Madras High Court
Jebapriya vs The State Represented By on 6 November, 2024
Author: N.Anand Venkatesh
Bench: N.Anand Venkatesh
Crl.O.P.(MD)No.3084 of 2021
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED: 06.11.2024
CORAM:
THE HONOURABLE MR.JUSTICE N.ANAND VENKATESH
Crl.O.P.(MD) No.3084 of 2021
and
Crl.M.P.(MD).No.1675 of 2021
Jebapriya ... Petitioner
Vs.
1.The State represented by
the Inspector of Police,
All Women Police Station,
Colachel,
Kanyakumari District.
(Crime No.8 of 2018).
2.Kumutha,
District Child Protection Officer,
District Child Protection Unit,
Collectorate,
Kanyakumari District. ...Respondents
PRAYER: Criminal Original Petition is filed under Section 482 of
Cr.P.C, to call for the records in S.C.No.21 of 2020 on the file of the II
Additional District Court, Tirunelveli and quash the same insofar as the
petitioner is concerned.
For Petitioner : Mr..Abudu Kumar,
Mr.Rajarathinam, Senior Counsel
For Mr.F.Deepak
For Respondents : Mr.B.Thanga Aravindh,
Government Advocate
(Criminal Side)
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1/16
Crl.O.P.(MD)No.3084 of 2021
ORDER
This petition has been filed to quash the proceedings in S.C.No.21
of 2020 on the file of the II Additional District Court, Tirunelveli, insofar
as the petitioner is concerned.
2. The case of the prosecution is that the second respondent
received a phone call on 21.07.2018 to the effect that a differently-abled
child was assaulted and burn injuries were caused on the body of the
child at a Home in Kanyakumari District. Based on this message, the
second respondent inspected the Home on the same day at about 04.30.
p.m. and on enquiry, he found that the victim girl had sustained burn
injuries on her body. This burn injury is said to have been inflicted upon
the victim girl by Accused No.1, who was working as a Cook. The
petitioner, who was arrayed as Accused No.2, was the warden of the
Home and the allegation against her is that she did not take proper steps
to give treatment to the victim girl for the burn injuries sustained by her.
The Manager of the Home was also roped in as an accused in this case.
Accordingly, a complaint was given by the second respondent before the
first respondent and the First Information Report came to be registered in
Crime No.08 of 2018 against three accused persons for the offence under
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Section 75 of the Juvenile Justice Act (Care and Protection of Children)
Act, 2015, (hereinafter referred to as “the Act”) and Section 326 of IPC.
3. As stated supra, there are three accused persons in this case and
the petitioner has been arrayed as Accused No.2.
4. The Manager of the Home, who was arrayed as Accused No.3,
challenged the First Information Report in Crime No.8 of 2018 by filing
Crl.O.P.(MD).No.19351 of 2018 on the ground that no offence has been
made out against the third accused. Apart from Accused No.3, the
petitioner also filed a quash petition in Crl.O.P.(MD).No.22722 of 2018.
This Court by a common order dated 22.10.2019, quashed the First
Information Report insofar as Accused No.3 is concerned, since no
offence was made out. Insofar as the petitioner (Accused No.2), this
Court was not inclined to quash the First Information Report.
5. The investigation was continued as against Accused Nos.1 and 2
and ultimately, a police report was filed. The case was taken on file by
the II Additional District Court, Tirunelveli in S.C.No.21 of 2020 The
police report has been filed for the offence under Section 75 of the Act
read with Section 3(2)(Va) of the Scheduled Caste and the Scheduled
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Tribes (Prevention of Atrocities) Act, 1989, as against the petitioner.
Insofar as Accused No.1 is concerned, it has been filed under Section 75
of the Act and Section 326 of IPC read with Section 3(2)(Va) of the
Scheduled Caste and the Scheduled Tribes (Prevention of Atrocities) Act,
1989.
6. The petitioner (Accused No.2) has filed the present quash
petition seeking to quash the police report on the ground that the
materials that have been collected by the Police do not make out any
offence against the petitioner.
7. Heard the learned counsel appearing for the petitioner and the
learned Government Advocate (Criminal Side) appearing for the
respondents.
8. The petitioner was working as a Warden in the Home. It must
be seen as to whether the materials that have been collected by the
Investigating Officer based on which the police report has been filed,
makes out an offence against the petitioner.
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9. For proper appreciation, Section 75 of the Act is extracted
hereunder:
“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
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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.”
10. On carefully reading the above provision, it is seen that the
offence under Section 75 of the Act will be made out only as against the
person, who is having charge or control over a child and he also assaults,
abandons, abuses, exposes or willfully neglects the child or causes or
procures the child to be assaulted, abandoned etc.
11. There are two main ingredients which will have to be satisfied
to constitute an offence under Section 75 of the Act. The first ingredient
is that the accused must have been in actual charge of or control over the
child. The second limb of Section 75 of the Act is that such an accused
person assaults, abandons etc the child.
12. The interpretation of the above provision was made by the
Bombay High Court in the case of Anurag Vs. State of Maharastra,
through Police Station Officer, Police Station, Hudkeshwar, Nagpur
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District in Criminal Writ Petition No.68 of 2022. The relevant portions
are extracted hereunder:
“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
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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
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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 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
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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.”
13. The above judgment of the Bombay High Court further
substantiates the interpretation given by this Court qua Section 75 of the
Act.
14. In the case in hand, the petitioner is the warden of the Home.
Even though strictly speaking the petitioner may not have had the actual
charge or control over the child, considering the position held by the
petitioner as a Warden, it can be construed that there was some
responsibility cast upon the petitioner to be exercised to ensure that the
interest of the child in such Homes is safeguarded. However, the case in
hand actually revolves around the second limb of Section 75 of the Act.
It must be seen as to whether the petitioner had willfully neglected the
child after the child had sustained burn injuries that is alleged to have
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been caused by Accused No.1. Unless this ingredient is satisfied, the
offence under Section 75 of the Act against the petitioner is not made
out.
15. In order to see if the prosecution has collected materials
against the petitioner to substantiate the second ingredient of the above
said provision, this Court carefully went through Section 161 Cr.P.C.
statements recorded from the witnesses. L.W.3, who is working in the
said Home in her statement to the Police specifically states that after the
child sustained burn injuries caused by Accused No.1, it was informed to
the petitioner (Accused No.2) and immediately, the child was taken to the
nearby hospital for treatment. That apart, the petitioner also called
Accused No.1 and enquired her and it was also informed to the Manager
of the Home. After enquiring Accused No.1, a memo was given to
Accused No.1 and she was also suspended from service.
16. The above statement made by L.W.3 has been further
substantiated by the statements recorded from L.W.2 and L.W.11.
17. The learned Government Advocate (Criminal Side) appearing
on behalf of the first respondent specifically relied upon the statement
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that was recorded from L.W.13. On carefully reading the statement of
L.W.13, it is seen that this witness also reiterated whatever was stated by
the other witnesses to the effect that the petitioner informed about the
incident to the Manager of the Home and took steps to suspend Accused
No.1 and also send the child for treatment to the Hospital.
18. On a overall reading of the entire materials that have been
collected by the prosecution, it is seen that the petitioner, in her capacity
as a Warden of the Home, had taken immediate steps to send the child for
treatment to the Hospital, to inform about the incident to the Manager of
the Home and also by taking steps against Accused No.1 by enquiring
her and suspending her from service. The petitioner, in her capacity as a
Warden, has not abandoned or willfully neglected the child, who had
sustained the burn injuries and infact, the petitioner had taken immediate
steps to bring the situation under control and had also ensured that the
child is given immediate treatment.
19. In the light of the above discussion, there is no difficulty in
coming to a conclusion that the offence under Section 75 of the Act has
not been made out against the petitioner.
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20. The next issue is as to whether the offence under Section 3(2)
(Va) of the Scheduled Caste and the Scheduled Tribes (Prevention of
Atrocities) Act, 1989, has been made out against the petitioner. To
constitute the said offence, the petitioner should have first committed the
offence under Section 75 of the Act by knowing fully well that the victim
girl belongs to the SC/ST community. That apart, the provision also
makes it clear that the offence in question must be those offences which
are specified in the Schedule. Section 75 of the Act does not form part of
the Schedule. Therefore, by no stretch, the offence under Section 3(2)
(Va) of the Scheduled Caste and the Scheduled Tribes (Prevention of
Atrocities) Act, 1989, is made out against the petitioner. Useful
reference can be made to the judgment reported in (2018) 1 SCC 742 in
the case of Asharfi Vs. State of Uttar Pradesh and reference can also be
made to the Judgment of the Hon'ble Apex Court in the case of Dashrath
Sahu Vs. State of Chhattisgarh reported in 2024 (1) MWN (Cr) 262.
21. The upshot of the above discussion is that the police report
read along with the materials that have been collected by the prosecution
does not make out any offence against the petitioner. Therefore, the
continuation of the criminal proceedings as against the petitioner will
result in abuse of process of law warranting the interference of this Court
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in exercising its jurisdiction under Section 482 of Cr.P.C.
22. In the result, the proceedings in S.C.No.21 of 2020 on the file
of the learned II Additional District Judge, Tirunelveli, is hereby quashed
insofar as the petitioner is concerned. There shall be a direction to the
learned II Additional District Judge, Tirunelveli, to proceed further with
the case as against Accused No.1 in S.C.No.21 of 2020 and complete the
proceedings within a period of three months from the date of receipt of a
copy of this order.
23. This Criminal Original Petition is allowed accordingly.
Consequently, the connected miscellaneous petition is closed.
07.11.2024
Index : Yes/No
Internet : Yes/No
TSG
To
1.The II Additional District Judge,
Tirunelveli.
2.The Inspector of Police,
All Women Police Station,
Colachel, Kanyakumari District.
3.The District Child Protection Officer,
District Child Protection Unit,
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Collectorate,
Kanyakumari District.
4.The Additional Public Prosecutor,
Madurai Bench of Madras High Court, Madurai.
N.ANAND VENKATESH. J.
https://www.mhc.tn.gov.in/judis
TSG
06.11.2024
https://www.mhc.tn.gov.in/judis
