Sr. Sheeba Mathew v. Manoj K.V and State of Kerala

## **`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. 5630 OF 2015 ``` ``` CRIME NO.1697/2014 OF ETTUMANOOR POLICE STATION, KOTTAYAM AGAINST THE ORDER/JUDGMENT DATED IN CC NO.13 OF 2015 OF JUDICIAL MAGISTRATE OF FIRST CLASS - I, ETTUMANOOR PETITIONER: ``` ``` SR. SHEEBA MATHEW AGED 37 YEARS D/O.MATHEW, MOOLENIRAPPEL HOUSE, KOONATHARA P.O.,PALAKKAD DISTRICT, PIN - 679 523, PRESENTLYRESIDING AT HOLY CROSS CONVENT, VETTIMUKAL P.O.KOTTAYAM DISTRICT, PIN - 686 631. ``` ``` BY ADV SRI.GEORGEKUTTY MATHEW ``` ## **`RESPONDENTS:`** ``` 1MANOJ K.V AGED 37 YEARS KUPPAKANNIL HOUSE, KIZHAKKUMBHAGAM KARA,ETTUMANOOR P.O., KOTTAYAM DISTRICT,PIN - 686 631. 2STATE OF KERALA REPRESENTED BY THE PUBLIC PROSECUTOR,HIGH COURT OF KERALA, ERNAKULAM,PIN - 682 031. BY ADV ANUROOPA JAYADEVAN ``` ## **`OTHER PRESENT:`** ``` SRI.NOUSHAD.K.A, SR.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.5630 of 2015 2 P.V.KUNHIKRISHNAN, JUDGE ========================= Crl.M.C.No.5630 of 2015 ========================== Dated this the 26[th] day of July, 2024 ## ORDER This Criminal Miscellaneous Case is filed to quash the proceedings in C.C.No.13/2015 on the file of Judicial First Class Magistrate Court Ettumanoor arising from Crime No.1697/2014 of Ettumanoor Police station. The above case is charge sheeted against the petitioner alleging offence punishable under section 324 Indian Penal Code. 2. The Allegation of the prosecution in brief is that, the petitioner while working as a teacher, beaten the child of the defacto complainant from the class room on 19.11.2014 afternoon. According to the prosecution, the petitioner committed the offence under Section 324 IPC. According to the petitioner who is the teacher of the school, even if the entire allegations are accepted no offence is made out. The petitioner also relied the judgment of this Court in Nirmala v. State of Kerala [2020 (1) KLT 136] and Crl.M.C.No.5630 of 2015 3 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 (1) KHC 678] . 3. This Court concerned the contention of the petitioner and the Public prosecutor. 4. The counsel for the petitioner submitted that, even if the entire allegation are accepted, no offence is made out in the light of the principle laid down by this Court in the above three judgments. The counsel appearing for the 1[st] respondent submitted that the child sustained very serious injuries and the teacher has no authority to beat a student. The counsel submitted that the contention raised by the petitioner is a matter of evidence and this court may not interfere with the same. 5. The prosecution case is that the petitioner who is a teacher beaten the child of the defacto complainant on three times on the right leg and and there by this child sustained injury. 6. This court in Nirmala’s case (Supra) considered a similar situation. This court observed that the act of the teacher Crl.M.C.No.5630 of 2015 4 imposing the discipline on a pupil by caning etc…, though may otherwise fulfill the definition of corporal punishment, a criminal offence is not made out. The relevant portion of the above judgment extracted here under : “10. A mere reading of S. 324 of the I.P.C. would 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 Crl.M.C.No.5630 of 2015 5 ## 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 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 Crl.M.C.No.5630 of 2015 6 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 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 stick 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 Crl.M.C.No.5630 of 2015 7 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 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.” 7. 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. The same is not an offence. 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 Crl.M.C.No.5630 of 2015 8 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 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 Crl.M.C.No.5630 of 2015 9 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 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.” 8 . 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 Crl.M.C.No.5630 of 2015 10 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.” 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.” 9. Similarly in the order dated 23.11.2020 in Crl.M.C.No.2958/2015 this court considered the matter again and relying the judgment in Nirmala’s Case (Supra) quashed the proceedings. In the light of the above principle, I am of the considered opinion that, the facts of the case is also similar. A teacher in connection with the discipline taken some action which according to me will not attract Section 324 of the I.P.C. Therefore this Crl.M.C is allowed to all further proceedings against the petitioner in C.C.NO.13/2015 on the file of Judicial Crl.M.C.No.5630 of 2015 11 First Class Magistrate Court, Ettumanoor arising from Crime No.1697/2014 of Ettumanoor Police station are quashed. Sd/P.V.KUNHIKRISHNAN JUDGE vnk/- Crl.M.C.No.5630 of 2015 12 ## **`APPENDIX OF CRL.MC 5630/2015`** ``` PETITIONER’S ANNEXURES:- ANNEXURE ITRUE COPY OF THE FIRST INFORMATION REPORT DATED 21.11.2014 ANNEXURE IITRUE COPY OF THE FINAL REPORT DATED 31.12.2014 ANNEXURE III:TRUE COPY OF THE NOTICE DATED 19.11.2014 ISSUED BY THE HEAD MISTRESS OF ST.PAUL'S HIGH SCHOOL, VETTIMUKAL ANNEXURE IVTRUE COPY OF THE ENQUIRY REPORT DATED 19.12.2014 OF DISTRICT EDUCATION OFFICER, PALA. ```