The main legal point established in the judgment is that for Section 75 of the J.J. act, 2015 to apply, the accused must have actual charge or control over the child, and the provisions should be construed in a strict sense.

JUDGMENT

avinash G. Gharote, J. - 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 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 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 i