Thursday 29 December 2016

When offence against child will not be triable before children's court?

.In the case in question, the petitioner is alleged to have

  committed the offences under Sections 279,337 and 338.

  Causing hurt or grievous hurt by rash and negligent driving is

  the ingredient of those offences.            In Cambridge Advanced

  Learner's Dictionary, Third Edition, the word 'rash' when used as



  adjective means careless or unwise, without thought for what

  might happen or result, meaning thereby that while doing

  something, the person did not think about the costs involved. In

  Cambridge Advanced Learner's Dictionary Third Edition, the

  word 'negligence' when used as adjective means not being

  careful or giving enough attention to people or things that are

  your responsibility. Therefore, when the allegation was to the

  effect that a person has acted in a rash and negligent manner, it

  cannot be said that he has acted intentionally. In view of the

  above, the petitioner in the case on hand cannot be said to have

  acted intentionally while causing injury to the victim. Or in

  other words, hurt or grievous hurt was caused to the child not by

  any intentional act of the petitioner. Without the juncture of the

  mental element like intention, infringement or violation of a right

  is not possible. Contextually, hurt or grievous hurt was caused

  to the child in the motor accident resulted from the rash and



  negligent driving by the petitioner. But the right of the child

  cannot be said to have been infringed or violated by the

  petitioner by his act. The incident in which the child has

  sustained injuries can only be said to be caused accidentally out

  of rashness and negligence on the part of the petitioner. In such

  circumstances,       the petitioner cannot be said to have

  intentionally caused hurt or grievous hurt to the child in the case

  on hand to put the same within the jurisdiction of the Sessions

  Court, Pathanamthitta.        Therefore, the     Sessions   Court,

  Pathanamthitta, which is designated as the children's court

  cannot be said to have any authority to try the case. The Judicial

  First Class Magistrate Court, Pathanamthitta, which is the

  committal court is the appropriate court to try the case.

  13. In Abdul Aziz's case (supra), a Single Bench of this Court

  had occasion to deal with a situation of similar nature and held as

  follows:-



              "..........Even if the victim in an accident case is
              aged below 18 years, such cases registered under
              Sections 279,337,338 or 304(A) of IPC, being cases
              arising out of an accident need not be tried by the
              Children's Court, constituted under Section 25 of
              the Central Act 4/2006. But, other cases involving
              violation of 'child rights', acts done with the
              intention to violate or infringe the 'child rights' if
              done with the knowledge that by his act the child
              right is likely to be violated then such offences are
              to be tried by the Children's Court. The learned
              Magistrates, before whom such charge sheets are
              filed, are to apply their minds and find whether
              offences complained of involve violation of the
              'child rights'. If so, such cases are to be committed
              to the Court of Sessions (The children's Court),
              following the procedure prescribed under Sections
              207 to 209 Cr.P.C. "


  14.In view of the discussion hereinabove made and in view of

  the aforesaid dictum, this Court is of the view that Annexure A1

  committal order will not sustain in the eye of law.
IN THE HIGH COURT OF KERALA AT ERNAKULAM

                                PRESENT:

             MRS. JUSTICE MARY JOSEPH

         7TH DAY OF JUNE 2016
                        Crl.MC.No. 2910 of 2013
                  

            P.M.MATHEW,
        V 

            STATE OF KERALA,
           Citation:2016 CRLJ 4766


1.The petitioner is the accused in Crime No.635/2010 of Konny

  Police Station. The offences alleged in the crime are those

  punishable under Sections 279,337 and 338 of the Indian

  Penal Code (for short 'I.P.C.') read with Section 134(a) and

  (b) of the Motor Vehicles Act, 1988 (for short 'the Act').

2.The case of the prosecution is that on 22.8.2010 at about 8.30

  hours an Alto car bearing Regn.No.KL-3T 2803 driven by the

  petitioner through Vellapara-Chinamukku public road from

  west to east in a rash and negligent manner hit on an Activa

  scooter bearing Regn.No.KL-03 917 driven through Konny-

  Pathanapuram public road. In the accident, the rider of the

  Activa scooter and the pillion rider on it sustained injuries.

3.CW2, the pillion rider in the Activa Scooter was a minor child

  aged 12 years. Therefore, the Judicial First Class Magistrate

  Court-II, Pathanamthitta found the case exclusively triable by

  the Children's court and thereupon, vide            proceedings

  No.151/2010, committed the matter to the District and


  Sessions Court, Pathanamthitta, which is the designated

  Children's Court as per Section 25 of the      Commission for

  Protection of Child Rights Act, 2005 (for short 'the Act'). The

  certified copy of the order in C.P.No.151/2010 is appended

  along with this petition as Annexure A1.

4.The District and Sessions Court, Pathanamthitta received the

  case which was committed to it and numbered it as

  S.C.No.227/2011.

5.Annexure A1 committal order dated 15.12.2010 is sought to be

  quashed in this petition on the reason that while passing the

  said order, the court has committed a grave error. The copy of

  the final report in Crime No.635/2010 dated 17.9.2010 is also

  appended along with this application as Annexure A2. It is

  contended that the final report will in no way divulge any

  offence committed in violation of the child rights. In the case

  on hand, the only allegation was that the petitioner due to his

  rash and negligent driving of an Alto car, caused injury to

  CW2, who is a child. Therefore, there cannot be said to be any

  intentional violation of child right as contemplated by Section

  25 of the Act and it cannot be construed as an offence


  infringing the right of the child. It is contended by the counsel

  that in the said circumstances, the committal court is

  absolutely unjustified in committing the case on its file to the

  District and Sessions Court, Pathanamthitta, which is the

  designated Children's Court.       The case ought to have been

  tried by the committal court itself.

6.Sri.Philip.T.Varghese, counsel appearing for the petitioner and

  the learned Public Prosecutor representing the respondent

  were heard.

7.Sri.Philip.T.Varghese, learned counsel for the petitioner has

  addressed this Court citing Abdul Aziz.M. v. Circle

  Inspector of Police [2011(4) KLT 1003] in support of the

  grounds raised in the petition. It is contended by him that the

  minor child was injured in a motor accident due to the rash

  and negligent driving of the vehicle by the petitioner and the

  rights of the child cannot be said to be violated in the accident.

  According to him, in the aforesaid circumstances, the case on

  hand cannot be taken as exclusively triable by the Children's

  Court, but one triable by the Judicial First Class Magistrate

  Court, Pathanamthitta itself.



8.The learned Public Prosecutor submitted that infringement of

  the right of a child is involved in the case and therefore,

  District and Sessions Court, Pathanamthitta being the

  designated Children's Court is the authorised court to deal

  with the matter. According to him, therefore, the Judicial First

  Class Magistrate Court, Pathanamthitta is perfectly justified in

  committing the case to the District and Sessions Court,

  Pathanamthitta by Annexure A1 passed in C.P.No.151/2010

  and interference is uncalled for.

9.In this connection, it is pertinent to have a look at the definition


  of the offences involved in the crime.               Section 279 I.P.C.

  provides for punishment for rash driving or riding on a public

  way. It reads as follows:-

                "279. Rash driving or riding on a public way.--
         Whoever drives any vehicle, or rides, on any public way
         in a manner so rash or negligent as to endanger human
         life, or to be likely to cause hurt or injury to any other
         person, shall be punished with imprisonment of either
         description for a term which may extend to six months,
         or with fine which may extend to one thousand rupees,
         or with both."

  Section 337 provides punishment for causing hurt by act



  endangering life or personal safety of others.

                "337. Causing hurt by act endangering life or
            personal safety of others.--Whoever causes hurt to
            any person by doing any act so rashly or negligently
            as to endanger human life, or the personal safety of
            others, shall be punished with imprisonment of either
            description for a term which may extend to six
            months, or with fine which may extend to five
            hundred rupees, or with both."

  Section 338 provides punishment for causing grievous hurt by

  act endangering life or personal safety of others. It reads:-

                "338.      Causing    grievous    hurt   by    act
            endangering life or personal safety of others.--
            Whoever causes grievous hurt to any person by doing
            any act so rashly or negligently as to endanger
            human life, or the personal safety of others, shall be
            punished with imprisonment of either description for
            a term which may extend to two years or with fine
            which may extend to one thousand rupees, or with
            both."

  Section 134(1)(a) of the Act deals with the duty of a driver in

  case a motor accident was occurred and injury was sustained by

  a person. Section 39 I.P.C. provides for the meaning of the word

  'voluntarily'. It reads as follows:-



                "39."Voluntarily".--A person is said to cause an
            effect "voluntarily"when he causes it by means whereby
            he intended to cause it, or by means which, at the time
            of employing those means, he knew or had reason to
            believe to be likely to cause it."

  Therefore, a person is said to do something voluntarily, when he

  causes it by means whereby he intended to cause it or he knew or

  had reason to believe to be likely to cause it. In the offences

  aforementioned, the word             'voluntarily' or 'intentionally' is

  lacking. Section 25 of the Act is quoted hereinbelow:-

              "25.     Children's Courts.--For the purpose of
            providing speedy trial of offences against children or
            of violation of child rights, the State Government
            may, with the concurrence of the Chief Justice of the
            High Court, by notification, specify at least a court
            in the State or specify, for each district, a Court of
            Session to be a Children's Court to try the said
            offences:
              Provided that nothing in this section shall apply if--
              (a) a Court of Session is already specified as a
                   special court; or
              (b) a special court is already constituted,
            for such offences under any other law for the time
            being in force."

  In view of the provision, the court of Sessions is designated as

  the children's court to try the offences against children or of



  violation of child rights in a speedy manner.

  10.The Act was enacted in the back drop of infringement or

  violation of the several rights guaranteed to the children under

  the Constitution of India.     The Constitution in itself incorporate

  several safeguards against violation of the rights guaranteed to

  the children. It enable the State Governments to make special

  provisions for children and also direct that the policy of the State

  shall be such that the tender age of the children is not abused.

  The Government is also committed to give children opportunities

  and facilities to develop in healthy atmosphere with required

  freedom and dignity, and to ensure that their constitutional and

  legal rights are protected. In view of the aforesaid provisions

  contained in the Constitution, the Commissions for Protection of

  Child Rights Bill was introduced in the Parliament. The objects

  and reasons behind the same are extracted hereinbelow:

           "India has the largest child population in the world.
           Well being of children is a universal aspiration.



           Constitution of India guarantees several rights to the
           children including equality before law, free and
           compulsory primary education to all children of the
           age group of six to fourteen years, prohibition of
           trafficking and forced labour of children and
           prohibitions of employment of children below the age
           of fourteen years in factories, mines or hazardous
           occupations. The Constitution enables the State to
           make special provisions for children and directs that
           the policy of the State shall be such that their tender
           age is not abused. The Government is committed to
           give children opportunities and facilities to develop
           in healthy atmosphere with required freedom and
           dignity, and to ensure that their constitutional and
           legal rights are protected."

  11. It follows therefrom that only when offences violating any

  of the rights of a child are involved in a case, it needs to be tried

  by a Children's Court as contemplated under Section 25 of the

  Act.

  12.In the case in question, the petitioner is alleged to have

  committed the offences under Sections 279,337 and 338.

  Causing hurt or grievous hurt by rash and negligent driving is

  the ingredient of those offences.            In Cambridge Advanced

  Learner's Dictionary, Third Edition, the word 'rash' when used as



  adjective means careless or unwise, without thought for what

  might happen or result, meaning thereby that while doing

  something, the person did not think about the costs involved. In

  Cambridge Advanced Learner's Dictionary Third Edition, the

  word 'negligence' when used as adjective means not being

  careful or giving enough attention to people or things that are

  your responsibility. Therefore, when the allegation was to the

  effect that a person has acted in a rash and negligent manner, it

  cannot be said that he has acted intentionally. In view of the

  above, the petitioner in the case on hand cannot be said to have

  acted intentionally while causing injury to the victim. Or in

  other words, hurt or grievous hurt was caused to the child not by

  any intentional act of the petitioner. Without the juncture of the

  mental element like intention, infringement or violation of a right

  is not possible. Contextually, hurt or grievous hurt was caused

  to the child in the motor accident resulted from the rash and



  negligent driving by the petitioner. But the right of the child

  cannot be said to have been infringed or violated by the

  petitioner by his act. The incident in which the child has

  sustained injuries can only be said to be caused accidentally out

  of rashness and negligence on the part of the petitioner. In such

  circumstances,       the petitioner cannot be said to have

  intentionally caused hurt or grievous hurt to the child in the case

  on hand to put the same within the jurisdiction of the Sessions

  Court, Pathanamthitta.        Therefore, the     Sessions   Court,

  Pathanamthitta, which is designated as the children's court

  cannot be said to have any authority to try the case. The Judicial

  First Class Magistrate Court, Pathanamthitta, which is the

  committal court is the appropriate court to try the case.

  13. In Abdul Aziz's case (supra), a Single Bench of this Court

  had occasion to deal with a situation of similar nature and held as

  follows:-



              "..........Even if the victim in an accident case is
              aged below 18 years, such cases registered under
              Sections 279,337,338 or 304(A) of IPC, being cases
              arising out of an accident need not be tried by the
              Children's Court, constituted under Section 25 of
              the Central Act 4/2006. But, other cases involving
              violation of 'child rights', acts done with the
              intention to violate or infringe the 'child rights' if
              done with the knowledge that by his act the child
              right is likely to be violated then such offences are
              to be tried by the Children's Court. The learned
              Magistrates, before whom such charge sheets are
              filed, are to apply their minds and find whether
              offences complained of involve violation of the
              'child rights'. If so, such cases are to be committed
              to the Court of Sessions (The children's Court),
              following the procedure prescribed under Sections
              207 to 209 Cr.P.C. "


  14.In view of the discussion hereinabove made and in view of

  the aforesaid dictum, this Court is of the view that Annexure A1

  committal order will not sustain in the eye of law.

            In the result, this Crl.M.C. is allowed. Annexure A1

  order dated 15.12.2010 passed by the Judicial First Class

  Magistrate Court-II, Pathanamthitta in C.P.No.151/2010 and

  all further proceedings initiated on its basis by the District and

  Sessions Court, Pathanamthitta in S.C.No.227/2011 stand


  quashed.      The Sessions Court, Pathanamthitta is directed to

  remit the records back to the Judicial First Class Magistrate


  Court, Pathanamthitta for proceeding with the trial as

  expeditiously as possible.




                                      MARY JOSEPH, JUDGE

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