Nirmala K v State of Kerala

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE ALEXANDER THOMAS** **WEDNESDAY, THE 16TH DAY OF OCTOBER 2019 / 24TH ASWINA, 1941** ## **Crl.MC.No.6226 OF 2019(G)** **AGAINST THE ORDER/JUDGMENT IN CC 176/2019 OF JUDICIAL MAGISTRATE OF FIRST CLASS -II,HOSDRUG** **CRIME NO.31/2019 OF Bekal Police Station , Kasargod** ## **PETITIONER/S:** **NIRMALA K, AGED 54 YEARS W/O.P.NARAYANAN, HIGH SCHOOL ASSISTANT, G.H.S.S., PALLIKKARA, KASARAGOD DISTRICT.** **BY ADVS. SRI.M.RAMESH CHANDER (SR.) SMT.K.A.SANJEETHA SRI.BALU TOM SRI.BONNY BENNY** ## **RESPONDENT/S:** - **1 STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM-682031** **2 SHAFEEDA ABDUL MAJEED, AGED 15 YEARS D/O.ABDUL MAJEED, P.M.MANZIL, POOCHAKKAD,** **PALLIKKARA VILLAGE, BEKAL, KASARAGOD REPRESENTED BY HER GUARDIAN ABDUL MAJEED** ## **OTHER PRESENT:** ## **SRI.P.N.SUMODU, PUBLIC PROSECUTOR** **THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 16.10.2019, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** ## **ALEXANDER THOMAS, J.** ================== Crl.M.C.No. 6226 of 2019 ================== Dated this the 16[th] day of October, 2019 ## **O R D E R** The petitioner has now been arrayed as the sole accused in the instant Calendar Case, C.C.No. 176/2019 on the file of the Judicial First Class Magistrate's Court, Hosdurg, which has arisen out of the impugned Anx. A-1 final report/charge sheet filed in Crime No. 31/2019 of Beckal Police Station, Kasargod. The offences alleged therein are those punishable under Sec. 324 of the I.P.C. and Sec. 82(1) of the Juvenile Justice (Care & Protection of Children) Act, 2015 (JJ Act, 2015). 2. The brief of the prosecution case is that the petitioner accused, who is a lady teacher of the Government Higher Secondary School, Pallikkara, where the minor victim girl aged 15 years, is studying in standard No.IX Division B, had beaten her with a cane stick and thereby she has committed the offences punishable under Sec. 324 of the I.P.C. and 82(1) of Juvenile Justice (Care & Protection of Children) Act, 2015, etc. The petitioner seeks quashment of the impugned proceedings on various grounds. 3. Heard Sri.M.Ramesh Chander, learned Senior Counsel, Crl.M.C.6226/19 - : 3 :- instructed by Sri.Balu Tom Cheruvally, learned counsel appearing for the petitioner accused and Sri.P.N.Sumodu, learned Prosecutor appearing for the 1[st] respondent. Though notice has been duly served on contesting respondent No.2, there is no appearance for that party. 4. As stated herein above, the allegations are to the effect that the petitioner, who is a lady teacher, attached to the Government Higher Secondary School, Pallikkara, where the 2[nd] respondent minor victim girl/Juvenile, aged 15 years, is studying in Std.IX in Division B and that the petitioner as a teacher, had beaten the 2[nd] respondent minor victim girl/juvenile using a cane stick, in the class room and thereby she has committed the abovesaid offences. 5. Sec. 82 of the JJ Act deals with corporal punishment and the same provides as follows: _“Sec. 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-in-charge of the management of the institution shall be liable for_ Crl.M.C.6226/19 - : 4 :- _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.”_ 6. Sec.2 of the JJ Act provides definition clauses. Various terms covered therein are defined in the various clauses given thereunder. Sec. 2 (24) of the JJ Act defines " _corporal punishment_ " to mean 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. Sec. 2(21) of the JJ Act defines " _child care institution_ " to mean 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. It is now well established by a serious rulings of the Apex Court and various High Courts including this Court, that a teacher of an educational institution like school or college, in view of his/her peculiar position must in the nature of things, have the intrinsic and inherent authority to enforce discipline and correct a pupil, who is put in his/her charge. The courts have also consistently taken the view that it can be assumed that when a parent entrusts a child to a teacher, he on his behalf impliedly consents for the teacher to exercise over the student such parental authority to discipline the Crl.M.C.6226/19 - : 5 :- child for its own better future and welfare. It is also thus well settled that the act of caning the child as a penal measure to correct and enforce discipline, cannot thus be said to be per se unlawful or without any legal authority . So long as the act of beating using a cane, etc. is proportionate and does not exceed the reasonable and proportionate use of such means of discipline, it cannot be said that the said act is per se illegal or it would amount to criminal offence. Sec. 319 of the I.P.C. defines “hurt” as follows: _“Whoever causes bodily pain, disease or infirmity to any person is said to cause hurt.”_ 7. Sec. 321 of the I.P.C. deals with voluntarily causing hurt. Sec. 323 deals with punishment for causing hurt. _**Sec. 321: Voluntarily causing hurt.-** Whoever does any act with the intention of thereby causing hurt to any person, or with the knowledge that he is likely thereby to cause hurt to any person, and does thereby cause hurt to any person, is said "voluntarily to cause hurt"._ However, Sec.95 of the I.P.C. deals with act, causing slight harm, which provides as follows: _**“Sec. 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._ 8. It is in view of the well settled common law position an school teacher, who is having disciplinary control over a pupil, which is for his or her own betterment and future welfare, has thus intrinsic Crl.M.C.6226/19 - : 6 :- 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. It is in recognition of this common law position that the Parliament, while engrafting the juvenile Justice Act has clearly provided in Sec. 82 of the JJ Act that the act of committing corporal punishment will come into play only if the person who is imposing such corporal punishment on the juvenile is a person in-charge of or employed in a child care institution as can be seen from a mere reading of Sec. 82(1) of the JJ Act. Going by the definition clause of Sec. 2(24), which deals with corporal punishment, even the act of a teacher imposing discipline by taking appropriate penal measures like caning the pupil, etc. would come within the scope and ambit of the definition clause of Sec. 2(24) of the JJ Act. But the Parliament being cognizant of the abovesaid common law position, has consciously decided as a legislative policy not to make any inroads into that common law position and has very carefully and guardedly provided in Sec. 82(1) of the JJ Act that the question of treating the act of corporal punishment as a criminal offence would Crl.M.C.6226/19 - : 7 :- come into play only if the corporal punishment as understood in Sec. 2(24) is imposed on a juvenile by a person, who is in-charge of or employed in a child care institution as defined in Sec. 2(21) of the JJ Act. Thus it is crystal clear from a mere reading of Sec. 82 as well as Sec. 2(24) and Sec. 2(21) of the JJ Act that the act of a teacher imposing discipline on a pupil by caning etc., though may otherwise fulfill the definition of corporal punishment, as understood in Sec. 2(24), is not made a criminal offence in terms of Sec. 82. Of course, under the garb of disciplining and punishing the pupil, if the teacher exceeds the limits of reasonable and proportionate penal measure, and causes extreme hurt to the pupil, etc. then of course, subject to the facts and attendant circumstances of the each case, it may attract offence as per the I.P.C. like 'hurt' (Sec. 223), grievous hurt (Sec. 321) which is punishable by Sec. 323 of the I.P.C. or grievous hurt as understood in Sec. 320, as the case may be. In the instant case, the specific allegations of the prosecution in the impugned Anx. A-1 final report/charge sheet are only to the effect that the petitioner, as a teacher of the 2[nd] respondent, minor victim girl/juvenile, has imposed the penal measure of caning the student, and that too, in the class room. Therefore, the offence as per Sec. 82(1) of the JJ Act is not Crl.M.C.6226/19 - : 8 :- attracted. The other offence alleged against the petitioner is the one as per Sec.324 of the I.P.C. which deals with voluntarily hurt by dangerous weapons or means. Sec. 324 of the I.P.C. reads as follows: _“Sec. 324: Voluntarily causing hurt by dangerous weapons or means.- Whoever, except in the case provided for by section 334, voluntarily causes hurt by means of any instrument for shooting, stabbing or cutting, or any instrument which, used as weapon of offence, is likely to cause death, or by means of fire or any heated substance, or by means of any poison or any corrosive substance, or by means of any explosive substance or by means of any substance which it is deleterious to the human body to inhale, to swallow, or to receive into the blood, or by means of any animal, shall be punished with imprisonment of either description for a term which may extend to three years, or with fine, or with both.”_ 9. Sec. 324 will come into play only if hurt is caused by dangerous weapon like any instrument for shooting, stabbing or cutting, or any instrument which, used as weapon of offence, is likely to cause death, or by means of fire or any heated substance, etc. 10. A mere reading of Sec. 324 of the I.P.C. would make it clear like the day light, that Sec. 324 will come into play only if the alleged weapon used for causing hurt is a dangerous weapons like an instrument for shooting, stabbing or cutting, or any instrument which, used as weapon of offence, is likely to cause death, or by means of fire or any heated substance, or by means of any poison or any corrosive substance, or by means of any explosive substance or by means of any substance which it is deleterious to the human body to Crl.M.C.6226/19 - : 9 :- inhale, etc. The prosecution does not even have the remotest whisper in the prosecution materials that the cane stick is a dangerous weapon as envisaged in Sec. 324 or that the process of caning pupil would involve a dangerous means as envisaged in Sec. 324 of the I.P.C. So it goes without saying that in the instant case, Sec. 324 of the I.P.C. is not made out. This Court has held in decisions as in _**Rajan v. S.I. of Police**_ , [2019(1) KLT 119] that if punishment is imposed out of spite or for some other extraneous and non disciplinary reasons or if the force is unreasonable or immoderate, then it is unlawful and hurt of a less serious crime is not forbidden when inflicted in the reasonable chastisement of a child by a parent or a school teacher to whom the parent has has delegated or is deemed to have delegated his authority. It will be pertinent to refer to paragraphs 9 and 11 of the abovesaid decision of this Court in _**Rajan's case supra**_ , which read as follows: _“9. In the case on hand, though the incident had allegedly taken place on 05/11/2015, the law was set in motion on 08/11/2015. Admittedly, the applicant herein is a school teacher and the victim is his student. Parents, teachers and other persons in loco parentis are entitled as a disciplinary measure to apply a reasonable degree of force to their children or pupil old enough to understand the purpose to which the act was done. S.79 and S.80 of the IPC would come to his / her rescue, in those cases. However, if the punishment imposed is given out of spite or for some other non disciplinary reason or if the force is unreasonable or immoderate, it is unlawful. 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_ Crl.M.C.6226/19 - : 10 :- _delegated his authority, (see Cross and Jones on Introduction to Criminal Law, 9th Edn., Page 120; Kenny on Outlines of Criminal Law, 19th Edn. Page 18)._ **==> picture [159 x 7] intentionally omitted <==** _11. The precedents cited by the petitioner were all rendered prior to the advent of the JJ Act, 2000. However, the principles laid down can be applied to the instant case as well. In the cited cases, their Lordships have taken a view that when a student is sent by his parent or guardian to a school, the parent or guardian must be deemed to have given an implied consent to the child being under the discipline and control of the school authorities and to the infliction of such reasonable punishment as may be necessary for the purposes of school discipline or for correcting him. The Courts have taken the view that the school teacher, in view of his peculiar position, must in the nature of things, have authority to enforce discipline and correct a pupil, who is put in his charge. The courts have also taken the view that it can be assumed that when a parent entrust a child to a teacher, he on his behalf impliedly consents for the teacher to exercise over the student such authority. However, the nature and gravity of the corporal punishment inflicted by the teacher would determine as to whether he can be proceeded under the penal provisions. If the teacher, out of unbridled fury, excitement or rage, inflicts injuries which are of such a nature as to cause unreasonable physical suffering or harm to the child, the same cannot be condoned on any ground or on the principle of express or implied consent.”_ 11. On a perusal of the impugned prosecution materials, more particularly the impugned Anx. A-1 final report/charge sheet, it can be seen that, apart from the allegation that the petitioner had beaten the pupil with a cane stick and that the cane stick is a dangerous weapon, etc., there are no factual allegations anywhere that the petitioner has caused any serious injury to the defacto complainant or that the petitioner has used any excessive or disproportionate force in that regard. In the light of these aspects, it is only to be held that even going by the the admitted prosecution allegations none of the Crl.M.C.6226/19 - : 11 :- offences alleged in Anx.A-1 final report/charge sheet is made out in the instant case, which has led to the institution of Calendar Case, C.C.No. 176/2019 on the file of the Judicial First Class Magistrate's Court-II, Hosdurg. Accordingly, it is ordered in the interest of justice that the impugned Anx. A-1 final report/charge sheet filed in Crime No. 31/2019 of Beckal Police Station, which has led to the pendency of Calendar Case, C.C.No.176/2019 on the file of the Judicial First Class Magistrate's Court-II, Hosdurg, and all further proceedings arising therefrom pending against the accused will stand quashed. The petitioner will produce certified copies of this order before the investigating officer concerned and the competent court below concerned. The office of the Advocate General will forward copy of this order to the investigating officer concerned for information. With these observations and directions, the above Criminal Miscellaneous Case stands finally disposed of. sdk+ Sd/- **ALEXANDER THOMAS, JUDGE** Crl.M.C.6226/19 - : 12 :- ## **APPENDIX** ## **PETITIONER'S/S EXHIBITS:** **ANNEXURE A1 CERTIFIED COPY OF THE CHARGE SHEET IN CC NO.176/19 OF THE JUDICIAL FIRST CLASS MAGISTRATE COURT-II, HOSDURG DATED 25.02.2019**