IMPORTANT POINT
To constitute 'willful neglect' under Section 75 of the J.J. Act, actions must be intentional and deliberate, not merely negligent.

ORDER :

The petitioner is the 7^th accused in Crime no.54/2020 of Chevayur Police Station, Kozhikode, now pending before the II^nd Additional Sessions Court, Kozhikode as S.C. No.860/2022. The petitioner seeks quashment of the said crime, as also, all further proceedings therefrom, on the premise that the offence alleged under Section 75 of the Juvenile Justice (Care and Protection of Children) Act, 2015 (for short, ‘J.J. Act’) will not lie in the given facts and circumstances.

2. Heard the learned Counsel for the petitioner and the learned Public Prosecutor. Perused the records.

3. The prosecution allegations are as follows:

One Ajin, aged 6 years, who was inmate of the Home for Mentally Deficient Children (HMDC) at Vellimadukunnu, Kozhikode, urinated while sleeping. Infuriated by the same, certain other inmates (accused nos.1 to 4) have assaulted the said Ajin and he succumbed to death. Accused nos.5 and 6 are the Multi Task Care Providers of the said institution, who permitted children who have attained majority to stay along with the minor children, contrary to specific instructions in this regard. The specific allegation against petitioner/A7 is that he has committed supervisory lapse in permitting major inmates to stay along with the minors. On such premise, the third accused, who was a major at the time of incident, was mulcted with charge under Section 302 of the Penal Code and accused nos.5 to 7, including the petitioner, was called upon to answer the charge under Section 75 of the J.J. Act.

4. Learned Counsel for the petitioner submits that, even going by the prosecution allegations, the only charge against the petitioner is with respect to supervisory lapse, which cannot attract the offence under Section 75 of the J.J. Act. Learned Counsel would submit that disciplinary action has already been initiated against the petitioner, which culminated in withholding two increments. Supervisory lapse alleged, simultaneous with absence of knowledge that inmates who have attained majority are staying with minor inmates, cannot amount to willful neglect in the context of Section 75 of the J.J. Act, is the argument advanced.

5. Refuting the above submissions, the learned Public Prosecutor would point out that, it was on account of the willful neglect of petitioner/A7 that the victim Ajin had to face the extreme fate of death, at the hands of accused nos.1 to 4, among whom, one has attained majority at the time of incident. It was pointed out that there were other major inmates, who were permitted to stay along with the minor inmates, contrary to the circular/instructions in this regard. Learned Public Prosecutor would point out that, if the person, who is having actual charge or control of the child, acts in a negligent manner, so as to cause unnecessary mental or physical suffering, the offence under Section 75 of the J.J. Act is committed.

6. Having heard the learned Counsel appearing for the respective parties, this Court finds considerable force in the submissions made by the learned Counsel for the petitioner. That part of the final report, which constitute the allegations against the petitioner/A7 is extracted here below:

(underlined for emphasis)

7. It is clear from the above final report that, even as per the prosecution version, petitioner/A7 was not aware of the fact that the major inmates are also permitted to stay along with the minor inmates during night; and all what is seen alleged is supervisory lapse, albeit being unaware of the above fact.

8. This Court will now extract the offence under Section 75 of the J.J.Act.

“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