IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 29TH DAY OF JANUARY 2019 BEFORE THE HON’BLE MR. JUSTICE ALOK ARADHE WRIT PETITION NOS.52833-52835 OF 2018 (GM-RES) BETWEEN:
1. The Society of St. Joseph, St. Joseph’s Convent, No.49, Promenade Road, Frazer Town, Bengaluru – 560 005. Represented through its Secretary Sister Rosaline Nohrana.
2. St. Francics Xavier Girls High School, No.49, Promenade Road, Frazer Town, Bengaluru – 560 005. By its Principal Sister Malar.
3. Sri. Malleshi S. Dhanawade, S/o Shankar, Aged about 29 years, Physical Education Instructor, R/at No.27, 4th Cross, Jaybharathnagar, M.S. Nagar, Bengaluru – 560 033.
(By Sri.R.A. Devanand, Advocate) … Petitioners AND:
1. Sri. Padma Chand, S/o Not known to petitioners, Age: Major, No. 51, Door No.201, 2nd floor, Mamatha Manohar Apartments, Frazer Town, Bengaluru – 560 005.
2. The Karnataka State Commission, For Protection of Child Rights, 4th Floor, Krushi Bhavan, Nrupatunga Road, Rani Chennamma Circle, Bengaluru – 560 002 By its chairperson.
3. Deputy Director of Public Instructions, Public Education Department (North), K.G. Road, Near Cauvery Bhavan, Bengaluru – 560 002.
4. Block Education Officer, Public Education Department (N-3), No.250, Kamaraj Road, Shivajinagar, Bengaluru – 560 001.
(By Sri. Sriram Reddy, Advocate for R1; Smt. Vidyulatha, Advocate for R2; Sri. Y.D. Harsha, AGA for R3 and R4) … Respondents These Writ Petitions are filed under Articles 226 and 227 of the Constitution of India, praying to quash the order passed by the R2 dated 01.10.2018 which is produced as Annexure-E by allowing this writ petition, and etc.
These Petitions coming on for preliminary hearing, this day, the Court made the following:-
ORDER Sri. R.A. Devanand, learned counsel for the petitioners.
Sri. Sriram Reddy, learned counsel for respondent No.1.
Smt. Vidyulatha, learned counsel for respondent No.2.
Sri. Y.D. Harsha, learned AGA for respondent Nos.3 and 4.
Petitions are admitted for hearing. With the consent of the parties, the same is heard finally.
2. In these petitions under Articles 226 and 227 of the Constitution of India, the petitioners interalia seeks writ of certiorari to quash the order dated 01.10.2018 passed by respondent No.2, by which respondent No.2 has directed petitioner No.1 to suspend petitioner Nos.2 and 3 and has issued certain directions.
3. When the matter was taken up today, learned counsel for the petitioners has raised singular contention that the aforesaid order has been passed without conducting any inquiry as envisaged under the provisions of the Commission for Protection of Child Rights Act, 2005 (hereinafter referred to as ‘the Act’ for short) and the petitioners have not even been given an opportunity to file their objections.
4. On the other hand, learned counsel for respondent No.1 submits that the rights of the child have been flouted with the impunity by the petitioners and therefore, justice should be done to them and writ petitions filed by the petitioners are not maintainable.
5. On the other hand, learned counsel for respondent No.2 has supported the order passed by the Commission.
6. I have considered the submissions made by learned counsel for the parties and have perused the records.
7. Section 13(1)(c) of the Act states that the Commission shall inquire into violation of child rights and recommend initiation of proceedings in such cases.
8. Section 14 of the Act deals with the powers relating to inquiries, which reads as under:
“14. Powers relating to inquiries: (1) The Commission shall, while inquiring into any matter referred to in clause (j) of sub- section (1) of Section 13 have all the powers of a civil court trying a suit under the Code of Civil Procedure, 1908 (5 of 1908) and, in particular, in respect of the following matters, namely:-
(a) summoning and enforcing the attendance of any person and examining him on oath;
(b) discovery and production of any document;
(c) receiving evidence on affidavits;
(d) requisitioning any public record or copy thereof from any court or office; and (e) issuing commissions for the examination of witnesses or documents.
(2) The Commission shall have the power to forward any case to a Magistrate having jurisdiction to try the same and the Magistrate to whom any such case is forwarded shall proceed to hear the complaint against the accused as if the case has been forwarded to him under Section 346 of the Code of Criminal Procedure, 1973 (2 of 1974).”
9. Section 15 of the Act reads with the steps after enquiry, which is as under:
“15. Steps after inquiry:- The Commission may take any of the following steps upon the completion of an inquiry held under this Act, namely:-
(i) where the inquiry discloses, the Commission of violation of child rights of a serious nature or contravention of provisions of any law for the time being in force, it may recommend to the concerned Government or authority the initiation of proceedings for prosecution or such other action as the Commission may deem fit against the concerned person or persons;
(ii) approach the Supreme Court or the High Court concerned for such directions, orders or writs as that Court may deem necessary;
(iii) recommend to the concerned Government or authority for the grant of such interim relief to the victim or the members of his family as the Commission may consider necessary.”
10. Thus, from perusal of the aforesaid relevant provisions, it is evident that the Commission while holding the inquiry has power of a Civil Court and has even has power to summon and enforce the attendance of any person and examining him on oath.
11. In the instant case, the notices for appearance were issued to the petitioners on 05.09.2018. On the aforesaid date, petitioners were absent and thereafter on 11.09.2018, the matter was taken up and the impugned order dated 01.10.2018 was passed. Petitioners were not given an opportunity even to file objections to the complaint made against them and no inquiry as contemplated under Sections 13(1)(c) and 14 of the Act was held and merely on the basis of oral submissions, the impugned order has been passed. The impugned order suffers from procedural irregularity and the same has been passed in violation of the principle of natural justice. The impugned order cannot be justified in the eye of law.
Accordingly, petition is disposed of. The impugned order is quashed and set aside. It is needless to state that respondent No.2 after issuing notice and after affording an opportunity of hearing to the parties, is at liberty to proceed with the matter afresh in accordance with law. Parties undertake to appear before respondent No.2 on 06.02.2019.
Sd/- JUDGE Mds/-