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IN THE HIGH COURT OF BOMBAY
M.S. Karnik, J.
Vaibhav Faldessai - Appellant
Versus
Officer In Charge - Respondent
Criminal Revision Application No. 482 of 2022, Criminal Misc. Application No. 483 of 2022
Decided On : 10-04-2023
CHILD ABUSE - CHILDREN'S ACT - Sec. 2(m)(i), Sec. 8(2) of the Goa Children's Act, 2003; Sec. 397 of the Code of Criminal Procedure - The court analyzed the provisions of the Goa Children's Act, particularly the definitions of 'child abuse' and the requirements for establishing such an offense. It concluded that the actions of the applicants, while regrettable, did not constitute 'child abuse' as defined by the Act, since there was no intention to harm the child. The court emphasized the need for a careful interpretation of the Act to avoid misuse and ensure that charges are appropriate to the circumstances of each case.
Fact of the Case:
The applicants were charged with offenses under the IPC and the Goa Children's Act after allegedly spraying pepper spray in the eyes of a minor during a confrontation outside a primary school. The applicants challenged the charges framed under the Children's Act, arguing that the incident did not amount to child abuse as defined by the Act.
Finding of the Court:
The court found that the evidence did not support the conclusion that the applicants intended to harm the child or that their actions constituted child abuse under the Children's Act. The court highlighted that the incident was an unfortunate occurrence rather than a deliberate act of abuse.
Issues: Whether the actions of the applicants constituted 'child abuse' under the Goa Children's Act, and whether the charges framed against them were appropriate given the circumstances of the incident.
Ratio Decidendi: The court held that the definition of 'child abuse' under the Children's Act requires a clear intention to harm a child, which was absent in this case. The court reiterated that not every incident involving a child automatically invokes the provisions of the Children's Act, and charges must be based on the specific facts and intentions involved.
Final Decision: The revision application was partly allowed, and the charges under the Children's Act were quashed, allowing the case to proceed under the relevant IPC sections instead.
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. 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. Sec. 2(m)(i), (ii) and (iii) of the Children's Act defines 'child abuse'
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