Mathew E T v State of Kerala and Others

## **“CR”** ## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE ALEXANDER THOMAS** **TUESDAY, THE 18TH DAY OF FEBRUARY 2020 / 29TH MAGHA, 1941** ## **Crl.MC.No.5388 OF 2019(C)** ## **AGAINST CC 547/2017 OF JUDICIAL MAGISTRATE OF FIRST CLASS-I ,SULTHANBATHERY** **CRIME NO.572/2017 OF S.Battery Police Station , Wayanad** ## **PETITIONER:** **MATHEW E T AGED 57 YEARS S/O.THOMAS, ELAVAKUNNEL HOUSE, KELAKAM VILLAGE, IRITTY TALUK, KANNUR DISTRICT-670674.** **BY ADVS. SRI.JIKKU SEBAN GEORGE SRI.ARUN AJAY SHANKAR** ## **RESPONDENTS:** **1 STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA-682031.** **2 THE SUB INSPECTOR OF POLICE, SULTHAN BATHERY POLICE STATION, SULTHAN BATHERY, WAYANAD-673592. 3 BENSIBLE SEBASTAIN (MINOR), AGED 15 YEARS, REPRESENTED BY HIS FATHER MR.SEBASTAIN, VARAPALLIKKAL HOUSE, NEERCHAL, AMBALAVYAL, WAYANAD-673593.** ## **OTHER PRESENT:** ## **SRI.T.R.RENJITH, PUBLIC PROSECUTOR** **THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON 18.02.2020, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** Crl.M.C.No.5388/2019 2 ## **“CR”** ## **ALEXANDER THOMAS, J.** ------------------------------------------Crl.M.C.No.5388 of 2019 ---------------------------------------------Dated this the 18[th] day of February, 2020 ## **ORDER** The case set up in this Criminal Miscellaneous Case is as follows:- The petitioner herein was a Music Teacher at Assumption High School, Sulthan Bathery, Wayanad, having an impeachable and unblemished service record with over 30 years of experience. The 3[rd] respondent is the de facto complainant who was his student in the same school. The allegation against the petitioner stems from an alleged incident of the petitioner disciplining his student. The allegation against the petitioner herein was that, on 27.07.2017, during the last period of the day, at 16.00 Hrs, the petitioner under the misunderstanding that his student, the de facto complainant herein, made fun of him by making noise in the open class, disciplined him by pinching him under the right arm and smacked his head, thereby committing the offence under Section 75 of the Juvenile Justice (Care and Protection of Children) Act, 2015. it is pointed out that the petitioner herein has not committed any offence as alleged. Even assuming (not admitting to the same) that the allegations against the petitioner are true, the same will not stand the scrutiny of law and the various precedents set forth by this Court to attract the offence as alleged. In the Crl.M.C.No.5388/2019 3 decision in _**Abdul Vaheed**_ v. _**State of Kerala [**_ 2005(2) KLT 72] had considered the right of a teacher to discipline a student. This was a case wherein a Madrassa teacher had beaten a student with a cane for creating commotion and showing disobedience to the Rules of the school. This Court held that, “when a teacher in course of teaching beats a student bona fide to maintain discipline no criminal offence is committed as he acted in good faith.” It is pointed out that the precedents elucidated showers a protection on the teacher. Further going by the Indian philosophy of “Mata, Pitha, Guru, Daivam,” the teacher is on a higher pedestal than that of God, wherein he has an authority as an imparter of knowledge to mould his disciple into a responsible and decorous citizen. “when a teacher in course of teaching beats a student bona fide to maintain discipline no criminal offence is committed as he acted in good faith.” In the instant case, even going by the allegations (not admitting to the same), the petitioner was only extending his right entrusted to him under the principle of “Loco Parentis”, as an imparter of knowledge to mould his disciple into a responsible and decorous citizen. 2. The main contentions urged by the petitioner are as follows:- - _“A. When a teacher in course of teaching beats a student bona fide to maintain discipline, no criminal offence is committed as he acted in good faith._ _B. The alleged acts of the petitioner herein fall well within the general exceptions laid down in Chapter IV of the Indian Penal Code. The alleged acts of the petitioner herein are protected by_ Crl.M.C.No.5388/2019 4 _the ingredients laid down under Section 79,80,88 and 89._ _C. The precedents set forth in various case laws including_ _**Abdul Vaheed** v._ _**State of Kerala** [2005 (2) KLT 72],_ _**M. Natesan** v._ _**State of Madras** [AIR 1962 (Mad) 216],_ _**Ganesh Chandra Saha** v._ _**Jiw Raj Somani** [AIR 1985 Cal.32],_ _**Rajan @ Raju** v._ _**the Sub Inspector of Police** in Crl.M.C.No.237/2018. It is well established that, a teacher who in the course of imparting education beats a student bona fide to maintain discipline, that a teacher is given an implied consent by the parent to discipline the pupil for the welfare of the pupil. When a teacher in course of teaching beats a student bona fide to maintain discipline no criminal offence is committed as he acted in good faith._ ” 3. It is in the light of these factual averments and contentions, the petitioner has filed the instant Criminal Miscellaneous Case under Section 482 of Cr.P.C., with the following prayers: _“i. Quash Annexure A1 and A2 FIR and Final Report in Crime No.572/2017 of Sulthan Bathery Police Station, Wayanad District, now pending as C.C.547/2017 before Judicial 1[st] Class Magistrate Court I, Sulthan Bathery, and all further proceedings. ii. Direct the court below to consider the contentions advanced in this Criminal Miscellaneous case as a petition at the time of consideration of a discharge application.”_ 4. Heard Sri. Jiku Seban George, learned counsel appearing for the petitioner/accused and Sri. T.R. Renjith, learned Public Prosecutor appearing for official respondents 1 and 3. Though contesting respondent No.3 has been duly served by special messenger, there is no appearance for that party. 5. The main allegations disclosed in the instant Annexure-1 FIR, more particularly, the F.I. Statement appended thereto is to the effect that the Crl.M.C.No.5388/2019 5 petitioner/accused is a music teacher in the school, in which the 3[rd] respondent minor victim boy is studying and that during the course of music class, the petitioner/accused had pinched on the right arm of the 3[rd] respondent victim boy and smacked his head etc. and therefore, the petitioner has committed the above said offences as per Section 75 of the Juvenile Justice (Care and Protection of Children) Act, 2015. 6. It is now well settled by a series of rulings as in _**Abdul Vahid**_ v. _**State of Kerala**_ [2005(2) KLT 72], _**M. Natesan**_ v. _**State of Madras and another**_ [AIR 1962 Madras 216], _**Ganesh Chandra Saha**_ v. _**Jiw Raj Somani**_ [AIR 1985 Cal 32] _**Rajan @ Raju**_ v. _**Sub Inspector of Police**_ [2019(1) KLT 119] etc., that in a case where a teacher in the course of imparting education beats a student with _bona fide_ intention to maintain discipline, then as a teacher is given the implied consent by the parent to enforce discipline on the pupil for the welfare of the pupil, it flows from the well known common law principle of ‘Loco parentis’. In such a case it cannot be said that the teacher has committed an offence as per the Indian Penal Code. Moreover, special exemptions are also carved out by the provisions as per Sections 79, 89, 319 & 95 of the IPC, which read as follows: _**“79. Act done by a person justified, or by mistake of fact believing himself justified, by law.-** Nothing is an offence which is done by any person who is justified by law, or who by reason of a mistake of fact and not by reason of a mistake of law in good faith, believes himself to be justified by law, in doing it._ _**89. Act done in good faith for benefit of child or insane person, by or by consent of guardian.-** Nothing which is done in good faith for the benefit of a person under twelve years of age, or of unsound mind, by or by consent, either express or implied, of the guardian or other person having lawful charge of that person, is an offence by reason of any harm which it may cause, or be intended by the doer to cause or be known by the_ Crl.M.C.No.5388/2019 6 _doer to be likely to cause to that person: Proviso- provided-_ _First:- That this exception shall not extend to the intentional causing of death, or to the attempting to cause death;_ _Secondly:- That this exception shall not extend to the doing of anything which the person doing it knows to be likely to cause death, for any purpose other than the preventing of death or grievous hurt, or the curing of any grievous disease or infirmity;_ _Thirdly.- That this exception shall not extend to the voluntary causing of grievous hurt, or to the attempting to cause grievous hurt, unless it be for the purpose of preventing death or grievous hurt, or the curing of any grievous disease or infirmity;_ _Fourthly.- That this exception shall not extend to the abetment of any offence, to the committing of which offence it would not extend._ _**319. Hurt.** - Whoever causes bodily pain, disease or infirmity to any person is said to cause hurt._ _**95. Act causing slight harm.** - 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 complaint of such harm.”_ Some of these aspects have been dealt with in this Court’s order dated 13.06.2019 in Bail Application, B.A.No.4053/2019, wherein it has been observed that the offence as per Section 75 of the Juvenile Justice (Care and Protection of Children) Act, 2015 (for short “JJ Act”) cannot be attributed as against a teacher in such a case. In that regard, Section 75 of the JJ Act, provides as follows: _**“75. 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_ Crl.M.C.No.5388/2019 7 _extend up to five lakhs rupees:_ _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 or five laksh rupees.”_ ## Section 2(24) of the JJ Act defines _“Corporal punishment”_ as follows: _“Corporal Punishment” means the subjecting of a child by any person to physical punishment that involves the deliberate infliction of pain as retribution for an offence, or for the purpose of disciplining or reforming the child.”_ ## Section 2(21) of the JJ Act defines “ _Child Care Institution ”_ as follows: _“Child care institution” means Children Home, open shelter, observation home, special home, place of safety, Specialised Adoption Agency and a fit facility recognised under this Act for providing care and protection to children, who are in need of such services._ ” Section 82 of the JJ Act, which deals with Corporal punishment provides as follows: _“_ _**82. Corporal Punishment** .- (1) Any person in-charge of or employed in a child care institution, who subjects a child to corporal punishment with the aim of disciplining the child, shall be liable, on the first conviction, to a fine of ten thousand rupees and for every subsequent offence, shall be liable for imprisonment which may extend to three months or fine or with both._ _(2) If a person employed in an institution referred to in subsection (1), is convicted of an offence under that sub-section, such person shall also be liable for dismissal from service, and shall also be debarred from working directly with children thereafter._ _(3) In case, where any corporal punishment is reported in an institution referred to in sub-section (1) and the management of such institution does not cooperate with any inquiry or comply with the orders of the Committee or the Board or court or State Government, the person incharge of the management of the institution shall be liable for punishment with imprisonment for a term not less than three years and shall also be liable to fine which may extend to one lakh rupees.”_ It can be seen from a mere reading of the above said provisions of the JJ Act that the legislature has made the offence of corporal punishment punishable in terms Crl.M.C.No.5388/2019 8 of Section 82 of the JJ Act only if it is inflicted by a person in charge of or employed in a Child Care Institution. The legislature has consciously and guardedly on account of its legislative wisdom and policy has mandated that in such a scenario, the act of corporal punishment as envisaged in Section 2 (24) of the JJ Act is made a punishable offence as per Section 82, only in a case where the impugned act is done by any person in charge of or employed in a Child Care Institution as envisaged in the above said provisions. Hence, it is clear like the day light that the Legislature has not made the act of corporal punishment punishable where it is inflicted by a teacher. The rationale in excluding the teachers from the purview of Section 83 of the JJ Act is presumably on account of the above said well known common law principles of “Loco parentis.” There cannot be any doubt that if the impugned act of the teacher broadly comes within the contours of Section 2 (24) of the JJ Act, and thus it satisfies the ingredients of _“corporal punishment”_ as envisaged in the Section. But then the Parliament has specifically excluded the teachers from the purview of punishability of such an act of “ _corporal punishment”_ as can be seen from the provisions contained in Section 82 of the JJ Act. Since the impugned action of the teacher in such a case is in pith and substance, which discloses “ _corporal punishment”_ as per Section 2(24) of the JJ Act and as the said act done by a teacher has been excluded by the Parliament from the purview of Section 82, it cannot be said that such teachers can be otherwise roped in within the contours of Section 75 of the JJ Act. Of course, if the so called penal measure taken by the teacher grossly exceeds the Crl.M.C.No.5388/2019 9 permissible proportion of a penal measure that can be taken by a teacher for disciplining the pupil and the act otherwise discloses a serious offence as per Section 324 (grievous hurt) or simple hurt etc., then of course it might stand in the different footing and those are all matters of questions of fact, which have to be assessed in the matrix of the facts and circumstances of each case. 7. In the instant case, the allegation is to the effect that the petitioner as a music teacher had pinched the 3[rd] respondent victim boy on his right arm and had smacked on his head. It cannot be said that the above said act alleged against the petitioner has grossly exceeded the ordinarily accepted norms and understanding of penal measure for a pupil by the teacher. It could be that a music teacher, going by the very nature of the profession, might be little bit over strict and perfectionist in his approach to teach music etc., and the act would have been out of what he thought of as necessary to correct the pupil and even if some out of the ordinary situation had occurred, it cannot be said that in the facts of this case, the petitioner, who is a teacher, should be roped in, with the criminal culpability of any of the offences as per the Indian Penal Code. Such an act would be construed only one that is caused to such an act should be construed as one which is likely to cause any harm if any, which is so slight that no person of ordinary sense or temper would complain of such harm as envisaged in Sec. 95 of the I.P.C. Moreover, it cannot be said that such an instant act of the petitioner accused is said to be an act of assault, as is envisaged in Sec. 75 of the JJ Act. The term “assault” has not been defined in the JJ Act. Crl.M.C.No.5388/2019 10 8. Sec. 351 of the I.P.C. defines “assault” as to mean that whoever makes any gesture, or any preparation intending or knowing it to be likely that such gesture or preparation will cause any person present to apprehend that he who makes that gesture or preparation is about to use criminal force to that person, is said to commit an assault. 9. Sec. 349 and Sec. 350 of the I.P.C. deal with “force” and “ criminal force”, which provide as follows: _**“Sec.349: Force.-** A person is said to use force to another if he causes motion, change of motion, or cessation of motion to that other, or if he causes to any substance such motion, or change of motion, or cessation of motion as brings that substance into contact with any part of that other's body, or with anything which that other is wearing or carrying, or with anything so situated that such contact affects that other's sense of feeling: provided that the person causing the motion, or change of motion, or cessation of motion causes that motion, change of motion, or cessation of motion in one of the three ways hereinafter described._ _First: - By his own bodily power._ _Secondly: - By disposing any substance in such a manner that the motion or change or cessation of motion takes place without any further act on his part, or on the part of any other person._ _Thirdly: - By inducing any animal to move, to change its motion, or to cease to move.”_ _**Sec. 350: Criminal force.-** Whoever intentionally uses force to any person, without that person's consent, in order to the committing of any offence, or intending by the use of such force to cause, or knowing it to be likely that by the use of such force he will cause injury, fear or annoyance to the person to whom the force is used, is said to use criminal force to that other._ ## 10. Sec. 351 which deals with “assault” provides as follows: _“Sec.351. Assault.-Whoever makes any gesture, or any preparation intending or knowing it to be likely that such gesture or preparation will cause any person present to apprehend that he who makes that gesture or preparation is about to use criminal force to that person, is said to commit an assault.”_ 11. The above act of the accused as allegation in the FIR cannot be said Crl.M.C.No.5388/2019 11 to be one involving intentional use of force in order to commit an offence or intending by such force to cause or knowing it it to be likely that by the use of such force, he will cause injury fear or annoyance to the person, to whom the force is used, etc. as envisaged in Sec. 350 of the I.P.C. Such an act of the accused should predominantly be seen as an act on the part of the teacher the correct the pupil, which inherent power has been conferred by general law on the teacher by the well-known common law principle of loco parentis. Therefore, it will not be legally correct to contend that such an act of the petitioner accused would constitute and act of “assault” as envisage in Sec. 75 of the JJ Act so as to constitute the ingredients of the said offence. The Police has now completed the investigation pursuant to the impugned Annexure-1 FIR and has now filed final report/charge sheet in this case as per the impugned Annexure-2 which has led to the pendency of Calendar Case, C.C.No.547/2017 on the file of the Judicial First Class Magistrate Court No.1, Sulthan Bathery, for the offence as per Section 75 of the JJ Act. 12. In the light of the above said aspects, this Court has no hesitation to hold that the continuation of the impugned criminal proceedings is an abuse of the process of the Court and it is rather very unjust and unfair to make the petitioner, face the impugned criminal proceedings. Though notice has been duly served on the 3[rd] respondent, who is represented by his father and natural guardian, he has not chosen to appear before this Court and contest the case. The complaint would have been given by the 3[rd] respondent and his father out of Crl.M.C.No.5388/2019 12 the heat of moment. 13. In the light of these aspects, it is ordered that the impugned Annxure-2 final report/charge sheet filed in Annexure-1 FIR in Crime No.572/ 2017 of Sulthan Bathery Police Station, which has now led to the pendency of Calendar Case, C.C. No.547/2017 on the file of the Judicial First Class Magistrate Court No.1, Sulthan Bathery as against the petitioner/accused and all further proceedings emanated therefrom will stand quashed. The petitioner will produce the certified copy of this judgment before the Judicial First Class Magistrate Court-1, Sulthan Bathery, Wayanad District, who is dealing with Calendar Case, C.C. No.547/2017 and also to the investigating officer concerned in relation to this case. With these observations and directions, the above Criminal Miscellaneous Case will stand disposed of. sd/- ## **ALEXANDER THOMAS, JUDGE.** acd Crl.M.C.No.5388/2019 13 ## **APPENDIX** **PETITIONER'S/S EXHIBITS:** **ANNEXURE NO.1** **CERTIFIED COPY OF THE FIRST INFORMATION REPORT DATED 29.7.2017 IN CRIME 572/2017 OF SULTHAN BATHERY POLICE STATION NOW PENDING AS C.C.547/2017 BEFORE JUDICIAL 1ST CLASS MAGISTRATE COURT-I, SULTHAN BATHERY.** **ANNEXURE NO.2** **CERTIFIED COPY OF THE FINAL REPORT DATED 12.8.2017 IN CRIME 572/2017 OF SULTHAN BATHERY POLICE STATION NOW PENDING AS C.C.547/2017 BEFORE JUDICIAL 1ST CLASS MAGISTRATE COURT-I, SULTHAN BATHERY.**