W.P.(CRL)/2580/2018 of MS. POONAM & ORS. Vs STATE OF NCT OF DELHI & ORS.

*IN THE HIGH COURT OF DELHI AT NEW DELHI+W.P.(CRL) 2580/2018

MS. POONAM & ORS...... Petitioners

ThroughMs. Petal Chandhok, Adv.

versus

STATE OF NCT OF DELHI & ORS.

..... RespondentsThroughMs. Kamna Vohra, ASC for State.Mr. Rakesh Kumar, Advocate for R2.Inspector Ghanshyam Kishore, P.S.Mayapuri.

CORAM:

HON'BLE MR. JUSTICE VIBHU BAKHRU

O R R%03.03.2020

1.The petitioners have filed the present petition, inter alia, praying thatFIR bearing No. 0471/2017 under Section 10 of the Protection of Childrenfrom Sexual Offences Act, 2012 (POCSO Act) registered with PS DwarkaSouth and all proceedings emanating therefrom, be quashed.

2.The chargesheet has been filed, which indicates that an offence underSection 75 of the Juvenile Justice (Care and Protection of Children) Act,2015 (JJ Act) has also been included.

3.The said FIR was registered at the instance of the father of the child(girl aged four years). He had alleged that canteen boy had kissed the saidchild on her lips. The chargesheet indicates that the statement of the childunder Section 164 of the Cr.P.C. was recorded wherein she had made

statement that the canteen boy had kissed her on her lips. However, none ofthe teachers/staff nor any student could confirm the said incident. Besidesthis, the child could also not identify the person (canteen boy) against whomthe allegations were made. The prosecution has not been able to gather anyevidence against the accused and therefore, he has not been arrested.Despite the above, the chargesheet has also been filed against the HeadMistress and the Class Teacher of the pre-school where the child wasstudying on the premise that they were in charge and control over the childvictim and had neglected the child resulting in her unnecessarily sufferingmental and physical trauma.

4.This Court has reservations whether charge in this matter can beframed considering that the accused has not been identified by the child asthe person who had committed the offending act. Her statement is notsupported by any of the children or teachers.5.Apart from the above, this Court had also noted in the order dated31.08.2018, that in terms of the provisotoSection 75 of the JuvenileJustice (Care and Protection of the Children) Act, 2015, if the child issubjected to wilful neglect, abandonment, assault and abuse when thecustody of the child is entrusted to management or an organization; onlythe person who is entrusted with the care and protection can be punished,which would be concerned teacher responsible at the relevant time. Thesweep of the proviso to Section 75 of the JJ Act would not extend to theHead Mistress or the Class Teacher, who were not present personally andwere not required to be personally present when the alleged incident hadtaken place.

6.The complainant (father of the child), is present in Court and he states

that he does not wish to pursue the said FIR and prays that the same bequashed.

7.Ms. Vohra, learned ASC appearing for the State states that since thecharge-sheet under Section 10 of the Protection of Children from SexualOffences Act, 2012 and Section 75 of the Juvenile Justice (Care andProtection of Children ) Act, 2015 has been filed, it would be appropriate forthe petitioners to urge their contentions before the concerned court.

8.This Court finds the said contention merited and therefore, isrefraining from interfering at this stage.It would be apposite that if thepetitioners appear before the trial court and urge their contentions. The TrialCourt is expected to consider the material on record as well as provisions oflaw and take an informed decision.

9.If any application for exemption is made on behalf of the HeadMistress or the concerned teachers, the same would be consideredsympathetically. The petitioners are at liberty to file afresh in case anyadverse order is passed.

10.The petition stands disposed of.

11.Order dasti under signatures of the Court Master.

MARCH 03, 2020dr

VIBHU BAKHRU, J