Raja Vijayaraghavan V., J.:— This petition is filed under Section 482 of the Cr.P.C.
2. The daughter of the 3 respondent is a Class II student at the Narayana L.P. School, Nallur. The petitioner is her Mathematics teacher. On 5.11.2015, while learning addition and subtraction, the child committed a minor mistake. The petitioner is alleged to have jabbed on her shoulders with his fist. In the evening, when the child complained of pain, her mother questioned her. She divulged about the incident, which took place in the morning. The child was taken to the hospital and on 8.11.2015, the father of the child lodged the FI statement leading to the registration of the crime. After investigation, final report was laid under Section 323 of the IPC and Section 23 of the Juvenile Justice (Care and Protection of Children) Act, 2000.
3. It appears that the case was taken cognizance of by the learned Sessions Judge. The petitioner challenged the order taking cognizance and this Court relying on the decision in Thressiamma Varkey v. State of Kerala [2017 (3) KHC 656], ordered the transfer of the case to the jurisdictional Magistrate.
4. Though notice was issued to the 3 respondent/de facto complainant and the same was served, he has not appeared.
5. The learned counsel appearing for the petitioner submitted that the prosecution allegations, even if admitted as true in its entirety, would not make out an offence against the petitioner. According to the learned counsel, no one has a case that the petitioner had used a cane or any other instrument or that he had used any force. No injuries were sustained by the child as well. The petitioner was in the process of teaching the child the nuances of mathematics and in order to keep her alert had only jabbed on her shoulders. The act committed by the petitioner cannot be said to be an act motivated by malice. The child was brought to the school by her parents for imparting education and the act, which was done, was moderate and reasonable and it was intended for the benefit of the child. The learned counsel would rely on the decision of this Court in Abdul Vaheed v. State of Kerala [2005 (2) KLT 72], M. Natesan v. State of Madras [AIR 1962 Mad. 216] and also a decision of the Calcutta High Court in Ganesh Chandra Saha v. Jiw Raj Somani [AIR 1985 Cal. 32] to hammer home his contention that the position of a teacher viz-a-viz a student is peculiar in nature and only when he inflicts such harm, which is unreasonable and immoderate, that he would be liable to be proceeded against in a Criminal Court.
6. The learned Public Prosecutor would submit that no teacher is expected to inflict corporal punishment on a minor child. He pointed out that the child had felt pain on her shoulders and this fact has been spoken to by her father. The invocation of powers under Section 482 of the Code to terminate the proceedings in a case of this nature is not warranted, contends the learned Public Prosecutor.
7. The incident had allegedly taken place on 5.11.2015 and the final report has been laid before the jurisdictional court on 29.3.2016. The accident register-cum-wound certificate produced along with the final report is also seen issued only on 29.3.2016 and more importantly, it is stated in the report that the Doctor had seen the child on 5.11.2015 and she had complained of pain. She was treated as an outpatient and was discharged on the same day itself. It is also stated that the condition of the child at the time of discharge was better. No investigation is seen conducted and no medicines were prescribed.
8. To bring home an offence under Section 323 of the IPC, the prosecution is to prove that the victim suffered from bodily pain, disease or infirmity, that the accused caused the aforesaid bodily pain and that the accused did so intentionally or with knowledge that in the process hurt would be caused. Section 23 of the Juvenile Justice (Care and Protection of Children) Act, 2000, will be attracted when unnecessary mental or physical suffering is caused by a person in charge or of control over the child by assaulting, abandoning, exposing or willfully neglecting the child or by causing such act to be done.
9. In the case on hand, though the incident had allegedly taken place on 5.11.2015, the law was set in motion on 8.11.2015. 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. Section 79 and 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, 9 Edn., Page 120; Kenny on Outlines of Criminal Law, 19 Edn. Page 18).
10. Neither the prosecution nor the 3 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 Section 323 of the IPC and Section 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 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.
13. In the result, this petition will stand allowed. Annexure-I Final Report and all proceedings pursuant thereto against the petitioner in C.C. No. 1085 of 2017 on the file of the Judicial First Class Magistrate Court-V, Kasaragod are quashed.
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