“C.R.”

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT THE HONOURABLE MR. JUSTICE RAJA VIJAYARAGHAVAN V FRIDAY, THE 07TH DAY OF DECEMBER 2018 / 16TH AGRAHAYANA, 1940 Crl.MC.No. 237 of 2018 CC NO.1085/2017 ON THE FILES OF J.M.F.C.-V, KOZHIKODE CRIME NO.1224/2015 OF FEROKE POLICE STATION, KOZHIKODE PETITIONER/ACCUSED:

RAJAN @ RAJU, S/O. CHOYI, VUVATOOTTIL HOUSE, KUNNAMANGALAM PO, KOZHIKODE.

BY ADVS.

SRI.T.G.RAJENDRAN SMT.ANN SUSAN GEORGE SRI.T.R.TARIN SRI.V.A.VINOD RESPONDENTS/COMPLAINANT & STATE:

1 THE SUB INSPECTOR OF POLICE, FEROKE POLICE STATION, KOZHIKODE.673032.

2 THE STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM.682031

3 JAFAR, S/O MOOSA HAJI, PERAVANKANDY HOUSE, FEROKE PO,EAST NALLUR, FEROKE, KOZHIKODE-673037.

OTHER PRESENT:

PUBLIC PROSECUTOR SRI C. K. PRASAD THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON 07.12.2018, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:

ORDER

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

2. The daughter of the 3^rd 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^rd 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