Dismissed

Mohammed Jaris E.O. v. State of Kerala

Kerala HC18 Jul 2024Crl.MC/2702/2022

Case brief

AI extract

What is this about?

A special school teacher sought quashing of prosecution for tying the hands of a 15-year-old student with 77% disability, causing loss of a tooth. The court held the allegations made out a prima facie case and contentions on permissible restraint were matters for trial.

What did the court decide?

Petition dismissed; liberty to raise contentions before trial court including Annexure A3 guidelines; interim stay vacated.

Mohammed Jaris E.O. Vs State of Kerala — Child Sexual Offences (POCSO) | Kerala HC (2024)

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IN THE HIGH COURT OF KERALA AT ERNAKULAM

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PRESENT

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THE HONOURABLE MR. JUSTICE A. BADHARUDEEN

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THURSDAY, THE 18TH DAY OF JULY 2024 / 27TH ASHADHA, 1946

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CRL.MC NO. 2702 OF 2022

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CRIME NO.382/2019 OF KOLAVALLUR POLICE STATION, KANNUR
CC NO.62 OF 2020 OF CHIEF JUDICIAL MAGISTRATE,THALASSERY

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PETITIONER/ACCUSED:

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MOHAMMED JARIS E.O.,
AGED 24 YEARS
S/O.ABDUL MAJEED, ERAMATHUVEETTIL OTTAYIL HOUSE,
PUTHARIKKAL P.O., MALAPPURAM DISTRICT, PIN - 676303

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BY ADVS.
THAREEQ ANVER K.
K.SALMA JENNATH
K.SHAMSUDHEEN
K.C.KHAMARUNNISA
ARUN CHAND
RASSAL JANARDHANAN A.
GOVIND G. NAIR
SHAHNOY SHAJI

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RESPONDENTS/STATE, DE FACTO COMPLAINANT AND VICTIM:

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

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2 XXXXXXXXXX XXXXXXXXXX XXXXXXXXXX

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3 XXXXXXXXXX XXXXXXXXXX XXXXXXXXXX

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R1 BY SR.PUBLIC PROSECUTOR SRI.RENJIT GEORGE

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R2 & R3 BY ADVS.
SUMAN CHAKRAVARTHY
AMJATH A.R(K/301/2012)

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THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON
18.07.2024, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:

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CRL.MC NO. 2702 OF 2022 2

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ORDER

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Dated this the 18^th day of July, 2024

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This Criminal Miscellaneous Case has been filed under Section 482 of the Code of Criminal Procedure, 1973, by the petitioner, who is the sole accused in Crime No.382/2019 of Kulavallur police station, Kannur District, now pending as C.C.No.62/2020 on the files of the Chief Judicial Magistrate Court, Thalassery and the prayer herein is as under:

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To quash Annexure 1 Final Report in Crime No.382/2019 of the Kulavallur Police Station of Kannur District pending as C.C.No.62/2020 before the Chief Judicial Magistrate’s Court, Thalassery and all further proceedings pertaining to the same in the interest of justice.

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Heard the learned counsel for the petitioner, the learned counsel appearing for the de facto complainant and the learned Public Prosecutor. Perused the records, placed by the learned counsel for the petitioner as well as the final report.

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In this matter, the prosecution alleges commission of offences punishable under Section 325 of the Indian Penal Code

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CRL.MC NO. 2702 OF 2022 3

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(for short, ‘the IPC’ hereinafter) and Section 75 of the Juvenile Justice (Care and Protection of Children) Act, 2015 (for short, ‘the JJ Act’ hereinafter). The specific allegation is that, at about 15.30 hrs. during school time on 28.10.2019, the accused herein, who is the teacher of Maithri Special School, Kadavathoor, tied the hands of the victim, aged 15 years, a person with 77% disability, by using a cloth, allegedly, when he misbehaved at the class. Then, the victim attempted to untie the cloth by using his tooth and in turn, one of the teeth in his lower jaw was lost.

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While canvassing quashment of the proceedings against a teacher, the learned counsel for the petitioner would submit that, no serious allegations could be gathered in this case and the bona fide attempt made by the teacher to control the extraneous behaviour of a differently abled student, is the sole reason for implicating him in this crime. He also would submit that, as per Annexure A3 guidelines issued by the National Institute For The Mentally Handicapped Persons under the head Behavioural Approach in Teaching Mentally Retarded Children, physical restraint for a period of 30 seconds is permissible, though there

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CRL.MC NO. 2702 OF 2022 4

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was prohibition to have physical restraint by using ropes or chains which would result in actual physical injury to the child. Accordingly, it is submitted that the petitioner is innocent and the materials collected by the prosecution are quite insufficient to fasten criminal culpability upon him.

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Whereas, the learned Public Prosecutor zealously opposed the same and would submit that, tying the hands of a differently abled person, by using a cloth itself is an offence under Section 75 of the JJ Act. He also would submit that, in this particular case, the victim, having 77% disability, attempted to untie the cloth, one of his teeth was lost and on this basis, prosecution alleges commission of offence punishable under Section 325 of the IPC also. He also read out the guidelines relied on by the learned counsel for the petitioner to contend that, physical restraint by using ropes or chains, is prohibited and therefore, the overt act, at the instance of the petitioner, is even against the guidelines. Therefore, whether the accused committed the offences alleged, is a matter of evidence and for that, the matter shall go for trial.

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CRL.MC NO. 2702 OF 2022 5

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The learned counsel for the de facto complainant also supported the argument of the learned Public Prosecutor and zealously opposed quashment. He also would submit that, in this case, CWs 1 to 3 were examined by the Magistrate and this petition has been filed during the process of trial.

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It is true that, minimum and reasonable restrictions as part of discipline imposed by a teacher against the student, could not be held as offence under Section 75 of the JJ Act, to impose punishment upon him. But, the allegation as to tying of hands of a differently abled person with 77% disability, with a cloth and in turn, when the victim attempted to untie the same, he lost his tooth, are matters of serious concern. Thus, the prosecution case is well made out, prima facie. The contentions raised by the petitioner that physical restraint in the manner provided in the guidelines is permissible and the overt acts are within the guidelines, are also a matter of evidence. Therefore, the prayer for quashment cannot be considered.

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Holding so, this Criminal Miscellaneous Case stands dismissed, with liberty to the petitioner to raise his contentions

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CRL.MC NO. 2702 OF 2022 6

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before the trial court, in view of Annexure A3 also. Interim stay stands vacated.

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Registry is is directed to forward a copy of this order to the

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trial court, for information and further steps.

Sd/-

A. BADHARUDEEN

JUDGE

CRL.MC NO. 2702 OF 2022 7

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APPENDIX OF CRL.MC 2702/2022

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PETITIONER’S ANNEXURES

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ANNEXURE 1CERTIFIED COPY OF THE FINAL REPORT DATED
12.12.2019 SUBMITTED BY THE SUB INSPECTOR
OF POLICE OF THE KULAVALLUR POLICE
STATION OF KANNUR DISTRICT BEFORE THE
HON’BLE CHIEF JUDICIAL MAGISTRATE’S
COURT, THALASSERY IN C.C.NO.62/2020

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ANNEXURE 2CERTIFIED COPY OF THE TEACHERS’
ATTENDANCE REGISTER MAINTAINED AT THE
MAITHRI SPECIAL SCHOOL PERTAINING TO THE
MONTH OF OCTOBER 2019 AS APPENDED TO THE
FINAL REPORT

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ANNEXURE 3TRUE COPY OF THE RELEVANT PAGES OF
BEHAVIOURAL APPROACH IN TEACHING MENTALLY
RETARDED CHILDREN - A MANUAL FOR TEACHERS
ISSUED BY THE NATIONAL INSTITUTE FOR THE
MENTALLY HANDICAPPED (MINISTRY OF SOCIAL
JUSTICE AND EMPOWERMENT, GOVERNMENT OF
INDIA)

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ANNEXURE 4TRUE COPY OF THE RELEVANT PAGES OF MENTAL
RETARDATION - A MANUAL FOR PSYCHOLOGISTS
ISSUED BY THE NATIONAL INSTITUTE FOR THE
MENTALLY HANDICAPPED (MINISTRY OF SOCIAL
JUSTICE AND EMPOWERMENT, GOVERNMENT OF
INDIA)

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ANNEXURE 5CERTIFIED COPY OF THE MEMO OF EVIDENCE
ALONG WITH THE 161 STATEMENTS RECORDED BY
THE POILCE DURING INVESTIGATION AND
APPENDED TO ANNEXURE 1 FINAL REPORT IN CC
62/2020

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ANNEXURE 6CERTIFIED COPY OF THE FIRST INFORMATION
REPORT DATED 29.10.2019 IN CRIME
NO.382/2019 OF THE KULAVALLUR POLICE
STATION ALONG WITH THE COMPLIANT LODGED
BY THE 2ND RESPONDENT ON THE DAY

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ANNEXURE 7CERTIFIED COPY OF THE ACCIDENT CUM WOUND
CERTIFICATE DATED 29.10.2019 ISSUED BY
THE MEDICAL OFFICER OF THE CHOKLI MEDICAL
CENTRE

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CRL.MC NO. 2702 OF 2022 8

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ANNEXURE 8CERTIFIED COPY OF THE ACCIDENT CUM WOUND
CERTIFICATE DATED 30.10.2019 ISSUED BY
THE CASUALTY MEDICAL OFFICER OF THE
GENERAL HOSPITAL, THALASSERY

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RESPONDENTS’ ANNEXURES : NIL

Mohammed Jaris E.O. v. State of Kerala

Case brief

What is this about?

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Mohammed Jaris E.O. v. State of Kerala

Case brief

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