R IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 18TH DAY OF FEBRUARY 2019 BEFORE THE HON’BLE MR. JUSTICE H. T. NARENDRA PRASAD WRIT PETITION No.50410/2014 (GM-RES) BETWEEN:
ZAINABHIYA EDUCATION SOCIETY B.D.PURA ROAD, HOLAVANAHALLI KORATAGERE TALUK TUMKURU DISTRICT-572 129 REPRESENTED BY ITS HON’ SECRETARY MR. MIR. AMJAD ALI ... PETITIONER (BY SRI.MUNISWAMY GOWDA, ADV. FOR SRI.B. A. BELLIAPPA, ADV.) AND 1. THE CHAIRMAN KARNATAKA STATE COMMISSION FOR PROTECTION OF CHILD RIGHTS 4TH FLOOR, KRUSHI BHAVAN RANI CHENNAMMA CIRCLE, BANGALORE-01.
2. SRI. NARASIMHAMURTHY HOLAVANAHALLI, KORATAGERE TALUK TUMKUR DISTRICT-572 129.
... RESPONDENTS (BY SRI.H.T. VASANTH KUMAR FOR R1, SRI.S.MAHESH, ADV. FOR R2) THIS WRIT PETITION IS FILED UNDER ARTICLE 226 OF THE CONSTITUTION OF INDIA PRAYING TO QUASH ANN-A, PASSED BY THE R1, DT.17.9.14, & ANN-B, DT.NIL IN CASE NO.327/14.
THIS WRIT PETITION COMING ON FOR ORDERS THIS DAY, THE COURT MADE THE FOLLOWING:
O R D E R This writ petition is directed against the order dated 17.9.2014 vide Annexure-A passed in case bearing No.Ka.Ra.Ma.Ha.Ra.Aa/327/2014-15 and interim order dated Nil vide Annexure-B passed in Case No.327/2014 by the respondent No.1 whereby the petitioner has been directed to pay a sum of Rs.1,00,000/- as interim compensation to the victim.
2. Brief facts of the case:
The petitioner is an educational society registered under the “Societies Registration Act”. Petitioner society was running the educational institution upto 10th Standard. On 24.7.2014, one Master Ashvith Varma, who was studying in the petitioner’s school while playing in the field suffered an injury accidentally due to the act of one Master Waseem Hyder. Immediately on coming to know of the above incident, the Management of the petitioner- Institution rushed the injured to a nearby Government Hospital where he was given first aid and on the advice of the doctor of the said hospital, he was taken to Koratagere, Tumkur District for further treatment. On the advice of the eye specialist, he was shifted to Minto Eye Hospital, Bangalore where he was admitted as an inpatient and treatment was given to him. The cost of the treatment was borne by the school management and apart from that, a sum of Rs.70,000/- was also paid to the respondent No.2, father of the victim. This incident appeared in the newspaper on 11.9.2014. On the basis of the newspaper report, respondent No.1 has initiated action by invoking the provisions of Section 14(1) of the Commissions for Protection of Child Rights Act, 2005 (for short “the Act”) and issued notice to the petitioner vide Annexure-A dated 17.9.2014 calling upon the petitioner to appear before the Commission on 30.9.2014 at 3.00 p.m. Pursuant to the same, the Secretary of the petitioner-Institution appeared before the respondent No.1 on 30.9.2014. The respondent No.1 without hearing the petitioner has passed the impugned order dated Nil vide Annexure-B directing the school Management to pay a sum of Rs.1,00,000/- to the victim as interim compensation towards medical treatment within 7 days from the date of its order. Being aggrieved by the same, the petitioner has filed this writ petition.
3. Sri. B.A.Belliappa, the learned counsel for the petitioner submits that immediately after the incident, the management has given first-aid treatment to the student and immediately, he was shifted to Minto Eye Hospital, Bangalore. The management has borne all the expenditure. In addition to that, a sum of Rs.70,000/- has been paid to the father of the victim. Inspite of that, without conducting any enquiry under Sections 14 and 15 of the Act and without any authority of law, the respondent No.1 has passed the impugned order. Hence, he sought for allowing the petition.
4. Per contra, the learned counsel for the respondent No.1 submits that the Commission has exercised its power under Section 15(3) of the Act and has directed the school management to pay a sum of Rs.1,00,000/- as interim compensation towards medical treatment. Hence, he sought for dismissal of the writ petition.
5. Heard the learned counsel for the parties.
Perused the records.
6. The Parliament has enacted the law called “The Commissions for Protection of Child Rights Act, 2005” with an object for providing speedy trial of offences against children or of violation of child rights and for matters connected therewith or incidental thereto. The same has come into force with effect from 1.3.2006 by publication in the Gazette notification.
Chapter-I of the Act is related to the type of the Act and definitions. Section 2(b) defines “child rights” and the same reads as under:
2(b) “Child rights” includes the children’s rights adopted in the United Nations convention on the rights of the child on the 20th November 1989 and ratified by the Government of India on the 11th December 1992”
Chapter-II of the Act is related to the constitution of Commission for protection of child rights, appointment of chairperson and members, term of office and etc.
Chapter-III of the Act is related to the functions of the Commission, powers relating to inquiries and steps after inquiry. Sections 13, 14 and 15 of the Act are relevant and the same are extracted hereunder:
“13. Functions of Commission.-
(1) The Commission shall perform all or any of the following functions, namely:-
(a) examine and review the safeguards provided by or under any law for the time being in force for the protection of child rights and recommend measures for their effective implementation;
(b) present to the Central Government, annually and at such other intervals, as the Commission may deem fit, reports upon the working of those safeguards;
(c) inquire into violation of child rights and recommend initiation of proceedings in such cases;
(d) examine all factors that inhibit the enjoyment of rights of children affected by terrorism, communal violence, riots, natural disaster, domestic violence, HIV/AIDS, trafficking, maltreatment, torture and exploitation, pornography and prostitution and recommend appropriate remedial measures;
(e) look into the matters relating to children in need of special care and protection including children in distress, marginalized and disadvantaged children, children in conflict with law, juveniles, children without family and children of prisoners and recommend appropriate remedial measures;
(f) study treaties and other international instruments and undertake periodical review of existing policies, programmes and other activities on child rights and make recommendations for their effective implementation in the best interest of children;
(g) undertake and promote research in the field of child rights;
(h) spread child rights literacy among various sections of the society and promote awareness of the safeguards available for protection of these rights through publications, the media, seminars and other available means;
(i) inspect or cause to be inspected any juvenile custodial home, or any other place of residence or institution meant for children, under the control of the Central Government or any State Government or any other authority, including any institution run by a social organisation; where children are detained or lodged for the purpose of treatment, reformation or protection and take up with these authorities for remedial action, if found necessary;
(j) inquire into complaints and take suo motu notice of matters relating to,-
(i) deprivation and violation of child rights;
(ii) non-implementation of laws providing for protection and development of children;
(iii) non-compliance of policy decisions, guidelines or instructions aimed at mitigating hardships to and ensuring welfare of the children and to provide relief to such children, or take up the issues arising out of such matters with appropriate authorities; and (k) such other functions as it may consider necessary for the promotion of child rights and any other matter incidental to the above functions.
(2) The commission shall not inquire into any matter which is pending before a State Commission or any other Commission duly constituted under any law for the time being in force.
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).
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.”
7. By a plain reading of the above provisions, it is clear that under Section 14 of the Act, the Commission has power to initiate enquiry and the commission has powers of the civil Court in respect of summoning and enforcing the attendance of any person and examining him, discovery and production of any document, receiving evidence on affidavits, re- questioning any public record or copy thereof from any Court or office, issuing commissions for the examination of witnesses or documents. After the enquiry is completed under Section 14 of the Act, Section 15 of the Act provides for steps after enquiry. Once the enquiry is completed, where the enquiry 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, the Commission has to recommend to the concerned Government or authority regarding the initiation proceedings for prosecution or such other action as the Commission may deem fit against the concerned persons. Further, the Commission can 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.
8. Under Section 15 of the Act, the Commission has only power to recommend to the concerned Government or authority. The word “recommendation” is defined as under in Black’s Law Dictionary, Sixth Edition:
“ Recommendation. In feudal law, a method of converting allodial land into feudal property. The owner of the allod surrendered it to the king or a lord doing homage, and received it back as a benefice or feud, to hold to himself and such of his heirs as he had previously nominated to the superior.
The act of one person in giving to another a favorable account of the character, responsibility, or skill of a third.
According to Merriam-Webster’s Collegiate Dictionary, Eleventh Edition, recommendation means the act of recommending or something that recommends or expresses commendation.
9. A careful perusal of the above provisions would show that after completion of an enquiry, if the Commission finds that the enquiry discloses commission of violation of child rights, the Commission may recommend to the concerned Government or authority the initiation of proceedings for prosecution or such other action; and as an interim measure, it can recommend the Government or authority for grant of interim relief to the victim or the members of his family, as the Commission may consider necessary. But the Commission has no authority and jurisdiction to pass an order directing for payment of compensation.
10. In the case on hand, the Commission has initiated proceedings under Section 14(1)(a) of the Act and issued notice to the petitioner on 17.9.2014 calling upon the petitioner to appear on 30.9.2014 at 3.00 p.m. Pursuant to the notice, the Secretary of the petitioner-Institution has appeared. The Commission without conducting an enquiry as provided under Section 14 of the Act, has passed an order to pay a sum of Rs.1,00,000/- as interim compensation towards medical treatment to the victim. This order is contrary to the provisions of Sections 14 and 15 of the Act. The Commission has no power to direct the management to pay compensation. After completion of enquiry, the Commission can only recommend the Government or concerned authority for grant of such interim relief. Hence, the impugned order dated 30.9.2014 vide Annexure-B passed by respondent No.1, is unsustainable.
11. Accordingly, the writ petition is allowed.
The interim order dated NIL vide Annexure-B passed in Case No.327/2014 by the respondent No.1, is set aside. Respondent No.1 is directed to proceed with the Case No.327/2014-15, which is pending on the file of the Commission in accordance with law and as per the relevant provisions of the Commissions for Protection of Child Rights Act, 2005.
Sd/- JUDGE DM