance upon the judgment of this Court in the case of VideshKarmalkar Vs. State in Criminal Writ Petition NO. 35 of 2010 decided on 5 th July, 2010 . The learned Counsel for the petitioner submitted that the judgment in VideshKarmalkar (supra) does not lay down any such proposition and submitted that the question has been considered by this Court in case of Suresh Narvekar Vs. State of Goa, in Criminal Writ Petition No. 4 of 2004 decided on 28th January, 2010. The learned Counsel for the petitioner submitted that in the case of Suresh Narvekar (supra), this Court has specifically considered the case of the offence punishable under Section 304-A of Indian Penal Code in which some children were injured and succumbed to the injuries because of fire which broke out on account of lighting of fire crackers in a vehicle in a procession. In that case, charge-sheet was filed in the Children's Court and the Children's Court had framed charge of offences punishable under Section 8(2) the Goa Children's Act ,2003 read with Sections 304-A and 435 of the Indian Penal Code. After considering the arguments advanced this Court set aside the or
