Sherin v. State of Kerala and Sajeesh

``` CRL.MC NO. 4670 OF 2019 ``` ``` 1 ``` # **`IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT`** ``` THE HONOURABLE DR. JUSTICE KAUSER EDAPPAGATH WEDNESDAY, THE 30[TH] DAY OF MARCH 2022 / 9TH CHAITHRA, 1944 CRL.MC NO. 4670 OF 2019 ``` ``` IN CC 606/2019 OF JUDICIAL MAGISTRATE OF FIRST CLASS -V, ``` ## **`THIRUVANANTHAPURAM`** ## **`PETITIONER/ACCUSED:`** ``` SHERIN, AGED 33 YEARS MS AND G.K.TEACHER, III D DIVISION, SURVODAYA CENTRAL PUBLIC SCHOOL, NALANCHIRA, THIRUVANANTHAPURAM. ``` ``` BY ADVS. S.RAJEEV SRI.K.K.DHEERENDRAKRISHNAN SRI.V.VINAY SRI.D.FEROZE SRI.K.ANAND (A-1921) ``` ## **`RESPONDENTS/STATE:`** ``` 1STATE OF KERALA, REP. BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM - 682 031. 2SAJEESH, HOUSE NO.6, ARAPPURA LANE, MUTTADA, KESAVADASPURAM, THIRUVANANTHAPURAM - 695 004. ``` ``` BY ADV GANGESH K B R1 BY SMT M K PUSHPALATHA -SR PP ``` ``` THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 30.03.2022, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: ``` ``` CRL.MC NO. 4670 OF 2019 ``` ``` 2 ``` ## ORDER This Crl.M.C has been filed to quash all further proceedings in C.C.No.606/2019 on the file of the Judicial First Class Magistrate Court V, Thiruvananthapuram. 2. The petitioner is the sole accused. The offences alleged against him are under Section 75 of the Juvenile Justice (Care and Protection of Children) Act (for short ‘JJ Act’) and Section 323 of IPC. 3. The petitioner is a teacher of Survodaya Central Public School, Nalanchira, Thiruvananthapuram. The daughter of the de facto complainant was a student in class 3D. The petitioner was teaching Moral Science subject. The prosecution case in short is that on 29.1.2019 while the petitioner was taking moral science class, the victim attempted to help her friend in taking pencil from the floor and on seeing the same, the petitioner had smacked on the shoulder with hand and thereby committed the offence. ``` CRL.MC NO. 4670 OF 2019 ``` ``` 3 ``` 4. I have heard Sri.Dheerendrakrishnan, the learned counsel for the petitioner, Sri.K.B.Ganesh, the learned counsel for the 2[nd] respondent and Smt.M.K.Pushpalatha, the learned Senior Public Prosecutor. 5. The learned counsel for the petitioner submitted that even if the entire allegations in the first information statement together with the other materials collected during investigation are taken at the face value, they do not constitute the offences alleged against the petitioner. On the other hand, the learned counsel for the 2[nd] respondent and the learned Public Prosecutor submitted that prima facie the offences alleged against the petitioner are made out and, hence, there is no justification in invoking Section 482 of Cr.P.C 6. It is a case where the petitioner fairly conceded that she only for correctional method had asked the victim to sit properly in the class. According to her, she has only attempted to enforce discipline among the students and there was no intentional act on ``` CRL.MC NO. 4670 OF 2019 ``` ``` 4 ``` her part to use force on the student. It is further urged that she never crossed the limit and exercised her authority reasonably and lawfully as a class teacher as warranted on the occasion. 7. This Court recently in Jaya v. State of Kerala and others (2022(1) KHC 678) has held that a teacher who without malicious intention administers a moderate and reasonable force to a pupil to enforce discipline in class room/school cannot be exposed to criminal prosecution or fastened with penal liability. 8. Now let me examine whether the specific offences charged against the petitioner-Section 323 of IPC and Section 75 of the JJ Act can be attracted or not. In order to constitute Section 323 of IPC, hurt should be caused voluntarily. The word ‘voluntarily’ under Section 39 of the 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.MC NO. 4670 OF 2019 ``` ``` 5 ``` 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. Section 75 of the JJ Act will be attracted when unnecessary mental or physical suffering is caused by a person in charge of, or control over, a child, by assaulting, abandoning, abusing, exposing or wilfully neglecting a child or by causing such act should be done. 9. A reading of the first information statement and the entire case records would disclose that the petitioner had no intention at all to cause hurt to the victim. The alleged incident happened while the petitioner was taking Moral Science class and the victim attempted to help her friend in taking pencil from the floor. The alleged incident happened on 29.1.2019. The victim attended the class on 30.1.2019. On that day, there was no complaint. The 2nd respondent lodged the complaint only on 1.2.2019. A perusal of the case records would show that no ``` CRL.MC NO. 4670 OF 2019 ``` ``` 6 ``` statement of the student of the class was recorded and no student was cited as witness. The statements of the teachers were recorded. Their statement also would not disclose that intentionally the petitioner caused hurt on the victim. A close reading of their statement would show that it was only as a part of enforcement of discipline among the students, the petitioner smacked on the shoulder of the victim. The statement of CW8, a teaching staff of the school, would show that she conducted a domestic enquiry. She recorded the statement of the teachers and the students of the school as part of enquiry and came to a definite conclusion that it was with bonafide intention to correct the victim, the petitioner smacked on the shoulder of the victim. In the enquiry it was concluded that no incident had taken place as alleged by the 2[nd] respondent in the first information statement. In these circumstances, it can never be said that the petitioner had the intention to cause hurt to her student, the victim. In Amal and another v. State of Kerala and another (2020(4) KHC 781), this ``` CRL.MC NO. 4670 OF 2019 ``` ``` 7 ``` Court held that it is not the scheme and spirit of Section 23 of the JJ Act (new provision of 75 of JJ Act) that every doing of an act by person in charge or control of the juvenile, which affects the body and mind of the child would constitute an offence punishable under Section 23 of JJ Act, despite it lacks criminal intention. It was further held that when an act was done as part of enforcing discipline in the school and it was done without any intention of causing mental harassment to the student, it cannot be said that the offence under Section 23 of the JJ Act is made out. The said decision squarely applies to the facts of the case. 10. For the reasons stated above, I am of the view that the act of the petitioner cannot be said to be with malicious intention to cause hurt on the victim. On the contrary, the facts disclose that she exercised her authority reasonably and in good faith. The prosecution allegation even if admitted as true in its entirety, could not make out the offence either under Section 323 of IPC or under Section 23 of the JJ Act. Hence, no purpose will be served in ``` CRL.MC NO. 4670 OF 2019 ``` ``` 8 ``` proceeding with the matter further against the petitioner. Accordingly, the Crl.M.C stands allowed. All further proceedings in C.C.No.606/2019 on the file of the Judicial First Class Magistrate Court V, Thiruvananthapuram is hereby quashed. ``` Sd/- ``` DR. KAUSER EDAPPAGATH JUDGE ab ``` CRL.MC NO. 4670 OF 2019 ``` ``` 9 ``` ## **`APPENDIX OF CRL.MC 4670/2019`** ``` PETITIONER ANNEXURES ``` ``` ANNEXURE ITRUE COPY OF THE FIRST INFORMATION STATEMENT ALONG WITH FIRST INFORMATION REPORT IN CRIME NO.213/2019 OF MANNANTHALA POLICE STATION, THIRUVANANTHAPURAM DISTRICT. ANNEXURE IICERTIFIED COPY OF THE FINAL REPORT IN CRIME NO.213/2019 OF MANNANTHALA POLICE STATION. ``` ``` ANNEXURE IIITRUE COPY OF THE CONDUCT CERTIFICATE ISSUED FROM MGM (MAR GREGARIOUS MEMORIAL) CENTRAL PUBLIC SCHOOL. ANNEXURE IVTRUE COPY OF THE CERTIFICATE ISSUED FROM ST.GREGORIAL PRE-PRIMARY SCHOOL, NEW DELHI. ``` ## RESPONDENTS ANNEXURES: NIL