Anil Kumar V. v. State of Kerala

## `IN THE HIGH COURT OF KERALA AT ERNAKULAM` ## `PRESENT` ## `THE HONOURABLE MR. JUSTICE GOPINATH P.` ``` MONDAY, THE 4[TH] DAY OF DECEMBER 2023 / 13TH AGRAHAYANA, 1945 ``` ``` CRL.MC NO. 1184 OF 2018 ``` ``` CRIME NO.1437/2017 OF Nooranadu Police Station, Alappuzha ``` ``` AGAINST THE ORDER/JUDGMENT CC 710/2017 OF JUDICIAL MAGISTRATE OF FIRST CLASS - II, MAVELIKKARA ``` ## `PETITIONER/ACCUSED:` ``` ANIL KUMAR.V AGED 44 YEARS AGED 44 YEARS, S/O.LATE VIJAYAN PILLAI,ANJANAM, CHATHIYARA, THAMARAKKULAM.P.O.,ALAPPUZHA DISTRICT. BY ADVS. SRI.M.T.SURESHKUMAR SRI.N.MANU THAMPI ``` ## `RESPONDENT/STATE:` ``` 1STATE OF KERALA REPRESENTED BY THE PUBLIC PROSECUTOR,HIGH COURT OF KERALA, ERNAKULAM.682 031. 2XXXX X BY ADVS. DILEEP P V A.MUJEEB REHUMAN(K/3294/1999.) ``` ## `SRI G. SUDHEER (PP)` ``` THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 04.12.2023, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: ``` ``` Crl.M.C. NO.1184 OF 2018 ``` ``` 2 ``` ## **ORDER** Petitioner is the accused in Crime No.1437 of 2017 of Nooranadu Police Station, which is pending as C.C.No.710 of 2017 on the files of the Judicial First Class Magistrate Class Court-II, Mavelikkara was registered alleging commission of offences under Sections 323 and 341 of Indian Penal Code and Section 75 of the Juvenile Justice Care and Protection of Children Act 2015. 2. The allegation against the petitioner is that while working as Hindi language teacher in a school, he assaulted a Class-X student of the school at about 4 p.m. on 09.11.2017. It is alleged that the petitioner had so assaulted the student for bending down and trying to pick up something at the time when the National Anthem was being played. It is alleged that the petitioner kicked the student as a result of which the student had fallen down and had thereafter dragged him by his shirt collar and had thrown him in to the southern corner of the class room. ``` Crl.M.C. NO.1184 OF 2018 ``` ``` 3 ``` The Crime came to be registered on the complaint of the father of the child/defacto complainant, who is arrayed as additional 2[nd] respondent to the Criminal M.C. 3. The learned counsel appearing for the petitioner would submit that there is absolutely no allegation which would attract the offence under Section 323 or Section 341 of the Indian Penal Code. It is submitted that going by Annexure A3 wound certificate, absolutely no injury was reported by the child and therefore, the offence punishable under Section 323 IPC is not attracted. It is submitted that in definition of ‘hurt’ under Section 319 of the Indian Penal Code read with the definition of ‘voluntarily causing hurt’ in Section 321 of the Indian Penal Code will indicate beyond doubt that the offence punishable under Section 323 IPC is not attracted under the facts and circumstances of this case. Coming to the offence under Section 341 of the Indian Penal Code, it is the case of the learned counsel for the petitioner that even assuming that the entire allegation against the petitioner is accepted to be true, it cannot be ``` Crl.M.C. NO.1184 OF 2018 ``` ``` 4 ``` said that the petitioner has committed the offence of wrongful restraint as defined in Section 339 of the Indian Penal Code. It is submitted that wrongful restraint is defined under Section 339 of the Indian Penal Code and is punishable under Section 341, only if there is an obstruction of a person to proceed in a direction in which that person has a right to proceed. It is submitted that even if the entire allegations are accepted as true, the offence of wrongful restraint as defined in Section 339 IPC is not attracted in the facts of the present case. 4. Coming to the offence under Section 75 of the Juvenile Justice Act, it is case of the learned counsel for the petitioner relying on the judgment of this Court in **Rajan @ Raju v. Sub Inspector of Police, Feroke Police Station and Others** [2018 (5) KHC 967] that where the petitioner has acted purely for enforcing discipline and for that purpose has applied a reasonable degree of force, even if the allegations are true. It is submitted that in the facts of the present case, the ``` Crl.M.C. NO.1184 OF 2018 ``` ``` 5 ``` petitioner allegedly assaulted the child when he found that the child was bending forward towards another child and trying to pick up something from the floor when he was required to stand in attention and pay respect to the rendering of the National Anthem. It is submitted that in such circumstances, it could not be said the petitioner has committed any of the offences alleged against him. 5. The learned Public Prosecutor and the learned counsel appearing for the 2[nd] respondent would submit that the petitioner is not entitled to any relief. It is submitted that the question as to whether the petitioner had committed the offences punishable under Sections 323 or 341 of the Indian Penal Code as also the question as to whether the petitioner was acting only to enforce discipline for the purposes of deciding whether the offence under the Juvenile Justice Act was attracted or not, is clearly a matter for evidence and the petitioner cannot seek to invoke the jurisdiction of this Court under Section 482 Cr.P.C. to quash the proceedings on the plea that the petitioner has ``` Crl.M.C. NO.1184 OF 2018 ``` ``` 6 ``` not committed the offences alleged against him. 6. Having heard the learned counsel for the petitioner, the learned Public Prosecutor and the learned counsel appearing for the 2[nd] respondent, I am of the view that the petitioner is entitled to succeed. It is clear from Annexure A3 wound certificate that absolutely no injury has been caused to the son of the defacto complainant , who was allegedly attacked by the petitioner. As already noticed, the offence punishable under Section 323 IPC is the punishment for ‘voluntarily causing hurt’. The term “hurt” is defined in Section 319 of the Indian Penal Code as under: “319. _**Hurt-**_ Whoever causes bodily pain, disease or infirmity to any person is said to cause hurt.” Section 321 defines the term “voluntarily causing hurt” as under: “321. _**Voluntarily causing hurt-**_ Whoever does any act with the intention of thereby causing hurt to any person, or with the knowledge that he is likely thereby to cause hurt to any person, and does thereby cause hurt to any person, is said”voluntarily to cause hurt”. ``` Crl.M.C. NO.1184 OF 2018 ``` ``` 7 ``` On a perusal of the First Information Statement of the defacto complainant and the contents of Annexure A2 final report, it is clear that there is no material to suggest that the petitioner had committed the offence of ‘voluntarily causing hurt’. Coming to the offence under Section 341 of the Indian Penal Code, the allegation against the petitioner, as already noticed, is that he had assaulted the minor child of the defacto complainant and then dragged him to a corner of the class room. There is nothing to suggest that he had restrained the child from moving in any direction and therefore, the offence punishable under Section 341 IPC cannot also be stated to have been committed by the petitioner. ## 7. In **Rajan @ Raju (supra)** this court held as ## follows:- 9. In the case on hand, though the incident had allegedly taken place on 05/11/2015, the law was set in motion on 08/11/2015. Admittedly, the applicant herein is a school teacher and the victim is his student. Parents, teachers and other persons in loco parentis are entitled as a disciplinary measure to apply a reasonable degree of force to their ``` Crl.M.C. NO.1184 OF 2018 ``` ``` 8 ``` children or pupil old enough to understand the purpose to which the act was done. S.79 and S.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, (see Cross and Jones on Introduction to Criminal Law, 9th Edn., Page 120; Kenny on Outlines of Criminal Law, 19th Edn. Page 18). 10. Neither the prosecution nor the 3rd respondent have a case that the degree of punishment inflicted by the petitioner was administered for the gratification of passion or rage or that it was immoderate or unreasonable. The petitioner was the Mathematics Teacher and all that he appears to have done to keep her alert, is to jab on her shoulder. The child as well as her father states that she committed some minor mistakes while carrying out subtraction. The prosecution has no case that on account of the chastisement administered to the child, he left any mark of violence or injury on the body of the minor child. The records also do not show that the chastisement by the petitioner was beyond the child's powers of endurance or that it was with any instrument of offence with intent to cause harm. None of the witnesses stated that she cried or that she was in such a discomfort that she had to be taken home. It is clear from the materials that the chastisement ``` Crl.M.C. NO.1184 OF 2018 ``` ``` 9 ``` was done in good faith for the benefit of the child concerned and the punishment said to have been inflicted cannot be said to be either excessive or immoderate. Furthermore, the discharge certificate, which is annexed to the final report was secured on the date of submission of final report before court and not one issued when the child was seen by the doctor. In the facts and circumstances, the registration of the crime under S.323 of the IPC and S.23 of the Juvenile Justice (Care and Protection of Children) Act, 2000 does not appear to be justified. 11. The precedents cited by the petitioner were all rendered prior to the advent of the JJ Act, 2000. However, the principles laid down can be applied to the instant case as well. In the cited cases, their Lordships have taken a view that when a student is sent by his parent or guardian to a school, the parent or guardian must be deemed to have given an implied consent to the child being under the discipline and control of the school authorities and to the infliction of such reasonable punishment as may be necessary for the purposes of school discipline or for correcting him. The Courts have taken the view that the school teacher, in view of his peculiar position, must in the nature of things, have authority to enforce discipline and correct a pupil, who is put in his charge. The courts have also taken the view that it can be assumed that when a parent entrust a child to a teacher, he on his behalf impliedly consents for the teacher to exercise over the student such authority. However, the nature and gravity of the corporal punishment inflicted by the teacher would ``` Crl.M.C. NO.1184 OF 2018 ``` ``` 10 ``` determine as to whether he can be proceeded under the penal provisions. If the teacher, out of unbridled fury, excitement or rage, inflicts injuries which are of such a nature as to cause unreasonable physical suffering or harm to the child, the same cannot be condoned on any ground or on the principle of express or implied consent. In the light of the above findings regarding the offence under Sections 323 and 341 IPC and being in respectful agreement with the view taken by this court in **Rajan @ Raju (supra)** , I am of the view that the petitioner cannot be prosecuted for the offences alleged under the IPC and the Juvenile Justice Act. Accordingly this Crl.M.C. is allowed and all further proceedings in Crime No.1437 of 2017 of Nooranadu Police Station, which is pending as C.C.No.710 of 2017 on the files of the Judicial First Class Magistrate Class Court-II, Mavelikkara will stand quashed. **Sd/GOPINATH P. JUDGE** SSK/04/12 ``` 11 ``` ``` Crl.M.C. NO.1184 OF 2018 ``` ## `APPENDIX OF CRL.MC 1184/2018` ## `PETITIONER ANNEXURES` ``` ANNEXURE A1TRUE COPY OF THE FIR AND THE COMPLAINT DATED 11.11.2017 NOORANADU POLICE STATION. ANNEXURE A2TRUE COPY OF THE FINAL REPORT DATED 12.12.2017 IN CRIME NO.1437 OF 2017 OF NOORANADU POLICE STATION. ANNEXURE A3TRUE COPY OF THE WOUND CERTIFICATE DATED 10.11.2017 ISSUED BY NEELAMBARI MEDICAL TRUST HOSPITAL. ```