Kerala High Court
Sister Linsa vs Praseed on 23 November, 2020
Author: Alexander Thomas
Bench: Alexander Thomas
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE ALEXANDER THOMAS
MONDAY, THE 23RD DAY OF NOVEMBER 2020 / 2ND AGRAHAYANA, 1942
CRL.MC.NO.2958 OF 2015
CC 96/2015 OF JUDICIAL MAGISTRATE OF FIRST CLASS-I, KOTTAYAM
CRIME NO.622/2014 OF AYARKUNNAM POLICE STATION, KOTTAYAM
PETITIONER/ACCUSED:
SISTER LINSA, AGED 22 YEARS,
D/O.DEVASSIA ANTONY, PERUVELI HOUSE,THALAVADY P.O.,
PATHANAMTHITTA DISTRICT,PIN - 689 572,
PRESENTLY RESIDING AT SABS PROVINCIAL HOUSE,
KOOTHRAPPALLY, KARUKACHAL,
KOTTAYAM DISTRICT, PIN - 686 540.
BY ADV. SRI.GEORGEKUTTY MATHEW
RESPONDENTS/DEFACTO COMPLAINANT & STATE:
1 PRASEED, AGED 44 YEARS,
S/O.RAMAN SANTHI, KALLEMAKKAL, THYKOODAM BHAGAM,
AMAYANNUR KARA, AYARKUNNAM VILLAGE,
KOTTAYAM DISTRICT, PIN - 686 564.
2 STATE OF KERALA
REPRESENTED BY THE PUBLIC PROSECUTOR,
HIGH COURT OF KERALA, ERNAKULAM, PIN - 682 031.
ADV. SRI.K.A.RIYAS FOR R1.
SRI.SAIGI JACOB PALATTY, PUBLIC PROSECUTOR FOR R2
THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON
23.11.2020, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:
ALEXANDER THOMAS, J.
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Crl.M.C. No. 2958 of 2015
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Dated this the 23rd day of November, 2020
ORDER
The prayer in the above Criminal Miscellaneous Case filed under Sec.482 of the Cr.P.C. is as follows:
"........quash Annexure II Final Report and all further proceedings in C.C.No.96/2015 on the files of the Court of the Judicial Magistrate of First Class-I, Kottayam, in the interest of justice."
2. The petitioner herein has been arrayed as the sole accused in the impugned Anx.I FIR in Crime No.622/2014 of Ayarkunnam Police Station, Kottayam district, for the offence punishable under Sec.324 of the IPC, on the basis of FIS given by the 1 st respondent (father of the minor victim boy) on 19.11.2014 in respect of the alleged incident which happened on the same day between 12 noon and 4 pm on that day. The police after investigation has filed the impugned Anx.II final report/charge sheet which has now led to the pendency of C.C.No.96/2015 on the file of the JFCM-I, Kottayam, in which the petitioner has been arrayed as the sole accused for the abovesaid offences.
3. The brief of the prosecution case is that, the petitioner who Crl.M.C. No. 2958 of 2015 ..3..
is a nun and who is the teacher of minor victim boy aged 4 ½ years in the school concerned, had caned the student and thereby she has committed the abovesaid offence as per Sec.324 of the IPC.
4. It is admitted case that the child has not been subjected to any medical examination, and so no medical record/certificate has been produced by the prosecution to suggest injury or wound as allegedly been suffered by the victim boy. It has been held by this Court in the decisions as in Nirmala K. v. State of Kerala and another [2020 (1) KLT 136], Rajan @ Raju v. Sub Inspector of Police, Feroke Police Station and Others [2019 (1) KLT 119 = 2018 (5) KHC 967] that, a teacher has got intrinsic and inherent power to enforce discipline to shape up the character and ordinary growth in the pupil and so long as the process of penal measure like caning the student is proportionate and reasonable, as is understood in common state of affairs of that nature, the same cannot be said to be an offence.
5. That, it is in recognition of this common law position, the Parliament while engrafting the Juvenile Justice (Care & Protection of Children) Act, 2015 ["JJ Act" for short] has clearly Crl.M.C. No. 2958 of 2015 ..4..
provided in Sec.82 thereof that, the act of committing corporeal punishment will come into play only if the person who is imposing such corporeal punishment on the juvenile is a person in charge or employed in connection or employed in a child care institution, as can be seen from Sec.82(1) of the JJ Act, etc.
6. Further, it has also been held that Sec.95 of the IPC which deals with act of causing slight harm, has stipulated that, nothing is an offence by reason that it causes, or that it is intended to cause, or that it is known to be likely to cause, any harm, if that harm is so slight that no person of ordinary sense and temper would complain of such harm. Therefore, the act of caning a student will not attract the offence of Sec.323 of the IPC (harm) if it causes only slight harm.
7. It has also been held by this Court that, the offence as per Sec.324 of the IPC which deals with "voluntarily causing hurt by dangerous weapons or means" will not come into play unless the hurt is caused by dangerous weapon like any 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 Crl.M.C. No. 2958 of 2015 ..5..
any heated substance, etc in view of the provisions contained in Sec.324 of the IPC.
8. It will be profitable to refer to paras 5 to 11 of the decision of this Court in Nirmala's case supra [2020 (1) KLT 136], which reads as follows:
"5. Sec. 82 of the JJ Act deals with corporal punishment and the same provides as follows:
"Sec. 82: Corporal punishment.- (1) Any person- in-charge of or employed in a child care institution, who subjects a child to corporal punishment with the aim of disciplining the child, shall be liable, on the first conviction, to a fine of ten thousand rupees and for every subsequent offence, shall be liable for imprisonment which may extend to three months or fine or with both.
(2) If a person employed in an institution referred to in subsection (1), is convicted of an offence under that sub-section, such person shall also be liable for dismissal from service, and shall also be debarred from working directly with children thereafter.
(3) In case, where any corporal punishment is reported in an institution referred to in sub-section (1) and the management of such institution does not cooperate with any inquiry or comply with the orders of the Committee or the Board or Court or State Government, the person-in-charge of the management of the institution shall be liable for punishment with imprisonment for a term not less than three years and shall also be liable to fine which may extend to one lakh rupees."
6. Sec.2 of the JJ Act provides definition clauses. Various terms covered therein are defined in the various clauses given thereunder. Sec. 2 (24) of the JJ Act defines "corporal punishment" to mean subjecting of a child by any person to physical punishment that involves the deliberate infliction of pain as retribution for an offence, or for the purpose of Crl.M.C. No. 2958 of 2015 ..6..
disciplining or reforming the child. Sec. 2(21) of the JJ Act defines "child care institution" to mean Children Home, open shelter, observation home, special home, place of safety, Specialised Adoption Agency and a fit facility recognised under this Act for providing care and protection to children, who are in need of such services. It is now well established by a serious rulings of the Apex Court and various High Courts including this Court, that a teacher of an educational institution like school or college, in view of his/her peculiar position must in the nature of things, have the intrinsic and inherent authority to enforce discipline and correct a pupil, who is put in his/her charge. The courts have also consistently taken the view that it can be assumed that when a parent entrusts a child to a teacher, he on his behalf impliedly consents for the teacher to exercise over the student such parental authority to discipline the child for its own better future and welfare. It is also thus well settled that the act of caning the child as a penal measure to correct and enforce discipline, cannot thus be said to be per se unlawful or without any legal authority . So long as the act of beating using a cane, etc. is proportionate and does not exceed the reasonable and proportionate use of such means of discipline, it cannot be said that the said act is per se illegal or it would amount to criminal offence. Sec. 319 of the I.P.C. defines "hurt" as follows:
"Whoever causes bodily pain, disease or infirmity to any person is said to cause hurt."
7. Sec. 321 of the I.P.C. deals with voluntarily causing hurt. Sec. 323 deals with punishment for causing hurt.
Sec. 321: Voluntarily causing hurt.-
Whoever does any act with the intention of thereby causing hurt to any person, or with the knowledge that he is likely thereby to cause hurt to any person, and does thereby cause hurt to any person, is said "voluntarily to cause hurt".
However, Sec.95 of the I.P.C. deals with act, causing slight harm, which provides as follows:
"Sec. 95: Act causing slight harm.- Nothing is an offence by reason that it causes, or that it is intended to cause, or that it is known to be likely to cause, any harm, if that harm is so slight that no person Crl.M.C. No. 2958 of 2015 ..7..
of ordinary sense and temper would complain of such harm.
8. It is in view of the well settled common law position an school teacher, who is having disciplinary control over a pupil, which is for his or her own betterment and future welfare, has thus intrinsic and inherent power to enforce discipline to shape up the character and ordinary growth of the pupil and so long as the process of penal measure like caning the student is proportionate and reasonable, as is understood in the common state of affairs of that nature, the same cannot be said to be an offence. It is in recognition of this common law position that the Parliament, while engrafting the juvenile Justice Act has clearly provided in Sec. 82 of the JJ Act that the act of committing corporal punishment will come into play only if the person who is imposing such corporal punishment on the juvenile is a person in-charge of or employed in a child care institution as can be seen from a mere reading of Sec. 82(1) of the JJ Act. Going by the definition clause of Sec. 2(24), which deals with corporal punishment, even the act of a teacher imposing discipline by taking appropriate penal measures like caning the pupil, etc. would come within the scope and ambit of the definition clause of Sec. 2(24) of the JJ Act. But the Parliament being cognizant of the abovesaid common law position, has consciously decided as a legislative policy not to make any inroads into that common law position and has very carefully and guardedly provided in Sec. 82(1) of the JJ Act that the question of treating the act of corporal punishment as a criminal offence would come into play only if the corporal punishment as understood in Sec. 2(24) is imposed on a juvenile by a person, who is in-charge of or employed in a child care institution as defined in Sec. 2(21) of the JJ Act. Thus it is crystal clear from a mere reading of Sec. 82 as well as Sec. 2(24) and Sec. 2(21) of the JJ Act that the act of a teacher imposing discipline on a pupil by caning etc., though may otherwise fulfill the definition of corporal punishment, as understood in Sec 2(24), is not made a criminal offence in terms of Sec. 82. Of course, under the garb of disciplining and punishing the pupil, if the teacher exceeds the limits of reasonable and proportionate penal measure, and causes extreme hurt to the pupil, etc. then of course, subject to the facts and attendant circumstances of the each case, it may attract offence as per the I.P.C. like 'hurt' (Sec. 223), grievous hurt (Sec. 321) which is punishable by Sec. 323 of the I.P.C. or grievous hurt as understood in Sec. 320, as the case may be. In the instant case, Crl.M.C. No. 2958 of 2015 ..8..
the specific allegations of the prosecution in the impugned Anx. A-1 final report/charge sheet are only to the effect that the petitioner, a as a teacher of the 2nd respondent, minor victim girl/juvenile, has imposed the penal measure of caning the student, and that too, in the class room. Therefore, the offence as per Sec. 82(1) of the JJ Act is not attracted. The other offence alleged against the petitioner is the one as per Sec.324 of the I.P.C. which deals with voluntarily hurt by dangerous weapons or means. Sec. 324 of the I.P.C. reads as follows:
"Sec. 324: Voluntarily causing hurt by dangerous weapons or means.- Whoever, except in the case provided for by section 334, voluntarily causes hurt by means of any 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, to swallow, or to receive into the blood, or by means of any animal, shall be punished with imprisonment of either description for a term which may extend to three years, or with fine, or with both."
9. Sec. 324 will come into play only if hurt is caused by dangerous weapon like any 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, etc.
10. A mere reading of Sec. 324 of the I.P.C. would make it clear like the day light, that Sec. 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 Sec. 324 or that the process of caning pupil would involve a dangerous means as envisaged in Sec. 324 of the I.P.C. So it goes without saying that in the instant case, Sec. 324 of the I.P.C. is not made out. This Court has held in decisions as in Rajan v.
Crl.M.C. No. 2958 of 2015..9..
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 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 IPC 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 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 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.Crl.M.C. No. 2958 of 2015
..10..
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."
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 defacto 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 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. In the instant case the main allegation is that, the petitioner who is the teacher of the student has beaten the student with a cane, and therefore, the abovesaid offence has disclosed etc. No medical reports have been obtained by the prosecution in this case to show that the student has suffered any disproportionate grave injury or that, even remotely suggest that the act of caning by Crl.M.C. No. 2958 of 2015 ..11..
the petitioner on the student was a disproportionate and unreasonable penal measure imposed on the student. It is well settled that, if as a matter of fact the act done by the teacher is disproportionate and unreasonable penal measure, and the child has suffered serious injury, etc, then of course the common law protection may not be available, and depending upon the facts of this case the teacher may be otherwise subjected to prosecution measures.
10. In the instant case, no such case has been made out that the student has suffered any grave injury to even make out a case that the alleged act of caning on the student was a punishment which was disproportionate and an unreasonable penal measure. In the light of all these aspects it is only to be held that, the initiation and continuance of the impugned criminal proceedings as against the petitioner accused is an abuse of the process of court. In that view of the matter it is ordered that, the impugned Anx.II final report/charge sheet filed in Anx.I FIR in Crime No.622/2014 of Ayarkunnam Police Station, Kottayam district, which has now led to the pendency of C.C.No.96/2015 on Crl.M.C. No. 2958 of 2015 ..12..
the file of the JFCM-I, Kottayam, as against the petitioner accused and all consequential proceedings taken in pursuance thereof as against the petitioner accused, will stand quashed and set aside.
11. The petitioner will produce certified copies of this order before the Investigating Officer concerned as well as before the JFCM-I, Kottayam, who is dealing with C.C.No.96/2015, for necessary information.
With these observations and directions, the above Criminal Miscellaneous Case will stand finally disposed of.
Sd/-
ALEXANDER THOMAS, JUDGE MMG Crl.M.C. No. 2958 of 2015 ..13..
APPENDIX PETITIONER'S EXHIBITS:
ANNEXURE I TRUE COPY OF THE FIRST INFORMATION REPORT DATED 19.11.2014.
ANNEXURE II CERTIFIED COPY OF THE FINAL REPORT DATED 28.01.2015.