Muhammed Abinas (Minor) and Muhammed Musthafa v. State of Kerala and Girijan.K

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE ALEXANDER THOMAS** **TUESDAY, THE 29TH DAY OF SEPTEMBER 2020 / 7TH ASWINA, 1942** ## **Crl.MC.No.2016 OF 2020(B)** **AGAINST THE ORDER IN CRMC 192/2020 DATED 13-02-2020 OF DISTRICT COURT & SESSIONS COURT,KOZHIKODE** **CRIME NO.54/2020 OF KASABA POLICE STATION, KOZHIKODE** ## **PETITIONERS/DE FACTO COMPLAINANT:** - **1 MUHAMMED ABINAS(MINOR), AGED 14 YEARS NABEESA MANZIL, MUTHUVANA, KURUVATTUR.P.O, KOZHIKODE-673611, KERALA REPRESENTED BY FATHER MUHAMMED MUSTHAFA.** - **2 MUHAMMED MUSTHAFA, AGED 41 YEARS NABEESA MANZIL, MUTHUVANA, KURUVATTUR.P.O, KOZHIKODE-673611, KERALA.** **BY ADV. SRI.AMAL KASHA** ## **RESPONDENTS:** - **1 STATE OF KERALA REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM, KOCHI-682031.** - **2 GIRIJAN.K AGED 53 YEARS S/O KUNJIRAMAN, SHIVATHAM, KATTUPOYIL, MANNAMPOYIL, NEELIKULAM, ERAMANGALAM.** **R2 BY ADV. SRI.A.JAYASANKAR R2 BY ADV. SRI.MANU GOVIND R2 BY ADV. SRI.ASHWIN SETHUMADHAVAN R2 BY ADV. SRI.RAHUL SURENDRAN** ## **SRI.SAIGI JACOB PALATTY,PUBLIC PROSECUTOR** **THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON 29.09.2020, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** Crl.M.C.No.2016 of 2020 2 ## **ALEXANDER THOMAS, J.** ## **=========================== Crl.M.C.No.2016 of 2020** **===========================** Dated this the 29[th] day of September, 2020 ## **ORDER** The prayer in the aforecaptioned Criminal Miscellaneous case filed under Sec.482 of the Cr.P.C is as follows : _“................ to allow the above Criminal M.C and set aside the order of District and Sessions Judge granting bail to the 2[nd] respondent by Annexure A3 and may direct that he be arrested and commit him to custody.”_ 2. Heard Sri.Amal Kasha, learned counsel appearing for the petitioners, Sri.Saigi Jacob Palatty, learned Public Prosecutor appearing for the 1[st] respondent-State of Kerala and Sri.A.Jayasankar, learned counsel appearing for contesting respondent No.2. 3. The contesting respondent No.2 herein has been arrayed as the sole accused in the instant Annexure-A2 First Information Report in Crime No.54/2020 of Kozhikode Kasaba Police Station, for offences punishable under Secs.323 & 341 of the Indian Penal Code and Sec.75 of the Juvenile Justice (Care & Protection of Children) Act, 2015, on the basis of the First Information Statement given by the 1[st] petitioner herein (minor boy) aged 14 years on 24.01.2020 at about 6.40 p.m. in Crl.M.C.No.2016 of 2020 3 respect of the alleged incident which happened on the same day (24.01.2020) at 1.45 p.m. The 2[nd] respondent herein has been granted bail as per Annexure-A3 bail order dated 13.02.2020 rendered by the Sessions Court, Kozhikode in Crl.M.C.No.192/2020 filed by him in respect of his involvement in the instant crime. The 1[st] petitioner herein is the minor victim boy aged 14 years and the 2[nd] petitioner herein is the father and natural guardian of the 1[st] petitioner herein and the petitioners seek quashment of the impugned Annexure-A3 bail order dated 13.02.2020 granted by the Sessions Court, Kozhikode to the 2[nd] respondent (accused) for his involvement in the abovesaid crime. 3. As per the version of the prosecution as made out in the allegations in Annexure-A2 FIR & FIS is that the 2[nd] respondent herein is a Hindi teacher in the school, where the 1[st] petitioner herein is studying and that on 23.01.2020 at about 1.45 p.m. in the afternoon, the 2[nd] respondent herein on seeing the 9[th] standard students playing cards in the class room, had examined the shirt pocket of the 1[st] petitioner herein and playing cards were obtained from his pocket and that the 2[nd] respondent had thereupon torn the 1[st] petitioner’s pocket and though the 1[st] petitioner had stated that he has not played Crl.M.C.No.2016 of 2020 4 card and thereafter, the 2[nd] respondent had beat him with hand and pushed him out of the classroom and taken him out to the room of the Headmaster-in-charge of the school and that thereby, the 2[nd] respondent has committed the abovesaid offences. It is common ground that the only non-bailable offence alleged in the instant case is the one as per Sec.75 of the Juvenile Justice (Care & Protection of Children) Act, 2015 and all the other offences in Annexure-A1 FIR are bailable offences. 4. The crux of the allegations is that the 1[st] petitioner here (minor victim boy) is a student of the 9[th] standard school in question, where the 2[nd] respondent is employed as a Hindi teacher and that the 2[nd] respondent has found students in Class.IX playing cards and thereupon, he had entered into the classroom and had found that the 1[st] petitioner was carrying two cards in his pocket and he had then done the abovesaid acts in question and had taken him to the classroom, the Headmaster in charge. After hearing both sides, the learned Magistrate has evaluated that the abovesaid allegations does not disclose a grave offence as per Sec.75 of the Juvenile Justice (Care & Protection of Children) Act and that no injury is alleged to have been caused to the 1[st] petitioner herein and for the limited purpose of appreciation of the Crl.M.C.No.2016 of 2020 5 rival arguments in the bail application, the learned Magistrate has evaluated that at best, the petitioner can be said to have done what is expected from a teacher on finding that the students were playing cards and that he has exercised his powers to discipline the students, etc. Moreover, the prosecution has taken the definite case before the learned Magistrate while considering the bail application, that going by the facts and circumstances of the case, custodial interrogation of the 2[nd] respondent herein is not necessary. In the light of these aspects, that the learned Magistrate has held that anticipatory bail could be granted to the 2[nd] respondent herein who was the applicant in the abovesaid bail application. Accordingly, the learned Magistrate has issued the impugned Annexure-A3 order dated 13.02.2020 in Crl.M.C.No.192/2020 filed by the 2[nd] respondent herein granting anticipatory bail to the said accused (R2 herein) with the conditions mentioned therein regarding execution of bond and that the 2[nd] respondent herein should co-operate with the investigation and make available in the said course of interrogation and that he should not influence the witnesses or tamper with the evidences and that the 2[nd] respondent herein should not involve in any other crime while on bail. Crl.M.C.No.2016 of 2020 6 5. The main ground urged by the petitioners herein is that the impugned bail order in Annexure-A3 is liable to be quashed by this Court in exercise of the powers under Sec.482 of the Cr.P.C. on the ground that the bail order granted by the learned Magistrate in favour of the 2[nd] respondent herein is illegal and perverse, taking into account the nature of the allegations disclosed in the instant case. 6. _Per contra_ , the learned counsel appearing for the 2[nd] respondent herein (accused) would submit that even going by the admitted allegations in Annexure-A2 FIR & FIS, the same does not disclose any serious offences and that the case, in which the 2[nd] respondent herein should seek quashment of the impugned criminal proceedings under Sec.482 of the Cr.P.C, more so particularly, in the light of the legal principles laid down by this Court in decisions as in _**Rajan v. Sub Inspector of Police**_ [2019 (1) KLT 119], _**Nirmala v. State of Kerala**_ [2020 (1) KLT 136], order dated 28.10.2019 rendered by this Court in B.A.No.7586/2019, etc. Further, the learned counsel for the 2[nd] respondent would also contend that at any rate, no reasonable person can contend that Annexure-A3 bail order passed by the learned Magistrate is liable for quashment, on the ground that the same is vitiated by illegality and perversity. Crl.M.C.No.2016 of 2020 7 7. The learned Public Prosecutor would submit that as has already been made clear by the Investigation Agency and the learned Public Prosecutor before the learned Magistrate, the definite case of the prosecution is that going by the overall nature of the facts and circumstances of the case and taking into consideration of the fact that the incidents have occurred in a school, wherein the 2[nd] respondent herein is a teacher and the 1[st] petitioner is a student, the custodial interrogation of the 2[nd] respondent herein is not necessary for the effective and proper conduct of the investigation in the said crime and that the prosecution has no objection in the anticipatory bail order granted by the learned Magistrate in favour of the 2[nd] respondent herein. The learned counsel for the 2[nd] respondent would further submit that the allegations raised against the 2[nd] respondent are without any factual foundation and have exaggerated and that he has already suffered by way of imposition of the suspension order inflicted on him by the management of the school authorities on account of the present allegations and that the District Educational Officer has conducted a statutory enquiry in terms of the provisions contained in Chapter XIV A of the Kerala Education Rules framed under the Kerala Education Act and the version of the 1[st] petitioner was also taken and Crl.M.C.No.2016 of 2020 8 the D.E.O has given an enquiry report stating that the allegations raised against the 2[nd] respondent herein may not be true and that a short may be granted to the 2[nd] respondent herein to produce a copy of the said statutory enquiry report of the District Educational Officer concerned. Further, the District Educational Officer has ordered that the 2[nd] respondent herein should be reinstated in service and that he should be paid his wages and the 2[nd] respondent herein has not so far been reinstated in service by the school management, till date and that he has not been given his pay and allowances, on account of the abovesaid allegations and that the 2[nd] respondent herein has already suffered much. 8. The limited issue that is disclosed before this Court is as to whether the bail order granted by the learned Magistrate in favour of the 2[nd] respondent herein as per Annexure-A3 order is illegal or perverse. The Apex Court and various High Courts, including this Court has held that there is substantial and fine distinction between cancellation or setting aside of the bail order by a superior court on the ground that the same is illegal or perverse and seeking for cancellation of the bail on the ground that the conditions regulating the grant of bail, as per the bail order has been violated by the accused. In the latter, the Crl.M.C.No.2016 of 2020 9 aggrieved person concerned may not have a case that the very bail order granted in favour of the accused by the court below concerned is liable for interference by a superior court and the aggrieved person accepts the validity of the bail order and the limited plea is that subsequently the accused has violated the bail conditions imposed in the bail order and therefore, the bail granted to him as per the said order is liable for cancellation. Whereas, in the former, the aggrieved person’s contention is that the very bail order is liable for interdiction by way is being set aside or quashed by a superior court on the ground that the bail order granted by the court below concerned is illegal or highly perverse, etc. So, the limited issue that is posed before this Court is as to whether Annexure-A3 bail order is vitiated by illegality, impropriety or perversity, so as to warrant the said order being quashed and set aside by this Court in exercise of the inherent powers conferred under Sec.482 of the Cr.P.C. The allegations in the instant case are as noted hereinabove. Admittedly after hearing the said teacher in the school (accused) and the 1[st] petitioner herein (minor victim boy, is a student in 9[th] standard) and the incidents are happened after an interval of a working day in question, wherein the 2[nd] respondent is a Hindi teacher found that some of the students in class.IX were playing cards and on Crl.M.C.No.2016 of 2020 10 entering the classroom, he on examination found that the 1[st] petitioner herein was carrying two such cards in his pocket and thereupon, purported exercise of his power of imposing discipline in the school as a teacher, he has taken out the said card from the 1[st] petitioner’s pocket and has torn the said pocket and had pushed him out of the class and then taken him to the room the Headmaster-in-charge, for further action. In the overall factual materials of this case, there is no dispute that the only non-bailable offence alleged in the instant case is the one as per Sec.75 of the Juvenile Justice (Care & Protection of Children) Act. 9. Having regard to the application in the various legal principles laid down by this Court in the aforecited decisions in the overall factual framework of this case, it cannot be said that the discretion exercised by the learned Magistrate in issuing Annexure-A3 bail order in favour of the 2[nd] respondent herein (bail applicant therein) is in any manner illegal, improper or highly perverse. This has to be evaluated in the context of the specific case that it is indisputable that the prosecution themselves had taken a considered stand before the learned Magistrate that in the admitted facts and circumstances of this case, there is no necessity for the custodial interrogation of the Crl.M.C.No.2016 of 2020 11 2[nd] respondent herein as accused for the proper and effective conduct of investigation in this crime. In the light of all these aspects, it is only to be held that the exercise of discretion by the learned Magistrate in passing bail order granting anticipatory bail is a reasonable and proper exercise of power, more so particularly, in the light of the abovesaid stand of the prosecution. At any rate, Annexure-A3 bail order cannot be branded by this Court as illegal or highly perverse. Therefore, the petitioners cannot successfully make over the grounds for quashment and setting aside of the impugned Annexure-A3 bail order. The sole issue considered by this Court is as to whether the impugned AnnexureA3 bail order is vitiated by illegality or perversity. This Court has not considered any other issues in this matter and as the same are not relevant and germane for the main matter to be considered by this Court in these proceedings. All such issues are left open. With these observations and directions, the above Crl.M.C will stand dismissed. **Sd/ALEXANDER THOMAS JUDGE** vgd Crl.M.C.No.2016 of 2020 12 ## **APPENDIX** **PETITIONER'S/S EXHIBITS:** **ANNEXURE A1 A TRUE COPY OF THE GAME CARD ANNEXURE A2 TRUE COPY OF THE FIRST INFORMATION REPORT AND THE FIRST INFORMATION STATEMENT REGISTERED BY KASABA POLICE STATION, KOZHIKODE IN CRIME NO.54/2020. ANNEXURE A3 A TRUE COPY OF THE BAIL ORDER DATED 13.02.2020 OF THE COURT OF SESSIONS, KOZHIKODE.**