Kerala High Court
Jose Mathew vs State Of Kerala on 30 October, 2024
Author: P.V.Kunhikrishnan
Bench: P.V.Kunhikrishnan
CRL.MC NO. 645 OF 2019 1
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IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE P.V.KUNHIKRISHNAN
WEDNESDAY, THE 30TH DAY OF OCTOBER 2024 / 8TH KARTHIKA, 1946
CRL.MC NO. 645 OF 2019
CRIME NO.2560/2017 OF Medical College Police Station,
Thiruvananthapuram
AGAINST THE ORDER/JUDGMENT DATED IN CC NO.758 OF 2018
OF ADDITIONAL CHIEF JUDICIAL MAGISTRATE, THIRUVANANTHAPURAM
PETITIONER/S:
1 JOSE MATHEW
AGED 49 YEARS
KADAKAMPALLY, TRIVANDRUM.
2 SHIBU KUMAR,
KADAKAMPALLY, TRIVANDRUM.
BY ADV M.R.SUDHEENDRAN
RESPONDENT/S:
STATE OF KERALA,
REPRESENTED BY THE STATION HOUSE OFFICER, MEDICAL
COLLEGE POLICE STATION, TRIVANDRUM THROUGH THE
PUBLIC PROSECUTOR, HIGH COURT OF KERALA,
ERNAKULAM-682031.
OTHER PRESENT:
CRL.MC NO. 645 OF 2019 2
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SRI.RENJITH.T.R, SR.PP
THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION
ON 30.10.2024, THE COURT ON THE SAME DAY PASSED THE
FOLLOWING:
CRL.MC NO. 645 OF 2019 3
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P.V.KUNHIKRISHNAN, J
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Crl.M.C. No. 645 of 2019
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Dated this the 30th day of October, 2024
ORDER
This Criminal Miscellaneous case is filed to quash the proceedings in CC No. 758/2018 on the file of the Addl.Chief Judicial Magistrate Court, Thiruvananthapuram arising from crime No. 2560/2017 of Medical College Police Station. The above case is charge-sheeted alleging offence punishable under Sec. 75 of the Juvenile Justice (Care and Protection of Children) Act, 2015 (for short 'JJ Act').
2. The 1st petitioner is the Principal and the 2 nd petitioner is the Sanskrit Teacher of Kendriya Vidyalaya, Air Force Station At Akkulam, Thiruvananthapuram. The allegation against the petitioners is that on 12.12.2017, when a 9th Standard student namely, Arjun Dev Singh CRL.MC NO. 645 OF 2019 4 2024:KER:81240 arrived the School with short hair cut, the 2nd petitioner threatened him to shave his head openly in classroom. On the next day, he was called to the 1st petitioner's room and he was questioned as to the presence of his father in the hair cutting saloon. When he replied in positive, the Principal shouted in a horrified manner that the Air Force should be ashamed of your father. When the student requested the Principal to talk to his father, the Principal shouted that I will not talk to that useless. Hence, it is alleged that the accused committed the offence punishable under Sec.75 of the JJ Act. Hence, this Criminal Miscellaneous case is filed.
According to the petitioners, even if the entire allegations are accepted, no offence is made out.
3. Heard the learned counsel for the petitioners and the learned Public Prosecutor.
4. The offence alleged against the petitioners is under Sec. 75 of the JJ Act. Sec. 75 of the JJ Act is extracted hereunder :
CRL.MC NO. 645 OF 2019 52024:KER:81240 "75. Whoever, having the actual charge of, or control over, a child, assaults, abandons, abuses, exposes or wilfully neglects the child or causes or procures the child to be assaulted, abandoned, abused, exposed or neglected in a manner likely to cause such child unnecessary mental or physical suffering, shall be punishable with imprisonment for a term which may extend to three years or with fine of one lakh rupees or with both:
Provided that in case it is found that such abandonment of the child by the biological parents is due to circumstances beyond their control, it shall be presumed that such abandonment is not wilful and the penal provisions of this Section shall not apply in such cases:
Provided further that if such offence is committed by any person employed by or managing an organisation, which is entrusted with the care and protection of the child, he shall be punished with rigorous imprisonment which may extend up to five years, and fine which may extend up to five lakhs rupees:
Provided also that on account of the aforesaid cruelty, if the child is physically incapacitated or develops a mental illness or is rendered mentally unfit to perform regular tasks or has risk to life or limb, such person shall be punishable with rigorous imprisonment, not less than three years but which may be extended up to ten years and shall also be liable to fine of five lakhs rupees."CRL.MC NO. 645 OF 2019 6
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5. In Jomi v. State of Kerala [2024 KHC 574], this Court considered the ingredients to attract Sec.75 of the JJ Act. It will be better to extract the relevant portion of the above judgment.
8. In Rajan @ Raju's case (supra), this Court in Paragraph No.11 observed that 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 CRL.MC NO. 645 OF 2019 7 2024:KER:81240 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. The learned Public Prosecutor pointed out that going by the facts of the case, offences punishable S.324 IPC as well as S.75 of the JJ Act would attract and therefore the quashment prayer is liable to fail.
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 mala fide 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 devising simple and 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 S.75 of the JJ Act.
11. Retorting to S.82 of the JJ Act, the same provides that any person in - charge of or employed in a child care institution, who subjects a child to corporal punishment with the aim of CRL.MC NO. 645 OF 2019 8 2024:KER:81240 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. As per S.2(21) of the JJ Act, Child Care Institution is defined as 'Children's Home, Open Shelter, Observation Home, Special Home, Place of Safety, Specialised Adoption Agency (SAA) and a Fit Facility recognised under this Act for providing care and protection to children, who are in need of such services. Since S.2(21) of the JJ Act does not include a school, it could not be held that S.82 of the JJ Act would attract in the present case since offence under S.82 of the JJ Act would apply specifically to child care institution dealt under S.2(21) of the JJ Act. Coming to S.324 of the IPC, the same would not attract since there is nothing available in the prosecution records to suggest that the accused beat the student with mala fide intention so as to cause hurt to her."
6. 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 CRL.MC NO. 645 OF 2019 9 2024:KER:81240 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 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."
7. In the light of the above principle, this Court perused the final report. It will be better to extract the relevant portion of the final report :
CRL.MC NO. 645 OF 2019 102024:KER:81240 "ഒനനന്നാം സനകക്ഷിയുടടെ മമൈനറനയ മൈകൻ 3-ആന്നാം സനകക്ഷിടയ മൈനനസക്ഷികമൈനയക്ഷി പപീഡക്ഷിപക്ഷിക്കണടമൈന്നുള്ള ഉദദ്ദേശദതനടന്നാം കരുതദലനടന്നാം കൂടെക്ഷി 3-ആന്നാം സനകക്ഷി ഒമ്പതനന്നാം കനസക്ഷിൽ പഠക്ഷിച്ചു ടകനണക്ഷിരുന കടെകന്നാംപള്ളക്ഷി വക്ഷിദല്ലേജക്ഷിൽ അണമുഖന്നാം വനർഡക്ഷിൽ ആയുള്ള ദകനപീയ വക്ഷിദദനലയതക്ഷിടല കനസസ്റൂമൈക്ഷിനന് അടത്തുള്ള ദകനറക്ഷിദഡനറക്ഷിൽ ടവചന് മൈറ കുടക്ഷികൾ ദകൾടക്ക ടെക്ഷി സ്കൂളക്ഷിടല സന്നാംസ്കൃത അധദനപക നനയ 2-ആന്നാം പ്രതക്ഷി തലമുടെക്ഷി ടവടക്ഷിയതക്ഷിടനക്കുറക്ഷിചന് വഴക്കന് പറഞ ഭപീഷണക്ഷിടപടതക്ഷിയുന്നാം സ്കൂളക്ഷിടല പ്രക്ഷിൻസക്ഷിപൽ ആയ ഒനനന്നാം പ്രതക്ഷി 13.12.2017 ആന്നാം തപീയതക്ഷി ആകുളന്നാം ദകനപീയ വക്ഷിദദനലയതക്ഷിടല പ്രക്ഷിൻസക്ഷിപളക്ഷിടന്റെ മുറക്ഷിയക്ഷിൽ ടവചന് തലമുടെക്ഷി ടവടക്ഷിയതക്ഷിടന കുറക്ഷിചന് വഴക്കുപറഞ അച്ഛൻ പറഞക്ഷിടനണന് തലമുടെക്ഷി ഇങ്ങടന ടവടക്ഷിയതന് എനന് പറഞ 3-ആന്നാം സനകക്ഷിദയനടെന് "The AirForce should ashamed of your father"എന്നുന്നാം "I will not talk to that useless"എന്നുന്നാം മൈറന്നാം പറഞ മമൈനറനയ 3-ആന്നാം സനകക്ഷിക്കന് മൈനനസക്ഷിക വക്ഷിഷമൈന്നാം സന്നാംഭവക്ഷിചന് മസക്കനടക്ഷി ചക്ഷികക്ഷിത്സ നൽകനൻ ഇടെയനക്കക്ഷിയുന്നാം പ്രതക്ഷികൾ ദമൈൽ വകുപന് "
പ്രകനരമുള്ള കുറന്നാം ടചയക്ഷിരക്ഷിക്കുനതനയക്ഷി ടവളക്ഷിവനയക്ഷിടള്ളതനകുന്നു
8. I am of the considered opinion that the offence under Sec. 75 of the JJ Act is not attracted, even if the entire allegations are accepted. It is true that the teachers ought to have avoid such comments against small children. But the question to be decided is whether Sec.75 of the JJ Act is attracted in the facts and circumstances of this case. I am of the considered opinion that the offence is not made out. Resultantly, the prosecution can be quashed.
CRL.MC NO. 645 OF 2019 112024:KER:81240 Therefore, this Criminal Miscellaneous case is allowed. All further proceedings against the petitioners in CC 758/2018 on the file of the Addl. Chief Judicial Magistrate Court, Thiruvananthapuram arising from Crime No. 2560/2017 of Medical College Police Station, Thiruvananthapuram are quashed.
Sd/-
P.V.KUNHIKRISHNAN JUDGE SKS CRL.MC NO. 645 OF 2019 12 2024:KER:81240 APPENDIX OF CRL.MC 645/2019 PETITIONER ANNEXURES ANNEXURE A1 CERTIFIED COPY OF THE COMPLAINT FILED BEFORE THE DISTRICT POLICE CHIEF.
ANNEXURE A2 CERTIFIED COPY OF THE FIR IN CRIME NO.2560/2017 OF MEDICAL COLLEGE POLICE STATION.
ANNEXURE A3 CERTIFIED COPY OF THE FINAL REPORT IN CRIME NO.2560/2017 OF MEDICAL COLLEGE POLICE STATION.