S.C. Narang v. State (NCT of Delhi) & Anr.

1. The petitioner has filed this revision petition against order dated 24.12.2020 passed by the learned Additional Sessions Judge in case FIR No.528/2017, PS Dwarka (South), Delhi under Section 21 of the POCSO Act read with Section 75 of the Juvenile Justice (Care and Protection of Children) Act, 2015 (JJ Act), summoning the revisionist to face the trial.

2. In brief facts, it is mentioned that Maxfort School, Dwarka admits children from Nursery up to Class 12. In Nursery-KG and Class 1, there are two teachers and one Aayah per classroom. The FIR was lodged on 19.11.2017 by respondent no.2, who is the mother of a girl child studying in KG, aged about 4.[5] years. 2.[1] It is mentioned in the FIR that after returning from school on 17.11.2017 (Friday), the girl child complained of pain in her private parts and upon enquiry from the child, the complainant/respondent no.2 learnt from her daughter that her classmate, another boy of the same age had touched her private parts and had inserted his finger inside. 2.[2] The FIR was registered under Section 376 IPC and Section 21 of the POCSO Act. Investigation was taken up. The statements of the witnesses were recorded. Documents were seized alongwith footage from CCTV cameras. It is admitted that several CCTV cameras were installed in the school in and around the corridors and near the classroom and the work of installing the CCTV cameras in classrooms was going on. 2.[3] The victim told the doctor that the incident had taken place inside the classroom and inside the washroom. The complainant/respondent No.2 had contacted the school authorities through Whatsapp messages and telephonic conversations but the school thought it prudent to wait for better particulars before filing a complaint with the police, keeping in view the tender age of the boy and the girl child. 2.[4] The school authorities assembled in the school premises on 19.11.2017 awaiting for respondent no.2, however, she informed that she was getting an FIR registered with the police. After making enquiries and having attempted to get better particulars, the school authorities independently informed the police on 20.11.2017 vide DD Entry No.26B lodged at PS Dwarka (South). 2.[5] The information sought by the police authorities was provided vide letter dated 21.11.2017. Since the prime accused was less than 7 years of age, so the police filed the charge sheet under Section 21 of the POCSO Act read with Section 75 of the JJ Act against the four persons being the Principal of the school, two teachers and the Vice-Chairman/Officiating Chairman of the Managing Committee of the school. 2.[6] The petitioner was described as the silent Chairman of the school. All the four accused appeared before the Court and they were admitted to bail. In the charge sheet, the IO had specifically mentioned about the CCTV footage which showed that the two concerned children did not go to the washroom together and they were seen coming out of the classroom with other children. Teacher Mrs. Aastha Kalra was in the classroom and Ayah Pushpa Juial was seen periodically entering and leaving the classroom. 2.[7] The first protest petition was filed by the complainant on 26.04.2018 alleging that some more accused ought to be arrayed before the learned Trial Court. Accordingly, on 29.11.2018, a supplementary report under Section 173 Cr.P.C. was filed by the IO in which 7 persons named by the complainant in her protest petition were placed in Column No.12 as during investigation, the IO did not find sufficient material to put up the said persons for trial. In the investigation, it has been noted that the petitioner is not an authorised signatory on cheques or on salary slips and even before Education Department he was not the authorised signatory, so the IO concluded that the petitioner has not been an active but only a silent Chairman and he has no role in the functioning of the school. 2.[8] The second protest petition was filed by the complainant on 09.09.2020 and in that petition, the present impugned order was passed on 24.12.2020, summoning the present petitioner to face trial under Section 75 of the J.J. Act. Same has been challenged before this Court.

3. The grounds cited in the present petition are that Section 75 of the JJ Act is attracted only against an accused person, who holds actual charge or actual control over a child at the time of the impugned incident and there cannot be a case of remote or constructive control exercised by virtue of holding a particular position in the hierarchy of an organisation. 3.[1] The next ground is that in criminal law, vicarious liability cannot be fastened for a crime and the petitioner cannot be held liable for the negligence of the school staff. The further ground is that the status of the petitioner has been examined by the learned Trial Court by looking at the irrelevant material, for example, the petitioner was named in the magazine and on school website as Hon’ble Chairman, who was seen participating in Annual day function of the school. 3.[2] The mobile telephone issued in the name of petitioner/Mr. S.C. Narang -Pitampura Leasing and Housing Finance Ltd. was being used by Mr. Naveen Narang, who was Vice-Chairman/Officiating Chairman of the School Management Committee. It is also submitted that the learned Trial Court proceeded on the basis of presumptions. 3.[3] The next ground taken is that the impugned order suffers from an inherent lack of consistency and reasoning. 3.[4] And lastly, the ground taken is that the presence and absence of a CCTV camera could not have avoided the incident from taking place but it is only an aid in investigation. 3.[5] On these grounds, it has been prayed that the impugned order dated 24.12.2020 may be set aside.

4. Notice was issued.

5. The complainant/respondent no.2 has filed a short affidavit taking preliminary objections, mentioning therein that she was not served with a copy of the petition in advance, rather she received a message from the IO on the date when the matter was listed. 5.[1] It is further submitted that the petition suffers from lack of jurisdiction as the revisional powers can be exercised only in exceptional cases and this is not a case where this Court can be approached with a request to exercise its discretioning power under criminal revision. Section 75 of the JJ Act and Section 21 of the POCSO Act cast responsibility on the persons who failed to report the commission of an offence under these Acts and whose wilful negligence has caused the child to be assaulted, abused or exposed and the school management is also covered in the same. 5.[2] It has been further submitted that there is sufficient material on record to prima facie show that the present petitioner was Chairman of Maxfort School, Dwarka and there is no document to show the contrary.

6. In brief submission, it is also mentioned that in the list of Managing Committee, the name of the present petitioner has been mentioned as Chairman; the petitioner is his capacity as Chairman had signed the letter of promotion, promoting Mrs. Priyanka Bhatkoti to the post of Principal of Maxfort School; the said Mrs. Priyanka Bhatkoti was a subordinate of the present petitioner and was in touch with him throughout and she was seeking instructions from him. 6.[1] The phone number from which the call was made to Mrs. Priyanka Bhatkoti, Principal, is subscribed by the present petitioner. The call detail record shows that the petitioner was duly informed about the incident of sexual assault of the child as he was in constant touch with the Principal of the school. 6.[2] The name of the petitioner was included in the supplementary charge sheet after the complainant had filed the protest petition but his name was mentioned in Column No.12 of the supplementary charge sheet, which was filed on 29.11.2018. No evidence has been placed on record by the petitioner to prove that the mobile phone subscribed to him was used by his son, who is the Vice-Chairman of the school. 6.[3] The official website of Maxfort School shows the petitioner as Chairman of the school and there are many photographs on the said website which make it clear that the petitioner is the Chairman of Maxfort School, Dwarka and is actively participating in the school activities and functions. 6.[4] In February, 2020, an interview of the petitioner was published in Magazine ‘Education Today’ where he has been shown as the Chairman of the School. The petitioner has not followed the clear instructions of the Directorate of Education dated 15.12.2017 whereby all the schools were required to install CCTV cameras throughout the school, including the classrooms and it was due to the failure to install the CCTV cameras in the classrooms, which facilitates the incident to take place. 6.[5] The petitioner has been duly summoned by the learned Sessions Court by the impugned order and there is no procedural irregularity or defect in the impugned order and the present petition is misconceived. It is a glaring example of botched up investigation. Under these circumstances, it has been prayed that the revision petition may be disposed of.

7. I have heard the arguments. The relevant portion of the impugned order is as under:

7.[2] The above Section clearly points out that any person managing the organisation to whom the care and protection of the child was handed over and he wilfully neglects the child or causes the child to be assaulted or abused or neglected the child in a manner, exposing the child to unnecessary mental and physical suffering, the said act is included in the definition of the offence prescribed under Section 75 of the JJ Act.

8. In the present case, more or less, it has been accepted by the present petitioner that he was the Chairman of the School at the relevant time when the minor child was assaulted and abused. His defence that he was not incharge of the day-to-day activities of the school and he was not even made aware about the incident. The mobile phone, which was subscribed in his name, was actually used by his son, who was the Vice-Chairman and in actual control of the affairs of the school. These are the issues to be decided during trial.

9. At the stage of taking cognizance under Section 75 of the JJ Act, the learned Trial Judge has to see as to whether the person was managing the institution where a child was physically/sexually abused and as mentioned in the impugned order, prima facie it has been brought on record that the petitioner was the Chairman of the School Management Committee at the relevant time and through the mobile phone duly subscribed in his name, he was in regular touch with the Principal of the School on 19.11.2017 and his active involvement in the affairs of the School is also proved on the basis of the promotion letter of the Principal duly signed by him, his active participation in the functions of the school and his interview to a Magazine wherein he has been interviewed as the Chairman of the School in question.

10. It is needless to repeat that at the stage of taking cognizance and summoning, the Court has to see only the prima facie material available before it. In my view there was sufficient material to take cognizance against the present petitioner under Section 75 of the JJ Act.