Bombay High Court

Sayed Shamshoddin Syed Kasim Ali ... vs The State Of Mah on 19 December, 2016

Bench: V.K. Jadhav

                                        1             cri appln 4549_2007.odt

          IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                     BENCH AT AURANGABAD




                                                                           
                 CRIMINAL APPLICATION NO. 4549 OF 2007




                                                   
         1.      Sayed Shamshoddin S/o Syed Kasim Ali,
                 Age. 52 years, Occ. Legal Practitioner,
                 R/o. Labour colony, Nanded.




                                                  
         2.      Pathan Ismail Khan S/o Maheboob Khan,
                 Age. 32 years, Occ. Service,
                 R/o. Ardhapur, Tq. Ardhapur, 
                 Dist. Nanded.                        ..APPLICANTS..




                                       
                 VERSUS      
                 State of Maharashtra,
                 Through Police Station Ardhapur,
                            
                 Tq. Ardhapur, Dist. Nanded.       ..RESPONDENT..
                                                
                                      ...
                  Advocate for Applicants: Mr S V Kurundkar
      


                   APP for Respondent-State : Mr S P Tiwari 
                                      ...
   



                          CORAM : V.K. JADHAV, J.

Dated: December 19, 2016 ...

ORAL JUDGMENT :-

1. Being aggrieved by the order passed below Exh.11

dated 13.11.2002 by Judicial Magistrate First Class,

Nanded in RCC No. 425/2002 and the Judgment and

order dated 1/09/2007 passed by Sessions Judge,

Nanded in criminal revision no. 259/2002 confirming

thereby the order passed by Magistrate, the original-

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accused nos. 1 and 2 approached this court by filing

present criminal application.

2. Brief facts giving rise to present criminal

application are as follows :-

On 27.9.2001 one Kashinath Pathak, Education

Officer, Ardhapur zone has lodged a complaint at

Ardhapur Police Station, Ardhapur alleging therein that

accused nos. 1 to 3 are running a private school namely

"Sabiha Urdu Primary School" without recognition by

the Government since 1991. On the basis of said

complaint, Police Station Ardhapur registered the crime

bearing no.129/2001 for the offence punishable under

sections 420, 468, 471 read with 34 of Indian Penal

Code. On completion of investigation, the investigation

officer submitted charge sheet before the J.M.F.C.,

Nanded which is registered as R.C.C. 425/2002. The

applicants-original accused nos. 1 and 2 filed an

application Exh.11 seeking discharge. The learned

Magistrate by impugned order dated 13.11.2002 rejected

the said application and learned sessions judge by

impugned judgment and order dated 1.9.2007 dismissed

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the criminal revision no. 259/2002 and confirmed the

order passed by the Magistrate as aforesaid. Hence this

criminal application.

3. The learned counsel for the Applicants submits

that, in terms of provisions of Rule 106 and 107 of The

Bombay Primary Education Rules, 1949 (hereinafter

referred to as 'Rules of 1949' for short) an application for

recognition of the school shall be made after school is

actually started functioning and has been in existence

for a period of not less than three months and as per

rule 107(1) after receipt of said application, the

competent authority shall arrange for the inspection of

the school referred in the application and shall forward

the inspection report to the School Board, or as the case

may be, to the Education Committee, together with its

recommendation relating to the recognition of, and

grant-in-aid, if any payable to such private school. The

learned counsel submits that, preexistence of primary

school is necessary before according recognition by the

competent authority.

                                         4              cri appln 4549_2007.odt

         a]      The   learned   counsel   further   submits   that,   the

applicants started said Urdu School in the year 1991

and continuously submitted proposal to the

Government for according recognition after depositing

requisite fees. Thus, the applicant-Society constrained

to approach the National Commission for Minority

Educational Institutions by filing an application which

is numbered as case No.1445/2006. The National

Commission for Minority Educational Institution has

observed that the present applicant society had applied

to the State Government for recognition of the 'Sabiha

Urdu Primary School', Ardhapur, District Nanded, but

the State Government did not accord recognition as

sought. Further it is also observed that, there is

nothing on record to show or suggest that the petitioner

school is not having the requisite infrastructure for

grant of recognition by the State Government. The

Commission has thereafter observed that, by denying

recognition as sought by the petitioner, the State

Government has violated educational rights of the

minorities enshrined in Article 30 (1) of the Constitution

and accordingly, directed to reconsider the request of

5 cri appln 4549_2007.odt

the petitioner for grant of recognition.

b] Learned counsel submits that, in terms of the

provisions of Section 10 of the National Commission for

Minority Educational Institutions Act, 2004 (hereafter

referred to as the 'Act of 2004'), the proposal to establish

a Minority Educational Institution is required to be

decided by the competent authority within a period of

90 days and in terms of Sub-section (3) Clause 'a' and

'b' of Section 10, there is a deeming provision about

accepting of such proposal, if no decision is taken in the

prescribed period of 90 days.

c] Learned counsel submits that, in terms of the

provisions of Rules 108 of the Rules of 1949 certain

benefits of recognition are extended to the private

schools and recognition as an approved school entitle

the Management of the school to be eligible for grant-in-

aid and further to present its pupils as candidates for

scholarships and to admit scholarship holders and to

claim such other benefits as Government may, from time

to time declare in this behalf. Learned counsel submits

6 cri appln 4549_2007.odt

that, except these provisions there is nothing in the

Bombay Primary Education Act, 1947 or in the Rules of

1949 prescribing the consequences of not obtaining

recognition.

d] Learned counsel further submits that, in the year

2008, the petitioner Education Society had instituted a

R.C.S No.295/2008 against Zilla Parishad, Nanded and

the Education Officer, Zilla Parishad, Nanded and the

Block Education Officer, Panchayat, Ardhapur for a

decree of perpetual injunction restraining the

defendants therein from interfering into the affairs of

the School or to close school or to face the prosecution.

The Civil Judge J.D. Ardhapur, by its judgment and

decree dated 20.1.2011 decreed the said suit and

restrained the defendants as named above permanently

from interfering into the management of the petitioner-

school.

e] Learned counsel submits that, in a proceeding

taken under 482 of Cr.P.C., this Court is free to consider

material that may be produced on behalf of the accused

7 cri appln 4549_2007.odt

to arrive at a decision where the charge as framed could

be maintained. Further, even the courts below can look

into the material produced by the defence when said

material convincingly demonstrates that whole

prosecution case is totally absurd or totally concocted.

In some very rare cases, the court is justified in looking

into the material produced by the defence at the time of

framing of the charges. Learned counsel submits that

in the above backdrop of the case, this is a rare case

where the courts below should have looked into the

material produced by the defence as those documents if

considered, the entire prosecution case appears to be

absurd.

4. The learned counsel in order to substantiate his

submissions places reliance on following cases :-

1. Rukmini Narvekar Vs. Vijaya Satardekar

and ors. Reported in AIR 2009 Supreme Court 1013.

2. Harshendra Kumar D. Vs. Rebatilata Koley and others reported in (2011) 3 Supreme Court Cases 351.

8 cri appln 4549_2007.odt

5. The learned APP submits that, the applicants are

running school without any recognition from the

Government. The applicants have given admission to

the students of 1st to 4th standard and also taken

examination of those students without any recognition

of the school from the Government. There is sufficient

material collected by the I.O. during the course of the

investigation. There is no case for the applicants to seek

discharge. The learned APP submits that as per

provisions of section 239 of Cr.P.C., the only charge

sheet and documents submitted alongwith charge sheet

can be considered while deciding the application seeking

discharge. The applicants have produced documents

before this Court for the first time and in terms of the

provisions of Section 239 of Cr.P.C. those documents

cannot be considered. The learned APP submits that

the applicants are running said school since the year

1991 and even assuming that preexistence of the school

is required, till the filing of the complaint and even

thereafter no recognition was granted to the school run

by the applicants. The learned APP submits that, both

the courts below have, therefore, rightly considered this

9 cri appln 4549_2007.odt

legal position and rejected the application Exh.11

seeking discharge.

6. Rule 106 of the Rules of 1949, reads as under :-

"106. Application for recognition : (1) Subject to the

provisions of this rule an application for recognition of a new private school shall be made to the Competent Authority not later than the first day of November, of any year.

(2) Such application shall be made after the school has actually started functioning and has been in existence for a period of not less than three months.

(3) The application shall be accompanied by a statement in the Form 'A' set out in Appendix 'C' to these rules together

with an undertaking in writing that the conditions of employment of teachers in such private school shall be as near as possible to those specified in Schedule 'F' appended to these rules.

(4) The application shall state the name and address of the correspondent, and the Management shall report any change in such name and address of the correspondent to

the Competent Authority as soon as possible."

7. In terms of sub section (2) of Section 106 of Rules

of 1949, such application shall be made after the school

actually started functioning and has been in existence

for a period of not less than three months. It is thus

clear that preexistence of such school is necessary

seeking recognition as contemplated under Rule 106 of

Rules of 1949. Further, as per provisions of Rule 107 of

the Rules of 1949, the competent authority shall

10 cri appln 4549_2007.odt

arrange for the inspection of the school referred to in the

application, and shall forward the inspection report to

the School Board, or as the case may be, the Education

Committee, together with its recommendations relating

to the recognition of, and the grant-in-aid, if any,

payable to such private school. Benefits of such

recognition are prescribed under Rule 108 of Rules of

1949. Rule 108 of Rules of 1949 reads as under :-

"108. Benefits of Recognition : (1) Subject to the provisions of rules 110 and 111 a private school

recognized as an approved school shall, unless it denies admission to pupils on grounds only of religion race, caste, language or any of them or declines to employ any person on the ground only of religion race, caste, language or any of them be eligible for grant-in-

aid on application made in that behalf under rule 110 in accordance with the rules hereinafter contained.

(2) Recognition as an approved school shall also entitle the Management of the school-

(a) to present its pupils at any public examination conducted by the Department;

(b) to present its pupils as candidates for scholarships and to admit scholarship holders; and

(c) to claim such other benefits as Government may, from time to time declare in this behalf."

8. It is thus clear that, the School Board or the

Education Committee after considering the inspection

report and recommendations of the competent authority

11 cri appln 4549_2007.odt

thereon, on satisfaction about the need of the school in

the locality, standard of the work in, and general

management of the private school, recognize the private

school as approved school and in terms of Rule 108

such a school gets benefits of the recognition.

9. In the provisions of Act of 1947 and Rules of 1949

referred above, the consequences of rejection of an

application for recognition are prescribed. In terms of

Section 10 of the Act of 2004 the competent authority is

required to consider the proposal to establish a Minority

Educational Institution within a stipulated period and,

in case, the proposal is not considered in that stipulated

period, it shall be deemed that the competent authority

granted no objection certificate to such institution.

10. Section 10 of the Act of 2004 reads as under :-

[10 Right to establish a Minority Educational Institution. --

(1) Subject to the provisions contained in any other law for the time being in force, any person, who desires to establish a Minority Educational Institution may apply to the competent authority for the grant of no objection certificate for the said purpose.]

(2) The Competent authority shall,--

                         (a)       on   perusal   of   documents,   affidavits   or   other 
                                   evidence, if any; and 





                                                   12               cri appln 4549_2007.odt

(b) after giving an opportunity of being heard to the applicant, decide every application filed under sub- section (1) as expeditiously as possible and grant or

reject the application, as the case may be:

Provided that where an application is rejected, the Competent authority shall communicate the same to the applicant.

(3) Where within a period of ninety days from the receipt of the application under sub-section (1) for the grant of no objection certificate,--

(a) the Competent authority does not grant such

certificate; or

(b) where an application has been rejected and the same has not been communicated to the person who has applied for the grant of such certificate, it shall be deemed that the Competent authority has

granted a no objection certificate to the applicant.

(4) The applicant shall, on the grant of a no objection certificate or where the Competent authority has deemed to have granted the no objection certificate, be entitled to commence and proceed with the

establishment of a Minority Educational Institution in accordance with the rules and regulations, as

the case may be, laid down by or under any law for the time being in force. Explanation. --For the purpose of this section,--

(a) "applicant" means any person who makes an

application under sub-section (1) for establishment of a Minority Educational Institution;

(b) "no objection certificate" means a certificate stating therein, that the Competent authority has no objection for the establishment of a Minority

Educational Institution. ]

11. In the instant case, the applicant-Society had

approached to the National Commission for Minority

Educational Institutions against the Government of

Maharashtra and the Director of Education,

13 cri appln 4549_2007.odt

Maharashtra for non-consideration of their proposal for

recognition of their 'Sabiha Urdu Primary School,'

District Nanded. The National Commission for Minority

Educational Institutions has observed that the State

Government cannot deny recognition to minority

institutions on the ground that the State already has

more such institutions than required and, therefore, the

policy of the government not to permit the starting of

any more institution would infringe the substance of the

right guaranteed under Article 30. The Commission has

further observed that, such a factor is irrelevant so far

as minority institution is concerned. The Commission

has referred T.M.A. Pai Foundation Vs. State of

Karnataka with the observations made therein that the

affiliation and recognition has to be made available to

other institution that fulfills the conditions for grant of

such affiliation and recognition to the private

institutions. The Commission has further held that, by

denying recognition as sought by the applicants, the

State Government has violated educational rights of the

minorities enshrined in Article 30(1) of the Constitution

and accordingly directed the State Government to re-

14 cri appln 4549_2007.odt

consider the request of the petitioner for grant of

recognition. The Commission has given such direction

to the Government of Maharashtra by order dated

5.6.2007. However, in the year 2008, instead of granting

recognition, Education Officer, Zilla Parishad, Nanded

and Block Education Officer, Panchayat Samiti started

interfering into the affairs of the school run by the

minority institution. The applicants-institution

constrained to institute R.C.S. No.295/2008 and

accordingly the Civil Judge J.D., Ardhapur by judgment

and decree dated 20.1.2011 decreed the suit and thereby

restrained the defendants therein including the

respondent-complainant herein permanently from

interfering into the Management of the plaintiff's school.

12. The learned APP has vehemently submitted that

those documents cannot be looked into and in terms of

provisions of Section 239 of Cr.P.C., in case of a warrant

trial before the Magistrate and even in terms of similar

provisions of Section 227 of the trial before the Sessions

Court, those documents cannot be considered.

15 cri appln 4549_2007.odt

13. In a case of Rukmini Narvekar v. Vijaya

Satardekar and others (supra) relied upon by learned

counsel for the applicant, in para 9 and 29 of the

judgment, the Supreme Court has made the following

observations:-

Per Altamas Kabir, J.:-

"9. In my view, therefore, there is no scope for the accused to produce any evidence in support of the submissions made on his behalf at the stage of

framing of charge and only such material as are indicated in Section 227 Cr.P.C. can be taken into consideration by the learned magistrate at that

stage. However, in a proceeding taken therefrom under Section 482 Cr.P.C. the Court is free to consider material that may be produced on behalf of the accused to arrive at a decision whether the charge as framed could be maintained. This, in my

view, appears to be the intention of the legislature in wording Sections 227 and 228 the way in which they

have been worded and as explained in Debendra Nath Padhi's case (supra) by the larger Bench to which the very same question had been referred.

Per Markandey Katju, J. :-

"29. In our opinion, therefore, it cannot be said as an absolute proposition that under no circumstances can the Court look into the material produced by the

defence at the time of framing of the charges, though this should be done in very rare cases, i.e. where the defence produces some material which convincingly demonstrates that the whole prosecution case is totally absurd or totally concocted. We agree with Shri Lalit that in some very rare cases the Court is justified in looking into the material produced by the defence at the time of framing of the charges, if such material convincingly establishes that the whole prosecution version is totally absurd, preposterous or concocted."

16 cri appln 4549_2007.odt

14. In a case of Harshendra Kumar D.(supra) relied

upon by the learned counsel for applicants, in

paragraph no.25 of the judgment, the Supreme Court

has made following observations :-

25. In our judgment, the above observations

cannot be read to mean that in a criminal case where trial is yet to take place and the matter is at the stage of issuance of summons or taking cognizance, materials relied upon by the accused

which are in the nature of public documents or the materials which are beyond suspicion or

doubt, in no circumstance, can be looked into by the High Court in exercise of its jurisdiction under Section 482 or for that matter in exercise of revisional jurisdiction under Section 397 of the

code. It is fairly settled now that while exercising inherent jurisdiction under Section 482 or revisional jurisdiction under Section 397 of the Code in a case where complaint is sought to be

quashed, it is not proper for the High Court to consider the defence of the accused or embark

upon an enquiry in respect of merits of the accusations. However, in an appropriate case, if on the face of the documents - which are beyond suspicion or doubt - placed by the accused, the accusations against him cannot stand, it would

be travesty of justice if the accused is relegated to trial and he is asked to prove his defence before the trial court. In such a matter, for promotion of justice or to prevent injustice or abuse of process, the High Court may look into the materials which

have significant bearing on the matter at prima facie stage."

15. It is thus clear that, in appropriate case, if, on the

face of the documents which are beyond suspicion or

doubt placed by the accused, accusations against him

17 cri appln 4549_2007.odt

cannot stand, it would be travesty of justice if the

accused is relegated to trial and he is asked to prove his

defence before the trial court.

16. In my opinion, this is a rare case in which the

Court can look into the material produced by the

defence, which convincingly demonstrates that the

entire prosecution case is absurd.

17. The provisions of Act of 1947 and the Rules of

1949 and provisions of National Commission for

Minority Educational Institutions Act, 2004 and the

judgment and order delivered by the National

Commission for Minority Educational Institutions in

Case No.1445/2006 and further decree of the civil Court

in R.C.S. No.295/2008 which has attained the finality,

now convincingly demonstrates that the allegations