Delhi High Court - Orders
Sc Narang vs State (Nct Of Delhi) & Anr on 23 February, 2021
Author: Mukta Gupta
Bench: Mukta Gupta
$~21
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ CRL.REV.P. 25/2021
CRL.M.A.994/2021 (Stay)
SC NARANG ..... Petitioner
Represented by: Mr.Neeraj Kishan Kaul, Sr.Advocate
with Mr.Divyanshu Srivastava,
Mr.N.B. Joshi, Mr.S.Rajappa and
Mr.R.Gowrishankar, Advocates.
versus
STATE (NCT OF DELHI) & ANR. ..... Respondents
Represented by: Mr.Ravi Nayak, APP for State with
WSI Jyoti Yadav and SI Seema Bagri,
PS Dwarka South.
Ms.Avani Bansal, Mr.Anshul Kumar
and Mr.A.Garg, Advocates for
respondent No.2 with respondent
No.2
CORAM:
HON'BLE MS. JUSTICE MUKTA GUPTA
ORDER
% 23.02.2021 The hearing has been conducted through Video Conferencing.
1. By this petition, the petitioner challenges the order dated 24 th December, 2020 passed by the learned Additional Sessions Judge whereby the petitioner who was kept in Column No.12 in the supplementary charge- sheet in case FIR No.528/2017 under Section 21 of the Protection of Children from Sexual Offences Act, 2012 (in short 'POCSO Act') read with Section 75 of the Juvenile Justice (Care and Protection of Children) Act, 2015 (in short 'JJ Act'), registered at PS Dwarka South, Delhi was summoned for offence punishable under Section 75 of the JJ Act.
Signature Not Verified Digitally Signed By:JUSTICECrl. Rev. P. 25/2021 Page GUPTA MUKTA 1 of 10 Signing Date:23.02.2021 20:56:21
2. The matter has been heard for ad-interim order as the petitioner who is a senior citizen has been summoned to appear before the learned Special Court on 24th February, 2021.
3. Initially the above noted FIR was registered for offences punishable under Sections 376 IPC and Section 21 POCSO Act however, as the act was allegedly committed by a boy of five and a half years and no offence can be stated to have been committed in law by a child of less than seven years, the police filed charge sheet against four persons, that is, the Principal, Vice Chairman/Officiating Chairman of the School Management Committee and two teachers under Section 21 of the POCSO Act and Section 75 of the JJ Act.
4. Facts leading to the registration of the FIR by the mother of the victim are that her daughter aged 4½ was studying in the school of which the petitioner is the Chairman of the Managing Committee and a boy, aged 5½ years old was her classmate. The alleged incident took place on Friday, that is, 17th November, 2017 when on reaching home the victim complained to her mother, that is, the complainant of feeling hurt in the private part which the mother did not pay too much of heed followed by the child victim informing the mother on 18th November, 2017 at 11.50 PM in the night about the alleged incident committed by the boy child aged 5½ years. It is the case of the complainant that on 19th November, 2017 at 10.03 AM she sent emails to the Principal, School Coordinator and Director of the School followed by the SMS sent to the class teacher at 12.20 PM., however, none of them informed the police, thus committing offence punishable under Section 21 of the JJ Act. Since some of the accused were not chargesheeted in the initial charge-sheet the respondent No.2 i.e. the mother of the victim, Signature Not Verified Digitally Signed By:JUSTICE Crl. Rev. P. 25/2021 Page GUPTA MUKTA 2 of 10 Signing Date:23.02.2021 20:56:21 filed a protest petition when a supplementary charge-sheet was filed wherein the petitioner was kept in Column No.12. On the protest petition, the complainant was examined and the petitioner was summoned under Section 75 of the JJ Act on the basis that he was the Chairman of the School Management Committee and the school had not yet completed the installation of the CCTV Cameras on the date of incident i.e. 17th November, 2017 in compliance of the order of the Directorate of Education dated 15 th September, 2017.
5. Learned Senior Counsel for the petitioner contends that Section 75 of the JJ Act contemplates offence by a person who has actual charge of or control over the child and the Chairman of the School Management Committee cannot be the person who would be in actual charge of or control over the child. Even if the petitioner being the honorary Chairman of the School Management Committee is in-charge of the school, it does not mean that he is in actual charge of or control over the child. Consequently, one of the basic ingredient of the offence punishable under Section 75 of the JJ Act is not satisfied. It is further contended that Section 75 of the JJ Act contemplates mens-rea which cannot be attributed to the petitioner as there is no material alleging the same. Further, the concept of vicarious liability is unknown to the criminal law and is also not envisaged under Section 75 of the JJ Act. The reason given by the Special Court for summoning the petitioner is that the CCTV cameras have not been installed as directed by the Delhi Government, however, the same cannot be a ground for invoking Section 75 of the JJ Act against the petitioner. It is further claimed that the neglect of a child must be of such a nature as is likely to cause such child the unnecessary mental and physical suffering and mere presence or absence of Signature Not Verified Digitally Signed By:JUSTICE Crl. Rev. P. 25/2021 Page GUPTA MUKTA 3 of 10 Signing Date:23.02.2021 20:56:21 CCTV cameras at best can be an aid to investigation and cannot in any circumstance be termed as likely to cause such child, the unnecessary mental or physical suffering. Merely because there have been cellphone conversations between a phone registered in the name of Mr.S.C. Narang- Pitampura Leasing and Housing Finance Ltd., in which the petitioner is one of the Director, as the phone belongs to the organization, knowledge cannot be attributed and it can also not be inferred that the petitioner was using the said mobile phone. In any case the intimation of the offence was given by the mother of the victim and the ingredients of Sections 19 and 21 of the POCSO Act cannot be imported into Section 75 of the JJ Act.
6. Learned Senior Counsel further states that as held by the Supreme Court in the decision reported as 1998 (5) SCC 749 M/s Pepsi Foods Ltd. & Anr. vs. Special Judicial Magistrate & Ors. issuance of summons in criminal case is a serious matter and should be ordered with due care and caution only if the ingredients of the offence are made out from the material on record.
7. Learned counsel for Respondent No.2 on the other hand states that the present petition has been filed as a revision petition and thus the jurisdiction has to be exercised with great circumspection only in exceptional cases. In case two opinions are possible, the High Court will not substitute its opinion to set aside the impugned order. Learned counsel for respondent No.2 also states that undoubtedly the concept of vicarious liability is unknown to the criminal law but the reading of Section 75 of the JJ Act as emphasised by learned Senior Counsel appearing on behalf of the petitioner, is unwarranted. The words 'actual control' in Section 75 of the JJ Act have to be read in conjunction within the subsequent words used in the Section and Signature Not Verified Digitally Signed By:JUSTICE Crl. Rev. P. 25/2021 Page GUPTA MUKTA 4 of 10 Signing Date:23.02.2021 20:56:21 include knowledge about the incident. Once there is knowledge about the incident the JJ Act casts a duty on the accused to report the offence to the police immediately. Reliance is placed on the decisions reported as 2017 (2) AIR Bom R. (Cri) 312 Balasaheb vs. State of Maharashtra, and 2017 SCC OnLine Kar 3467 Bineeta Chakraborthy vs. State of Karnataka.
8. It is further contended that at this stage, this Court is only required to see whether there is prima facie material to summon the petitioner and will not venture into the realm of appreciation of evidence. The order impugned clearly shows that there is sufficient material against the petitioner for commission of offence punishable under Section 75 JJ Act read with Section 19 and 21 of the POCSO Act. Letters by the Principal of the school indicates that the petitioner was duly informed and he was in constant conversation with not only the Principal, but all responsible people which is also evident from the call detail records of the petitioner.
9. Heard learned counsel for the parties on the point of ad-interim stay as prayed by the petitioner.
10. The reasons assigned by the learned Trial Court to summon the petitioner, who was kept in Column No.12 in the charge sheet have been noted in para-21 of the impugned order dated 24th December, 2020 which reads as under:
"21. The first accused who has been placed in column no.12 of the charge sheet is Shri S.C.Narang. It has been argued by learned counsel for the complainant that Sh. S.C.Narang was the Chairman of the Maxford School and had been placed in column no.12 because he was referred as silent Chairperson and had no active participation in the school functioning. However, the list of the Managing Committee Members brought on record Signature Not Verified Digitally Signed By:JUSTICE Crl. Rev. P. 25/2021 Page GUPTA MUKTA 5 of 10 Signing Date:23.02.2021 20:56:21 by the IO clearly shows that name of Chairman as Mr. S.C.Narang. He was the signing authority for promotions and appointments and was continuously kept informed about the incident and its inquiry till the complaint was made to the police. The CDR collected by the IO also shows that the call was made on the phone of S.C.Narang. The record of the telephone number on which calls were made were procured from the Bharti Airtel and the same was found to be belonging to Mr. S.C.Narang. IO has kept nothing on record to show that the said number was used by someone else apart from the registered customer. The interview published in various magazines and on the social networking sites also show him as the Chairman and actively involved with various functions and activities of the school. It has been stated by the IO in the first charge sheet that the CCTV camera had to be installed as per the guidelines of the Directorate of Education but same were not present in the classroom. In the considered opinion of the Court, apart from the Principal and the other managing committee members, it was also a responsibility of the Chairman to ensure that all the guidelines of the Directorate of Education which had been made compulsory for the safety and security of the children had to be followed and as the classroom had no CCTV cameras which was against the guidelines. The guidelines of the Directorate of Education dated 15.09.2017 have made it mandatory to install sufficient number of CCTV cameras in school premises so as to mandatorily covered all classrooms, labs, corridor, parking, library, vacant rooms, areas outside washroom and all isolated areas and also ensure 360 degree coverage of the entire school premises. It has also been directed in the order that the CCTV camera should be functional round the clock along with recording facility of minimum 15 days or above. As per the final report, CCTV footages of only playground, main gate and corridor were made available to the IO by the school on Signature Not Verified Digitally Signed By:JUSTICE Crl. Rev. P. 25/2021 Page GUPTA MUKTA 6 of 10 Signing Date:23.02.2021 20:56:21 28.11.2017 and CCTV technician gave a statement to the IO that no tampering had been done w.r.t. the same on 6.12.2017. Other than the said CCTV footages no other footage was provided by the school and as per the final report filed by the IO, no CCTV had been installed in the school which was against the DOE recommendation. There has been a prima facie neglect by the Chairman towards his duty in installation of CCTV cameras. I therefore take cognizance against accused S.C.Narang and S.C.Narang is summoned under column no.11 u/s 75 JJ Act for willful neglect as a result of which cruelty was inflicted upon the child victim."
11. A perusal of para-21 of the impugned order would reveal that the learned Trial Court was of the opinion that from various magazines and social networking sites, it is evident that the petitioner is the Chairman of the School Managing Committee and actively involved with its various functions and activities. As per the first charge-sheet, CCTV camera had to be installed as per the guidelines of the Directorate of Education in the classrooms however, the same were not installed and thus apart from the Principal and other Managing Committee members, the petitioner being the Chairman was also required to ensure that all guidelines of the Directorate of Education were compulsorily adhered to, for the safety and security of the children. Thus for neglecting the duty to install the CCTV cameras, the petitioner has been summoned for offence punishable under Section 75 of the JJ Act.
12. Section 75 of the JJ Act reads as under:
Section 75. Punishment for cruelty to child. Whoever, having the actual charge of, or control over, a child, assaults, abandons, abuses, exposes or wilfully neglects the child or causes or procures the child to be assaulted, Signature Not Verified Digitally Signed By:JUSTICE Crl. Rev. P. 25/2021 Page GUPTA MUKTA 7 of 10 Signing Date:23.02.2021 20:56:21 abandoned, abused, exposed or neglected in a manner likely to cause such child unnecessary mental or physical suffering, shall be punishable with imprisonment for a term which may extend to three years or with fine of one lakh rupees or with both:
Provided that in case it is found that such abandonment of the child by the biological parents is due to circumstances beyond their control, it shall be presumed that such abandonment is not wilful and the penal provisions of this section shall not apply in such cases:
Provided further that if such offence is committed by any person employed by or managing an organisation, which is entrusted with the care and protection of the child, he shall be punished with rigorous imprisonment which may extend up to five years, and fine which may extend up to five lakhs rupees: Provided also that on account of the aforesaid cruelty, if the child is physically incapacitated or develops a mental illness or is rendered mentally unfit to perform regular tasks or has risk to life or limb, such person shall be punishable with rigorous imprisonment, not less than three years but which may be extended up to ten years and shall also be liable to fine of five lakhs rupees.
13. A perusal of the Section 75 JJ Act itself shows that the person to be responsible should be either in actual charge of or control over the child, followed by the said person assaulting, abandoning, abusing or exposing or wilfully neglecting the child or causing or procuring the child to be assaulted, abandoned, abused, exposed or neglected in any manner, likely to cause such child unnecessary mental and physical suffering. By non- installation of the CCTV cameras, it cannot be said that the petitioner wilfully neglected the child or caused abuse, exposure or neglect of the child as the CCTV camera would only be an aid in investigation. By the proviso Signature Not Verified Digitally Signed By:JUSTICE Crl. Rev. P. 25/2021 Page GUPTA MUKTA 8 of 10 Signing Date:23.02.2021 20:56:21 to Section 75 JJ Act, the definition of the offence in the main provision is not changed and it is only the sentence provided for such offence if committed by any person employed by or managing an organisation with the care and protection of the child is enhanced.
14. Though it is not a ground that the petitioner has been summoned for failure for making the report to the police, which has been argued at length by learned counsel appearing on behalf of respondent No.2, needless to note that in terms of Section 19 of the POCSO Act, the mother of the child on coming to know about the incident on 18th November, 2017 at 11.50 PM has herself intimated to the police and to the school authorities on 19 th November, 2017 and the fact that simultaneously the police was also informed is evident from the fact that the MLC of the victim was got conducted at 2.30 PM and FIR registered on 19th November, 2017 itself.
15. In Bala Saheb and Bineeta Chakraborthy (supra) the Bombay High Court and the Karnataka High Court were dealing with the issue relating to Section 19 of the POCSO Act casting a duty on each and every person who has knowledge that an offence under the POCSO Act has been committed to report the same either to the Special Juvenile Police Unit or to the local police and the failure to discharge this duty warranted punishment under Section 21 of the POCSO Act. As noted above, the petitioner has not been summoned for offence punishable under Section 21 of the POCSO Act but under Section 75 of the JJ Act.
16. Considering the facts noted above, this Court is of the opinion that prima facie no case of summoning the petitioner for offence punishable under Section 75 JJ Act is made out. Consequently, this Court directs the stay of the impugned order dated 24th December, 2020 qua the petitioner till Signature Not Verified Digitally Signed By:JUSTICE Crl. Rev. P. 25/2021 Page GUPTA MUKTA 9 of 10 Signing Date:23.02.2021 20:56:21 the next date of hearing before this Court.
17. Detailed status report by the State and detailed reply affidavit by the respondent No.2 be filed within four weeks. Rejoinder affidavit, if any, be filed within three weeks thereafter.
18. List on 27th April, 2021.
19. Order be uploaded on the website of this Court.
MUKTA GUPTA, J.
FEBRUARY 23, 2021 'vn' Signature Not Verified Digitally Signed By:JUSTICE Crl. Rev. P. 25/2021 Page MUKTA10 of 10 GUPTA Signing Date:23.02.2021 20:56:21