SANE CONCIETA B. SANGMA Vs. STATE OF MEGHALAYA

JUDGEMENT

(1.) This criminal petition under Sec. 401 r/w Sec. 482 of the Criminal Procedure Code, 1973 has been filed by the petitioner for setting aside and quashing of the order dtd. 14/1/2022 and order dtd. 23/5/2023 passed by the Judicial Magistrate First Class, West Garo Hills District, Tura in GR No. 59 of 2021 arising out of the Tura Women PS Case No. 17(04)2019 under Sec. 323 IPC r/w Sec. 75/82 of the Juvenile Justice (Care and Protection of Children) Act, 2015 and also the order dtd. 23/6/2022 passed by the District and Sessions Judge, Tura in Crl. Rev. No. 02/2022. The petitioner also prayed for quashing of the entire proceeding of the GR No. 59 of 2021. 1. The brief fact of the case is that the petitioner is a co-founder of Aeroville Higher Secondary School, Tura and is holding the post of Headmistress in the said school since the year 1995. In addition to teaching Economics in class X, the petitioner also teaches Grammar to the students of class I and II of the school. The petitioner is well known and respected in the society especially by virtue of being a good educationist and even the State government recognizes the services of the petitioner as a pioneer in the field of education. On 25/4/2019, a written complaint was filed before the Officer In-charge, Tura Women Police Station, West Garo Hills against the petitioner by the respondent No.5 alleging that her daughter aged about 7(seven) years studying in class II of Aeroville Higher Secondary School, Tura, was physically abused by the petitioner on 24/4/2019 in the school premises. On the basis of the written complaint, the Tura Women PS Case No. 17(04)2019 under Sec. 323 IPC r/w Sec. 75/82 of the Juvenile Justice (Care and Protection of Children) Act, 2015 (in short JJ Act) was registered and investigated into. On the completion of the investigation, a charge sheet under the aforesaid Sec. of law was filed on 28/10/2020 and the learned trial court took cognizance of the matter on 14/1/2022. At the trial, a prayer for discharge was made on behalf of the petitioner but the learned trial court after hearing the parties, by impugned order dtd. 14/1/2022 declined to entertain the prayer of the petitioner and ordered for framing of charges. The said order was challenged by the petitioner before the court of the Sessions Judge, Tura, in Crl. Rev. No. 02/2022 and the learned Sessions Judge by the impugned order dtd. 23/6/2022 held that Sec. 82 of the JJ Act is not attracted in the matter and modified the order dtd. 14/1/2022 to that extent. Inspite of passing of the order dtd. 23/6/2022 by the Sessions Judge, Tura, the learned trial court vide impugned order dtd. 23/5/2023 again directed for framing of charges against the petitioner under Sec. 323 IPC and Sec. 75 and 82(1) of the JJ Act. Being aggrieved, the petitioner preferred this criminal petition before this Court challenging all the aforementioned impugned orders and also for quashing and setting aside of the entire proceeding of the GR Case No. 59/2021 pending before the trial court.

(2.) Mr. V.G.K. Kynta, learned Sr. counsel appearing for the petitioner submits that in terms of Sec. 1(4) of the JJ Act, the provisions of that Act shall apply only to the matters concerning "Children in need of Care and Protection" and "Children in Conflict with Law" and going by the defination of the terms "Children in need of Care and Protection" and "Children in Conflict with Law" as provided in Sec. 2(13) and 2(14) of the JJ Act, the child in question in the present case would not come under the purview of the said Act. The learned Sr. counsel contends that none of the aforesaid provisions of the JJ Act, even in their widest possible interpretation, can include the child in question in the present case within the periphery of the ambit of Sec. 75 of the Act and consequently, no trial for any offence can proceed against the petitioner in the instant case. It is also the submission of the learned Sr. counsel that taking of cognizance of an offence under Sec. 323 IPC vide order dtd. 14/1/2022 by the trial court on the basis of the charge sheet dtd. 28/10/2020 is clearly barred under Sec. 468 Cr.PC and the trial thus vitiated being illegal and without jurisdiction. It is also contended that no further proceeding under Sec. 323 IPC r/w Sec. 75 JJ Act, can continue as the period for taking cognizance of an offence under Sec. 323 IPC has lapsed at the end of one year of the registration of the FIR dtd. 25/4/2019.

(3.) The learned Sr. counsel for the petitioner next refers to Sec. 88 and 89 IPC and submits that where a teacher in course of imparting education subjects a child to corporal punishment bonafide with the aim to discipline the child, it is implied that the teacher is given consent by the parent to enforce discipline for the welfare of the child and in such a case, a teacher cannot be said to have committed any offence punishable under law. He submits that in addition to the special exemptions carved out by the said provisions of Sec. 88 and 89 IPC, a teacher is also protected from criminal action by application of common law principle of "loco parentis". To buttress his argument, the learned Sr. counsel places reliance on a judgment dtd. 18/2/2020 of the High Court of Kerela rendered in Crl. MC. No. 5388 of 2019 (C), Mathew E.T vs. State of Kerela & Ors. and submits that the Legislature has not made the act of corporal punishment punishable where it is inflicted by a teacher. Relying on the propositions laid down in the aforesaid judgment, he submits that when the Legislature has exempted a teacher from the purview of Sec. 82 of the JJ Act, such teacher cannot be otherwise roped in within the contours of Sec. 75 of the Act. The learned Sr. counsel submits that the legal infirmities and basic jurisdictional issues in the instant matter are prima facie borne out of the record of the case and not result of any factual dispute being raised on behalf of the petitioner. He contends that further continuation of the trial against the petitioner would result in abuse of process of law and prays for setting aside and quashing of all the impugned orders and also the entire proceedings of the case.