IMPORTANT POINT
In order to attract an offence under Section 75 of the Juvenile Justice Act, the offender should have actual charge or control over the child.

ORDER :

This Criminal Miscellaneous Case has been filed under Section 482 of the Code of Criminal Procedure, by the petitioner, who is the 2nd accused in Crime No.222/2022 of Valiyamala Police Station, Thiruvananthapuram and the prayer herein is as under:

To call for the records relating to C.C.No.242/2022 of JFMC-I, Nedumangad arising from Crime No.222/2022 of Valiyamala Police Station, Thiruvananthapuram District and quash the same against the petitioner/2nd accused, in the interest of justice.

2. Heard the learned counsel for the petitioner and the learned Public Prosecutor. I have perused the relevant documents.

3. In this matter, prosecution alleges commission of offences punishable under Sections 109 and 317 r/w Section 34 of the Indian Penal Code and Section 75 of the Juvenile Justice (Care and Protection of Children) Act, 2015 (for short, ‘the JJ Act’ hereinafter), by accused Nos.1 and 2.

4. The prosecution allegation is that, the 1st accused in this crime is the mother of two minor children, aged 12 and 11. The 1st accused was residing along with her parents and children. The husband of the 1st accused (the additional 3rd respondent herein) has been working in Abudhabi and when he came back to the house of the 1st accused, it was noticed that the 1st accused eloped with the petitioner herein, by leaving the minor children with her parents. It is alleged that, it was because of the instigation of the petitioner herein, the 1st accused committed the above crime.

5. The learned counsel for the petitioner would submit that, no materials, prima facie, made out to attract offence punishable under Section 75 of the JJ Act, against the petitioner herein, since he has no custody or control over the minor children and the minor children were left at the house of the parents of the 1st accused/mother, by the 1st accused. Therefore, the further proceedings against the petitioner herein, as sought for, are liable to be quashed.

6. The learned Public Prosecutor opposed the prayer for quashment and would submit that prima facie there are allegations against the petitioner herein, which would attract the offences as alleged.

7. In this matter, there is allegation that the 2nd accused, the petitioner herein also committed offence punishable under Section 75 of the JJ Act. Therefore, the question poses for consideration is, what are the essentials required to constitute an offence punishable under Section 75 of the JJ Act?

8. In this context, reference to Section 75 of the Juvenile Justice (Care and Protection of Children) Act, 2015, is necessary. Section 75 of the JJ Act provides 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 organization, 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 shal