Kerala High Court
Dhanesh Kumar vs State Of Kerala on 8 November, 2024
Author: P.V.Kunhikrishnan
Bench: P.V.Kunhikrishnan
2024:KER:83496
CRL.MC NO. 1187 OF 2019
1
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE P.V.KUNHIKRISHNAN
FRIDAY, THE 8TH DAY OF NOVEMBER 2024 / 17TH KARTHIKA, 1946
CRL.MC NO. 1187 OF 2019
CRIME NO.57/2017 OF Kunnamangalam Police Station, Kozhikode
SC NO.844 OF 2017 OF SPECIAL COURT UNDER POCSO ACT,
KOZHIKODE
PETITIONER/ACCISED:
DHANESH KUMAR,
AGED 45 YEARS
S/O. NARAYANANKUTTY NAIR, MANKORATHKANDIYIL
HOUSE, NARIKKUNI P.O, KOZHIKODE 673 582.
BY ADVS. T.D.SUSMITH KUMAR
SHRI.NANDAKUMAR K.
T.O.DEEPA(K/180/2008)
JAYKAR.K.S.(K/738/2003)
VANDANA A.(K/000636/2023)
ANJALI R. MENON(K/004224/2024)
C.SIVADAS(K/798/2012)
RESPONDENT/COMPLAINANT/DEFACTO COMPLAINANT:
1 STATE OF KERALA,
REPRESENTED BY PUBLIC PROSECUTOR,
HIGH COURT OF KERALA, ERNAKULAM.
2 SUB INSPECTOR OF POLICE,
KUNNAMANGALAM POLICE STATION, KUNNAMANGALAM P.O,
KOZHIKODE 673 570.
3 CENTRE CO-ORDINATOR,
CHILDLINE, NEAR KANAKASHREE AUDITORIUM,
KOZHIKODE 673 001.
2024:KER:83496
CRL.MC NO. 1187 OF 2019
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4 SUHARA,
AGED 36 YEARS, W/O. ALI, PAIKKATTIL HOUSE,
KONOTT, KARANTHOOR P.O, KOZHIKODE 673 571.
BY ADVS.
SRI.K.RAKESH ROSHAN
SMT.THUSHARA.V
OTHER PRESENT:
SMT.NIMA JACOB, PP
THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON
08.11.2024, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:
2024:KER:83496
CRL.MC NO. 1187 OF 2019
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P.V.KUNHIKRISHNAN, J.
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Crl.M.C. No.1187 of 2019
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Dated this the 08th day of November, 2024
ORDER
Petitioner is the accused in S.C.No.844/2017 on the file of the Additional Sessions Court (For Trial of Cases relating to Atrocities and Sexual Violence Towards Women and Children), Kozhikode. Petitioner is a school teacher and he is charge- sheeted alleging offences punishable under Section 75 of the Juvenile Justice (Care and Protection of Children) Act, 2015 (for short, JJ Act).
2. The crux of the prosecution is that, while the petitioner working as Teacher in Kunnamangalam Government Higher Secondary School, on 25.10.2016, he assaulted a child studying in 5th Standard namely Muhammad Ajmal during the class time and caused to sit that child among girls of the said classroom complaining that he is not listening in the class. Hence the child became physically and mentally shattered and the mother of the child, the 4 th respondent, consulted him with 2024:KER:83496 CRL.MC NO. 1187 OF 2019 4 a Psychiatrist of Medical College and the petitioner again repeated the mental shock after 4th day of the incident. Hence it is alleged that the petitioner committed the offence. The 4th respondent complained the incident to the Coordinator of Childline, Kozhikode, on 24.12.2016 and the 3rd respondent, the defacto complainant therein, in consonance with the same, lodged a complaint before the 2nd respondent on 10.01.2017. Accordingly, the 2nd respondent registered crime on the very same day as Crime No.57 of 2017 of Kunnamangalam Police Station under Section 75 of JJ Act. Annexure-A1 is the First Information Report. After investigation, Annexure-A2 final report is filed. According to the petitioner, even if the entire allegations are accepted, no offence under Section 75 of the JJ Act is attracted. Hence this criminal miscellaneous case.
3. Heard Adv.Anjali, who appeared for the petitioner, who is a young lawyer started practice about two weeks ago. I also heard the learned Public Prosecutor and the learned counsel for the 4th respondent,
4. Adv.Anjali, relying on the judgment of this Court in Abdul Vahid v. State of Kerala and Others [2005 (2) KLT 72] 2024:KER:83496 CRL.MC NO. 1187 OF 2019 5 submitted that even if the entire allegations are accepted, the offence under Section 75 of the JJ Act is not attracted. The Public Prosecutor and the counsel for the 4 th respondent submitted that the contentions raised by the petitioner are to be raised before the trial court. The counsel for the 4 th respondent takes me through the discharge summary issued from KMCT Medical College Hospital, from which it can be seen that the child was admitted on 09.01.2017 and he was discharged only on 23.01.2017.
5. This Court considered the contentions of the petitioner and the respondents. It is true that the child was admitted at KMCT Medical College Hospital with a history that one teacher of the school scolded him and thereafter, there was mental shock to the child. The allegation against the petitioner as per the final report is extracted hereunder:
"25/10/2016 തീയതി കോഴിക്കോട് താലൂക്ക് കുന്ദമംഗലം അംശം ദേശത്ത് തെക്ക്-വടക്കായി പോകുന്ന കോഴിക്കോട് - വയനാട് റോഡിൽ റോഡിന്റെ പടിഞ്ഞാറ് ഭാഗത്തുള്ള കുന്ദമംഗലം ഹയർ സെക്കൻഡറി സ്കൂൾ കോമ്പൗണ്ടിൽ പടിഞ്ഞാറോട്ട് ദർശനമായുള്ളതും കുന്ദമംഗലം പഞ്ചായത്ത് 2/533 എന്ന നമ്പർ ഇട്ട 2024:KER:83496 CRL.MC NO. 1187 OF 2019 6 അഞ്ചുനില കോൺക്രീറ്റ് കെട്ടിടത്തിന്റെ സ്റ്റെയർകെയ്സ് കടന്നുചെല്ലുന്ന ഒന്നാം നിലയിലെ ഇടതുഭാഗത്തെ ഒന്നാമത്തെ ക്ലാസ്റൂം ആയ V-C എന്നെഴുത്തുള്ള ക്ലാസ് മുറിയുടെ ഇടതുഭാഗത്ത് ആൺകുട്ടികൾക്ക് ഇരിക്കുന്നതി നായി ഏർപ്പെടുത്തിയ ഭാഗത്തെ മുന്നിൽ നിന്നും രണ്ടാമത്തെ ബെഞ്ചിന്റെ മധ്യഭാഗത്ത് ഇരുന്നിരുന്ന മുഹമ്മദ് അജ്മൽ, s/o അലി, No.11/17 പൈക്കാട്ടിൽ (H), കോണോട്ട്(PO), കാരന്തൂർ എന്ന വിദ്യാർത്ഥിയെ ടി കുട്ടിയുടെ ക്ലാസ് അധ്യാപകനായ ധനേഷ് കുമാർ s/o.
നാരായണൻകുട്ടിനായർ, No.45/17, മാങ്കോരത്ത് കണ്ടിയിൽ (H), നരിക്കുനി എന്ന പ്രതി ക്ലാസ്സിൽ ശ്രദ്ധിക്കുന്നില്ല എന്ന് ആരോപിച്ച് കുട്ടിയുടെ കൈമുട്ടുകൾ പിടിച്ച് ഞെക്കുകയും ശിക്ഷനടപടികളുടെ ഭാഗമായി പെൺകുട്ടികളുടെ ഭാഗത്തെ ബെഞ്ചിൽ ഇരുത്തുകയും കുട്ടി പേടിച്ചുകരയുകയും വഴി കുട്ടിയുടെ മാനസികനില തകരാറാവുന്നതിനും അതുവഴി മാനസിക രോഗ വിദഗ്ധനായ ഡോക്ടറുടെ ചികിത്സ തേടുന്നതിനും ഇടയായിട്ടുള്ളത്"
6. A perusal of the same would show that the teacher in connection with the discipline, imposed certain punishments. But the child was not able to face it and he started to cry. He faced a mental shock because of the same. Whether a teacher 2024:KER:83496 CRL.MC NO. 1187 OF 2019 7 can be prosecuted because of the same is the question to be decided. In Abdul Vahid's case (supra), this Court considered a similar situation in which the offence was under Section 323 IPC. It will be better to extract the relevant portion of the above judgment:
"7. 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 bonafide 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 years 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. Of 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 2024:KER:83496 CRL.MC NO. 1187 OF 2019 8 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 generalized 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 beatings on the 2024:KER:83496 CRL.MC NO. 1187 OF 2019 9 gluteal region, only to make him to adhere the standards of Madrassa. Therefore, it was done with the bonafide intention. I do not find that the petitioner had any mens rea so as to inflict an injury under Section 324 1.P.C. Therefore, accepting the principles contained in M. Natesan's case supra, I am of the opinion that the petitioner has acted within the exception conferred on him, under Section 88 of I.P.C. Hence, I hold that this is a fit case to be quashed under Section 482 Cr.P.C., and I do so."
7. Similarly in Jomi v. State of Kerala [2024 KHC 574], this Court considered the same point. The relevant portion of the above judgment is extracted hereunder:
"10. Going by the prosecution allegations, a student studying in 8th Standard was beaten by the Principal and English Teacher of the School when she failed to secure fair marks in a test paper conducted by the Teacher. Though there is allegation of beating, no serious injuries sustained. Therefore, it has to be held that the teacher had no malafide intention while beating the accused or his intention was to guide the student by alerting her to the necessity of studying well and securing high marks in the subject. If teachers being roped into under the provisions of the JJ Act for devicing simple and 2024:KER:83496 CRL.MC NO. 1187 OF 2019 10 least onerous corrective measures to keep the discipline of the School or the Educational Institution the discipline of the School or the Institution would be in peril. At the same time, when the teacher exceeds his authority beyond the limit and causes serious injuries or physical assault of similar nature definitely the penal provisions of JJ Act would squarely apply. Viewing so, it could not be held that the petitioner herein committed offence under Section 75 of the JJ Act."
8. In Rajan @ Raju v. Sub Inspector of Police, Feroke Police Station and Others [2018 (5) KHC 967], this Court observed like this:
"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 2024:KER:83496 CRL.MC NO. 1187 OF 2019 11 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."
9. In Jeeji A.V. v. State of Kerala [2019 KHC 830] this Court made the following observation:
"3. The counsel for the petitioner would point out that the abovesaid allegations are false and frivolous, and that though the incident had happened 30.9.2019 the FIS and the crime have been lodged as late as on 7.10.2019, and the long delay in this regard is clearly indicative of the fact that the allegation therein are the product of afterthought and fabrication, and the delay in this regard would vitiate the impugned criminal 2024:KER:83496 CRL.MC NO. 1187 OF 2019 12 proceedings. Further that, the Apex Court and various High Courts including this Court has held in a catena of rulings that teachers have the inherent right to discipline the students proportionate punishments by way of caning a student by itself cannot be said to constitute a penal offence, unless the teacher has used unfair and disproportionate force, which is not called for in the given situation. Further that, the act of a teacher caning a student is a "corporeal punishment" as defined in Sec.2(24) of the the JJ Act and that Sec.82 of the said Act makes corporeal punishment, an offence, only if it is committed by a person in charge/an employee of a child care institution. The child care institution has been defined in Sec.2(21) of the JJ Act whereby it defines to mean that Children Home, open shelter, observation home, special home, place of safety, Specialised Adoption Agency, etc, and that a school is not thus included in the definition of child care institution, and therefore the act of a teacher in caning a student, even if it is otherwise a corporeal punishment, would come under Sec.2(24) of the JJ Act, but is not a punishable offence as per Sec.82 of the said Act, and that the Parliament has specifically and consciously taken the legislative policy option that act of corporeal punishment imposed by a teacher on a student, is taken outside the ambit of an offence as per Sec.82 of the JJ Act.
2024:KER:83496 CRL.MC NO. 1187 OF 2019 13 Since that is the position, such an act of corporeal punishment imposed by a teacher on a student cannot be indirectly made an offence by circuitous method of placing reliance on Sec.75 of the said Act, and if that be so, it would amount to indirectly doing something which is directly prohibited by the Parliament. Therefore, the alleged act of corporeal punishment imposed by a teacher on the student of the said school, even if otherwise satisfies the definition of corporeal punishment as per Sec.2(24) of the JJ Act, will not be a punishable offence either as per Sec.82 of the JJ Act, or any other provisions of the JJ Act, including Sec.75 thereof. Therefore the charging of offence as per Sec.75 of the JJ Act in the instant case, is illegal and ultra vires, as the admitted facts will not disclose any offence. Further that, the only allegation against the petitioner is that, he had acted as a silent spectator when A1 had caned the boy. Accordingly it is urged that the custodial interrogation of the petitioner is not necessary, and that this court may grant anticipatory bail."
10. In the light of the above principle laid down by this Court, I am of the considered opinion that the prosecution against the petitioner can be quashed. It is true that teachers should aware about the psychology of children and while 2024:KER:83496 CRL.MC NO. 1187 OF 2019 14 imposing small punishments, that should be in their mind. But a criminal prosecution is not needed in the facts and circumstances of the case.
Therefore, this criminal miscellaneous case is allowed. All further proceedings against the petitioner in S.C.No.844/2017 on the file of the Additional Sessions Court (For Trial of Cases relating to Atrocities and Sexual Violence Towards Women and Children), Kozhikode, are quashed.
sd/-
P.V.KUNHIKRISHNAN
JV JUDGE
2024:KER:83496
CRL.MC NO. 1187 OF 2019
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APPENDIX OF CRL.MC 1187/2019
PETITIONER ANNEXURES
ANNEXURE A1 THE TRUE COPY OF THE F.I.R IN CRIME NO.
57 OF 2017 OF KUNNAMANGALAM POLICE
ANNEXURE A2 CERTIFIED COPY OF THE FINAL REPORT
BEARING NO. 222/2017 DATED 03-03-2017 OF KUNNAMANGALAM POLICE STATION ANNEXURE A3 CERTIFIED COPY OF COURT CHARGE DATED 07-09-2018 BY HON'BLE ADDITIONAL SESSIONS COURT (FOR TRIAL OF CASES RELATING TO ATROCITIES AND SEXUAL VIOLENCE TOWARDS WOMEN AND CHILDREN), KOZHIKODE ANNEXURE A4 THE TRUE COPY OF UNDATED MEDICAL CERTIFICATE ISSUED BY K.M.C.T MEDICAL COLLEGE I.E DR. KAMAL HUSSAIN.
ANNEXURE A5 TRUE COPY OF THE STATEMENT UNDER SEC.
161 CR.P.C OF CW12, DR. KAMAL HUSSAIN.
ANNEXURE A6 TRUE COPY OF THE REPORT DATED 23-10- 2018 ISSUED BY THE DISTRICT EDUCATIONAL OFFICER, THAMARASSERY TO THE DEPUTY DIRECTOR OF EDUCATION, KOZHIKODE.
ANNEXURE A7 TRUE COPY OF THE ORDER DATED 16-09-2019 ISSUED BY THE DEPUTY DIRECTOR OF EDUCATION, KOZHIKODE.