IMPORTANT POINTS
" The precedents cited by the petitioner were all rendered prior to the advent of the JJ Act, 2000-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.
" 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--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.

This petition is filed under Section 482 of the Cr.P.C.

2. The daughter of the 3rd 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 FIR 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 3rd 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 & Anr [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 physica