Kerala High Court
M.Subramanian vs State Of Of Kerala on 5 June, 2024
Author: P Gopinath
Bench: P Gopinath
CRL.M.C.No.4541/2019 1
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE GOPINATH P.
WEDNESDAY, THE 5TH DAY OF JUNE 2024 / 15TH JYAISHTA, 1946
CRL.MC NO. 4541 OF 2019
CRIME NO.295/2016 OF Nadakkavu Police Station, Kozhikode
AGAINST THE ORDER/JUDGMENT DATED IN CC NO.445 OF 2017 OF
JUDICIAL MAGISTRATE OF FIRST CLASS -IV,KOZHIKODE
PETITIONER/S:
M.SUBRAMANIAN,AGED 58 YEARS
S/O.M.MUTHUSWAMY, LAKSHMI GARDENS FLATS, GROUND
FLOOR-A, CHANDRAGANDHI NAGAR, SOWRIPALAYAM ROAD,
COIMBATORE- 28.
BY ADVS.VINOD SINGH CHERIYAN
T.M.KHALID
K.P.SUSMITHA
LEO LUKOSE
RESPONDENTS:
1 STATE OF OF KERALA,
REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF
KERALA, ERNAKULAM, (THROUGH THE STATION HOUSE
OFFICER, NADAKKAVU POLICE STATION).
2 A.P.SURESH BABU,
AGE NOT KNOWN TO THE PETITIONER, THALIKKUZHIYIL
HOUSE, GOPALAN GURIKKAL ROAD, EAST HILL,
NADAKKAVU, KOZHIKODE- 673005.
BY ADV SRI.P.MURALEEDHARAN
OTHER PRESENT:
SRI. VENUGOPAL V (GP)
THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON
05.06.2024, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:
CRL.M.C.No.4541/2019 2
ORDER
The petitioner is the sole accused in Crime No.295 of 2016 of Nadakkavu Police Station, Kozhikode district. The said crime was registered alleging the commission of offence under Section 75 of the Juvenile Justice (Care and Protection of Children) Act, 2015 (hereinafter referred to as the 'JJ Act'). Following investigation, a final report has been laid before the Judicial First Class Magistrate Court- IV, Kozhikode, which has been taken on file as C.C.No.445/2017 alleging the commission of offence under Section 75 of the JJ Act. The petitioner is before this Court seeking to quash the final report in exercise of the jurisdiction vested in this Court under Section 482 Cr.P.C.
2. The brief facts of the case are as follows: The petitioner was the Vice-Principal of the Kendriya Vidyalaya No.1, East Hill, Kozhikode. According to the petitioner, the petitioner had more than 28 years of total service in the Kendriya Vidyalaya Sangathan, out of which, 16 years was in the Kendriya Vidyalaya No.1, East Hill, Kozhikode. The 2nd respondent, who is the de facto complainant, is the father of one Neel Sagar, who was a student of class VIII in Kendriya Vidyalaya No.1, East Hill, Kozhikkode, in the year 2016. On 29-02- CRL.M.C.No.4541/2019 3 2016, the petitioner, who was the Vice-Principal, along with two members of the disciplinary committee of the school, went to class VIII for random checking of bags of students. According to the petitioner, the random checking was to maintain discipline in the school and to ensure that the children were not using any narcotic drugs and was essentially on the basis of instructions issued by the District Collector, Kozhikode. According to the petitioner, while conducting random checking of the bags of the students, the son of the de facto complainant/2nd respondent behaved in an unruly manner and unzipped his trousers and took out Rs.100/- and handed it over to the petitioner. According to the petitioner, he had not abused or assaulted the son of the 2nd respondent. It is stated that almost ten days after the incident, the 2nd respondent filed a complaint leading to the registration of Crime No.295 of 2016 of Nadakkavu Police Station, alleging that the petitioner had assaulted his son for bringing Rs.100/- to the School, as a result of which the son of the de facto complainant suffered an injury inside his mouth. It is the case of the petitioner that it is settled law that as a teacher who has disciplinary control over the pupil, the petitioner has the intrinsic and inherent power to enforce discipline to shape up the character and ordinary growth of the pupil, and so long as the action of the petitioner is reasonable, he cannot be accused of an offence under Section 75 of the JJ Act. The learned CRL.M.C.No.4541/2019 4 counsel for the petitioner places considerable emphasis on the judgment of this Court in Nirmala K. v. State of Kerala and Another, 2019 (5) KHC 912 as also on the judgment in Rajan v. Sub Inspector of Police; 2019 (1) KLT 119, in support of his contention.
3. The learned Public Prosecutor submits that the petitioner has not made out any case for exercise of jurisdiction under Section 482 Cr.P.C. It is submitted that the power under Section 482 Cr.P.C. is to be exercised very sparingly and the facts of this case do not disclose any inherent defect in the proceedings warranting the exercise of jurisdiction under Section 482 Cr.P.C.
4. The learned counsel appearing for the 2nd respondent has referred to the statement filed in this Court as also to the documents produced along with the statement including certain portions of the final report containing the statements of witnesses and also to the medical certificate, conduct certificate issued to the son of the 2 nd respondent etc., to contend that the act of the petitioner in slapping the minor son of the 2nd respondent leading to injury and loss of blood was grossly disproportionate and cannot be seen as an incident where the petitioner was enforcing discipline in the school. It is submitted that the 2nd respondent's son was brutally attacked by the petitioner for CRL.M.C.No.4541/2019 5 having Rs.100/- in his possession. It is submitted that the statement given by the 2nd respondent will clearly indicate the reason as to why the son of the 2nd respondent was in possession of Rs.100/-. It is submitted that the petitioner had no authority to assault the son of the 2nd respondent for having Rs.100/- in his possession. It is submitted that the statements of the other students which are part of the record along with the statement of the 2nd respondent clearly indicate that the petitioner had purposefully assaulted the son of the 2 nd respondent. It is submitted that the petitioner is, therefore, required to face trial and no ground made out for quashing the proceedings under Section 482 Cr.P.C.
5. The learned counsel appearing for the petitioner, in reply, would submit that there is a material contradiction in the statement given by the son of the 2nd respondent and the statements given by the other students on which considerable reliance was placed by the learned counsel appearing for the 2nd respondent. It is submitted that while the son of the 2nd respondent stated that he had taken out the money from his pocket, it is the specific case of the other students that the son of the 2nd respondent had attempted to hide the money by putting it inside his trouser zip and it is from there that he took out the money and handed it over to the petitioner. It is submitted that the CRL.M.C.No.4541/2019 6 petitioner had only used reasonable force and there was no complaint whatsoever made to the Principal of the school regarding the incident. It is submitted that the injury, if any, suffered by the son of the 2 nd respondent was not at all serious and this is clear from the fact that the son of the 2nd respondent had not taken any treatment from the dispensary attached to the school.
6. Having heard the learned counsel for the petitioner, the learned Public Prosecutor and the learned counsel appearing for the 2nd respondent, I am of the view that the petitioner is entitled to succeed. The learned Public Prosecutor and the learned counsel appearing for the 2nd respondent are right in contending that this Court is not expected to examine the evidence to decide whether to exercise jurisdiction under Section 482 Cr.P.C. It is also true that the jurisdiction under Section 482 Cr.P.C. must be exercised only sparingly and not as a matter of course. However, certain facts of this case indicate that the continuation of the criminal proceedings against the petitioner will amount to an abuse of process of Court. The facts indicate that the petitioner was the Vice Principal of the school, where the son of the 2nd respondent was studying. While there is no material to suggest that the inspection carried out by him was on the instructions of the District Collector and to check the use of drugs CRL.M.C.No.4541/2019 7 amongst the students in the school, even if that was not the case, as the Vice Principal of the school, the petitioner had every authority to conduct random checking. While the 2nd respondent asserts that the serious injury was caused to the son of the 2nd respondent owing to the fact the petitioner had slapped him on his face, the fact remains that the complaint was raised only after ten days and the statement of the son of the 2nd respondent itself indicates that no immediate medical treatment was sought by the son of the 2nd respondent. In Nirmala K. (supra), this Court held as follows:-
"6. S.2 of the JJ Act provides definition clauses. Various terms covered therein are defined in the various clauses given thereunder. S.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 disciplining or reforming the child. S.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 CRL.M.C.No.4541/2019 8 said that the said act is per se illegal or it would amount to criminal offence. S.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."
xxx xxx xxx xxx xxx xxx
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 S.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 S.82(1) of the JJ Act. Going by the definition clause of S.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 S.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 S.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 S.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 S.2(21) of the JJ Act. Thus it is crystal clear from a mere reading of S.82 as well as S.2(24) and S.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 S.2(24), is not made a criminal offence in terms of S.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' (S.223), grievous hurt (S.321) which is punishable by S.323 of the I.P.C. or grievous hurt as understood in S.320, as the case may be."CRL.M.C.No.4541/2019 9
In Rajan (supra), this Court held as follows:-
10. Neither the prosecution nor the 3rd respondent have a case that the degree of punishment inflicted by the petitioner was administered for the gratification of passion or rage or that it was immoderate or unreasonable. The petitioner was the Mathematics Teacher and all that he appears to have done to keep her alert, is to jab on her shoulder. The child as well as her father states that she committed some minor mistakes while carrying out subtraction. The prosecution has no case that on account of the chastisement administered to the child, he left any mark of violence or injury on the body of the minor child. The records also do not show that the chastisement by the petitioner was beyond the child's powers of endurance or that it was with any instrument of offence with intent to cause harm. None of the witnesses stated that she cried or that she was in such a discomfort that she had to be taken home. It is clear from the materials that the chastisement was done in good faith for the benefit of the child concerned and the punishment said to have been inflicted cannot be said to be either excessive or immoderate. Furthermore, the discharge certificate, which is annexed to the final report was secured on the date of submission of final report before court and not one issued when the child was seen by the doctor. In the facts and circumstances, the registration of the crime under S.323 of the IPC and S.23 of the Juvenile Justice (Care and Protection of Children) Act, 2000 does not appear to be justified.
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. 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 CRL.M.C.No.4541/2019 10 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.
12. After considering the entire facts, I am of the view that the act of the petitioner cannot be said to have been preceded with malice. I firmly hold that the proceedings are manifestly attended with mala fide and has been instituted merely for harassing the petitioner. As held by the Apex Court, summoning the accused to the criminal court is a serious matter and a court proceeding cannot be permitted to degenerate into a weapon of harassment or persecution. The very nature of the material on which the structure of the prosecution rests is so brittle that this Court will be justified in quashing the proceeding to prevent abuse of process of the court ."
Applying the principles laid down by this Court in Nirmala K. (supra) and Rajan (supra), I am of the view that continuation of proceedings against the petitioner will amount to abuse of process of Court. This Crl. M.C. is therefore allowed and all further proceedings in C.C.No.445/2017 on the file of the Judicial First Class Magistrate Court-IV, Kozhikode will stand quashed.
Sd/-
GOPINATH P. JUDGE acd CRL.M.C.No.4541/2019 11 APPENDIX OF CRL.MC 4541/2019 RESPONDENT ANNEXURES Annexure R2(a) True copy of the summons dated 24.6.19 issued by the JFCM IV Kozhikode Annexure R2(b) True copies of Memorandum Of Evidence in Cr No.295/ 16 u/s 75 of JJ Act of Nadakkavu Police Station, Kozhikode City Annexure R2(c) True copy of the complaint filed by the de facto complainant dated 10.3.2016 before Sub Inspector of Police Nadakkavu Police Station Annexure R2(d) True copy of Conduct Certificate dated 8.6.2018 issued by Principal Kendriya Vidyalaya No.1 Annexure R2(e) True copy of Conduct Certificate dated 26.08.2019 issued by Principal GreenHill Public School, Sulthan Batheri Annexure R2(f) True copy of Provisional Allotment Letters dated 29.7.2023 Annexure R2(g) True copy of Provisional Allotment Letters dated 16.8.2023 Annexure R2(h) True copy of the Medical records of Mother Super Specialty Dental Clinic dated 25.5.2015 Annexure R2(i) True copy of the Medical records of Mother Super Specialty Dental Clinic dated 25.5.2015 PETITIONER ANNEXURES ANNEXURE A3 CERTIFIED COPY OF THE FINAL REPORT IN C.C.NO.445/2017 (CRIME NO.295 OF 2016) ON THE FILES OF THE JUDICIAL FIRST CLASS MAGISTRATES COURT-IV, KOZHIKODE.
ANNEXURE A2 A TRUE COPY OF THE FIR IN CRIME
NO.295/2016 ON THE FILES OF NADAKKAVU
CRL.M.C.No.4541/2019 12
POLICE STATION.
ANNEXURE A1 A TRUE COPY OF THE REGIONAL K.V.S.
INCENTIVE AWARD FOR THE YEAR 2015.