The complaint at the instance of the complainant was
only on 23.3.2015 in which she alleged that her son was
harassed and tortured by the petitioner. She had also alleged
in her complaint that the petitioner has started abusing her
son when he had accompanied the security guard to the
petitioner's flat and threatened him that incase he did not give
₹2,000/- (Rupees two thousand only), she would initiate a
complaint and get him arrested. Her version was primarily
proceeding on the basis of the disclosure purportedly made to
her by her minor son but which was not at all his version in his
statement recorded by the police.
18.. On a perusal of the allegations therefore even if
taken at their face value, it cannot at all be heard on behalf of
the respondent no.2 that her son was subjected to any
psychological and/or physical abuse or that any acts were
done or words used by the petitioner which had affected him
as to debase, degrade or demean the intrinsic worth or
dignity of a child as a human being as contemplated in
Section 2(m)(ii) of the Act. The complaint contains stray
references to threats and abuses without specifying the nature
and the type of any abuses used or the threats given to the
minor so as to attract the offence of child abuse in terms of
Sections 2(m) (i) and (ii) of the Act. Therefore, there is no
material on record to substantiate the charges against the
petitioner under any of the provisions of Sections 504 or 506
IPC and Section 8 of the Act in particular.
IN THE HIGH COURT OF BOMBAY AT GOA.
CRIMINAL WRIT PETITION NO.141 OF 2016.
Smt. Priya Karekar,
V
Police Inspector,
Coram:-F. M. REIS,
NUTAN D. SARDESSAI,JJ.
Pronounced on :-20th February, 2017.
Citation: 2017 ALLMR(CRI) 1451
JUDGMENT (Per Nutan D. Sardessai, J)
Heard Shri Shivan Desai, learned Advocate for the
petitioner, Shri P. Faldessai, learned Additional Public
Prosecutor for the respondent no.1 and Shri Nigel Costa Frias,
learned Advocate for the respondent no.2.
2. Rule.
3. Heard forthwith with the consent of the learned
Counsels appearing for the parties.
4. The learned Addl. Public Prosecutor and learned
Advocate waive notice on behalf of the respective
respondents.
5. The above petition inter alia prays for the quashing
and setting aside the FIR No.84/2015 registered by the
respondent no.1 against the petitioner in the Sessions Case
No.13/2016 pending before the Children's Court for the State
of Goa constituted under the Goa Children's Act, 2003 and the
Rules framed thereunder.
6. Briefly it was the case of the petitioner that on
23.3.2015 she had filed a complaint alleging that some
unknown persons had damaged the window glass of her
bedroom on 23.3.2015 between 16.30 hours to 18.00 hours
by throwing stones from outside and thereby caused loss to
the tune of ₹2000/- (Rupees two thousand only) giving rise to
the registration of a non-cognizable complaint by the
respondent no.1 against unknown persons. The respondent
no.2 had filed a complaint before the respondent no.1 against
the petitioner alleging that the petitioner had called her son
Ashish at her residence through her watchman and abused
him with filthy language and threatened him with dire
consequences apart from compelling him to pay ₹2000/-
(Rupees two thousand only) towards the window glass and
recovered the same from her son.
7. It was further her case that the complaint filed by the
respondent no.2 was blatantly false and malafide and
registered mainly to blunt the complaint filed by the petitioner
and dilute any action that may be taken against the
respondent no.2 in pursuance to the complaint filed by the
petitioner. The respondent no.2 had cooked up a false story
under an attempt to neutralise her complaint. The respondent
no.1 had registered the complaint of the respondent no.2
without any preliminary inquiry who were duty bound to
conduct a preliminary inquiry before the registration of the
FIR. In the absence thereof, it amounted to an arbitrary
exercise of power and vitiated the registration of the FIR. In
any event the allegations in the complaint did not make out
any offence and more particularly under Section 8 of the Goa
Children's Act and therefore the registration of the FIR was an
illegal exercise of powers. The respondent no.1 had completely
misconstrued the nature and the import of Section 8 of the
Goa Children's Act while registering the offence against the
petitioner. The allegations against the petitioner were bald
and unsubstantiated without any material being produced by
the respondent no.2 to establish her involvement. The
respondent no.2 had abused the process of law and malafide
filed a complaint against the petitioner with the sole intention
to harass her by using the police machinery, hence the
petition.
8. Shri Shivan Desai, learned Advocate for the
petitioner submitted that the registration of the offence
against the petitioner particularly under Section 8 of the Goa
Children's Act 2003 (“the Act” for short hereinafter) was
untenable and baseless and as such the offence under Section
8 of the Act was not at all attracted to the case at hand. The
investigation records clearly revealed that the complaint was
motivated at the instance of the respondent no.2 to falsely
implicate the petitioner and that there was no warrant for the
police to file a chargesheet against her before the Children's
Court by invoking the provisions of Section 8 of the Act. No
case whatsoever was made out thereunder and as such the
chargesheet against her had to be quashed and set aside.
9. Shri P. Faldessai, learned Addl. Public Prosecutor on
behalf of the respondent no.1 pointed out that the statement
of the victim and the watchman amply supported the case of
the respondent no.2 and there was no reason to support the
contention of Shri Shivan Desai, learned Advocate for the
petitioner that the offence particularly under Section 8 of the
said Act was not attracted to the case at hand. Shri Nigel
Costa Frias, learned Advocate for the respondent no. 2 too
submitted that the offence under Section 8 of the Act was
attracted to the case at hand on a bare reading of the
statement of the victim and the watchman coupled with the
complaint of the respondent no.2 and therefore no case
whatsoever was made out to quash the FIR particularly under
Section 8 of the said Act against the petitioner.
10. Shri Shivan Desai, learned Advocate for the
petitioner relied in Dr. Dilip Amonkar Vs. State of Goa and
another, (Criminal Writ Petition No. 42/2016) and P.
Ravi Vs. Police Inspector, Pernem Police Station and
ors, (Criminal Writ Petition No. 107/2015) to
substantiate his case.
11. We have heard the learned Counsels and perused the
relevant provisions of the Act apart from the contents of the
chargesheet.
12. Section 2(m) of the Act defines Child abuse thus:-
“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;
Section 8 of the Act deals with child abuse and
provides that all children should be assured of a safe
environment meaning thereby an environment in which he/she
will not be abused in any way and his/her development will be
nurtured. Sub-Section 2 thereof provides the punishment in
respect of the offence of child abuse. Therefore in the context
of the definition of child abuse contained in Section 2(m) of
the Act, the statement of the victim and the watchman in
particular would have to be read and understood and to
conclude whether the case alleged against the petitioner would
amount to child abuse within the meaning of Section 2(m) and
constitute an offence punishable under Section 8(2) of the Act.
13. In Dilip Amonkar (supra), due reference was made
to the aspect of child abuse defined under Section 2(m) and
the offence of child abuse and trafficking contained in Section
8 of the Act and on a consideration of the material at large
containing allegations against the petitioner therein, was it
held that the chargesheet did not show the acts complained of
were commissions or omissions attributed to the petitioner
were allowed by the petitioner because the victim was a child.
It was further observed as “therefore, there is nothing to
show that the Petitioner neglected in discharging his duties of
care because the victim happened to be a child. Merely
because the victim is a child by itself, it cannot be said that
cognizance of the offence has to be taken only by the
Children's Court”. In the ultimate, the petition was partly
allowed and the chargesheet to the extent of invoking the
provisions of Section 8(2) read with Section 2(m) of the Act
stood quashed and set aside. This Court had considered the
judgment in P. Ravi (supra), wherein one of us (F.M. Reis, J)
is a party, had observed at para 11 thus:-
“A bare reading of the aforesaid section in the
context of the object of the Act of 2003, which is
to protect, promote and preserve the best
interests of children in Goa and to create a
society that is proud to be child friendly, if read
in juxtaposition to the allegations in the
complaint, no offence under Section 8 of the Act
of 2003 could be said to have been made out.”
14. A perusal of the statement of the victim himself
would indicate that on the evening of 20.3.2015 while he was
playing with his friends and throwing stones on the tamarind
tree, one stone had fallen on the window of the occupant of
Adwalpalkar Apartment causing a glass pane to break. On the
next morning, the security guard named Santosh Giri came to
his house asking his name and reported to him that he has
been called by the petitioner herein since the window pane of
her flat was broken. He had gone to the flat and met a man
who asked him the details and told him that he had broken the
window glass and thereafter despite his apology, had started
shouting at him and told him that he had to pay for the
expenses apart from taking his mother's mobile number. On
his version he was scared but had not disclosed this fact to his
mother.
15. His statement further reveals that on 22.3.2015 he
was again called during the afternoon time to the house of the
petitioner and when she had started shouting at him for
breaking the window pane which was followed by threats to
pay ₹2000/- (Rupees two thousand only) to her failing which
she would take him and his mother to the police station. He
was scared, had gone home and collected ₹2,000/-(Rupees
two thousand only) from his pocket money and handed it
over to her. During such time too, his mother was not at
home but nonetheless she was informed by the petitioner that
he had given money to her and only then had he revealed the
incident to her. On the face of it, this statement was recorded
on 23.3.2015, three days after the alleged incident on the
evening of 20.3.2015.
16. The statement of the security guard indicates that
the petitioner had informed him about the breaking of her
window pane and instructed him to make inquiry and find out
who was responsible for it. He had contacted the son of the
complainant and taken him to the house of the petitioner who
told the complainant's son that he had broken the window of
her flat, that he would have to pay for it and in the meantime
to call his parents. Although he was present at the relevant
time, there was no word or whisper at his instance further to
indicate that either the man from the house of the petitioner
or the petitioner herself had shouted at the minor boy. There
was also no reference by him to any dual visit by the minor to
the flat of the petitioner much less corroborating his version
on the alleged act of being shouted at him by the man from
her house or by the petitioner herself in person. There was
also no corroboration by him on any abuses or threats being
issued to the minor.
17. The complaint at the instance of the complainant was
only on 23.3.2015 in which she alleged that her son was
harassed and tortured by the petitioner. She had also alleged
in her complaint that the petitioner has started abusing her
son when he had accompanied the security guard to the
petitioner's flat and threatened him that incase he did not give
₹2,000/- (Rupees two thousand only), she would initiate a
complaint and get him arrested. Her version was primarily
proceeding on the basis of the disclosure purportedly made to
her by her minor son but which was not at all his version in his
statement recorded by the police.
18.. On a perusal of the allegations therefore even if
taken at their face value, it cannot at all be heard on behalf of
the respondent no.2 that her son was subjected to any
psychological and/or physical abuse or that any acts were
done or words used by the petitioner which had affected him
as to debase, degrade or demean the intrinsic worth or
dignity of a child as a human being as contemplated in
Section 2(m)(ii) of the Act. The complaint contains stray
references to threats and abuses without specifying the nature
and the type of any abuses used or the threats given to the
minor so as to attract the offence of child abuse in terms of
Sections 2(m) (i) and (ii) of the Act. Therefore, there is no
material on record to substantiate the charges against the
petitioner under any of the provisions of Sections 504 or 506
IPC and Section 8 of the Act in particular.
19. In the circumstances, therefore, we allow the petition
and quash and set aside the FIR No.84/2015 registered by the
respondent no.1 against the petitioner.
20. Rule is made absolute in the above terms.
NUTAN D. SARDESSAI J. F. M. REIS, J.
Print Page
only on 23.3.2015 in which she alleged that her son was
harassed and tortured by the petitioner. She had also alleged
in her complaint that the petitioner has started abusing her
son when he had accompanied the security guard to the
petitioner's flat and threatened him that incase he did not give
₹2,000/- (Rupees two thousand only), she would initiate a
complaint and get him arrested. Her version was primarily
proceeding on the basis of the disclosure purportedly made to
her by her minor son but which was not at all his version in his
statement recorded by the police.
18.. On a perusal of the allegations therefore even if
taken at their face value, it cannot at all be heard on behalf of
the respondent no.2 that her son was subjected to any
psychological and/or physical abuse or that any acts were
done or words used by the petitioner which had affected him
as to debase, degrade or demean the intrinsic worth or
dignity of a child as a human being as contemplated in
Section 2(m)(ii) of the Act. The complaint contains stray
references to threats and abuses without specifying the nature
and the type of any abuses used or the threats given to the
minor so as to attract the offence of child abuse in terms of
Sections 2(m) (i) and (ii) of the Act. Therefore, there is no
material on record to substantiate the charges against the
petitioner under any of the provisions of Sections 504 or 506
IPC and Section 8 of the Act in particular.
IN THE HIGH COURT OF BOMBAY AT GOA.
CRIMINAL WRIT PETITION NO.141 OF 2016.
Smt. Priya Karekar,
V
Police Inspector,
Coram:-F. M. REIS,
NUTAN D. SARDESSAI,JJ.
Pronounced on :-20th February, 2017.
Citation: 2017 ALLMR(CRI) 1451
JUDGMENT (Per Nutan D. Sardessai, J)
Heard Shri Shivan Desai, learned Advocate for the
petitioner, Shri P. Faldessai, learned Additional Public
Prosecutor for the respondent no.1 and Shri Nigel Costa Frias,
learned Advocate for the respondent no.2.
2. Rule.
3. Heard forthwith with the consent of the learned
Counsels appearing for the parties.
4. The learned Addl. Public Prosecutor and learned
Advocate waive notice on behalf of the respective
respondents.
5. The above petition inter alia prays for the quashing
and setting aside the FIR No.84/2015 registered by the
respondent no.1 against the petitioner in the Sessions Case
No.13/2016 pending before the Children's Court for the State
of Goa constituted under the Goa Children's Act, 2003 and the
Rules framed thereunder.
6. Briefly it was the case of the petitioner that on
23.3.2015 she had filed a complaint alleging that some
unknown persons had damaged the window glass of her
bedroom on 23.3.2015 between 16.30 hours to 18.00 hours
by throwing stones from outside and thereby caused loss to
the tune of ₹2000/- (Rupees two thousand only) giving rise to
the registration of a non-cognizable complaint by the
respondent no.1 against unknown persons. The respondent
no.2 had filed a complaint before the respondent no.1 against
the petitioner alleging that the petitioner had called her son
Ashish at her residence through her watchman and abused
him with filthy language and threatened him with dire
consequences apart from compelling him to pay ₹2000/-
(Rupees two thousand only) towards the window glass and
recovered the same from her son.
7. It was further her case that the complaint filed by the
respondent no.2 was blatantly false and malafide and
registered mainly to blunt the complaint filed by the petitioner
and dilute any action that may be taken against the
respondent no.2 in pursuance to the complaint filed by the
petitioner. The respondent no.2 had cooked up a false story
under an attempt to neutralise her complaint. The respondent
no.1 had registered the complaint of the respondent no.2
without any preliminary inquiry who were duty bound to
conduct a preliminary inquiry before the registration of the
FIR. In the absence thereof, it amounted to an arbitrary
exercise of power and vitiated the registration of the FIR. In
any event the allegations in the complaint did not make out
any offence and more particularly under Section 8 of the Goa
Children's Act and therefore the registration of the FIR was an
illegal exercise of powers. The respondent no.1 had completely
misconstrued the nature and the import of Section 8 of the
Goa Children's Act while registering the offence against the
petitioner. The allegations against the petitioner were bald
and unsubstantiated without any material being produced by
the respondent no.2 to establish her involvement. The
respondent no.2 had abused the process of law and malafide
filed a complaint against the petitioner with the sole intention
to harass her by using the police machinery, hence the
petition.
8. Shri Shivan Desai, learned Advocate for the
petitioner submitted that the registration of the offence
against the petitioner particularly under Section 8 of the Goa
Children's Act 2003 (“the Act” for short hereinafter) was
untenable and baseless and as such the offence under Section
8 of the Act was not at all attracted to the case at hand. The
investigation records clearly revealed that the complaint was
motivated at the instance of the respondent no.2 to falsely
implicate the petitioner and that there was no warrant for the
police to file a chargesheet against her before the Children's
Court by invoking the provisions of Section 8 of the Act. No
case whatsoever was made out thereunder and as such the
chargesheet against her had to be quashed and set aside.
9. Shri P. Faldessai, learned Addl. Public Prosecutor on
behalf of the respondent no.1 pointed out that the statement
of the victim and the watchman amply supported the case of
the respondent no.2 and there was no reason to support the
contention of Shri Shivan Desai, learned Advocate for the
petitioner that the offence particularly under Section 8 of the
said Act was not attracted to the case at hand. Shri Nigel
Costa Frias, learned Advocate for the respondent no. 2 too
submitted that the offence under Section 8 of the Act was
attracted to the case at hand on a bare reading of the
statement of the victim and the watchman coupled with the
complaint of the respondent no.2 and therefore no case
whatsoever was made out to quash the FIR particularly under
Section 8 of the said Act against the petitioner.
10. Shri Shivan Desai, learned Advocate for the
petitioner relied in Dr. Dilip Amonkar Vs. State of Goa and
another, (Criminal Writ Petition No. 42/2016) and P.
Ravi Vs. Police Inspector, Pernem Police Station and
ors, (Criminal Writ Petition No. 107/2015) to
substantiate his case.
11. We have heard the learned Counsels and perused the
relevant provisions of the Act apart from the contents of the
chargesheet.
12. Section 2(m) of the Act defines Child abuse thus:-
“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;
Section 8 of the Act deals with child abuse and
provides that all children should be assured of a safe
environment meaning thereby an environment in which he/she
will not be abused in any way and his/her development will be
nurtured. Sub-Section 2 thereof provides the punishment in
respect of the offence of child abuse. Therefore in the context
of the definition of child abuse contained in Section 2(m) of
the Act, the statement of the victim and the watchman in
particular would have to be read and understood and to
conclude whether the case alleged against the petitioner would
amount to child abuse within the meaning of Section 2(m) and
constitute an offence punishable under Section 8(2) of the Act.
13. In Dilip Amonkar (supra), due reference was made
to the aspect of child abuse defined under Section 2(m) and
the offence of child abuse and trafficking contained in Section
8 of the Act and on a consideration of the material at large
containing allegations against the petitioner therein, was it
held that the chargesheet did not show the acts complained of
were commissions or omissions attributed to the petitioner
were allowed by the petitioner because the victim was a child.
It was further observed as “therefore, there is nothing to
show that the Petitioner neglected in discharging his duties of
care because the victim happened to be a child. Merely
because the victim is a child by itself, it cannot be said that
cognizance of the offence has to be taken only by the
Children's Court”. In the ultimate, the petition was partly
allowed and the chargesheet to the extent of invoking the
provisions of Section 8(2) read with Section 2(m) of the Act
stood quashed and set aside. This Court had considered the
judgment in P. Ravi (supra), wherein one of us (F.M. Reis, J)
is a party, had observed at para 11 thus:-
“A bare reading of the aforesaid section in the
context of the object of the Act of 2003, which is
to protect, promote and preserve the best
interests of children in Goa and to create a
society that is proud to be child friendly, if read
in juxtaposition to the allegations in the
complaint, no offence under Section 8 of the Act
of 2003 could be said to have been made out.”
14. A perusal of the statement of the victim himself
would indicate that on the evening of 20.3.2015 while he was
playing with his friends and throwing stones on the tamarind
tree, one stone had fallen on the window of the occupant of
Adwalpalkar Apartment causing a glass pane to break. On the
next morning, the security guard named Santosh Giri came to
his house asking his name and reported to him that he has
been called by the petitioner herein since the window pane of
her flat was broken. He had gone to the flat and met a man
who asked him the details and told him that he had broken the
window glass and thereafter despite his apology, had started
shouting at him and told him that he had to pay for the
expenses apart from taking his mother's mobile number. On
his version he was scared but had not disclosed this fact to his
mother.
15. His statement further reveals that on 22.3.2015 he
was again called during the afternoon time to the house of the
petitioner and when she had started shouting at him for
breaking the window pane which was followed by threats to
pay ₹2000/- (Rupees two thousand only) to her failing which
she would take him and his mother to the police station. He
was scared, had gone home and collected ₹2,000/-(Rupees
two thousand only) from his pocket money and handed it
over to her. During such time too, his mother was not at
home but nonetheless she was informed by the petitioner that
he had given money to her and only then had he revealed the
incident to her. On the face of it, this statement was recorded
on 23.3.2015, three days after the alleged incident on the
evening of 20.3.2015.
16. The statement of the security guard indicates that
the petitioner had informed him about the breaking of her
window pane and instructed him to make inquiry and find out
who was responsible for it. He had contacted the son of the
complainant and taken him to the house of the petitioner who
told the complainant's son that he had broken the window of
her flat, that he would have to pay for it and in the meantime
to call his parents. Although he was present at the relevant
time, there was no word or whisper at his instance further to
indicate that either the man from the house of the petitioner
or the petitioner herself had shouted at the minor boy. There
was also no reference by him to any dual visit by the minor to
the flat of the petitioner much less corroborating his version
on the alleged act of being shouted at him by the man from
her house or by the petitioner herself in person. There was
also no corroboration by him on any abuses or threats being
issued to the minor.
17. The complaint at the instance of the complainant was
only on 23.3.2015 in which she alleged that her son was
harassed and tortured by the petitioner. She had also alleged
in her complaint that the petitioner has started abusing her
son when he had accompanied the security guard to the
petitioner's flat and threatened him that incase he did not give
₹2,000/- (Rupees two thousand only), she would initiate a
complaint and get him arrested. Her version was primarily
proceeding on the basis of the disclosure purportedly made to
her by her minor son but which was not at all his version in his
statement recorded by the police.
18.. On a perusal of the allegations therefore even if
taken at their face value, it cannot at all be heard on behalf of
the respondent no.2 that her son was subjected to any
psychological and/or physical abuse or that any acts were
done or words used by the petitioner which had affected him
as to debase, degrade or demean the intrinsic worth or
dignity of a child as a human being as contemplated in
Section 2(m)(ii) of the Act. The complaint contains stray
references to threats and abuses without specifying the nature
and the type of any abuses used or the threats given to the
minor so as to attract the offence of child abuse in terms of
Sections 2(m) (i) and (ii) of the Act. Therefore, there is no
material on record to substantiate the charges against the
petitioner under any of the provisions of Sections 504 or 506
IPC and Section 8 of the Act in particular.
19. In the circumstances, therefore, we allow the petition
and quash and set aside the FIR No.84/2015 registered by the
respondent no.1 against the petitioner.
20. Rule is made absolute in the above terms.
NUTAN D. SARDESSAI J. F. M. REIS, J.
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