P. Radhakrishnan v. State of Kerala and Another

## **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ``` THE HONOURABLE MR. JUSTICE P.V.KUNHIKRISHNAN ``` ``` FRIDAY, THE 26[TH] DAY OF JULY 2024 / 4TH SRAVANA, 1946 ``` ## **`CRL.MC NO. 5383 OF 2016`** ``` CRIME NO.44/2016 OF Guruvayoor Police Station, Thrissur ``` ``` AGAINST THE ORDER/JUDGMENT DATED IN CC NO.639 OF 2016 OF JUDICIAL MAGISTRATE OF FIRST CLASS ,CHAVAKKAD PETITIONER: ``` ``` P.RADHAKRISHNAN AGED 53 YEARS AGED 53 YEARS, S/O KRISHNA PISHARADI, "THULASI", POST NHANGATTIRI, VIA PATTAMBI, PALAKKAD DISTRCIT, PIN- 679 303 ``` ``` BY ADVS. SRI.SANTHEEP ANKARATH SRI.ARUN MATHEW VADAKKAN ``` ## **`RESPONDENTS:`** - **`1 STATE OF KERALA REP. BY ITS PUBLIC PROSECUTOR HIH COURT OF KERALA, ERNAKULAM REPRESENTING SUB INSPECTOR OF POLICE, GURUVAYUR TEMPLE POLICE STATION, GURUVAYUR, THRISSUR DISTRICT, PIN- 680 101`** - **`2 ADDL.R2 SAJAY GIREESH AGED 18 YEARS S/O GIREESH K.V, KUTTANMKULANGARA HOUSE, POST CHOONDAL, PUTHUSSERY, THRISSUR DISTRICT, PIN-680502. (ADDL.R2 IS IMPLEADED AS PER ORDER DATED 01/12/2016 IN CRL.MA.NO.12768/2016)`** ## **`OTHER PRESENT:`** ## **`SMT.NIMA JACOB, PP`** ``` THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON ``` ``` 26.07.2024, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: ``` Crl.M.C.No.5383 of 2016 2 ## P.V.KUNHIKRISHNAN, JUDGE ========================= Crl.M.C.No.5383 of 2016 ========================== Dated this the 26[th] day of July, 2024 ## **`ORDER`** This Criminal Miscellaneous Case is filed to quash the proceedings in C.C.No.639/2016 on the file of Judicial First Class Magistrate Court Chavakkad arising from Crime No.44/2016 of Guruvayoor Temple Police station. The above case is charge sheeted alleging offence punishable under section 341,324 and section 23 of the Juvenile Justice Act. 2. Petitioner is the principal of the Sreekrishna Higher Secondary School, which is a school managed by the Guruvayoor Devasom Board. The de facto complainant in the case namely Sajay Gireesh was a student of the petitioner. It is alleged by the de facto complainant that, on 05.01.2016 during class hours, de facto complainant and few of his friends had altercation with certain other group of students of same school inside the school Crl.M.C.No.5383 of 2016 3 building. The petitioner being the principal of the school, summoned the de facto complainant and few other students who were involved in the altercation and warned them and beat them on their legs using a cane. They submitted that the de facto complainant sustained wounds on his thighs. Based on the complaint Annexure- A1 FIR is registered, and after investigation Annexure- A2 Final report is submitted. According to the petitioner, even if the entire allegations are accepted, no offence is made out. 3. Heard the learned counsel for the petitioner and the learned Public prosecutor. Eventhough the notice is issued to the 2[nd] respondent he did not appear. 4. The counsel for the petitioner is submitted that even if the entire allegations are accepted, no offence is made out, in the light of the principle laid down by this Court in Nirmala v. State of Kerala [2020 (1) KLT 136] and also the judgment in Abdul Vahid v. State of Kerala and another [2005 (1 ) KLJ 579]. The counsel also relied the judgments in Jaya v. State Of Kerala [2022 Crl.M.C.No.5383 of 2016 4 ## (1) KHC 678] . 5. The public prosecutor submitted that, the contention raised by the petitioner are all matter of evidence and this Court may not interfered with the prosecution at this stage. 6. This Court considered the contention of the petitioner and the public prosecutor. 7. The admitted prosecution case is that the petitioner beaten the students using a cane during the college hours because of some altercations between two sets of students. Reading of the final report would show that, this is done in connection with the discipline of the school. 8. This Court in Nirmala’s case (Supra) considered a similar situation. This Court observed that, the act of the teacher imposing discipline on a pupil by caning etc…, though may otherwise fulfill the definition of corporal punishment no criminal will attract. The relevant portion of the above judgment extracted here under : “10. A mere reading of S. 324 of the I.P.C. would Crl.M.C.No.5383 of 2016 5 make it clear like the day light, that S.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 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 S.324 or that the process of caning pupil would involve a dangerous means as envisaged in S.324 of the I.P.C. So it goes without saying that in the instant case, S.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 Crl.M.C.No.5383 of 2016 6 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 I.P.C. 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 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). ## XXX XXX XXX 11. The precedents cited by the petitioner were all rendered prior to the advent of the J.J.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 Crl.M.C.No.5383 of 2016 7 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 mature 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 stock is a dangerous weapon, etc., there are no factual allegations anywhere that the petitioner has caused any serious injury to the de facto 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 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 Crl.M.C.No.5383 of 2016 8 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.” 9. Similarly in Abdul vahid case (surpra) this Court observed that if a corporal punishment is given by the teacher, in the process of maintaining the discipline and also to make him/her advert to the prescribed standard of school, which are necessary for upliftment of development of child including his development of his character and conduct in and outside the school, it cannot be said that, the act is intended to injure the student. The relevant portion of the above judgment extracted here under : “8. The facts on record show that the petitioner has got a cane to inflict corporal punishments on the erring students of Madrassa. He does it on a bona fide intention to improve the students, on maintaining discipline and making them to adhere to the Madrassa standards. He has got no intention to inflict any harm to the students. The injuries, as noted above, had been inflicted on the buttock. That itself show, the petitioner has got only an intention to inflict some pain on the student, a 10 year old boy, so that he behaves himself ## Crl.M.C.No.5383 of 2016 9 well to the prescribed regulations of Madrassa. When a child is sent to Madrassa or a school, the parents of the said child give an implied authority to the master or the class teacher or Headmaster/Headmistress to enforce discipline and correct the students who commit errors in front of him or her or in the classes. If a corporal punishment is given by any of them, in the process of maintaining such discipline, and also to make him/her adhere to the prescribed standards of the school, which are necessary for the upliftment and development of the child, including the development of his character and conduct in and outside the school, so that he is trained to be aware of the good qualities of a citizen, it cannot be said to be an act intended to injure the student. In such a situation, if no intentional injury is caused, considering the age of the student, it cannot be said that the said school teacher has inflicted injury to harm him. But again, the act of the teacher on the student, in imposing corporal punishment, depends upon the circumstances of each case. If a teacher out of fury and excitement, inflicts injuries which is harmful to the health of a tender aged student, it cannot be accepted as a right conferred on such a teacher to inflict such punishment, because of the express or implied authority granted by the parents of that student. Therefore, there cannot be any generalised pattern of principle in such situations. The acts of a teacher has to be appreciated and assessed depending upon the circumstances that are placed before the Court, in each case. It is the duty of the teachers to have a restrained and controlled imposition of punishments on the pupils under their care and charge. Unwieldy, uncontrolled and emotional attacks or actions on their part cannot be accepted. However, in this case, a Madrassa teacher, petitioner herein, gave Crl.M.C.No.5383 of 2016 10 beatings on the gluteal region, only to make him to adhere the standards of Madrassa. Therefore, it was done with the bona fide intention. I do not find that the petitioner had any mens rea so as to inflict an injury under S.324 I.P.C.” 10 . Jaya case (supra) this Court consider a similar case and the relevant portion of the above judgment is extracted here under:- “12. Now, let me examine whether specific offences charged against the revision petitioner - S.324 of IPC and S.23 of the JJ Act – have been attracted or not. S.324 of IPC deals with "voluntarily causing hurt by dangerous weapons or means". It is evident from the Seizure Mahazar (Annexure A2(7)] that the revision petitioner used ordinary cane of 68 cm. length and 1 1/2 cm circumference. The cane used by the revision petitioner is generally used by a class teacher in ordinary course to control noisy class so as to maintain discipline. It cannot be considered as a dangerous weapon. A cane with any loaded iron top etc. alone is a dangerous weapon, as rightly argued by the learned counsel for the revision petitioner. In order to attract S.324 of IPC, hurt by means of dangerous weapon should be caused voluntarily. The word 'voluntarily' u/s 39 of IPC reads as follows: “39 ."Voluntarily" A person is said to cause an effect "voluntarily" when he causes it by means whereby he intended to cause it, or by means which, at the time of employing those means, he knew or had reason to believe to be likely to cause it.” Crl.M.C.No.5383 of 2016 11 Thus, to constitute an offence of voluntarily causing hurt, there must be complete correspondence between the result and the intention or the knowledge or belief of the person who caused the said hurt S.23 of the JJ Act will be attracted when unnecessary mental or physical suffering is caused by a person in charge of control over the child by assaulting, abandoning, exposing or wilfully neglecting the child or by causing such act to be done.” 11. In the light of above principle laid down in these decisions, I am of the considered opinion that, the continuation of the prosecution against the petitioner is not necessary. The action of the petitioner is in connection with the discipline of the school. Therefore the proceedings against the petitioner can be quashed. Therefore this Crl.M.C is allowed. All further proceedings against the petitioner in C.C.No.639/2016 on the file of Judicial First Class Magistrate Court Chavakkad arising from Crime No.44/2016 of Guruvayoor temple Police station are quashed. Sd/- P.V.KUNHIKRISHNAN JUDGE vnk/- Crl.M.C.No.5383 of 2016 12 ## **`APPENDIX OF CRL.MC 5383/2016`** ``` PETITIONER’S ANNEXURES:- ``` ``` ANNEXURE A1TRUE COPY OF FIRST INFORMATION REPORT IN CRIME NO.44/2016 DATED 9-1-2016 OF GURUVAYUR POLICE STATION ANNEXURE A2TRUE COPY OF FINAL REPORT DATED 8-2-2016 IN CRIME NO.44/2016 OF GURUVAYUR POLICE STATION ```