Swati Patil- Dahi Handi Order- Bombay Hc

Bombay

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CRPIL. 56-14, PIL. 95-13, PILL. 97-14 & NML. 456-14

VPH

IN THE HIGH COURT OF JUDICATURE AT BOMBAY

CRIMINAL APPELLATE JURISDICTION

PUBLIC INTEREST LITIGATION No. 56 OF 2014

Mrs. Swati Sayaji Patil ... PetitionerVs.

State of Maharashtra & Ors. ... Respondents

WITHIN THE HIGH COURT OF JUDICATURE AT BOMBAY

ORDINARY ORIGINAL CIVIL JURISDICTION

PUBLIC INTEREST LITIGATION No. 95 OF 2013WITH

NOTICE OF MOTION (L) No. 456 OF 2014

Vinothan Krishnan Raman ... Petitioner/ApplicantVs.

State of Maharashtra ... RespondentWITH

IN THE HIGH COURT OF JUDICATURE AT BOMBAY

ORDINARY ORIGINAL CIVIL JURISDICTION

PUBLIC INTEREST LITIGATION (L) No. 97 OF 2014

C. R. Jaya Sukin ... PetitionerVs.

State of Maharashtra & Ors. ... Respondents

***Mr. Satyaprakash Sharma & Nitesh Nevshe i/b Nitesh Nevshe, for the Petitioner (in CRPIL 56/2014).Mr. S. K. Shinde, Public Prosecutor with Mrs. M. M. Deshmukh, APP (in CRPIL 56/2014).

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Mr. V. K. Raman, for the Petitioner (in PIL 95/2013 & NML (L) No. 456/2014.Petitioner appearing in person in PILL 97/2014 Mrs. Uma Ualsuledesai, AGP for the Respondent – State ( in in PIL 95/2013 & NMLL 456/2014 and PILL 97/2014.

***

CORAM : V. M. KANADE, & P. D. KODE, JJ.

DATE : AUGUST 11, 2014

PC.

1. PIL Nos. 95/2013, 97/2014 and Notice of Motion (L) No.

456 of 2014 are not on board. Upon mentioning, they are taken on

board and are heard and disposed of with Criminal PIL No. 56 of

2014.

2. Heard the learned counsel appearing in two PILs and the

Petitioner appearing in person in one PIL. By these petitions,

Petitioners are seeking an appropriate writ, order and direction,

directing the Respondent – State of Maharashtra to prevent children

below the age of 18 years from taking part in performances which are

popularly known as “Dahi Handi”, which is organised during

celebrations, which are held on occasion of birth of Lord Krishna in

the city of Bombay and all over Maharashtra. The second

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grievance of the Petitioner is that very often on account of number of

tiers , which are arranged by the performers, who are known as

Govindas, every year several such Govindas suffer permanent injuries

and in some case they die on account of fall from a height and no

safety measures are undertaken by these performers. Their other

grievance is that not only the performers, but also those who are

watching these events also suffer on account of fall of Govindas on

them.

3. We had asked the learned Public Prosecutor to look into

the matters and he has informed us that State of Maharashtra has

issued a directions after inquiry under Section 13(1) and 14 of the

Maharashtra Commission for Protection of Child Rights Act, 2005.

The directions have been issued in Case No. 205/2013-14 which are

reproduced in paragraph A(i) to (v) of the Note submitted by the

learned Public Prosecutor.

4. We have noted that pursuant to the directions, a circular

has been issued by the State of Maharashtra to that effect. We are of

the view that since age of the children has been increased from 16 to

18 years under the Juvenile Justice (Care and Protection of Children)

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Act, 2000 and also Protection of Children from Sexual Offences Act,

2012, we are of the view that it is necessary to protect the children

below 18 years and it may not be sufficient to issue a circular for the

protection and prohibition of the use of children below the age of 12

years for performers, who are known as Dahi Handi Govindas. We,

therefore, direct the State Government to accordingly modify the said

circular and increase age from 12 years 18 years. We had also directed

Mr. S. K. Shinde, learned Public Prosecutor to make some suggestions

and accordingly he has submitted a note. He has made suggestions in

his Note paragra (B) to (F). He has also submitted that in other

countries, particularly in United Kingdom there is an Act, which is

called Children's Dangerous Performances Act, 1879, in which there is

a prohibition for use of children in public exhibition or performance.

He submits that Act similar to said Act has not been passed in the State

of Maharashtra. He, however submits that similar provision is there in

the Maharashtra Police Act, viz. Section 143B, which reads Act as

under:

“143B. Dangerous performances

(1) No person shall without the previous permission of

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the Commissioner or the District Magistrate, as the

case may be, and except in accordance with any

conditions subject to which such permission is

granted hold or give in any place which is likely to

cause an assembly of persons, any performance in

which or during which he buries himself

underground, or seals himself in receptacle or thing,

in such manner as to prevent all access of air to him

and for such time as would ordinarily result in death

by suffocation.

(2) If any person contravenes or attempts to contravene

the provisions of this section, he shall, on conviction,

be punished with imprisonment for a term which may

extend to one year or with fine, or with both.

(3) Notwithstanding anything contained in the Code of

Criminal Procedure, 1898 (V of 1898), the offence

punishable under this section shall be cognizable.”

5. Perusal of the said provision, in our view, discloses that

the said performances are restricted to two performances, viz. burying

himself or sealing himself in receptacle or other thing and not to do

other dangerous performances. We would request the State to

accordingly amend said Section 143B in respect of “danger

performances” to include such other performances, viz. “Dahi Handi”

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where the height of pyramid and use of children is prohibited. We

hope and trust our recommendation is accepted and a suitable

legislation is brought in for the purpose of securing the safety of

performers in this Dahi Handi festival.

6. The suggestions given by the learned Public Prosecutor

are very important and we would like to give directions to the State to

consider the same and make a suitable legislation in respect of

Bombay Public Trust Act, 1950 or the Societies Registration Act,

1840, and we also direct the Charity Commissioner to suitably issue

directions under Section 41C in respect of persons other than Public

Trust collecting monies for religious or charitable purposes, and that a

direction may be issued that whenever such monies are collected,

permission of the Charity Commissioner should be obtained and the

Commissioner is empowered to permit such collection to be continued

subject to certain conditions which may be imposed by him.

7. Secondly, so far as heights of the pyramid are concerned,

we direct the State Government to issue circular directing that height

of Dahi Handi is not more than 20 ft. Thirdly, we direct the State to

issue appropriate directions forthwith to ensure that the organisers of

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this Dahi Handi provide helmet, safety belts to Govindas and also

cushion layers at the venue of the performance. Similarly, size of the

cushions in terms of the thickness of the earth shall be determined by

the State Government. We also direct the State Government to

constitute a local monitoring committee, consisting of (a) in-charge of

the police station; (b) ward officer of the Corporation; and (c) the local

elected representative or such other person who is respected in the said

locality, provided he doesn't have any criminal record.

8. We are also of the view that following safety measures

may also be taken by the organisers:

(a) organisers shall inform the local competent authority well

in advance, not less than 15 days of the celebration and

give following particulars :

(i) exact place / venue of the celebration;

(ii) the hours during which Dahi Handi will be

performed by human pyramid;

(iii) names, addresses, photographs and age proof

(birth certificate, leaving certificate, etc.) of

Govindas, actually participating in the human

pyramid;

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(iv) insurance details of each Govindas.

(v) Lastly, we feel that an undertaking may be

obtained from the organisers that they will

provide immediate medical help like, medical

first aid and ambulance, necessary to treat the

Govindas to move them to the hospitals for

treatment.

(b) Secondly mobile ambulances which have been deployed

by the State of Maharashtra may also be used during

these events.

We hope and trust that suitable measures are taken by

making adequate statutory provisions under either

Bombay Police Act or expand the definition of

“dangerous performances” of the act and also make

suitable amendment in the Bombay Public Trust Act and

the Societies Registration Act.

(c) The State Government may also deploy adequate police

force and / or personnel to ensure that no untowards

incident takes place during such Dahi Handi

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performances.

(d) We also direct the concerned Municipal Corporations to

take adequate measures to ensure that injured are

promptly taken to the hospital and given treatment.

(e) We would like to make an earnest appeal to the

organisers of these Dahi Handi to take into consideration

the health and safety of performers first rather than going

after the money which is offered by the organisers.

9. We are of the view that such kind of performances can

neither be treated as acts of bravery nor can be justified for any

reason, and we hope that reason and ration will prevail upon the

organisers of such functions. Government may consider that if such

performance is to be made at the public place, prior permission from

the local police station shall be made strictly applicable. We must

express our genuine appreciation to the assistance given by the learned

Public Prosecutor Mr. S. K. Shinde in assisting us in these cases.

10. Since performance is going to take place on 18th August,

2014, State Government will promptly issue directions by tomorrow

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and wide publicity be given to the directions given by the State.

11. With these directions, all the three Public Interest

Litigations are disposed of. In view of disposal of PIL No. 95/2013,

Notice of Motion (L) No. 456 of 2014 filed therein does not survive

and is accordingly disposed of.

Sd/- Sd/-[P. D. KODE, J.] [V. M. KANADE, J.]

Vinayak Halemath

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Swati Patil- Dahi Handi Order- Bombay Hc