Bombay High Court
Anurag S/O Jamnashankar Pandey vs State Of Mha. Thr. Pso Ps ... on 23 February, 2022
Bench: Avinash G. Gharote
(1) 32.wp.68.2022
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH : NAGPUR
CRIMINAL WRIT PETITION NO.68 OF 2022
Anurag s/o Jamnashankar Pandey
Vs.
State of Maharashtra, Through Police Station Officer, Police Station, Hudkeshwar,
District Nagpur
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Office Notes, Office Memoranda of Coram, Court's or Judge's orders
appearances, Court's orders of directions
and Registrar's orders
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Mr. Tejas Deshpande, Advocate for petitioner.
Mr. A. R. Chutke, APP for respondent/State.
CORAM : AVINASH G. GHAROTE, J.
DATE : 23/02/2022
1) Heard Mr. Deshpande, learned counsel for
the petitioner and Mr. Chutke, learned APP for the
respondent/State.
2) The order dated 09.02.2022 reads as under:
"2. Heard Mr. Deshpande, learned counsel for
the petitioner, who submits, that the case against
the petitioner does not attract Section 75 of the
Juvenile Justice (Care & Protection of Children)
Act, 2015 (hereinafter to be referred as the "J.J.
Act, 2015"). The brief facts relating to the matter
are that the petitioner is the Head Master of
Suyash Convent School, Nagpur, in which one
Manaish Haribhau Raut was appointed as a dance
teacher. On 30.11.2016, when the said Manaish
Haribhau Raut was teaching dance to the students
in the school and while the practice was going on,
he has assaulted his students with an iron rod
causing injuries to them, as a result of which, a
complaint was lodged by one Aruna Rajendra
Khandale, the mother of one of the girls vide crime
No. 519/2016 for the offence punishable under
Section 324 of the Indian Penal code which came
to be registered against the said Manish Haribhau
Raut. However, the charge-sheet which came to be
(2) 32.wp.68.2022
filed on 18.04.2017, surprisingly included the
name of the petitioner as accused No.2 and also
the provisions of Section 75 of the J.J. Act, 2015.
3. On an application for discharge filed by the
petitioner at Exh.3, the learned Magistrate by the
order dated 02.04.2019, passed an order rejecting
the same. In revision the learned Sessions Court
partly allowed the revision, holding that the
assault was made by the accused No.1 alone,
which was in the classroom, in which, he was
teaching dance to the girls students, wherein the
petitioner was not present and so also there was
no common intention, and therefore, insofar as,
the offence punishable under Section 324 read
with Section 34 of the Indian Penal Code was
considered, the revision was partly allowed and
the petitioner was discharged in respect of the
aforesaid offence. However, by the same order
dated 10.08.2021, the learned Sessions Court has
directed that charge be framed against the
petitioner/accused No.2 under Section 75 of the
J.J. Act, 2015.
4. Mr. Deshpande, learned counsel for the
petitioner submits, that Section 75 of the J.J. Act,
2015, would not be attracted, as the basic
ingredient necessary for its application is the
actual charge of or control over a child and the
assault by such a person. Admittedly, in the
present matter, the petitioner, though the Head
Master, was not in actual charge or control over
the children, rather it was the dance teacher
Manish Haribhau Raut, in view of which, it is
contended that even the offence under Section 75
of the J.J. Act, 2015, would not be attracted. Issue
notice for final disposal to the respondent,
returnable on 18.02.2022."
3) Mr. Chutke, learned APP for respondent
contends that Section 75 of the Juvenile Justice (Care
and Protection of Children) Act, 2015 (hereinafter to be
referred as the "J.J. Act, 2015") would be attracted as the
applicant who was the Headmaster of the institution, was
(3) 32.wp.68.2022
in fact having overall control over the children, and
therefore, the application, needs to be rejected.
4) Section 75 of the J.J. Act reads as under:
"75. Punishment for cruelty to child. - Whoever,
having the actual charge of, or control over, a
child, assaults, abandons, abuses, exposes or
wilfully neglects the child or causes or procures
the child to be assaulted, abandoned abused,
exposed or neglected in a manner likely to cause
such child unnecessary mental or physical
suffering, shall be punishable with imprisonment
for a term which may extend to three years or
with fine of one lakh rupees or with both:
Provided that in case it is found that such
abandonment of the child by the biological
parents is due to circumstances beyond their
control, it shall be presumed that such
abandonment is not wilful and the penal
provisions of this section shall not apply in such
cases:
Provided further that if such offence is
committed by any person employed by or
managing an organisation, which is entrusted with
the care and protection of the child, he shall be
punished with rigorous imprisonment which may
extend up to five years, and fine which may
extend up to five lakhs rupees:
Provided also that on account of the
aforesaid cruelty, if the child is physically
incapacitated or develops a mental illness or is
rendered mentally unfit to perform regular tasks
or has risk to life or limb, such person shall be
punishable with rigorous imprisonment, not less
than three years but which may be extended up to
ten years and shall also be liable to fine of five
lakhs rupees."
5) The word 'actual', according to the Advanced
Law Lexicon means real; existing in act as opposed to
(4) 32.wp.68.2022
constructive, theoretical, or speculative, as in actual
possession, actual seizure. In legal phraseology the word
"actual" is used as the opposite of
"constructive/virtual/symbolic". The expression also has
to be read in the contextual back-ground of Section 75 of
the J.J. Act, 2015 where a person in actual charge or
control of a child is made penally liable for any action of
assault, abandonment, abuse, exposure or wilfully
neglects the child or, causes or procures the above to be
done in a manner likely to cause such child unnecessary
mental or physical suffering. In the present context,
when Section 75 of the J.J. Act, 2015 is a penal provision
providing punishment for cruelty to the child, the
expression "actual charge of, or control over" a child,
would necessarily have to be construed in a strict sense.
Considering the same in my opinion, in the present facts
of the case, the expression has necessarily to mean that
the children were under the actual charge or control of a
person and not otherwise. The second proviso to Section
75 of the J.J. Act, when it relates to an organisation,
makes a person employed by or managing such
organisation guilty of the offence, however, only if such
person employed by or managing the organisation was
the person who had committed the acts as contemplated
by Section 75 of the J.J. Act. In the given facts of this
case, it is an admitted position that the children were in
the dance class being conducted by the dance teacher by
name Manish Haribhau Raut and the applicant, who is
the Headmaster of the institution was nowhere near the
said class. Neither any action of any assault, has been
(5) 32.wp.68.2022
attributed to the applicant. Nor is there any allegation
that the applicant had connived with the said act in any
manner whatsoever. The applicant has merely been roped
in, for the reason he is the head of the institution where
the alleged incident happened which in fact, is directly
attributable to the dance teacher Manish Haribhau Raut.
None of the statements of the witnesses, recorded by the
police authorities, indicate, that the applicant was ever
having charge of or control over the children and all
those statements consistently record that the actual
charge or control over the children was that of the dance
teacher Manish Haribhau Raut. It is thus apparent, that
the applicant, would not fall within the meaning of the
expression "whoever having actual charge of, or control
over", nor is the second proviso to Section 75 of the J.J.
Act, attracted vis-a-vis the present applicant, in view of
which, the provisions of Section 75 would clearly not be
attracted. This being the case, the order of the learned
Judicial Magistrate First Class dated 02.04.2019 and the
judgment of the learned Sessions Court dated 10.08.2021
in so far as they relate to Section 75 of the J.J. Act, 2015
vis-a-vis the applicant cannot be sustained. They are
therefore, quashed and set aside and the application at
Exh.3 filed by the applicant, is accordingly allowed and
the applicant stands discharged. No costs.
JUDGE
Digitally signed byANANT R
SARKATE
Signing Date:24.02.2022 Sarkate
17:25
