Mohandas v. State of Kerala and Shaima

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE ALEXANDER THOMAS** **THURSDAY, THE 17TH DAY OF DECEMBER 2020 / 26TH AGRAHAYANA, 1942** ## **Crl.MC.No.3845 OF 2016** **AGAINST CC NO.25/2015 OF JUDICIAL MAGISTRATE OF FIRST CLASS -II, KOLLAM** **CRIME NO.1711/2014 OF ERAVIPURAM POLICE STATION, KOLLAM** ## **PETITIONER/ACCUSED NO.2:** ## **MOHANDAS** **AGED 56 YEARS, S/O. SIVADASAN, NO. 232, MANALIL VEEDU, VIDHYA NAGAR, MAYYANAD VILLAGE, KOLLAM DISTRICT.** **BY ADVS. SRI.S.RAJEEV SRI.K.K.DHEERENDRAKRISHNAN SRI.D.FEROZE SRI.V.VINAY** ## **RESPONDENTS/STAE/DEFACTO COMPLAINANT:** **1 STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM - 682 031 (CRIME NO. 1711/2014 OF ERAVIPURAM POLICE STATION,KOLLAM DISTRICT) 2 SHAIMA AGED 33 YEARS, D/O. SARASWATHY, KULANGARA PATTANTHAYIL VEEDU, MAYYANAD VILLAGE, KOLLAM DISTRICT – 691 303.** **R2 BY ADV. SMT.S.A.SHERLY** ## **OTHER PRESENT:** ## **R1 BY SRI.SANTHOSH PETER, PUBLIC PROSECUTOR** **THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON 17.12.2020, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** Crl.MC.No.3845 OF 2016 2 ## **ALEXANDER THOMAS, J.** ------------------------------------------Crl.MC.No.3845 OF 2016 ---------------------------------------------Dated this the 17[th] day of December, 2020 ## **O R D E R** The prayer in the aforecaptioned Criminal Miscellaneous Case filed on 22.06.2016, under Section 482 of the Code of Criminal Procedure (Cr.P.C.), is as follows:- _"a) ….......to quash all further proceedings in CC No.25/2015 pending on the file of the Judicial Magistrate of First Class-II, Kollam, as it is an abuse of process of law.”_ 2. The petitioner herein has been arrayed as accused No.2 in Annexure I, First Information Report (FIR) in crime No.1711/2014 of Eravipuram Police Station, Kollam, registered for offence punishable under Sec.324 of the Indian Penal Code (IPC) read with Sec.34 of the IPC and Sec.23 of the Juvenile Justice (Care and Protection of children) Act, 2000 (hereinafter referred to as 'the J.J. Act'). 3. The Police, after investigation has filed the impugned Annexure II, Final Report/Charge Sheet in the said Crl.MC.No.3845 OF 2016 3 crime No.1711/2014 of Eravipuram Police Station, in which the petitioner herein has been arrayed as accused No.2 therein for the abovesaid offences in question. The learned Magistrate has taken cognizance and the matter is now pending as Calendar Case, C.C. No.25/2015, on the file of the Judicial First Class Magistrate Court-II, Kollam. 4. It is apprised this Court that a summons has been issued and in view of the stay order granted by this Court, the charges have not been framed and the trial has not started, etc. 5. The victim in this case is the minor daughter of the 2[nd] respondent, who was then a juvenile and was a student of 9[th] standard in the school in which the two accused persons were teaching. One as a teacher and the other as a headmaster. That on 08.10.2014, the 1[st] accused, who is the teacher of the said school had severely caned the juvenile student for the alleged misconduct of having talked in the class and that later the petitioner herein (A2) headmaster of the school had told her parents to take the T.C. and leave the school. 6. A reading of the materials in the impugned criminal proceedings would show that the allegation of having caned the Crl.MC.No.3845 OF 2016 4 student is only raised against the 1[st] accused, who is the teacher of the student. The only allegation raised against the petitioner (A2) is that he was the headmaster in the school at the relevant time and in view of the abovesaid controversy later the petitioner as headmaster had told the juvenile's parents that the student should leave the school by taking T.C., etc 7. The learned counsel appearing for the petitioner has made various submissions in the matter and has also pointed out that it is the well settled common law position that a school teacher is having disciplinary control of the pupil, which is for her/his own betterment and future welfare and the teacher has thus inherent power to shape the character for the benefit of the pupil and so long as the process of penal measure like caning the student is proportionate and reasonable as is understood from the common state of affairs of that nature, the same cannot be said to be an offence, etc. The learned counsel appearing for the petitioner has placed reliance on various other decisions as in _**Nirmala v. State of Kerala**_ [2020 (1) KLT 136], _**Rajan v. Sub Inspector of Police**_ [2019 (1) KLT 119]. It will be pertinent to refer to paragraph Nos.6 to 11 of the Crl.MC.No.3845 OF 2016 5 ## abovesaid decision of this Court in _**Nirmala'**_ s case (supra) ## [2020 (1) KLT 136] which read as follows:- _6. To prove the occurrence, PWs.1 to 9 were examined by the prosecution. Of them, PWs.2 and 3 turned hostile to the prosecution denying the occurrence. PWs.2 and 3 stated that they had not witnessed the occurrence as alleged by the prosecution._ _7. PW1 supported the prosecution case in full. Pws.4 and 5 adduced evidence in conformity with the oral evidence adduced by PW1. Ext.P2 is the wound certificate issued by PW6, the Medical Officer attached to the Government College Hospital, Palluruthy. PW6 testified before court that she had examined PW1 at about 6.30 pm on 22.6.1998 and issued Ext.P2 wound certificate noting the following injuries:-_ _"1)Abrasion left fore arm flexor aspect 2x½ cm._ _2)Abrasion on the hairline forehead ½x½ cm._ _3)Pain and tenderness back."_ _8. PW1 adduced evidence to show that on 22.6.1998 at 4.20 p.m. while she was returning home after her work, the accused came to her at the bus stop and assaulted with an umbrella. She also stated that the umbrella was broken into pieces and thereafter, the accused forcibly obtained her umbrella and assaulted her. She went to the Police Station and gave Ext.P1 FIS. She further stated that the accused used to visit her house for making telephone calls. Subsequently, the relationship between them was strained and she had prevented the accused from making calls from her residence which provoked the accused to assault her. Pws.4 and 5 are two independent witnesses, who supported the case advanced by PW1._ _9. According to the prosecution, MO1 is the broken rod of the folded umbrella used by the accused for inflicting injuries on PW1 and no part of the other umbrella belonging to PW1 and used for inflicting injury on her was recovered. Ext.P4 is the seizure mahazar prepred. Ext.P4 seizure mahazar would disclose that MO1 was produced by PW1 at her residence to PW9-the Sub Inspector of Police._ Crl.MC.No.3845 OF 2016 6 _10. One of the grounds taken by the revision petitioner is that MO1 weapon was not shown to PW1 when she was examined before court. It is true that MO1 was taken for the first time when PW8 the attestor to Ext.P4 mahazar was examined before court. Both the trial court as well as the appellate court entered a concurrent finding that merely because MO1 was not identified by PW1, the prosecution case could not be disbelieved for that reason alone._ _11. On being questioned under Section 313 of Cr.P.C., the accused pleaded that she was elsewhere at the time of accident. When a plea of alibi was set up by the accused, the burden was heavy on the part of the accused to prove the plea. However, no evidence was adduced by the accused to prove the plea of alibi set up by the accused.”_ 8. This Court need not make any elaborate analysis regarding the applicability of the dictum in the abovesaid decisions to the facts and circumstances of the case. This is for the simple reason that the main allegation raised against the petitioner (A2) is that he had later taken the stand that the child should take transfer certificate from the school and leave the school, etc. Thus, it appears that the main case of the prosecution is that the petitioner (A2) as the headmaster of the school has allegedly committed the offence as per Sec.23 of the J.J. Act, as the said law of the one which was governing the field as on the date of the alleged incident on 08.10.2014. Sec.23 of the J.J. Act, which reads as follows:- _“23. 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_ Crl.MC.No.3845 OF 2016 7 _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.”_ 9. After hearing both sides this Court is of the considered view that the abovesaid alleged acts attributed against the petitioner even if assumed to be withdrew may not make out the ingredients of assaulting, abandoning, exposing or willfully neglecting 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, as envisaged in Sec.23 of the J.J. Act, etc. 10. Moreover, it has to be borne in mind that there are no allegations that the petitioner has, in any manner, caned or harmed the student. Further the learned counsel appearing for the petitioner would assert that the abovesaid allegations are untrue and has been made only in the context of the controversy generated in the school after the complaint filed on behalf of the child and that as a matter of fact, the child, daughter of the 1[st] respondent ( _de-facto_ complainant) had continued her studies in the same school till the retirement of the petitioner. Further that the petitioner has already retired Crl.MC.No.3845 OF 2016 8 from service as headmaster of the school quite sometime ago. The learned counsel appearing for the petitioner would also point out that the father of the child had deserted her mother and the 2[nd] respondent had filed MC No.247/2003 in connection with maintenance claim, which was then pending before the Family Court, Kollam. Futher that, no complaint was submitted by the 2[nd] respondent or any one else regarding the abovesaid incident before the police having the jurisdiction to investigate the case. That, on the other hand, the 2[nd] respondent has submitted a written complaint before the Family Court and that the same was forwarded to the Station House Officer, Eravipuram Police Station and it is pursuant to that Annexure I crime has been registered, etc. 11. Taking note of the overall totality of the facts and circumstances of the case and also taking note of the nature of the allegations raised against the petitioner and also the facts that the petitioner has also retired from service and that the child was in the school till the retirement of the petitioner, etc. this Court is of the considered view that the continuance of the impugned criminal proceedings as against the petitioner is an Crl.MC.No.3845 OF 2016 9 abuse of the process of the court, which would require interdiction at the hands of this Court saved and preserved in terms of Sec.482 of the Cr.P.C. In that view of the matter it is ordered that the impugned Annexure II, Final Report/Charge Sheet filed in Annexure I crime No.1711/2014 of Eravipuram Police Station, which has led to the pendency of Calendar Case, C.C. No.25/2015 on the file of the Judicial First Class Magistrate Court-II, Kollam, to the limited extent it is directed as against the petitioner herein as A2 therein and all further consequential proceedings arising therefrom to the limited extent it is directed as against the petitioner herein (A2) therein will stand quashed and set aside. 12. It is made clear that the impugned criminal proceedings to the extent it is directed as against the 1[st] accused therein may proceed in accordance with law, untrammeled and uninfluenced in any manner with the observations and findings made by this Court hereinabove. 13. The petitioner will produce certified copies of this order before the Investigating Officer concerned as well as before the Judicial First Class Magistrate Court-II, Kollam, who Crl.MC.No.3845 OF 2016 10 is dealing with Calendar Case, C.C. No.25/2015, for necessary information and further action. With these observations and directions, the above criminal miscellaneous case will stand disposed of. **Sd/-** **ALEXANDER THOMAS, JUDGE** Skk//27122020 Crl.MC.No.3845 OF 2016 11 ## **APPENDIX** ## **PETITIONER'S EXHIBITS:** **ANNEXURE-I TRUE COPY OF THE FIRST INFORMATION STATEMENT ALONG WITH FIRST INFORMATION STATEMENT IN CRIME NO.1711/2014 OF ERAVIPURAM POLICE STATION ANNEXURE-II CERTIFIED COPY OF THE FINAL REPORT IN CRIME NO.1711/2014 OF ERAVIPURAM POLICE STATION.** ## **RESPONDENTS' EXHIBITS: NIL**