Prameela Fergod vs State Of Kerala
2021 Latest Caselaw 21256 Ker

CRL.MC NO. 1109 OF 2018
                                1

                                                       'C.R.'
           IN THE HIGH COURT OF KERALA AT ERNAKULAM
                             PRESENT
         THE HONOURABLE MR.JUSTICE MOHAMMED NIAS C.P.
  FRIDAY, THE 29TH DAY OF OCTOBER 2021 / 7TH KARTHIKA, 1943
                    CRL.MC NO. 1109 OF 2018
      CRIME NO.19/2016 OF KANJIRAMKULAM POLICE STATION,
                       THIRUVANANTHAPURAM
   IN CC 1353/2016 OF JUDICIAL MAGISTRATE OF FIRST CLASS -
            III, NEYYATTINKARA, THIRUVANANTHAPURAM
PETITIONER/ACCUSED:

         PRAMEELA FERGOD, AGED 45 YEARS
         D/O. OF AGNUS, AGNAL VILLA,
         KARUMKULAM VILLAGE,
         PULLUVILA P.O.-695526, THIRUVANANTHAPURAM.

         BY ADVS.
         SRI.M.RAJESH
         SRI.C.R.SURESH KUMAR

RESPONDENT/STATE/COMPLAINANT:

    1    STATE OF KERALA
         REPRESENTED BY PUBLIC PROSECUTOR,
         HIGH COURT OF KERALA, ERNAKULAM-682031.

    2    SUB INSPECTOR OF POLICE
         KANJIRAMKULAM POLICE STATION, KANJIRAMKULAM
         P.O., THIRUVANANTHAPURAM RURAL-

    3    DANIEL
         AGED 16 YEARS, S/O.PHINIAN VICTOR,
         CHEMPAKARAMANTHURA PURAYIDAM, KARUMKULAM
         VILLAGE, PULLUVILA P.O., THIRUVANANTHAPURAM-
         695526, MINOR, REPRESENTED BY HIS MOTHER, SEENA,
         AGED 39 YEARS, D/O.MARY, CHEMPAKARAMANTHURA
         PURAYIDAM, KARUMKULAM VILLAGE, PULLUVILA P.O.,
         THIRUVANANTHAPURAM-695526.

         BY PUBLIC PROSECUTOR SMT.MAYA M N

      THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON
22.10.2021, THE COURT ON 29.10.2021 PASSED THE FOLLOWING:
 CRL.MC NO. 1109 OF 2018
                                      2


                                                         'C.R.'


                              ORDER

This petition, seeking to quash Annexure I charge-sheet, is

filed by a teacher who stands implicated as an accused in Crime No.19

of 2016 of Kanjiramkulam Police Station registered under Section 324

of Indian Penal Code and Section 23 of Juvenile Justice Act (Care and

Protection of Children) Act, 2000). The said crime was registered on a

complaint that the third respondent, a minor represented in these

proceedings by his mother, was beaten with a stick by the petitioner on

both his hands for speaking a lie that his mathematics notebook had

been lost. It is on the said basis that the crime was registered and the

charge-sheet filed before the Judicial First Class Magistrate Court-III,

Neyyattinkara numbered as CC No.1353 of 2016. On the ground that,

no offence is made out, this petition is filed for quashing the final

report and the further proceedings.

2. Though the third respondent was served, there is no

appearance.

3. Heard the learned counsel for the petitioner and the

learned Public Prosecutor.

4. In this case the petitioner, the class teacher admits that on

8.12.2015, she gave a mild punishment with a small stick for speaking

a lie and was done in the best interest of the student and to correct CRL.MC NO. 1109 OF 2018

the child for the mistake committed.

5. The learned counsel for the petitioner submits that the

allegations are false and the petitioner, the class teacher was only

exercising her responsibility as a teacher in good faith by admonishing

the student for speaking a lie. There was no criminal intimidation or

overt acts on her part as alleged and that the complaint was filed

almost one month after the occurence date of occurrence.

6. Learned Public Prosecutor on the other hand

submitted that the statement of witnesses would show that the child

was beaten with a stick and was continuously beaten till the stick broke

and thus the teacher had exceeded in giving the punishment.

7. The decisions of this Court on the issue in question

are as follows:-

In Abdul Vaheed v. State of Kerala (2005 KHC 535), it was

held that when a student do not behave properly or act according to

the Rules of a school, and if the teacher chastises him, on a bona fide

intention, by giving him a corporal punishment for improving his

character and conduct, the Court has to ascertain whether the said act

of the teacher was bona fide or not. If it is found that he had acted with

a good intention, only to improve the student, it may not normally be

brought under the penal provisions of the Code. Again in Nirmala K. v.

State of Kerala and Another [2019(5)KHC 912], It was held that in view CRL.MC NO. 1109 OF 2018

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 and the same cannot be said to be an offence.

This Court relied on the decision in Rajan @ Raju v. Sub Inspector of

Police, Feroke Police Station and Others [2018(5) KHC 967], wherein it

was laid down that to bring home an offence under Section 323 of the

IPC, the prosecution has 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 wilfully neglecting the child or by causing such act to be done. The

courts have also 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 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 CRL.MC NO. 1109 OF 2018

penal provisions. If the teacher, out of unbridled fury, excitement or

rage, inflicts injuries which are of such a nature so 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.

8. Going by the principles stated in the above

decisions, which are binding precedents and respecting them is the

fundamental norm of judicial discipline, and on a consideration of

Annexure I charge-sheet and other materials, I hold that no visible

mark or injury has been caused to the child and that the teacher had

not exceeded in the punishment . After hearing the learned counsel for

the petitioner and the learned Public Prosecutor I find that the charges

levelled under section 324 of the Indian Penal Code and section 23 of

the Juvenile Justice Act being untenable are only to be quashed and I

do so.

9. In the result, Annexure I final report and all further

proceedings in CC No. 1353 of 2016 on the file of the Judicial First

Class Magistrate Court III, Neyyattinkara, arising from Crime No. 19 of

2016 Kanjiramkulam Police Station are hereby quashed.

10. Though I have followed the judgments of this Court and

quashed the proceedings, certain developments on the issue of

corporeal punishment needs a serious consideration in view of the

later statutes as well as materials which have dealt with the CRL.MC NO. 1109 OF 2018

consequences of corporal punishment at length.

11. The provision applicable in the Kerala Education Rules,

1959 ( Chapter IX Rule 9 and Form 9) is extracted hereunder:-

"9. Punishment Register: (1) Every School shall maintain a Punishment Register in Form 9.

(2) Particulars of every punishment awarded to the pupil shall be entered in the Punishment Register."

xxxx

FORM9 (See Rule IX-9(1) REGISTER OF PUNISHMENTS INFLICTED ON PUPILS

1 Serial Number

2 Admission Number

3 Name of pupil

4 Age

5 Standard

6 A brief account of the offences for which punishment is awarded

7 Date of offence

8 Date of award of punishment

9 Nature of the punishment (full details to be given)

(a) (Censure)

(b) Fine - Amount to be specified

(c) Suspension-Period to be specified

(d) Removal

10 Remarks

11 Signature of the Headmaster

12 Date of realisation of fine

13 Initials of the Headmaster CRL.MC NO. 1109 OF 2018

12. A reading of the above Rule clearly shows that only

censure or fine or suspension or removla from the rolls are

contemplated as a punishment and that the same has to be recorded

in the prescribed form. The Director of Public Instructions ( since then

been redesignated as Director of General Education) as early as on

08.09.2010 had issued a Circular No.QIP/54527/2010/DPI specifically

prohibiting corporal punishment in schools and the educational

officers were directed to ensure the implementation of the same. It

also directed that the complaints are to be made to the District

Educational Officer and the Deputy Director of Education and they were

directed to take appropriate action. It is seen that the circular is more

obeyed in its breach than observance.

13. The Right of Children to Free and Compulsory Education

Act, 2009 (hereinafter referred to as "RCFCE") classifies corporal

punishment as physical punishment, mental harassment and

discrimination, and physical punishment has been ascribed the same

meaning as has been given by the United Nations Committee on the

Rights of the Child. Under the RCFCE Act, corporal punishment is

violative of the right of the child to education, as well as the right to

leave with dignity. According to the Section 17 of the RCECE Act, 'no

child shall be subjected to physical punishment or mental harassment'.

However, even this enactment is not without its limitations as it

applies to only children between 6-14 years of age and excludes CRL.MC NO. 1109 OF 2018

certain institutions from the ambit of this Act.

14. It is worthwhile to notice Section 23 (as it stood then) of

the Juvenile Justice Act, 2000 and Section 75 of the Juvenile Justice Act,

23. Punishment for cruelty to juvenile or child.- Whoever, having the actual charge of or control over, a juvenile or the child, assaults, abandons, exposes or wilfully neglects the juvenile or cases or procures him to be assaulted, abandoned, exposed or neglected in a manner likely to cause such juvenile or the child unnecessary mental or physical suffering shall be punishable with imprisonment for a term which may extend to six months, or fine, or with both.

75. Punishment for cruelty to child.- 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:

(emphasis supplied) xxxxxx

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. 1109 OF 2018

15. The United Nations Convention on the Rights of the

Child (UNCRC) was adopted and opened for signature, ratification and

accession by the United Nations General Assembly Resolution No.44/25

of 20 November 1989). Article 37(a) of the said Convention on the

Rights of the Child, to which India is a signatory, says that no child

should bear any torture, cruelty, or inhuman punishment. The United

Nations Committee on the Rights of the Child defines 'corporal' or

'physical' punishment as any punishment in which physical force is

used and intended to cause some degree of pain or discomfort,

however light. The UNCRC, in no uncertain terms acknowledges that;

'children are holders of human rights and acknowledges their distinct

legal personality and evolving capacities'. Article 28(2) of the UNCRC

indicates that the school discipline should be administered in a manner

consistent with the child's human dignity and the Convention. Articles

3, 18 and 36 of the Convention deal with parental and adult

responsibility in the private sphere and the right to protection from

exploitation. Article 19 provides for measures to protect children

against all forms of physical abuse and imposes an obligation on

member states to protect children from all forms of physical or mental

violence, injury or abuse. India ratified the UNCRC in 1992. In 2010,

Government representatives in SAIEVAC (South Asia Initiative to End

Violence Against Children) developed a national action plan to achieve

prohibition, and in 2011 endorsed a report on progress towards CRL.MC NO. 1109 OF 2018

prohibiting corporal punishment in South Asia states which included an

analysis of the reforms required in India. In the third/fourth state party

report to the UN Committee on the Rights of the Child, 2011, the

Government confirmed that corporal punishment of children is not

considered an offence due to section 89 of the IPC; this was to be

rectified by the drafting of a Prevention of Offences against the Child

Bill which would make corporal punishment an offence. The National

Policy for Children 2013, (hereinafter referred to as "2013 Policy")

adopted in April 2013, provides for protection of children from "all

forms of violence" but specifically refers to corporal punishment only in

connection with education i.e. in schools. The 2013 policy, in Paragraph

4.6(XV), states that in education, the state shall "ensure no child is

subjected to any physical punishment or mental harassment" and

"promote positive engagement to impart discipline so as to provide

children with a good learning experience".

Child friendly Schools Manual developed by UNICEF (Dynamics of

Theory and Practice)

Chapter 2 (Protective of Children)

Interventions to address these situations include training

teachers and parents in non-violent discipline, as well as establishing

and enforcing codes of conduct that protect children from sexual

harassment, abuse, violence, bullying, physical punishment, stigma CRL.MC NO. 1109 OF 2018

and discrimination.

Protection

Child-friendly schools have succeeded in transforming the norm in classroom discipline from one that condones verbal and physical abuse to one that calls for a 'shoutless and stickless' form of discipline. Also through CFS, a school protocol was developed for identification, reporting and referral of cases of abuse, violence and exploitation. This was approved for all schools by the Department of Education.

Chapter 5

Setting Specific Recommendations in schools and other educational settings

111. Bearing in mind that all children must be able to learn free from violence, that schools should be safe and child friendly and curricula should be rights based, and also that schools provide an environment in which attitudes that condone violence can be changed and non-violent values and behaviour learned, it is recommend that States:-

(a) Encourage schools to adopt and implement codes of conduct applicable to all staff and students that confront all forms of violence, taking into account gender-based stereotype and behaviour and other forms of discrimination

(b) Ensure that school principals and teachers use non-violent teaching and learning strategies and adopt classroom management and disciplinary measures that are not based on fear, threats, humiliation or physical force;

CRL.MC NO. 1109 OF 2018

Chapter 6

Classroom discipline and management practices

In child-friendly schools, teachers need to have the skills to apply alternative forms of discipline instead of falling back on corporal punishment and other forms of physical and verbal abuse. Teachers should be made aware of the emotional and psychological damage these practices can do to children. For example, threats or promises of rewards to girls in exchange for sexual favours are intolerable. Teachers also need to understand why violent forms of discipline such as corporal punishment are harmful to children (see Chapter 5).

Teachers require training in constructive discipline practices to promote orderly and fair conditions for learning in classrooms and learning spaces. School managers, teachers and other school personnel also need training and support in human rights education that fully recognizes the importance of tolerance and peaceful conflict resolution and the significance of child participation.

16. It is a matter of interest to note that a private bill

named 'the Abolition of Corporal Punishment in Educational Institutions

Bill, 2010, to provide for abolition of corporal punishment in

educational institutions by providing protective measures against use

of physical force towards children and to set forth good practice and

provide stringent penalties to any person involved in corporal

punishment keeping the best interest of the child and for matters CRL.MC NO. 1109 OF 2018

connected therewith and incidental thereto was moved in the Rajya

Sabha, by an eminent member from Kerala, but the same could not be

passed. Corporal punishment in the Bill was defined as follows:-

"(d) "corporal punishment" means physical punishment that involves deliberate infliction of pain for a mistake or act of indiscipline by a child for the purpose of disciplining or reforming the child;"

17. Several articles, which voiced dissatisfaction

against corporal punishment, across the globe have gone to the extent

of opining that it is those teachers who are unable to discipline their

students who take recourse to physical assault. The impact that a child

can have on account of the corporal punishment is huge. Some

evidence shows that spanking can negatively impact the brain and

cause the children to experience withdrawal. Some children might start

viewing violence as an acceptable way to ensure compliance. They

may also use violence to achieve the behaviour or responses they wish

to see in others. All these normalises violence in tender minds.

Teachers also use physical punishment because of a general lack of

awareness or interest to explore options other than violence and

abuse. Physical punishment scars the body and mind of a student,

robbing them of dignity. All the reports which advocated banning of

corporal punishment are premised on the reason that physical CRL.MC NO. 1109 OF 2018

punishment has devastating impact on the child, impacting their

thoughts, feelings and behaviours, the capacity to cope with the

challenges of everyday life and finally the ability to reach the full

potential. Children must not lose their rights just because they have

passed through the school gates. Allowing teachers to lose control over

their behaviour while preaching restraint to a child is surprisingly

intriguing and leaves the child in an uncomfortable unpredictability

more so when a child is the very soul that a teacher is meant to serve

and protect

18. The role of a teacher in maintaining the discipline and in

preparing a new generation of citizens to succeed in a competitive

world like the present one, cannot be undermined. They must adapt to

the evolving trends and standards to deal with the individual nature of

the children. Though this Court has held in the decisions mentioned

above, that reasonable force can be used, the terms like reasonable

force are ambiguous and capable of being misinterpreted and

misused. Teachers as well as parents need to note the difference

between the correction, discipline and punishment, and that all

corporal punishment is outlawed under the later enactments.

19. Article 21 of the Constitution of India that protects the right

to life and dignity of the children is infringed when corporal

punishment, which amounts to abuse militates against the freedom

and dignity of a child, is meted out. It also interferes with a child's CRL.MC NO. 1109 OF 2018

right to education because fear of corporal punishment makes children

more likely to avoid or atleast dislike going to school. It is pertinent to

note that Article 21A of the Constitution of India directs the States to

provide free and compulsory education to all children of the age of 6 to

14 and this fundamental right has been operationanilised with the

enactment of Right of Children to Free and Compulsory Education Act,

2009., in which there is a ban on corporal punishment. Additionally,

Article 39(e) which directs the State to work progressively to ensure

that the tender age of the children are not abused, and Article 39(f)

which directs the State to work progressively to ensure that the

children are given opportunities and facility to develop in a healthy

manner and in conditions of freedom and dignity and that childhood

and youth are protected against exploitation and against moral and

material abandonment, also come into operation. I have no hesitation

to hold that the State has a duty to imbibe the spirit of all these for the

betterment of the children, the building blocks of our nation, and to

scrupulously implement the same. The State cannot forget that even

animals are protected from cruelty, which is again a must, and I

shudder to think that children are worse off.

20. In view of all that is stated above, judicial

intervention is warranted as this Court is the protector of the rights.

The State is obliged to ensure an environment free of corporal CRL.MC NO. 1109 OF 2018

punishment. The High Courts of Madras and Delhi have also noticed

the need for ban on corporal punishment at schools. The Central

Board of Secondary Education (CBSE) has also issued a Circular

No.19/2017 dated 12.09.2017 for the safety of children in school and

in the said circular, inter alia, makes provision for ban on corporal

punishment at school.

21. In the aforesaid circumstances, there will be a direction to

the Principal Secretary to Government, General Education Department

as well as to the Director of General Education, Thiruvananthapuram to

take such steps to ensure that the Circular No. No.QIP/54527/2010/DPI,

dated 08.09.2010 is implemented in the schools in the State of Kerala,

both in private and public sector and also to file an action taken report

before this Court within a period of four months from the date of

receipt of a copy of this order. The Registry is directed to forward a

copy of this order to the Principal Secretary to Government, General

Education Department as well as to the Director of General Education,

Thiruvananthapuram, for compliance.

The above Crl.M.C. is allowed with the above directions.

                          Sd/-     MOHAMMED NIAS.C.P., JUDGE



dlk 22.10.2021
 CRL.MC NO. 1109 OF 2018





                APPENDIX OF CRL.MC 1109/2018

PETITIONER'S ANNEXURE

ANNEXURE I    A CERTIFIED COPY OF THE CHARGE SHEET IN
              CRIME NO.19/2016 OF KANJIRAMKULAM POLICE
              STATION.