Bombay High Court
Lata Sudhakar Suvarna vs State Of Maha & Ors on 14 December, 2016
Bench: Z.A. Haq
1 Cr.Apln. 1974.2004 - [J]
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
CRIMINAL APPLICATION NO. 1974 OF 2004
Sou.Lata w/o Sudhakar Suvarna
Age : 39 Yrs., Occ. : Service,
R/o : Plot No. 3, Laxmi Colony,
Cantonment Road,
Aurangabad. .... APPLICANT
VERSUS
01. The State of Maharashtra
Through the Public Prosecutor
of High Court, Aurangabad.
02. Smt. S.B.Mahale
Vith Judicial Magistrate
First Class, Aurangabad
the then IXth Judicial
Magistrate First Class,
Aurangabad.
[deleted as per order
dated 10/01/2006] .... NON APPLICANTS
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.............................
Mr. Joydeep Chatterji h/f Mr. N.L.Choudhari,
Advocate for Applicant.
Mr. K.S.Hoke Patil, A.P.P. for Non-applicant
No. 1 - State.
..............................
CORAM : Z.A.HAQ, J.
DATE OF JUDGMENT : 14th DECEMBER, 2016
.............................
ORAL JUDGMENT :
01. Heard Mr. Joydeep Chatterji holding for Mr.
N.L.Choudhari, learned Advocate for the Applicant and
Mr. K.S.Hoke Patil, learned A.P.P. for the non-
applicant No. 1 - State.
02. The applicant has approached this Court
with the prayer that the proceedings of Criminal Case
initiated against her for the offences punishable u/s
384 of the Indian Penal Code and u/ss 3,7 and 8 of
the Maharashtra Educational Institutions [Prohibition
of Capitation Fee] Act, 1987 be quashed.
3 Cr.Apln. 1974.2004 - [J]
03. The prosecution came to be initiated
against the applicant, who is working as Cashier in
the school, the Principal of the school and the Head
Mistress of the school on the complaint of the father
of a child, alleging that the accused/Principal had
demanded donation of ` 5,000/- [Rupees Five
Thousand] for granting admission to his 5 year old
son. According
ig to the complainant, the
accused/Principal had put an endorsement on a chit
that admission be given on payment of ` 5,000/- and
the complainant was referred to Miss. Vivina, who was
working as the Head Mistress of the school and the
complainant had given ` 5,000/- to Miss. Vivina, who
in turn gave the amount to the applicant.
04. The learned Advocate for the applicant
submitted that the school in question is a minority
unaided institution and the State Government has not
fixed the rates of fee to be charged from the students
of the school and, therefore, the complaint alleging
demand of capitation fee is not maintainable. In
support of the submission, the learned Advocate has
4 Cr.Apln. 1974.2004 - [J]
relied on the Judgment given in the case of Father
Thomas Shingare & Ors. Vs. State of
Maharashtra & Ors. Reported in AIR 2002
Supreme Court 463.
It is stated that Father Thomas Shingare,
the Principal, who was co-accused is no more. It is
submitted that charge-sheet is not filed against Miss.
Vivina, against whom allegations are made in the
complaint.
The learned Advocate for the applicant has
prayed that the order passed by the Magistrate on
05/01/2004 rejecting the application [Exh.20] be set
aside and the proceedings be quashed.
05. The learned A.P.P. has opposed the prayer
made on behalf of the applicant and has submitted
that considering the material on the record, the
prosecution can not be quashed in exercise of the
jurisdiction u/s 482 of the Code of Criminal Procedure
and the applicant should face the trial.
5 Cr.Apln. 1974.2004 - [J]
06. With the assistance of the learned
Advocate for the applicant and the learned A.P.P., I
have examined the documents placed on the record of
the application. As recorded above, the allegations of
the complainant are that Father Thomas Shingare,
who was the Principal of the school had demanded `
5,000/- for granting admission to the 5 year old son
of the complainant. ig The accusations against the
applicant are that the applicant had collected the
amount of ` 5,000/- from Miss. Vivina, to whom the
complainant had given the amount. Considering the
nature of the accusations, in my view, even if they
are taken to be true at their face value, they do not
make out any offence u/s 384 of the Indian Penal
Code or u/s 3 of the Maharashtra Educational
Institutions [Prohibition of Capitation Fee] Act, 1987.
Moreover, the submission made on behalf
of the applicant that the school in which admission
was sought by the complainant for his 5 year old son
is an un-aided minority school and the State
Government has not prescribed the fees to be
charged from the students of the school, has not been
6 Cr.Apln. 1974.2004 - [J]
controverted by the learned A.P.P. Considering the
proposition laid down in the Judgment given in the
case of Father Thomas Shingare & Ors. [supra] [co-
accused in the present matter], the submissions
made on the behalf of the applicant that the
prosecution of the applicant for the offence punishable
u/s 3 of the Maharashtra Educational Institutions
[Prohibition ig of Capitation Fee] Act, 1987 is
unsustainable, are required to be accepted.
Hence, the following order :
(i) The Order passed by the learned
Magistrate on 05/01/2004 rejecting the
application [Exh.20] filed by the applicant,
praying for discharge, is set aside.
(ii) The proceedings of R.C.C. No. 1052/2002
pending before the Magistrate at
Aurangabad are quashed.
(iii) Rule made absolute in the above terms.
7 Cr.Apln. 1974.2004 - [J]
(iv) In the circumstances, the parties to bear
their own costs.
[Z.A.HAQ, J.]
KNP/Cr.Apln. 1974.2004 - [J]
