Criminal Writ Petition No. 28 of 2013. Case: Atul Anant Pathak Vs State. High Court of Bombay (India)
| Case Number | Criminal Writ Petition No. 28 of 2013 |
| Counsel | For Petitioner: G. Sardessai, Adv. and For Respondents: D. Lawande, Additional Public Prosecutor |
| Judges | R. C. Chavan, J. |
| Issue | Indian Penal Code (45 of 1860) - Section 304A; Goa Childrens Act (18 of 2003) - Sections 8, 34 |
| Citation | 2013 CriLJ 4568 |
| Judgement Date | August 14, 2013 |
| Court | High Court of Bombay (India) |
Judgment:
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The petitioner in this petition has invited this trouble of being required to move this Court because he questioned before the Sessions Court an order passed by the learned Judicial Magistrate, First Class, Sattari in Criminal Case No. 9/S/2011 issuing process against the petitioner for the offence punishable under Section 304-A of Indian Penal Code.
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A sixteen and half years old girl was employed in a factory of which the petitioner was Factory Manager. It was alleged that the petitioner did not supply necessary safety equipments to the victim who was caught in a conveyor belt. She suffered injuries which led to her death. A report was made and after investigation, charge-sheet was sent to the Court of learned Judicial Magistrate, First Class Sattari, who issued process against the petitioner. Aggrieved by the said order, the petitioner approached Court of Sessions at Mapusa for having the order of issuance of process set aside.
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The learned Additional Sessions Judge, who heard the revision application allowed the digression initiated by the Public Prosecutor and rather than dealing with the question whether the process was properly issued or not, proceeded to hold that the learned Judicial Magistrate, First Class had no jurisdiction to entertain the charge-sheet. The learned Additional Sessions Judge accepted the contention of the Public Prosecutor that since the victim was sixteen and half years old girl the offence was required to be tried by the Children's Court under the Goa Children's Act, 2003. Therefore, the learned Additional Sessions Judge set aside the order directing issuance of process and ordered the learned Magistrate to return the charge-sheet to the prosecution for presenting it before the Children's Court. This is why the petitioner is before this Court.
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I have heard the learned counsel for the petitioner and also the learned Additional Public Prosecutor and have gone through the entire charge-sheet, copy whereof has been filed on record.
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Charge-sheet shows that the victim was serving in the factory of which the petitioner was Factory Manager and an accident occurred in which the victim suffered injuries which led to her death. The charge-sheet does not shows that the act complained of were committed or omission attributed to the petitioner were allowed by the petitioner because the victim was a child. The victim happened to be a worker in the factory and any other worker in the factory could have also suffered same fate. Therefore, there is nothing to show that the petitioner neglected in discharge of his duty of care because the victim happened to be a child. The learned Additional Sessions Judge, however held that since the victim was a child, cognizance of the offence could have been taken only by the Children's Court and for this purpose seems to have placed reliance upon the judgment of this Court in the case of Videsh Karmalkar v. State, in Criminal Writ Petition No. 35 of 2010 decided on 5th July, 2010 (2011 Cri LJ 734 (Bom): 2011 (1) AIR Bom R 155). The learned counsel for the petitioner submitted that the judgment in Videsh Karmalkar (supra) does not lay down any such proposition and...
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