MOHANAN v. STATE OF KERALA, THE SUB INSPECTOR OF POLICE, KALLOORKAD POLICE STATION, AND ELIZABETH MARIYAM (MINOR)

# **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ``` THE HONOURABLE MR.JUSTICE ZIYAD RAHMAN A.A. ``` ``` WEDNESDAY, THE 14[TH] DAY OF JUNE 2023 / 24TH JYAISHTA, 1945 CRL.MC NO. 845 OF 2016 ``` ``` CRIME NO.20/2008 OF KALLOORKADU POLICE STATION, ERNAKULAM SC 626/2014 OF SESSIONS COURT (SPECIAL COURT FOR CHILDREN), ``` ## **`ERNAKULAM`** ## **`PETITIONER/ACCUSED:`** ``` MOHANAN AGED 45 YEARS S/O.RAGHAVAN, EDATTUVEETIL HOUSE, EZHUMUTTAM KARA, KARIMANNOOR VILLAGE, THODUPUZHA THALUK, IDUKKI DISTRICT. ``` ``` BY ADVS. SRI.ALIAS M.CHERIAN SRI.K.M.RAPHY SRI.U.B.SIRAS SMT.AMEERA JOJO ``` ## **`RESPONDENT/STATE & DEFACTO COMPLAINANT:`** ``` 1STATE OF KERALA REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM-682 031. ``` ``` 2THE SUB INSPECTOR OF POLICE KALLOORKAD POLICE STATION, THODUPUZHA-686 503. ``` ``` 3ELIZABETH MARIYAM (MINOR) AGED 17 YEARS, D/O.JOY MICHEAL, RESIDING AT C/O.JOHN PUTHIYEDATH, PERAMANGALAM KARA, ENANELLOOR VILLAGE, THODUPUZHA, PIN 686 673, REPRESENTED BY THE NEXT FRIEND/FATHER, JOY MICHEAL, RESIDING AT C/O.JOHN PUTHIYEDATH, PERAMANGALAM KARA, ENANELLOOR VILLAGE, THODUPUZHA, PIN-686 673. ``` ``` 2 ``` ## **`CRL.MC NO. 845 OF 2016`** ``` BY ADV ``` ``` ADV.SEETHA S.- SR.PUBLIC PROSECUTOR ``` ``` THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 14.06.2023, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: ``` ``` CRL.MC NO. 845 OF 2016 ``` ``` 3 ``` ## **`ORDER`** The petitioner is the accused in Crime No.20/2008 of Kalloorkad Police Station. The offence alleged is under Section 324 of IPC. 2. The facts which led to the filing of this Crl.M.C. is as follows: The petitioner was a Dance Teacher in St.John’s U.P. School, Kalloorkad. On 18.02.2008 at about 11.15 a.m., while the petitioner was teaching dance to the students, as the defacto complainant/victim, a minor boy and the student of the said school, played near the stage where the petitioner was teaching dance, the petitioner hit on the hand of the 3[rd] respondent / defacto complainant with a cane. It caused pain to the defacto complainant and it left a mark on his hand. The crime was registered based on a complaint submitted by the defacto complainant in this regard. After completing the investigation the Police submitted a final report before the Judicial First Class Magistrate Court, Muvattupuzha. The petitioner appeared before the learned Magistrate and pleaded nonguilty. Before the learned Magistrate, the trial was commenced and ``` CRL.MC NO. 845 OF 2016 ``` ``` 4 ``` as part of the same PWs 1 to 9 were examined, and the matter was posted for final hearing. At that point of time Annexure A2 application was submitted by the learned Public Prosecutor stating that in the light of the decision rendered in **Abdul Aziz v. Circle Inspector of Police** [2011 (4) KLT 1003], the case has to be tried before the Special Court for Children. The said application was allowed, and accordingly, the case was transferred to the Special Court for Children. The case was taken up by the Sessions Court, Ernakulam, which was a designated Special Court for Children and it was re-numbered as S.C. No.626/2014. This Crl.M.C. is filed in such circumstances to quash Annexure A1 final report. 3. Heard Smt.Ameera Jojo, learned counsel for the petitioner and Smt.Seetha S., learned Public Prosecutor for the State. 4. The learned counsel for the petitioner submitted that the prosecution as against the petitioner is legally unsustainable. The materials produced by the prosecution along with Annexure A1 final report, would not attract the offence under Section 324 of IPC. ``` CRL.MC NO. 845 OF 2016 ``` ``` 5 ``` It is also contended that, even if it is assumed that there are materials to attract the offence under Section 324 of IPC, the prosecution cannot be proceeded, in view of the fact that the act based on which the aforesaid offence was incorporated would fall within the general exceptions contained under Sections 89 and 95 of IPC. 5. On the other hand, the learned Public Prosecutor opposes the said prayer. It is pointed out that the question whether the petitioner committed the offence or not, is essentially a question of fact which has to be considered by the trial court after appreciating the evidence adduced during the course of the trial. The same cannot be interfered with by invoking the powers of this Court under Section 482 of Cr.P.C. 6. I have carefully gone through the materials placed before me. One of the crucial contentions raised by the petitioner is that, the petitioner cannot be implicated in the said case, as even going by the statement, no mens rea, which is one of the necessary ingredients for attracting the offence, is revealed. The reason for ``` CRL.MC NO. 845 OF 2016 ``` ``` 6 ``` hitting the child was highlighted as the grudge of the petitioner because the victim played near the stage where the petitioner was teaching dance. The specific case of the petitioner is that, as the children caused nuisance and disturbance to the class conducted by the petitioner, in order to maintain discipline, he swung a cane which hit on the hand of a student. According to the petitioner, under no circumstances, the same could be treated as an offence. The learned counsel contends that the aforesaid act would fall under the general exception contemplated under Section 89 of IPC, which reads as follows: _“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 doer to be likely to cause to that person:_ _Provisos.- Provided-_ _First. -That this exception shall not extend to the intentional causing of death, or to the attempting to_ ``` CRL.MC NO. 845 OF 2016 ``` ``` 7 ``` _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.”_ As per the said provision, an act which is done in good faith for the benefit of a person under 12 years of age or unsound mind by or by consent either express or implied of the guardian or other person having lawful charge of that person, cannot be treated as an offence. In this case, admittedly, the petitioner was a Teacher and the victim was nine years old at the relevant time. A careful scrutiny of the sequence of events which led to the registration of crime would undoubtedly suggest that the petitioner had no criminal intent to ``` CRL.MC NO. 845 OF 2016 ``` ``` 8 ``` cause any injury to the victim, but, the intention of the petitioner was to maintain discipline among the students. Under no circumstances such an act can be treated as an instance where culpability could be attributed. It can only be an act done in good faith for the benefit of a child below 12 years of age, as discipline is one of essential qualities required for a student. In this case, evidently, the intention of the petitioner was to maintain discipline among the children. 7. Besides the same, it could also be a case that may fall under Section 95 of IPC. Section 95 of the Act is yet another exception which reads as follows: “ _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 complain of such harm.”_ The principle behind Section 95 is that a trivial act which has no serious consequence and the harm is so slight that no person of ordinary sense and temper would complain about, cannot be treated ``` CRL.MC NO. 845 OF 2016 ``` ``` 9 ``` as an offence. In this case, it is evident that, the act allegedly committed by the petitioner caused no injury to the victim, which a person in the ordinary sense would have complained. Evidently, it was an act of a Teacher committed during the course of maintenance of discipline among the students. In such circumstances it can be safely concluded that the act committed by the petitioner is too trivial to attract any criminal offence. Therefore, I have no hesitation in holding that, the nature of allegations contained in this case would fall under the exception contemplated under Section 95 of IPC as well. While considering the aforesaid question I have also taken into consideration the deposition of the victim before the Judicial First Class Magistrate Court during the trial, which is produced as Annexure A3. The trivial nature of the allegations and other relevant aspects are revealed from the careful scrutiny of such deposition as well. 8. Thus, after taking into account all the relevant aspects, I am of the view that, the continuation of prosecution as against the petitioner is a clear abuse of process of law. The crime was ``` CRL.MC NO. 845 OF 2016 ``` ``` 10 ``` registered in the year 2008. Even though nine witnesses were examined, the same happened to be transferred to the Special Court for Children in the year 2014, and the matter is even now pending consideration. In such circumstances, I am of the view that this is a fit case in which invocation of inherent powers of this Court under Section 482 of Cr.P.C. is absolutely necessary. Accordingly, this Crl.M.C. is allowed. Annexure A1 final report submitted in Crime No.20/2008 of Kalloorkad Police Station and all further proceedings pursuant to the same, including the proceedings in S.C. No.626/2014 pending before the Sessions Court (Special Court for Children), Ernakulam are hereby quashed. **Sd/-** **`ZIYAD RAHMAN A.A. JUDGE`** scs ``` CRL.MC NO. 845 OF 2016 ``` ``` 11 ``` ## **`APPENDIX OF CRL.MC 845/2016`** ``` PETITIONER ANNEXURES ANNEXURE-A1TRUE COPY OF THE FINAL REPORT DATED 7/4/2008 IN CRIME NO.20/2008. ANNEXURE-A2TRUE COPY OF THE PETITION DATED 17/9/2014. ANNEXURE-A3TRUE COPY OF THE DEPOSITION OF PW2 IN CC NO.350/2008 ```