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IN THE HIGH COURT OF BOMBAY
M.S. Karnik, J.
Sarvesh Vernekar - Appellant
Versus
State - Respondent
Criminal Revision Application No. 358 of 2023
Decided On : 24-07-2023
CHILD ABUSE - GOA CHILDREN'S ACT - Sec. 8 of the Goa Children's Act 2003, Sec. 451, 352, 504, 506, 509 of IPC - The court interpreted Sec. 8 of the Goa Children's Act, which addresses child abuse, and determined that the allegations did not meet the criteria for child abuse as defined in the Act. The court emphasized that the presence of a child during an incident does not automatically invoke the provisions of the Children's Act unless the act was specifically directed at the child. The court's decision was influenced by the need to prevent misuse of the Act and to ensure that charges are appropriate to the circumstances of each case.
Fact of the Case:
The applicants were accused of offenses under various sections of the IPC and the Goa Children's Act after a complaint was filed alleging that they physically restrained the complainant and made threats in the presence of a minor. The Children's Court rejected their application for discharge under Sec. 227 of the Cr.P.C.
Finding of the Court:
The court found that the allegations did not constitute child abuse as defined under Sec. 8 of the Children's Act. It concluded that the incident primarily targeted the complainant and that the child was merely present during the altercation, which did not satisfy the legal requirements for invoking the Children's Act.
Issues: Whether the actions of the applicants constituted an offense under Sec. 8 of the Goa Children's Act, given that the child was not the direct target of the alleged abuse.
Ratio Decidendi: The court held that the mere presence of a child during an incident does not automatically invoke the provisions of the Children's Act unless the act was specifically directed at the child. The court emphasized the importance of considering the totality of circumstances and the intent behind the actions of the accused.
Final Decision: The court allowed the revision application, set aside the impugned order, and discharged the applicants from the charges under Sec. 8 of the Goa Children's Act, allowing the case to proceed under the relevant IPC sections.
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:-
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 anyt
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