Mariyamma v. State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE DR. JUSTICE KAUSER EDAPPAGATH** **TUESDAY, THE 8[TH] DAY OF NOVEMBER 2022 / 17TH KARTHIKA, 1944** **CRL.MC NO. 4624 OF 2022** **CRIME NO.235/2021 OF ALUVA EAST POLICE STATION, Ernakulam CC 403/2021 OF JUDICIAL MAGISTRATE OF FIRST CLASS -I, ALUVA PETITIONER/ACCUSED:** MARIYAMMA AGED 55 YEARS W/O.JOSE, PALATHINGAL VILASAM HOUSE ,VAZHAKULAM, PIN - 683105 BY ADV K.B.REKHA ## **RESPONDENTS/COMPLAINANT & STATE:** 1 STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR,HIGH COURT OF KERALA, PIN - 682031 2 XXXXXXXXXX BY SRI. C.N. PRABHAKARAN,SR. PUBLIC PROSECUTOR THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 08.11.2022, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: Crl.M.C.No.4624/2022 ## -:2:- ## **O R D E R** Dated this the 8[th] day of November, 2022 This Crl.M.C has been filed to quash all further proceedings in C.C.No.403/2021 on the file of the Judicial First Class Magistrate Court-I, Aluva (for short the court below). 2. The petitioner is the sole accused. The 2[nd] respondent is the defacto complainant. The offences alleged are punishable under Section 324 of IPC, Section 75 of the Juvenile Justice (Care and Protection of Children) Act, 2015 (for short 'the JJ Act). 3. The petitioner is a Mathematics teacher in the Government Higher Secondary School, Kuttamassery. The 2[nd] respondent was a student in Class X-B at the said school. The prosecution case in short is that on 17.02.2021 at 9.30 am, the petitioner while teaching Mathematics in Class X-B, assaulted the victim with a cane on his right wrist for a mistake he had committed while doing a mathematics problem and consequently he sustained fracture to his right hand and thereby committed Crl.M.C.No.4624/2022 -:3:- the offence. 4. The FIR was lodged by the SHO, Aluva Police Station on 22.2.2021 at 7.30 pm. Annexure A1 is the FIS. On the strength of the FIS given by the victim, Annexure A1(a) FIR was registered. After investigation, the investigating officer submitted Annexure A2 final report. 5. I have heard Smt. K.B. Rekha, the learned counsel for the petitioner and Sri. C.N. Prabhakaran, the learned Senior Public Prosecutor. Though notice has been served to the 2[nd] respondent, there is no appearance. 6. The learned counsel for the petitioner submitted that even though the entire allegations in the Annexure A1 FIS together with the materials collected during investigation are believed in its entirety, no offence under Section 324 of IPC and Section 75 of the JJ Act are not made out. On the other hand, the learned Public Prosecutor submitted that the allegations in the FIS would constitute the offence under Section 324 of IPC and Section 75 of the JJ Act when prima facie case is made out, the jurisdiction vested with this Court under Section 482 of Crl.M.C.No.4624/2022 ## -:4:- ## Cr.P.C cannot be invoked. 7. The records would show that a special remedial class was conducted on the date of incident for 16 weak students in the class X-B and the victim is one of those students. The petitioner fairly conceded that she in good faith gave a small beat on the hand of the victim when he continuously did the class work negligently and carelessly. According to her, the intention was to correct the victim who was a Class X student preparing for the Board Examination. The learned counsel for the petitioner submitted that the petitioner was only performing her duty in the class room as a teacher in its right spirit and she had no intention at all to cause hurt to the victim and the alleged small beat was given in good faith for the benefit of the victim. The petitioner never crossed her limits and she exercised the authority reasonably and lawfully in the right perspective as warranted by the situation, added the counsel. 8. This Court in _**Jaya v. State of Kerala**_ (2022 (2) KLT 469) has held that a teacher who without malicious intention administers a moderate and reasonable force to a pupil to Crl.M.C.No.4624/2022 -:5:- enforce discipline in class room/school cannot be exposed to criminal prosecution or fastened with penal liability. In _**Rajan v. Sub Inspector of Police**_ (2019 (1) KLT 119), this court has held that, 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 its authority. 9. As stated already, the offences alleged against the petitioner are punishable under Sections 324 of IPC and 75 of the JJ Act. Section 324 of IPC deals with “voluntarily causing hurt by dangerous weapons or means”. The materials on record would show that the petitioner used an ordinary cane which is generally used by a class teacher in ordinary course to maintain discipline in the class. It cannot be considered as a dangerous weapon. Further, in order to attract the ingredients of Section 324 of IPC, hurt by means of dangerous weapon should be caused voluntarily. To constitute an offence of voluntarily causing hurt, there must be complete correspondence between the result and the intention or the knowledge or belief of the person who caused Crl.M.C.No.4624/2022 -:6:- the said hurt. Section 75 of the JJ Act will be attracted when unnecessary mental or physical suffering is caused by a person in charge of control over the child by assaulting, abandoning, exposing or wilfully neglecting the child by causing such act to be done. 10. I went through the statement of the witnesses and the entire case records. Even though the alleged incident took place on 17/2/2021, the victim was taken to an orthopedician only after two days i.e., on 19.2.2021. Thereafter, again he was taken to another doctor. Two doctors issued two wound certificates. To the first doctor, the victim stated that he sustained injury by a fall. None of the wound certificates show that there was any fracture on the hand of the victim as alleged by the prosecution. On the other hand, what is stated is that he is only having tenderness. The investigating officer has recorded the statement of three students. All of them stated that when the petitioner inspected the notebook of the victim, there was some mistakes in it and the petitioner gave a small beat on his right hand. Another teacher who was also present in the class room stated in Crl.M.C.No.4624/2022 -:7:- that line. Even though the alleged incident was on 17/2/2021, the FIR was lodged on 22/2/2021. There is no explanation for the delay. The statement of the witnesses stated above would clearly show that the petitioner had no intention at all to cause hurt to the victim. When an act was done as part of enforcing discipline in the classroom or school and when it was done without causing any mental harassment to the student, it cannot be said that the offence under Section 75 of the JJ Act is made out. In _**Nirmala K.** v._ _**State of Kerala & Another**_ (2020 (1) KLT 136), this court has held that a school teacher, who is having disciplinary control over a pupil, which is for his or her own betterment and future welfare, has 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. 11. For the reasons stated above, I am of the view that the act of the petitioner cannot be said to be with malicious Crl.M.C.No.4624/2022 ## -:8:- intention to cause hurt to the victim. On the contrary, the facts disclose that she exercised authority reasonably and in good faith to correct the victim. It must be noted that the petitioner was taking special remedial class for 16 weak students of the Class X, who were about to face the Board examination, with the sole object of the benefit of the students. Since the basic ingredients of Section 324 of IPC and Section 75 of the JJ Ac are not attracted, I am of the view that no useful purpose will be served in proceeding further with the case. Accordingly, the Crl.M.C is allowed. All further proceedings in C.C.No.403/2021 on the file of the Judicial First Class Magistrate Court-I, Aluva hereby stands quashed. **Sd/-** **DR. KAUSER EDAPPAGATH** **JUDGE** **kp** Crl.M.C.No.4624/2022 ## -:9:- ## **APPENDIX OF CRL.MC 4624/2022** PETITIONER ANNEXURES Annexure-A1 THE CERTIFIED COPPY OF FIS GIVEN BY THE DEFACTO COMPLAINANT BEFORE THE SHO ALUVA EST POLICE STATIO DATED 22.2.2021 Annexure-A1(a) THE CERTIFIED COPY OF FIR DATED 22.2.2021 Annexure-A2 THE CERTIFIED COPY OF THE CHARGE SHEET FILED BEFORE THE JFCM-I, ALUVA. Annexure-A3 TRUE COPY OF THE WOUND CERTIFICATE DATED 19.2.2021 ISSUED BY DR. CYRIL G. CHERIAN DT.19.2.2021 Annexure-A4 TRUE COPY OF THE WOUND CERTIFICATE DT.20.2.2021 ISSUED BY DR. FATHIMA ABDULLA Annexure-A5 TRUE COPY OF THE STATEMENT GIVEN BY DR. CYRIL G. CHERIAN Annexure-A6 CERTIFIED COPY OF THE STATEMENT GIVEN BY DR. FATHIMA ABDULLA DT.24.2.2021