Shivaji Madhavrao Pawar vs The State Of Maharashtra And ...
2017 Latest Caselaw 6531 Bom

                                            1                           WP366.2016

            IN THE HIGH COURT OF JUDICATURE AT BOMBAY.
                       BENCH AT AURANGABAD.

               CRIMINAL WRIT PETITION NO. 366 OF 2016 

 Shivaji Madhavrao Pawar,
 Age : about 32 years, Occu- Service,
 R/o. At Warud (Samad), Post-Paheni,
 Tal. Sengaon, Dist. Hingoli.                                ... Petitioner

                               VERSUS

 1.           The State of Maharashtra.

 2.           The Police Inspector,  Anti Corruption Bureau at 
              Hingoli, Dist. Hingoli.

 3.           Kai. Miratai Madhyamik Vidyalaya,
              Through its Head Master,
              Having Office address at Sawad,
              Tal. & Dist. Hingoli.

 4.           Shri Ganesh Shikshan Prasarak Mandal,
              Through its President/Secretary,
              Sawad, Tal. & Dist. Hingoli.          ... Respondents

                                   ..........
            Mr R. B. Narwade Patil, Advocate for the petitioner
               Mr S. P. Deshmukh, APP for respondent/State
            Mr A. S. Barlota, Advocate for respondents No. 3 & 4
                                  .............

                                        CORAM  :  S. S. SHINDE   &
                                                  A. M. DHAVALE, JJ.  

                                        RESERVED ON        :     18.08.2017.
                                        PRONOUNCED ON :      24.08.2017.

 JUDGMENT (Per A. M. Dhavale, J.) :-

1. Rule. Rule made returnable forthwith. Heard finally with

the consent of the parties and taken up for final disposal at admission

stage.

2 WP366.2016

2. This is a petition under Article 226 of the Constitution of

India and Section 482 of the Code of Criminal Procedure for

quashing of First Information Report bearing No. 3017 of 2015

registered with Hingoli Rural Police Station against the petitioner for

offences punishable u/s 7, 13(1)(d) r/w 13(2) of the Prevention of

Corruption Act, 1988, on 26.06.2015 and for prohibiting the

respondents from taking action on the basis of the same.

3. The petitioner came to be appointed as Asst. Teacher in

respondent No. 3 - school namely; Kai. Miratai Madhyamik Vidyalaya

run by respondent No. 4 - Trust, on 21.08.2012. As per the FIR

lodged by Police Inspector - V. P. Kale, Anti Corruption Bureau,

Hingoli, he received information about demand of bribe by the

petitioner and hence on 25.06.2015 Mr Hanumant Borkar-

Complainant along with one panch were sent to the petitioner for

verification of the complaint and the conversation between them was

tape-recorded. Having convinced about the demand of bribe, he laid

a trap on 26.06.2015 and it was found that the petitioner demanded

and accepted Rs. 300/- as a bribe from Mr. Hanumant Borkar for

issuing transfer certificate (T.C.) and again the conversation was

tape-recorded. The petitioner was found on the spot and the notes

smeared with anthracene powder were seized from his shirt-pocket

3 WP366.2016

and FIR came to be lodged against him.

4. Learned Advocate Shri. R. B. Narwade Patil seeks quashing

of the FIR on the two grounds namely;

(i) Respondent No.3-School is a non-grant-in-aid school and, therefore, the petitioner is not a Public Servant.

(ii) The amount received by the petitioner is not a bribe or illegal gratification but it was accepted as per directions of the management and resolution passed in the meeting of the Executive Body for meeting the expenses of the school. It was not accepted for personal gain or benefit.

5. Learned APP for respondents No. 1 and 2 invited our

attention to the Investigation Note (Exh. R-1) of the Education

Officer to submit that the school was receiving grants at the relevant

time. He submitted that, neither the Institute nor the petitioner had

any authority to accept any amount from the student for issuing

transfer certificate and the amount received by the petitioner

amounts to bribe.

6. Shri. A. S. Barlota, learned counsel for respondents No. 3

and 4 supported the petitioner and stated that the petitioner had

received the amount as per resolution of respondent No.4 and it was

not bribe. The school was not receiving grant-in-aid till 19.09.2016.

4 WP366.2016

The amount received has been accounted for in the statement of

receipt and expenditure and similar amounts were received from

other students as fees by issuing receipts.

7. After having considered the arguments and after going

through the papers produced, we find that the school was not

receiving grant-in-aid for 8-10th std. By Govt. Resolution dt.

07.03.2017, 20% grants were first time released in the name of the

school from 19.09.2016 onwards. The incident has taken place on

26.06.2015 when there was no grant-in-aid to the school. Even the

Investigation Note of the Education Officer shows that the grant of

20% was released to the school from 19.09.2016 onwards.

8. Public Servant is defined is defined in Section 2 of the

Prevention of Corruption Act, 1988 as follows:

2(c) "public servant" means-

(i) to (xi) Not relevant.

(xii) any person who is an office-bearer or an employee of an educational, scientific, social, cultural or other institution, in whatever manner established, receiving or having received any financial assistance from the Central Government or any State Government, or local or other public authority.

9. Since the School of the petitioner was not receiving any

grant-in-aid and since such fact is mentioned in the Investigation

5 WP366.2016

Note of the Education Officer, we hold that the petitioner is not a

public servant within the meaning of Section 2(c) of the Prevention

of Corruption Act, 1988.

10. Besides, having gone through all the papers, we find that

the amount of Rs. 300/- was demanded and accepted by the

petitioner on behalf of the organization namely; respondent No. 3 -

school. Since it was non-granted school, as per Govt. Resolution dt.

27.05.2013, the management had right to decide the tuition fees and

other charges. If the charges were exorbitant and any incident of

profit making was observed, there was provision to make complaint

to the Dy. Director of Education, who was authorized to take

appropriate decision in the matter. As per resolution passed by

respondent No. 4 dt. 15.05.2015, it was decided that transfer

certificate fees of Rs. 100/- and charges towards development fund of

Rs. 200/- should be accepted from student with their consent.

11. The petitioner has produced copies of several such receipts

showing acceptance of such amount of Rs. 300/- from several

students towards transfer certificate and development fund.

Respondents No. 3 and 4 have admitted that the petitioner was

collecting these charges on behalf of the organization-respondents

No. 3 and 4 and such amount was accounted for in statement of

6 WP366.2016

receipt and expenditure.

12. As per Section 7 of Prevention of Corruption Act, whoever,

being, or expecting to be a public servant, accepts or obtain or agrees

to accept or attempts to obtain from any person, for himself or for

any other person, any gratification whatever other than legal

remuneration, as a motive or reward for doing or forbearing to do

any official act or for showing or forbearing to show, in the exercise

of his official functions, favour or disfavour to any person or for

rendering or attempting to render any service or disservice to any

person, with the Central Government or any State Government or

Parliament or the Legislature of any State or with any local authority,

corporation or Government company referred to in clause (c) of

section 2, or with any public servant, whether named or otherwise,

shall be punishable with imprisonment which shall be not less than

six months but which may extend to five years and shall also be liable

to fine.

7(c) "Legal remuneration". The words "legal remuneration"

are not restricted to remuneration which a public servant can lawfully demand, but include all remuneration which he is permitted by the Government or the organisation, which he serves, to accept.

13. Thus, if a public servant is collecting any charges permitted

7 WP366.2016

by the Government or the organization which he serves, it cannot be

called as illegal gratification.

14. We find that, the petitioner has not received Rs. 300/- for

his personal gain or personal benefit as a motive or reward but he

had collected the same as per the directions of the organization and

same was accounted for in the receipt and expenditure. In the

present case, the petitioner was caught by Anti Corruption Bureau

before issuance of receipt and, therefore, the receipt could not be

issued to Hanumant Borkar, the complainant herein.

15. It is an altogether different matter whether this collection

of Rs. 300/- for issuing transfer certificate is legal or illegal. If it is

illegal, the organization will have to face the consequences under the

Maharashtra Educational Institutions (Regulation of Fee) Act, 2011

but the petitioner, who has acted merely as an agent of organization,

cannot be prosecuted for offence of receiving gratification otherwise

than legal remuneration.

16. Thus, on both the counts, the charges against the petitioner

even if all the facts are accepted at their face value, are not

sustainable. Therefore, the lodging of FIR and the action taken on

the basis of the same against the petitioner is abuse of process of the

8 WP366.2016

Court. In this regard, we are fortified by the law laid down by the

judgment of the Division Bench of this Court in the matter of Dr.

Ramchandra S/o Munjaji Bhise Versus The State of Maharashtra

& Ors. delivered on 21.10.2015.

17. Before parting with the judgment, we direct that the Anti

Corruption Bureau should apply mind before laying trap as to

whether the school concerned receives grant-in-aid or not and

whether the demand of money will amount to illegal gratification or

not.

18. We clarify that, we are not expressing any opinion as to

whether the receipt of such amount by the petitioner on behalf of the

organization is legal or illegal, but if it is at all illegal, appropriate

action can be taken against the organization by following the

procedure prescribed under the law. We, therefore, hold that this

petition deserves to be allowed. Hence, the following order.

                                        ORDER

        (i)       The Criminal Writ Petition is allowed.


        (ii)      First   Information   Report   bearing   No.   3017/2015 

registered against the petitioner with Hingoli Rural Police Station for offences punishable u/s 7, 13(1)(d) r/w 13(2) of the Prevention of Corruption Act, 1988, on

9 WP366.2016

26.06.2015 and the prosecution initiated on the basis of the same are hereby quashed.

(iii) Rule is thus made absolute. No order as to costs.

                [ A. M. DHAVALE ]                     [ S. S. SHINDE ] 
                           JUDGE                              JUDGE




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