Yesodha v. State of Kerala and Jasna

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR. JUSTICE A.HARIPRASAD WEDNESDAY, THE 15TH DAY OF NOVEMBER 2017/24TH KARTHIKA, 1939 Crl.MC.No. 6208 of 2013 () --------------------------- C.C.NO.884/2013 OF JUDICIAL FIRST CLASS MAGISTRATE COURT-I, THAMARASSERY, KOZHIKODE. PETITIONER/ACCUSED:-: ---------------------------------YESODHA, W/O.JANARDHANAN, 53 YEARS, PUTHUKKUDI POYIL HOUSE, P.O.NARIKKUNI, KOZHIKODE. BY ADV. SRI.K.A.SALIL NARAYANAN ## RESPONDENT/STATE AND COMPLAINANT:-: ------------------------------------------------- |1.|STATE OF KERALA| |---|---| ||REPRESENTED BY PUBLIC PROSECUTOR,| ||HIGH COURT OF KERALA, ERNAKULAM.| |2.|SMT.JASNA, W/O.MUHAMMED ALI, AGED 31 YEARS,| ||EZHUKULATHIL HOUSE, P.O.NARIKKUNI,| ||KOZHIKODE DISTRICT.| ||R2 BY ADV. SRI.J.OM PRAKASH| ||R1 BY PUBLIC PROSECUTOR MS.K.B.SONY| THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON 15-11-2017, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: Crl.MC.No. 6208 of 2013 () --------------------------- ## APPENDIX PETITIONER(S)' EXHIBITS ----------------------- ANNEXURE 1. COPY OF THE COMPLAINT PREFERRED BEFORE THE J.F.C.M.-I, THAMARASSERY BY THE SECOND RESPONDENT. ANNEXURE 2. ORDER DATED 04.10.2013 IN C.C.884/13 OF THE J.F.C.M-1, THAMARASSERY. ANNEXURE 3. COPY OF THE JUDGMENT IN W.P.(C).24800/12 OF THIS HON'BLE COURT. ANNEXURE 4. COPY OF THE F.I.R. IN CRIME 42/12 OF THE KODUVALLY POLICE STATION. ANNEXURE 5. COPY OF THE FINAL REPORT IN CRIME NO.42/12 OF THE KODUVALLY POLICE STATION. ANNEXURE 6. MEMO OF EVIDENCE IN CRIME 42/12 OF THE KODUVALLY POLICE STATION. ANNEXURE 7. REPORT OF THE A.E.O. ALONG WITH A COVERING LETTER. ANNEXURE 8. REPORT SUBMITTED BY THE D.E.O., THAMARASSERY. ANNEXURE 9. COPY OF THE COMPLAINT SUBMITTED BY THE TOUR STUDENTS OF NARIKKUNI A.U.P. SCHOOL. ANNEXURE 10. PHOTOGRAPH OF THE POSTER PUT BY A POLITICAL PARTY AGAINST THE PETITIONER HEREIN. ANNEXURE 11. TRUE COPY OF THE MINUTES OF THE MEETING HELD BY "JAGRUTHA COMMITTEE" ON 16.06.2011. RESPONDENT(S)' EXHIBITS NIL ----------------------- //TRUE COPY// ## **A.HARIPRASAD, J. -------------------------------------Crl.M.C. No.6208 2013** ## **-------------------------------------Dated this the 15[th] day of November, 2017** ## **ORDER** Accused in C.C.No.884 of 2013 on the file of the Judicial First Class Magistrate Court-I, Thamarassery has approached this Court for quashing Annexure-1 complaint and Annexure-2 order passed by the learned Magistrate taking cognizance of offences punishable under Sections 469 and 471 of the Indian Penal Code, 1860 (in short, “IPC”) . 2. Heard the learned counsel for the petitioner and the 2[nd] respondent/complainant. Learned Public Prosecutor is also heard. 3. Gist of allegations in Annexure-1 complaint is as follows: Petitioner is the headmistress of Narikkuni A.U.P. School. It is alleged that on 23.09.2011 a contest for writing complaints against a particular male teacher in the school was conducted at the aegis of the petitioner. It is alleged that four girl students of 7[th] standard were asked to write a complaint against him alleging that he was in the habit of molesting them and outraging their modesty. On the basis of the complaint, the authorities under the Kerala Education Act and Rules started action against him. Further, a police complaint was also filed against the said teacher. Annexure-4 is the first information report in Crime No.42 of 2012 registered 2 Crl.MC No.6208 of 2013 by the Koduvally Police under Section 354 IPC against the male teacher. The present complainant is mother of a student, who, along with others, said to have gave a complaint against the male teacher. As per the averments in the complaint, the petitioner misled the students and in order to wreak personal vengeance and also at the instance of the manager of the school, she caused the students to file a false complaint against the teacher. According to the averments in the complaint, thereby the petitioner has committed the aforementioned offences. 4. After examining the complainant and witnesses, learned Magistrate took cognizance under Sections 469 and 471 IPC as per Annexure-2. 5. Learned counsel for the petitioner contended that the entire allegations in the complaint are not only false, but also legally unsustainable. According to him, whole prosecution is an abuse of the process of court. It is the submission that a headmistress, who tried to protect the interests of students and reputation of the school, is being targeted now with a false complaint. 6. Per contra, learned counsel for the complainant submitted that the petitioner is guilty of the offences alleged and she is not entitled to get any relief in this proceedings because complicated questions of fact are involved in the case. It is also submitted that departmental action taken 3 Crl.MC No.6208 of 2013 against the male teacher was quashed by the Government as the procedure contemplated was not followed. 7. Annexure-7 is the enquiry report submitted by the Assistant Education Officer, Koduvally dated 27.09.2011. Learned counsel for the petitioner relied on the following observations in the report: “നര�ക�ന� എ.യ�.പ�. സക�ള�ല� അദ��പകന�യ ശ��. ലക.വ�.ബ��ചശ�ലനത�ലര ശ��മത� പ�.ലക.സരര�ജ�ന� നൽക�യ പര�ത� സ#ബന�ച& അരന'ഷണ# നടത� നടപട� സ'�കര�ക� ൻ വ�ദ��ഭ��സ ഉപഡയറകടറ�ലട 26/07/11 ല� ബ�2/14292/2011 കത�ല� ന�ർര<�ത�ര�യ�# ബഹ�മ�നല>ട ജ��@� കളകടറ�ലട 05/07/2011 ല� എ ൻ2/28696/2011 ന#. പ�റലതഴ�ത& ശപക�ര# ത�മരര�ര� ജ��@� വ�ദ��ഭ��സ ആഫ�സറ�ലട 29/07/2011 ല� ബ�2/4337/2011 ന#. കത�ല� ന�ര<�ത�നലറയ�# അട�സ�നത�ൽ 23/09/2011 ന� നര�ക�ന� എ.യ�.പ�. സക�ള�ൽ നടത�യ അരന'ഷണ# സ#ബന�ച& വ��ദമ�യ റ�ര>�ർട& ച�വലട ലക�ട�ക�ന�. തര# നര�ക�ന� എ.യ�.പ�. സക�ള�ല� 7-)o ബ�യ�ല� ആര�ഷ� ലക.പ�., അഞജന വ�., ഹർഷ�മ എൻ. ആത�ര എന� വ�ദ��ർത�ന�കൾ സക�ള�ല� അധ��പകന�യ ശ��.ലക.വ�.ബ��ചശ�ൻ തങരള�ട രമ��മ�യ� ലപര�മ�റ�ന�ലവന�# ആയത�ന� പര�ഹ�ര# ക�ണണലമന�# ആവ��ല>ടTലക�ണ& ട�ചർ ഇൻ ച�ർജ�യ ശ��മത� എൻ. യര��ദയക& 4 Crl.MC No.6208 of 2013 പര�ത� സമർ>�ച�ര�ന�. വ�ദ��ർത�ന�കൾ തങൾ ക& ��ര�ര�ക പ�ഢന# അന�ഭവ�രകണ� വര�ന� എനത�ൾല>ലടയ�ള പര�ത� നൽക�യ�ടT# ട�ചർ ഇൻ ച�ർജ ശപസത�ത പര�ത�യ�മ�യ� ബനല>ട& ന�� വ���ള ചടങൾകന�സ�തമ�യ� യ�ലത�ര� അരന'ഷണ# തരത���ള നടത�കരയ� ആവ��മ�യ�ടTള ത�ടർ നടപട�കൾ കകലക�ളTവ�ൻ ശ�മ�ക�കയ�# ലചയത�ട�ല�@ന& അരന'ഷണത�ൽ രബ�ധ�ല>ട�ര�ക�ന�. ക�ട�ലത ജ�ശ\ത� സമ�ത� അ#\ങള�യ�ടTള അധ��പകർ ശപസത�ത പര�ത�യ�മ�യ� ബനല>ട& രരഖ�മ��# അറ�വ �ഭ�ച�ട��@�ലയന�# വ�കമ�ക�യ�ടTണ&. ആയത�ന�ൽ പര�ത� �ഭ�ച�ട& ത�ടർ നടപട� സ'�കര�ക�ത�ര�നത ട�ചർ ഇൻ ച�ർജ�നലറ ഭ�\ത�ന�ന�ണ�യ�ടTള \�ര�തരമ�യ വ�ഴചയ�യ� ക�ണ�ന�. ജ�ശ\ത� സമ�ത� അ#\മ�യ�ടTള ശ��മത� എ#.ന�ർമ�രയ�ട വ�ദ��ർത�ന�കൾ ശപസത�ത രമ��മ�യ� വ�വര# അധ��പകൻ ലപര�മ�റ�ന ധര�>�ച�ടTളത�യ� ലമ�ഴ� നൽക�യ�ടTണ&. ആയത�നലറ അട�സ�നത���# രവണ നടപട�കൾ ജ�ശ\ത� കമ�റ� അ#\മ�യ�ടTള അധ��പകർ കകലക�ണ�ട��@�ലയന�# അരന'ഷണത�ൽ രബ�ധ�ല>ട�ര�ക�ന�. അരന'ഷണത�നലറ ഭ�\മ�യ� പര�ത�ല>ട ന��� വ�ദ��ർത�കൾ ഉൾല>ലട 11 വ�ദ��ർ ത�ന�കളTലടയ�# ലമ�ഴ� രരഖല>ട�ത�കയ�# ആയത വ��ദമ�യ� പര�ര��ധ�ക�കയ�# ലചയത�. വ�ദ��ർത�ന�കൾ ട�ചർ ഇൻ ച�ർജ�യ ശ��മത� 5 Crl.MC No.6208 of 2013 |എൻ.<br>യര��ദക&<br>നൽക�യ<br>പര�ത�യ�ൽ| |---| |ശ��.ലക.വ�.<br>ബ��ചശ�ൻ<br>മ�സർ<br>തങലള| |��ര�ര�കമ�യ� പ�ഡ�>�ക�ന�ലവന& വ�കമ�യ�| |പര�മർ��ചത�യ�<br>ക�ണ�ന�.<br>മറT<br>വ�ദ��ർ| |ത�ന�കൾ<br>നൽക�യ<br>ലമ�ഴ�യ���#| |അധ��പകലനത�ലര<br>\�ര�തരമ�യ<br>സ'ഭ� വ| |ദ�ഷ�മ�ണ<br>ആരര�പ�ച�ര�ക�നത.<br>ക�ട�ലത| |സക�ള�ല�<br>മലറ�രധ��പകന�യ<br>ശ��.| |പ�.പ�.അബTൾ ഖയTമ�ലനത�ലരയ�# \�ര�തരമ�യ| |ലപര�മ�റ ദ�ഷ�# ആരര�പ�ചTലക�ണ& വ�ദ��ർ| |ത�ന�കൾ<br>ലമ�ഴ� നൽ<br>ക�യ�ര�ക�ന�.| |ശ��.ലക.വ�.ബ��ചശ�ൻ<br>വ�ദ��ർത�ന�കരള�ട| |അപമര��ദയ�യ� ലപര�മ�റ�യ�ടTളത�യ�#| |പര�ത�യ�ൽ<br>അധ��പകലനത�ലര<br>ഉനയ�ചത| |വസത�ത�പരമ�ലണന�# കലണത�യ�ര�ക�ന�.| ഈ സ�ഹചര�ത�ൽ ശ��.ലക.വ�.ബ��ചശ�ലനത�ലര \�ര�തരമ�യ ലപര�മ�റ ദ�ഷ�# ഉണ�യ�ടTളത�ന�ൽ കർ�നമ�യ അചടക നടപട� കകലക�രളണത�ണ എന& അഭ�ശപ�യല>ട�ന�. ക�ട�ലത വ�ദ��ർ ത�ന�കളTലട ലമ�ഴ�കളTലട അട�സ�നത�ൽ ശ��.പ�.പ�.അബTൾ ഖയTമ�ലനത�ലരയ�# വ��ദമ�യ അരന'ഷണ# നടത� നടപട� അചടക കകലക�രളണത�ണ.” 8. It is submitted on behalf of the petitioner that a complaint was preferred by Smt.P.K.Sarojini against the male teacher in the school alleging that he indulged in outraging the modesty of girl students. As per Crl.MC No.6208 of 2013 6 order dated 05.07.2011 the District Collector, Kozhikode directed the District Education Officer, Thamarassery to conduct an enquiry and pursuant to that the Assistant Education Officer, Koduvally was authorised to submit a report. It is therefore contended by the learned counsel for the petitioner that even prior to 23.09.2011 complaints were registered against the male teacher. Petitioner was only discharging her duties as headmistress. 9. Per contra, learned counsel for the complainant submitted that the person by name Smt.P.K.Sarojini mentioned in Annexure-7 report is a fictitious person and there is no parent or guardian in the school with that name at the relevant time. Even if it is assumed that it was an anonymous letter, when a grave situation has been brought to the notice of the authorities, they are bound to conduct an enquiry into the matter and take appropriate action, if found necessary. Therefore, whether it is an anonymous complaint or pseudonymous complaint is of no consequence, according to the learned counsel for the petitioner. 10. I have been taken through the sworn statements of the complainant and the witnesses to show that they never preferred any complaint against the male teacher. At the time when the students were examined before the Additional Sessions Judge-I, Kozhikode in connection with the case, they stated that the male teacher did not behave indecently 7 Crl.MC No.6208 of 2013 towards them. On that basis he was acquitted from all charges in Crime No.42 of 2012 of Koduvally Police Station. 11. Learned counsel for the petitioner submitted that none of the students, at the time of tendering evidence before the Sessions Court, made a complaint that it was at the instance of the petitioner a false complaint was preferred against the male teacher. They only said that they had no grievance against the male teacher. It is further submitted that the students were not asked to write complaint against a male teacher by force or inducement. According to the petitioner, they voluntarily gave the complaint, which was forwarded to the higher authorities for appropriate action. Petitioner would further contend that as part of an enquiry initiated under the direction of the District Collector, Kozhikode, statements of four girl students referred to in Annexure-9 and other seven students were recorded on 23.09.2011. That is borne out from Annexure-7 quoted above. This has been depicted as a complaint writing competition in the complaint. According to the petitioner, the male teacher, who was accused of molesting the girl students, won over the parents and students and thereby caused a false complaint to be filed before the court implicating the petitioner. 12. Legal contention raised by the learned counsel for the petitioner is that neither the offence under Section 469 IPC nor that under 8 Crl.MC No.6208 of 2013 Section 471 IPC is attracted by the averments in the complaint. Section 469 IPC reads thus; _“_ _**Forgery for purpose of harming reputation** .-Whoever commits forgery, intending that the document or electronic record forged shall harm the reputation of any party, or knowing that it is likely to be used for that purpose, shall be punished with imprisonment of either description for a term which may extend to three years, and shall also be liable to fine.”_ In order to constitute an offence under Section 469 IPC, it must be established that there was forgery as defined under Section 463 IPC. The said provision reads thus: _“_ _**Forgery** .- Whoever makes any false documents or false electronic record or part of a document or electronic record, with intent to cause damage or injury, to the public or to any person, or to support any claim or title, or to cause any person to part with property, or to enter into any express or implied contract, or with intent to commit fraud or that fraud may be committed, commits forgery.”_ According to the learned counsel, going by the allegations in the complaint, it can be seen that petitioner had only caused the students to write complaint against the male teacher. It is not mentioned anywhere in the 9 Crl.MC No.6208 of 2013 complaint that she herself created a false document with an intention to cause damage or injury to any person. 13. In answer to this contention, the learned counsel for the complainant submitted that creation of forged document was happened in this case as defined under Section 464 IPC. Section 464, thirdly may be relevant in this case which is quoted below: _“_ _**Making a false document** .-A person is said to make a false document or false electronic record-_ _xxxx_ _Thirdly-Who dishonestly or fraudulently causes any person to sign, seal, execute or alter a document or an electronic record or to affix his electronic signature on any electronic record knowing that such person by reason of unsoundness of mind or intoxication cannot, or that by reason of deception practised upon him, he does not know the contents of the document or electronic record or the nature of the alteration.”_ It is contended by the learned counsel for the petitioner that the complainant has no case that children were instigated and they were forced to write a complaint. Therefore, that part of the Section is not applicable. Secondly, the children were not of unsound mind and therefore that limb of the Section also is not applicable. What is remaining is that a 10 Crl.MC No.6208 of 2013 person by reason of deception practiced upon another person, who does not know the contents of the documents, if a false document is created, then the Section will be attracted. To get over the provision, learned counsel for the petitioner contended that children, who wrote the complaint, were studying in 7[th] standard. They were examined before the court as witnesses at the time when the complaint was filed. The court found that they were competent witnesses to testify. Therefore, it cannot be stated that they were persons not able to know the contents of the document which they wrote at that time. In answer to this contention, learned counsel for the complainant submitted that they were examined at a later point of time. Having regard to the facts and circumstances, totality of the allegations in the complaint would not show that offence under Section 469 IPC has been made out. Section 471 IPC, going by the wordings itself, is not attracted in this case because there is no averment in the complaint that the petitioner fraudulently or dishonestly used as genuine any document which she knew to be a forged document. Since the definition of forgery is not attracted in this case, Section 471 has no application. 14. Learned counsel for the complainant relying on **B.Jagdish v. State of A.P. ((2009) 1 SCC 681)** contended that the records which can be produced at the time of defence of the case cannot be considered for invoking the jurisdiction under Section 482 of the Code of Criminal 11 Crl.MC No.6208 of 2013 Procedure, 1973 (in short, “Cr.P.C.”). It is well settled that vexed questions of fact cannot be resolved in the exercise of jurisdiction under Section 482 Cr.P.C. Here the point of argument raised by the learned counsel for petitioner is that going by the averments in the complaint, ingredients of the offences alleged are not made out. Further, as Headmistress petitioner was only complying with the directions and discharging her duty as borne out from Annexure-7. Having regard to the facts and circumstances, I find that the complaint as well as the cognizance taken thereon are legally unsustainable. In the result, the petition is allowed. Annexure-1 complaint and Annexure-2 order passed by the Judicial First Class Magistrate Court-I, Thamarassery are hereby quashed. All pending interlocutory applications will stand closed. ## **A. HARIPRASAD, JUDGE.** **cks**