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2009 DIGILAW 510 (CAL)

Rekha Bhakat v. State

2009-07-15

AMIT TALUKDAR, RAGHUNATH RAY

body2009
Judgment :- (1) She felt "............as the teacher of the said school always loved her students and for the purpose of the students better future she used to discipline them and there was no chance of the petitioner committing the alleged offence" (Paragraph 10 of her Application) and emboldened thereby she has preferred this petitioner under Section 438, Cr.P.C to recluse herself from the fear of apprehension in connection with Andal Police Station Case No. 83, dated 15/05/2009 under Section 304 of the Indian Penal Code instituted on the basis of a Written Information lodged by Shri Hiran Kr. Sarkar. (2) Facts are quite gut-wrenching. Materials in the Case Diary are quite spine chilling. One has to rub his eyes to be sure as to whether it is a Crime Thriller depicting the tale of a sordid killer or mere Section 161, Cr.P.C. Statement recorded in course of investigation ? (3) In such trajectory we would consider the prayer made in this application. (4) The petitioner happens to be a Teacher of Andal Girls High School in the District of Burdwan. In a mid summer afternoon while she was imparting lessons to Class-V of the said School (read furthering her killing spree) she found one of her pupils Babli Ghosh in a drowsy condition. She hit her with such force on her head that the impact of the same made Babli to reach out and suffer swollen injuries on her head. The Head Mistress and the other staff shifted the injured Babli to a local Nursing Home where Doctor opined that she should be removed to Mission Hospital, Durgapur whereupon arrival, the little girl was declared dead at least an hour back. (5) This persuaded the hapless grand father Shri Hiran Kr. Sarkar, with whom little Babli used to reside, to lodge the Written Information, which resulted in the registration of the present case. (6) Prayer of the petitioner in respect of Section 438, Cr. P.C. was refused by the learned Sessions Judge, Burdwan on 2.7.2009. As such, she has moved this Court with the self-same prayer. Sarkar, with whom little Babli used to reside, to lodge the Written Information, which resulted in the registration of the present case. (6) Prayer of the petitioner in respect of Section 438, Cr. P.C. was refused by the learned Sessions Judge, Burdwan on 2.7.2009. As such, she has moved this Court with the self-same prayer. (7) We have very carefully heard the learned Advocate for the petitioner and the State and have perused the Case Diary and would proceed to appreciate how far her claim ".......................for the purpose of the students better future she used to discipline them" can be sustained in the light of the materials made available in the Case Diary. (8) We have found that this case has been registered against the petitioner for allegedly having committed the offence punishable under Section 304 of the Indian Penal Code. We have a reservation in that respect, which we will clarify subsequently. (9) A meticulous appreciation of the Case Diary reveals a very gory picture. The statements of the Head Mistress, the Staff Member, the employee of the School and the cruelest portion of all is the Statement of the classmate of deceased Babli-would bring tears to any eye. (10) The Statement so far recorded consistently show that on the relevant date when the petitioner was taking the Class V-A of the said School Babli (Since deceased) was quite unwell and obviously little down. The petitioner hit little Babli with a Duster (which has been seized by the Investigating Officer on the strength of a Seizure List on 26/05/2009 as produced by the Head Mistress of the School). When the little girl pleaded with the petitioner to spare her as she was feeling unwell and not to further beat her up, the petitioner consecutively thrice hit her on the head. (11) This is one part of the materials made available against the petitioner. (12) The other portion reflects from the Statements that the petitioner has a sadistic mind as she is in the habit of awarding Corporal Punishment to her students. (13) From a wholesome appreciation of the entire materials we are of the considered view that the case has been erroneously initiated under Section 304 of the Indian Penal Code. The materials clearly spell out the offence in respect of Section 302 of the Indian Penal Code. (13) From a wholesome appreciation of the entire materials we are of the considered view that the case has been erroneously initiated under Section 304 of the Indian Penal Code. The materials clearly spell out the offence in respect of Section 302 of the Indian Penal Code. Of course, the case is under investigation and we are sure necessary corrective steps would be taken. (14) The Post Mortem Report, the less said is better. Even though injuries were found on the head, the Autopsy Surgeon (who has not disclosed his designation) has said "Opinion kept pending till arrival of viscera referred to FSL, Cal-l." It would not be in good taste to comment on the conduct of the Autopsy Surgeon but as a Court we feel in view of the materials, particularly the ocular version of the classmate of the deceased-once can safely ignore the approach taken by the Autopsy Surgeon. (15) Section 438, Cr.P.C. have been brought in the Statute Book as a safeguard or if put in a better way, is by way of an insurance against Police Custody. It cannot be claimed on mere asking. The Legislative intent behind incorporation of this provision in the new Act was to prevent innocent persons from being unnecessarily harassed by way of being arrested in connection with frivolous cases instituted on the basis of some motivation or accentuated rivalry. It is a sacrosanct provision in the new Code, which cannot be exercised in a casual fashion but has to be applied with utmost circumspection. (16) Here, the petitioner before us, who did not bat an eyelid in once, twice and thrice hitting a sick sinking child on the head with a big Duster which resulted in her instant vomiting and death no sooner thereafter. In the event this provision, which is otherwise extraordinary in nature, is accorded in favour of her it would be a pure abuse of the process of Law, As such, we have no hesitation in refusing her prayer. In the event this provision, which is otherwise extraordinary in nature, is accorded in favour of her it would be a pure abuse of the process of Law, As such, we have no hesitation in refusing her prayer. (17) We would, on the basis of the materials that have been made available before us, be of the view that this is never a fit case for admitting the petitioner with an Order under Section 438, Cr.P.C. On the contrary, we feel it would be most appropriate that the Trial is held with the petitioner in custody as being a Teacher of the said School, she would be definitely in a position to influence the other eye witnesses and Staff Members. (18) While parting, we feel the decision of our First Bench in Tapas Kumar Bhanja v. State of West Bengal and Ors. reported in (2004) 1 Cal LJ (Cal) 210 has stood in breach by the conduct of the petitioner. The First Bench in Tapas Kumar Bhanja v. State of West Bengal and Ors. (supra) has categorically directed "..............................This has to be emphasised that canning should not be resorted to as a corporal punishment by any private ends. Therefore, the Director of School Education, Primary/Secondary is directed to issue a circular to all the schools that this system of canning the student is strictly prohibited and if any school resorts to this kind of canning then that will be dealt with by the State Administrator strictly." (19) The First Bench in Tapas Kumar Bhanja v. State of West Bengal and Ors. (supra) further issued necessary directions to that end. (20) In the light of the direction passed by the First Bench, the Director of School Education, Govt. of West Bengal by its Office Memo No. 906-L.S./ 10-896-LS/03 dated, Kolkata, the 29th June, 2004 had issued necessary Circular f9llowed by Memo No. 2611 -GA dated Kolkata, the 22nd January, 2009. In such view of the matter, while Corporal Punishment is by necessary implication banned -a Teacher resorting to an act of homicide should also be dealt with not only for violation of the solemn Order passed by the First Bench of this Court in Tapas Kumar Bhanja v. State of West Bengal and Ors. (supra) but also indulging in an act, which militates against the tenor of the Circular. (21) Application accordingly rejected. (supra) but also indulging in an act, which militates against the tenor of the Circular. (21) Application accordingly rejected. Return the C.O. (22) A copy of this Order be sent down to the learned Chief Judicial Magistrate, Burdwan as also to the District Inspector of Schools (Secondary Education, Budrwan) which has reference to his Memo No. 613(1) dated 11.5.2005.