Anandu and Swapnamol v. State of Kerala and Muhammed Kaif (minor), represented by his mother Shyla

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MRS. JUSTICE M.R.ANITHA** **THURSDAY, THE 23[RD] DAY OF DECEMBER 2021 / 2ND POUSHA, 1943** **CRL.MC NO. 6469 OF 2019** ## **CC 705/2019 OF JUDICIAL MAGISTRATE OF FIRST CLASS -I, ALAPPUZHA** ## **PETITIONERS/ACCUSED NO.1 AND 2** 1 ANANDU,AGED 25 YEARS S/O. ANIRUDHAN, KOLOTH VEEDU, SANATHAPURAM P.O., KAITHAVANA WARD, ALAPPUZHA DISTRICT. 2 SWAPNAMOL, AGED 41 YEARS W/O. JAYAN, 'SOUPARNIKA', (SREENILAYAM) HOUSE, MUHAMMA P.O., WARD NO.5, MUHAMMA PANCHAYATH, ALAPPUZHA DISTRICT. BY ADVS. M.R.ARUNKUMAR SRI.P.SHAMMI NAVAS SRI.P.T.BINDURAJ ## **RESPONDENTS/COMPLAINANT & DEFACTO COMPLAINANT** 1 STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KEALA, ERNAKULAM, KOCHI-682031. 2 MUHAMMED KAIF (MINOR), S/O. SHYLA, PANAKKAL VEEDU, WEST OF KAICHOONDI MUKKU, THONDANKULANGARA WARD, ALAPPUZHA MUNICIPALITY, ALAPPUZHA688013, REPRESENTED BY HIS MOTHER SHYLA, PANAKKAL VEEDU, WEST OF KAICHOONDI MUKKU, THONDANKULANGARA WARD, ALAPPUZHA MUNICIPALITY, ALAPPUZHA-688013, BY ADV SRI.V.VINAR PP SANGEETHARAJ N.R. THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON 29.11.2021, THE COURT ON 23.12.2021 DELIVERED THE FOLLOWING: Crl.M.C.6469/2019 2 ## ORDER ## Dated : 23[rd] December, 2021 1. This Crl.M.C has been filed seeking to quash the entire further proceedings against the petitioners/accused 1 and 2 in C.C.705/2019 on the file of Judicial First Class Magistrate Court-I, Alappuzha. Petitioners are the teachers of Sanathana Dharma Vidyalaya (SDV) Boys High School. They have been arrayed as accused Nos.1 and 2 in Crime No.72/2019 of Alappuzha Police Station. The offence alleged against the petitioners is under Section 341, 323 344 r/w 34 IPC and Section 75 of the Juvenile (Care and Protection of Children) Act, 2015 (in short the Act). 2. The prosecution case is that the accused persons had enmity towards the de facto complainant, a 15 year old boy for having done masturbation by looking at the second accused. Out of that, with the intention and preparation to assault him on 16.1.2019 at about 11.30 am, in front of class room X/A of SDV Boys High School in the varandah, the second accused scolded the de facto complainant and the first accused beat him on his left hand questioning as to what he has done and at that time, second Crl.M.C.6469/2019 3 accused with the cane held by her, beat at his leg and thereby accused persons behaved cruelly towards the de facto complainant and committed the offence aforementioned. 3. According to the learned counsel for the petitioner, second accused is the class teacher of the victim boy and first accused is the teacher in U.P. classes of the same school and only because of the act of masturbation committed by the victim looking at the second accused, he was just called outside the class room and scolded and second accused beat him with a cane. Hence no offence as alleged would be attracted against the petitioners. It is also the contention of the petitioners that no injury has been sustained to the victim as borne out from Annexure-A2, copy of the wound certificate of the victim boy. On perusing Annexure-A2, it is evident that at 6.45 pm on 16.1.2019 he has been examined by the doctor with the history of self inflicted wound over left wrist. No other external injuries are noted. 4. The learned counsel for the second respondent, minor victim on the other hand would contend that the teachers should always be the role model of the students and the victim has not done any act as alleged and according to him, it is quite unimaginable also that in a class room such an act could be done by a student. However, the Crl.M.C.6469/2019 4 police filed the charge and the reason for enmity and the motive behind the incident itself has been alleged as the act of masturbation done by the victim looking at the second accused in the class room and out of which he was called out of the class room and thereafter the alleged incident said to have taken place. 5. Annecure-A1 is the FIR and FIS. In the FIS, though the victim states about the repeated beating by the first accused as well as the second accused, he has categorically admitted in the FIS that his mother was called to the school and the accused persons divulged something to the mother and he was taken by the mother at 1.30 to the house. So that itself would infer that the victim might have done the act alleged and that is the reason why his mother was called to the school and he went along with his mother at about 1.30 pm. Annexure-A6 is the final report and the witness list. Annexure-A5 is the copy of 161 statements of the witnesses. Students also gave statements in corroboration that the victim was called out of the class and the first accused beat him and the second accused also beat him at his leg. So in the said circumstances, the only question that emerges for consideration is whether the act alleged by the petitioners would attract the offence under Section 75 of the Act as well as Section 341, 323, 344 r/w 34 Crl.M.C.6469/2019 5 of IPC. 6. In this context learned counsel for the petitioner relied on **Abdul Vaheed vs State Of Kerala** (2005 (2) KlT 72) wherein while dealing with Sections 88 and 89 of IPC, it has been held that when a teacher in the course of teaching beats a student bona fide to maintain discipline no criminal offence is committed as he acted in good faith. When a student do not behave properly or act according to the Rules of a school, and if the teacher chastise him, on a bona fide intention, by giving him a corporal punishment for improving his character and conduct, the Court has to ascertain whether the said act of the teacher was bona fide or not. If it is found that he had acted with a good intention, only to improve the student, it may not normally be brought under the penal provisions of the Code. 7. In the case referred above, a Madrassa teacher who was the accused/petitioner gave beating on the gluteal region, only to make him to adhere the standards of Madrassa. Hence it was held that it was done with a bona fide intention and there is no mens rea, to inflict an injury so as to attract Section 324 IPC and hence the petitioner found to have acted within the exception conferred on him under Section 88 of IPC and accordingly the case was quashed. Crl.M.C.6469/2019 6 The learned counsel also brought to my attention **Rajan @ Raju v. The Sub Inspector Of Police (2018 (5) KHC 967)** in which it was held that infliction of punishment of a teacher on a student will not attract penal provisions. In that case, the petitioner/accused was a Mathematics teacher and while learning addition and subtraction, child committed a minor mistake and the petitioner/accused alleged to have jabbed on her shoulders with his fist and the child complained of pain to her mother and the child was taken to the hospital and thereafter the complaint was lodged and the final report was filed under Section 323 IPC and Section 23 of the Act. Paragraph 9 of the said decision is relevant in this context to been extracted which reads as follows :- “In the case on hand, though the incident had allegedly taken place on 5.11.2015, the law was set in motion on 8.11.2015. Admittedly, the applicant herein is a school teacher and the victim is his student. Parents, teachers and other persons in loco parents are entitled as a disciplinary measure to apply a reasonable degree of force to their children or pupil old enough to understand the purpose to which the act was done. Section 79 and 80 of the IPC would come to his/her rescue, in those cases. However, if the punishment imposed is given out of spite or for some other non disciplinary reason or if the force is unreasonable or immoderate, it is unlawful. Hurt of a less serious crime is not forbidden when inflicted in the reasonable chastisement of a child by a parent or by a school teacher to whom the parent has delegated or is deemed to have delegated his authority. “ ## 8. The learned counsel also brought to my attention **Geo Varghese v.** Crl.M.C.6469/2019 7 **The State Of Rajasthan and Anr.** (2021 SCC Online 873) that a Special Leave Petition was filed aggrieved by the judgment of the High Court of Judicature of Rajasthan at Jaipur dismissing the petition under Section 482 of the Code of Criminal Procedure seeking to quash the First Information Report registered in a case against the accused/a Physical Training Teacher in St. Xavier’s School, Nevta, Jaipur and also a member of the Disciplinary Committee for the offence registered under Section 306 IPC. A student in class IX of the institution committed suicide and the mother of the deceased lodged complaint and question arose whether the offence under Section 306 IPC will be attracted against the accused persons. In allowing that petition and questioning the proceedings, the Apex Court in paragraph 27 held as follows :- “It is a solemn duty of a teacher to instill discipline in the students. It is not uncommon that teachers reprimand a student for not being attentive or not being upto the mark in studies or for bunking classes or not attending the school. The disciplinary measures adopted by a teacher or other authorities of a school, reprimanding a student for his indiscipline, in our considered opinion, would not tantamount to provoking a student to commit suicide, unless there are repeated specific allegations of harassment and insult deliberately without any justifiable cause or reason. A simple act of reprimand of a student for his behaviour or indiscipline by a teacher, who is under moral obligations to inculcate the good qualities of a human being in a student would definitely not amount to instigation or intentionally aid to the commission of a suicide by a student.” ## 9. In this case, the prosecution allegation is that the victim boy Crl.M.C.6469/2019 8 masturbated inside the class room looking at second accused a lady teacher and hence the victim was called out of the class room and first accused questioned his act and second accused beat at his leg with cane. The medical records would prove that no external injuries are sustained apart from the self inflicted injury of the victim. 10. So the act alleged to have committed by the petitioners are only proportionate to the wrong committed by the victim or even much less than that, since no injury as such has been sustained by the victim due to the assault at the instance of the petitioners. Petitioners being the teachers of the school is entitled to take such remedial measures so as to keep the decorum of the class room. As has been held in **Rajan @ Raju** , when a student is sent by his parent or guardian to a school the parent or guardian deemed to have given the implied consent to the school authorities so as to impose reasonable punishment as may be necessary for keeping the discipline or for correcting them. There is also nothing to infer that the petitioners have acted with malice or ill will and there is no such allegation also. 11. In the above backdrop, I am of the considered view that quashment of further proceedings against the petitioners in Crl.M.C.6469/2019 9 C.C.705/2019 on the file of Judicial First Class Magistrate Court-I, Alappuzha, would be necessary for securing the ends of justice. 12. In the result, Crl.M.C allowed. All further proceedings against the petitioners/accused 1 and 2 in C.C.705/2019 on the file of Judicial First Class Magistrate Court-I, Alappuzha, which arose out of Crime No.72/2019 of Alappuzha Police Station, is hereby quashed. Sd/- ## **M.R.Anitha, Judge** Mrcs/13.12. Crl.M.C.6469/2019 10 ## **APPENDIX OF CRL.MC 6469/2019** |PETITIONER ANNEXURES|| |---|---| |ANNEXURE A1|CERTIFIED OF THE FIRST INFORMATION REPORT IN| ||CRIME NO.72/2019 OF ALAPPUZHA NORTH POLICE| ||STATION.| |ANNEXURE A2|CERTIFIED COPY OF THE ACCIDENT CUM WOUND| ||CERTIFICATE DATED 16/01/2019 ISSUED BY THE| ||GENERAL HOSPITAL, ALAPPUZHA.| |ANNEXURE A3|CERTIFIED COPY OF THE SCENE MAHAZAR IN CRIME| ||NO.72/2019 OF ALAPPUZHA NORTH POLICE STATION.| |ANNEXURE 4|CERTIFIED COPY OF THE SCENE MAHAZAR IN CRIME| ||NO.72/2019 OF ALAPPUZHA NORTH POLICE STATION.| |ANNEXURE 5|CERTIFIED COPY OF THE STATEMENT UNDER SECTION| ||161 CR.P.C. TAKEN BY THE INVESTIGATING| ||OFFICER IN CRIME NO.72/2019 OF ALAPPUZHA| ||NORTH POLICE STATION.| |ANNEXURE A6|CERTIFIED COPY OF THE FINAL REPORT IN CRIME| ||NO.72/2019 F ALAPPUZHA NORTH POLICE STATION.|