M. Radhakrishnan v. State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE ALEXANDER THOMAS** **WEDNESDAY, THE 28TH DAY OF OCTOBER 2020 / 6TH KARTHIKA, 1942** ## **Crl.MC.No.3071 OF 2020(D)** **CC 411/2019 OF JUDICIAL MAGISTRATE OF FIRST CLASS -III, NEDUMANGAD** **CRIME NO.1030/2010 OF Vattiyoorkavu Police Station , Thiruvananthapuram** ## **PETITIONER/ACCUSED:** **M.RADHAKRISHNAN AGED 73 YEARS S/O MRUTHYUNJAYAN , SAI RAG, KALLUMOODU, KGRA 204, ANAYARA ROAD, PETTAH, THIRUVANANTHAPURAM** **BY ADV. SRI.K.SASIKUMAR** ## **RESPONDENTS/COMPLAINANTS:** - **1 STATE OF KERALA REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM-682 031.** - **2 LALITHA RANI D/O. SAROJINI, SREENILAYAM VEEDU, NEAR MAYANDI TEMPLE, PANNAMKARA, VELLAKKADAVU WARD, PEROORKADA VILLAGE, THIRUVANANTHAPURAM DISTRICT- 695013.** |**3**|**P ANIL KUMAR**| |---|---| ||**S/O. PARAMESWARAN NAIR,**| ||**SINDOORAM VEEDU, KARIMANKULAM ROAD,**| ||**VATTIYOORKAVU WARD,**| ||**VATTIYOORKAVE VILLAGE,**| ||**THIRUVANANTHAPURAM DISTRICT- 695013**| |**4**|**SANTHI**| ||**D/O. RADHAMMA,**| ||**SANTHI BHAVAN, NEAR CHANTHAMUKKU JUNCTION,**| ||**KURISHUMUTTOM WARD,**| ||**VILAVOORKKAL VILLAGE,**| ||**THIRUVANANTHAPURAM DISTRICT- 695571**| Crl.M.C No. 3071 of 2020 2 **5 SREEDEVI D/O. THULASI, B-95, SANTHINAGAR, THIRUMALA WARD, THIRUMALA VILLAGE, THIRUVANANTHAPURAM DISTRICT- 695006.** **BY ADVS. SRI.B.JAYASURYA, PUBLIC PROSECUTOR** **THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON 28.10.2020, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** Crl.M.C No. 3071 of 2020 3 ## ALEXANDER THOMAS, J. -----------------------------------Criminal M.C No. 3071 of 2020 -----------------------------------Dated this the 28[th ] day of October, 2020 ## **O R D E R** The prayers in the afore captioned Criminal Miscellaneous Case filed under Sec.482 of Cr.PC are as follows: - _“(i) To quash Anx.A-2 final report and all further proceedings in C.C No.411/2019 pending before the Hon'ble Judicial First Class Magistrate CourtIII, (Forest Offences), Nedumangad._ - _(ii) To issue any other order or direction appropriate in the circumstances of this case which this Hon'ble Court deems just and necessary.”_ 2. Heard Sri.K.Sasikumar, learned counsel appearing for the petitioner and Sri.B.Jayasurya, learned Public Prosecutor appearing for the 1[st] respondent State of Kerala. 3. This Court had earlier ordered that though the president of the Parent-Teacher Association is the formal first informant/defacto complainant, the petitioner will have to implead CW2, CW4, CW5 & CW6, who are the parents/guardians of the students, who have alleged to have suffered the acts in question at the hands of the petitioner. Accordingly, the impleadment application so filed by the petitioner was allowed by this Court and notices have thus been duly served on additional respondents 2, 3, 4 & 5 (CW Nos.2, 4, 5 & 6 Crl.M.C No. 3071 of 2020 4 respectively. The Registry has now noted that this Court had ordered that notice be served on those additional respondents through the Inspector of Police of the area concerned. The Registry has endorsed that service on respondents 2, 3 & 5 has been completed on 03-09-2020, whereas service on R4 has not been completed. The Inspector of Police has also given a report that additional R4 has died on 29-12-2019 and copy of the death certificate of the said party has also been produced before the Registry. Though notices has thus been duly served on the abovesaid additional parties, they have not appeared before this Court in spite of adjournments. 4. It appears that the abovesaid criminal proceedings have arisen on the basis of a private criminal complaint filed before the Chief Judicial Magistrate Court, Thiruvananthapuram, in which the learned Magistrate had directed that the police may register a crime and conduct the investigation in the allegations raised therein, pursuant thereto, the Police has registered the impugned Anx.A-1 FIR in crime No.1030/2020 of Vattiyoorkavu Police station, Thiruvananthapuram, in which petitioner herein has been arrayed as the sole accused for offences punishable under Secs.323, 341 and 506 of the IPC and Sec.23 of the Juvenile Justice Act, 1986. The police Crl.M.C No. 3071 of 2020 5 after investigation has filed the impugned Anx.A-2 Final report/charge sheet before the Judicial First Class Magistrate CourtII, Nedumangad, for offences punishable under Secs.323, 341 and 506 of IPC and Sec.23 of the Juvenile Justice Act, 1986, which has led to the pendency of Calendar Case C.C No.411/2019 on the file of the Judicial First Class Magistrate Court-II (Forest offence), Nedumangad. 5. The brief of the prosecution case is that, while the petitioner was discharging his duties and functions of the Principal-inCharge/Headmaster-in-charge and Manager of the Bharathiya Vidhya Bhavan school, Kodungannur, Thiruvananthapuram, on 20-11-2009, he had come to C Division of Class No.I and tapped on the shoulders of students in question and pinched on their ears with the intention to cause hurt to them and restrained the teacher who tried to stop the incident. 6. The petitioner would point out that while he was discharging the function in his official capacity as the principal-incharge/Headmaster-in-charge, who is the head of the school, who had acted only on the reports of the various teachers, complaining about certain students making nuisance in the class and that it was Crl.M.C No. 3071 of 2020 6 the duty of the Principal-in-charge/Headmaster-in-charge and as the head of the institution to enforce disciple among students and that going by the legal positions well settled by this Court in a series of cases, such a alleged act on the part of teacher or head of the institution will not invite any criminal culpability and the impugned criminal proceedings is nothing but an abuse of the process of the Court. At the outset, it has been noted that one of the offence is alleged in Anx.A-1 FIR and in Anx.A2 final report is stated to be one as per Sec.23 of the Juvenile Justice Act, 1986. A perusal of the provisions of the Juvenile Justice Act, 1986 would show that Sec.23 is only stipulates that notwithstanding anything to the contrary contained in Cr.PC, no proceeding shall be instituted and no order shall be passed against a juvenile under Chapter VIII of the Code of Criminal Procedure. Therefore the said provision in the Juvenile Justice Act, 1986 does not deal with any offence committed by a person on a juvenile. 7. The learned Prosecutor has pointed out that the offence intended to be included thereby is one as per Sec.23 of the Juvenile Justice (Care and Protection of Children) Act, 2000, which was in force at the time of the alleged incident in question. Section 23 of Crl.M.C No. 3071 of 2020 7 the Juvenile Justice Act, 2000 deals with punishment for cruelty to juvenile or child and the same reads as follows: _“ —_ _**Punishment for cruelty to juvenile or child.** Whoever, having the actual charge of, or control over, a juvenile or the child, assaults, abandons, exposes or wilfully neglects the juvenile or causes or procures him to be assaulted, abandoned, exposed or neglected in a manner likely to cause such juvenile or the child unnecessary mental or physical suffering shall be punishable with imprisonment for a term which may extend to six months, or fine, or with both.”_ The said provision contained in Sec.23 of Juvenile Justice Act, 2000 is broadly corresponding to the provision contained in Sec.75 of the Juvenile Justice (Care & Protection of children) Act, 2015, which reads as follows: _**“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 organisation, 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:_ Crl.M.C No. 3071 of 2020 8 _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 shall also be liable to fine of five lakhs rupees.”_ 8. This Court has held in various decisions as in the case in _**Rajan@Raju v. Sub Inspector of Police**_ [2019 (1)KLT 119], _**Nirmala v. State of Kerala**_ [2020 (1) KLT 136] that it is well settled common law position that a teacher of a school is having discipline control over a pupil, which is for his or her own betterment and future welfare and thus the teacher has the intrinsic and inherent power to enforce discipline to shape up the character and ordinary growth of the pupil and so long as the process of penal measure like caning the students is proportionate and reasonable as is understood in the common state of affairs of that natue, the same cannot be an offence. This Court held that Sec.95 of the Indian Penal Code clearly provides that nothing is an offence by reason that it causes, or that it is intended to cause or that it is known to be likely to cause any harm, if that harm is so slight that no person of ordinary sense and temper would complain of such harm. Hence it was noted therein that even if the act of caning or punishing the student may otherwise technically fulfil the definition of voluntarily causing hurt as per Crl.M.C No. 3071 of 2020 9 Sec.321 of the IPC, in view of the common law position and in view of the provision as per Sec.95 of the IPC, such an act of the teacher punishing the student in a reasonable and proportionate manner cannot invite any criminal culpability. Of course this Court has held that, if the teacher exceeds the limits of reasonable and proportionate penal measure and causes extreme harm and hurt to the pupil, then subject to the facts and attendant circumstances of each case, the same may attract offence as per the IPC like 'hurt' (Sec.319) grievous hurt (Sec.320) of the IPC, etc. This Court has also held that a reading of the provisions contained in Sec.2(21), 2(24) and Sec.82 of the Juvenile Justice Act, 2015 would make it clear that though the act of a teacher imposing discipline on a pupil by caning etc, may otherwise fulfil the definition of corporal punishment, as understood in Sec.2(24) of the JJ Act, 2015, the same is not made a criminal offence in terms of Sec.82 of the JJ Act, 2015. It is further held by this Court decisions as in the order dated 28-10-2019 in B.A No.7586/2019 etc that since the act of corporal punishment imposed by a teacher on a student will not come within the ambit of Sec.82 of the JJ Act, 2015. The parliament has consciously and specifically taken a legislative policy decision that the act of corporal punishment Crl.M.C No. 3071 of 2020 10 imposed by a teacher on student is outside the ambit of offence as per Se.82 of the JJ Act. Hence it was held that the said act cannot be indirectly made an offence by the circuitous method of placing reliance of Sec.75 of the JJ Act, 2015, if that be so, it would amount to indirectly doing something which is directly prohibited by the Parliament. 9. It will be profitable to refer to para No.8 of the decision of this Court in _**Nirmala's case**_ (supra) [2020 (1) KLT 136], which reads as follows: _“8. It is in view of the well settled common law position an school teacher, who is having disciplinary control over a pupil, which is for his or her own betterment and future welfare, has thus intrinsic and inherent power to enforce discipline to shape up the character and ordinary growth of the pupil and so long as the process of penal measure like caning the student is proportionate and reasonable, as is understood in the common state of affairs of that nature, the same cannot be said to be an offence. It is in recognition of this common law position that the Parliament, while engrafting the juvenile Justice Act has clearly provided in Sec. 82 of the JJ Act that the act of committing corporal punishment will come into play only if the person who is imposing such corporal punishment on the juvenile is a person in-charge of or employed in a child care institution as can be seen from a mere reading of Sec. 82(1) of the JJ Act. Going by the definition clause of Sec. 2(24), which deals with corporal punishment, even the act of a teacher imposing discipline by taking appropriate penal measures like caning the pupil, etc. would come within the scope and ambit of the definition clause of Sec. 2(24) of the JJ Act. But the Parliament being cognizant of the abovesaid common law position, has consciously decided as a legislative policy not to make any inroads into that common law position and has very carefully and guardedly provided in Sec. 82(1) of the JJ Act that the question of treating the act of corporal punishment as a criminal offence would come into play only if the corporal_ Crl.M.C No. 3071 of 2020 11 _punishment as understood in Sec. 2(24) is imposed on a juvenile by a person, who is in-charge of or employed in a child care institution as defined in Sec. 2(21) of the JJ Act. Thus it is crystal clear from a mere reading of Sec. 82 as well as Sec. 2(24) and Sec. 2(21) of the JJ Act that the act of a teacher imposing discipline on a pupil by caning etc., though may otherwise fulfill the definition of corporal punishment, as understood in Sec. 2(24), is not made a criminal offence in terms of Sec. 82. Of course, under the garb of disciplining and punishing the pupil, if the teacher exceeds the limits of reasonable and proportionate penal measure, and causes extreme hurt to the pupil, etc. then of course, subject to the facts and attendant circumstances of the each case, it may attract offence as per the I.P.C. like 'hurt' (Sec. 223), grievous hurt (Sec. 321) which is punishable by Sec. 323 of the I.P.C. or grievous hurt as understood in Sec. 320, as the case may be. In the instant case, the specific allegations of the prosecution in the impugned Anx. A- 1 final report/charge sheet are only to the effect that the petitioner, as a teacher of the 2nd respondent, minor victim girl/juvenile, has imposed the penal measure of caning the student, and that too, in the class room. Therefore, the offence as per Sec. 82(1) of the JJ Act is not attracted. The other offence alleged against the petitioner is the one as per Sec.324 of the I.P.C. which deals with voluntarily hurt by dangerous weapons or means. Sec. 324 of the I.P.C. reads as follows:_ “Sec. 324: Voluntarily causing hurt by dangerous weapons or means.- Whoever, except in the case provided for by section 334, voluntarily causes hurt by means of any instrument for shooting, stabbing or cutting, or any instrument which, used as weapon of offence, is likely to cause death, or by means of fire or any heated substance, or by means of any poison or any corrosive substance, or by means of any explosive substance or by means of any substance which it is deleterious to the human body to inhale, to swallow, or to receive into the blood, or by means of any animal, shall be punished with imprisonment of either description for a term which may extend to three years, or with fine, or with both.” “ 10. In the instant case, the specific case of the prosecution is that in the relevant time, the petitioner was discharging the duties and functions as principal-in-charge/Headmaster-in-charge of the Crl.M.C No. 3071 of 2020 12 Bharathiya Vidhya Bhavan school and that he had pinched on the ears of the students concerned after entering the class. The petitioner was aged 62 years at the time of the incident and then he was given the responsibility as the Principal-in-Charge/Headmaster in Charge in the said school by the school management apart from his responsibility as Manager of this school. 11. The specific case of the petitioner is that, it was brought to the notice by various teachers that some of the students in the class were making great nuisance, which disturbed the overall discipline of the school. Therefore, the petitioner in his discharge of duties and functions as the Headmaster-in-charge/Principal-in-charge of the school, had gone to the class and even if it is assumed that he had pinched on the ears of the students and had beated on the shoulders, etc, it is true that the allegations therein is that the students in question were then studying in Standard-I. 12. Going by the dictum laid down by this Court in series of decisions as referred to herein above, this Court is constrained to take the view that the alleged acts of the petitioner cannot be the subject matter of criminal culpability and so the continuance of the impugned criminal proceedings is nothing but an abuse of the Crl.M.C No. 3071 of 2020 13 process of the Court. Now more than 11 years had passed after the filing of the private criminal complaint and registration of the FIR and the petitioner is now aged more than 73 years and has reached the evening of his life. The prosecution does not have any case that the petitioner has in any manner been vindictive or has done any cruel acts on other occasions on the children. The complaint has been triggered not by the parents of the students concerned, but by a person, who claims to be the president of the Parent-Teacher Association. Though the parents of the students concerned have been impleaded as additional respondents, notices have been too duly served on them, they have not entered appearance in this case. 13. Taking into consideration of the totality of the facts and circumstances of the case, this Court is of the considered view that the impugned criminal proceedings could be interdicted or resort to the inherent powers conferred under Sec.482 of the Cr.PC. In that view of the matter it is ordered that the impugned Anx.A-2 Final report/charge sheet filed in the impugned Anx.A-1 FIR crime No.1030/2010 of Thiruvananthapuram Vattiyoorkavu Police Station, which has now led to the pendency of Calendar Case C.C No.411/2019 on the file of the Judicial First Class Magistrate Court-II Crl.M.C No. 3071 of 2020 14 (Forest offence), Nedumangad, as against the petitioner/accused and all further proceedings emanating therefrom as against the petitioner/accused will stand quashed and set aside. 14. The petitioner may produce certified copies of this order before the Investigating officer concerned as well as before the Judicial First Class Magistrate Court-II, Nedumangad, who is dealing with C.C No.411/2019 for necessary information. With these observations and directions, the above Criminal Miscellaneous Case will stand disposed of. **Sd/ALEXANDER THOMAS, JUDGE** KAS Crl.M.C No. 3071 of 2020 15 ## **APPENDIX** ## **PETITIONER'S/S EXHIBITS:** **ANNEXURE A1** **A TRUE COPY OF THE FIR IN CRIME NO 1030/2010 OF VATTIYURKAVU POLICE STATION DATED 27.12.2010 ALONG WITH THE COMPLAINT** **ANNEXURE A2 A TRUE COPY OF THE CHARGE SHEET FILED IN CRIME NO 1030/2020 IN CC NO 411/2019 BEFORE THE HON'BLE JUDICIAL FIRST CLASS MAGISTRATES COURT 111, NEDUMANGAD** ## **RESPONDENT'S/S EXHIBITS: NIL**