Bombay High Court
Narayana Educational Society vs Union Of India on 5 October, 2021
Bench: V.M. Deshpande, Amit B. Borkar
Judgment
wp543.21 43
1
IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
NAGPUR BENCH, NAGPUR
CRIMINAL WRIT PETITION NO.543 OF 2021
1. Narayana Educational Society,
A Society Registered under the Societies
Registration Act, 1860 and A Public Trust
Registered under the Mumbai Public Trusts Act,
1950
Through its Administrator and Authorized
Signatory
Dr.Roshan Dhore,
Aged about 46 years, occupation service,
Having its Office at:
74, Pioneer Residency Park,
Somalwada, Wardha Road,
Nagpur-15.
2. Narayana Vidyalayam,
Chinchbhavan, Wardha Road,
Nagpur-15. ..... Petitioners.
:: V E R S U S ::
1. Union of India,
In the Ministry of Human Resource
Development,
Department of School Education and Literacy,
Room No.429-A, C Wing,
Shastri Bhawan, New Delhi,
Through its Secretary.
2. State of Maharashtra,
In the Ministry of School Education and
Sports Division,
Mantralaya Annex,
Mumbai-32,
.....2/-
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2
Through its Secretary.
3. Deputy Director of Education,
Nagpur Division,
Civil Lines, Nagpur-01.
4. Education Officer (Secondary)
Zilla Parishad,
Civil Lines, Nagpur-01.
5. Education Officer (Primary)
Zilla Parishad,
Civil Lines, Nagpur-01.
6. Police Station Officer,
Police Station Beltarodi,
Nagpur City. ..... Respondents.
===================================
Shri Anil Mardikar, Senior Counsel with Shri Vishwas S.Kukday,
Advocate for Petitioners.
Shri Shaikh Majid, Counsel for Respondent No.5.
Shri S.S.Doifode, Addl.P.P. for Respondent Nos.2,3,4, & 6/State.
===================================
CORAM : V.M.DESHPANDE & AMIT B.BORKAR, JJ.
DATE : OCTOBER 05, 2021
ORAL JUDGMENT (Per : Amit B.Borkar, J.)
1. Heard learned senior counsel Shri Anil Mardikar for
petitioners, learned counsel Shri Shaikh Majid for respondent
No.5, and learned Additional Government Pleader Shri S.S.Doifode
for respondent Nos.2,3,4, and 6/State.
.....3/-
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2. Rule. Rule is made returnable forthwith. Heard
finally by consent of learned counsel for parties.
3. By this writ petition under Articles 226 and 227 of the
Constitution of India, petitioners challenge impugned
communication dated 17.6.2021 issued by respondent No.5 and
also impugned order dated 18.6.2021 by respondent No.6.
4. Facts giving rise to present petition are as under:
On 8.5.2020, respondent No.2 issued Government
Resolution thereby providing guidelines for recovery of fees from
students due to Pandemic situation. On 3.6.2020, respondent
No.4 issued guidelines to headmasters of various schools
prescribing manner of collection of fees in pursuance of
Government Resolution dated 8.5.2000. It appears that one of
institutions challenged Government Resolution dated 8.5.2000 by
way of Writ Petition No.3021/2020 wherein the Division Bench of
this Court by order dated 1.3.2021 held that Government
Resolution dated 8.5.2000 is prospective and cannot be applied to
schools which have already fixed their fees for Academic Year
.....4/-
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2020-2021. The Division Bench also clarified that Government
Resolution dated 8.5.2000 cannot be construed as a direction for
refund of any fees collected for Academic Year 2020-2021.It is
clarified by clause (vii) of the order of the Division Bench that
protection to parents in respect of Academic Year 2020-2021 shall
apply only in the event there is increase in fees fixed in Academic
Year 2020-2021 from the fees fixed in Academic Year 2019-2020
and even in such a case only it will increase component of fees and
not the entire fees. The Division Bench by way of clause (viii) held
that any actions initiated or communications issued against any of
petitioner schools or members on the basis of Government
Resolution dated 8.5.2000 shall stand withdrawn.
5. On 15.12.2000, respondent No.3 passed an order holding
petitioners guilty of charging excessive fees for Years 2017-18 to
2019-2020 and they were directed to refund the amount to
parents. The petitioners being aggrieved by the said order filed
Writ Petition No.58/2021 before this Court and this Court by order
dated 6.1.2021 directed respondents not to take coercive steps
against petitioners.
.....5/-
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6. During pendency of the said petition, on 21.5.2021 a
group of 40-50 parents approached petitioner No.2 school and
sought 100% waiver of school fees. On 25.5.2021, respondent
No.5 inspected petitioner No.2 school. On 27.5.2021, petitioner
No.2 school filed its reply before respondent No.5 stating that due
to Covid-2019 situation they are unable to provide inspection of
their premises. However, petitioner No.2 school submitted
necessary documents before the said respondent.
7. It appears that respondent No.5 on 17.6.2021 issued a
communication to respondent No.6 directing it to register offence
against petitioners. On 18.6.2021 respondent No.6 issued
impugned notice to petitioners seeking documents which are
stating in the said order. Being aggrieved and dissatisfied by
communication dated 17.6.2021 issued by respondent No.5 and
notice under Section 91 of the Code of Criminal Procedure issued
by respondent No.6, petitioners have filed the present writ
petition.
8. This Court on 28.7.2021 issued Notices to respondents
.....6/-
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by giving detailed reasons.
9. Respondent No.6 filed its reply on 1.10.2021 stating
that respondent No.6 conducted enquiry into issue raised in
complaint and respondent No.6 does not find specific allegation in
respect of offences under the provisions of the Indian Penal Code.
It is pertinent to note that respondent No.6 forwarded all
documents including the complaint to the Deputy Director of
Education, Nagpur for forwarding it to the Divisional Fees
Committee for taking necessary action.
10. On careful consideration of impugned communication
dated 17.6.2021 issued by respondent No.5 and also impugned
order dated 18.6.2021 by respondent No.6 and on careful perusal
of reply filed by respondent No.6, we are satisfied that respondent
No.6 has committed serious error in law by issuing Notice under
Section 91 of the Code of Criminal Procedure when essential
ingredients of Section 91 of the Code are not complied with. The
power to issue summon to produce documents would be vested
with officer only in relation to investigation, enquiry, trial or other
.....7/-
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proceeding under provisions of the Code.
11. Perusal of complaint dated 17.6.2021, on which
cognizance was taken by respondent No.6 issuing order dated
18.6.2021, discloses that respondent No.5 forwarded the
complaint filed by 22 parents for registration of offence against
petitioners. Respondent No.6 in its notice issued under Section 91
of the Code of Criminal Procedure stated that petitioners have
violated order of the Education Officer, Nagpur and the
Honourable Apex Court by charging higher amount of fees and
have caused mental harassment to students. Before power under
Section 91 of the Code was exercised, it was bounden duty of
respondent No.6 to satisfy himself about allegations in the
complaint of the commission of offence into provisions of the
Indian Penal Code which are reflected in notice under Section 91
of the Code of Criminal Procedure. It appears that only allegations
against petitioners are to the effect that petitioners have violated
order of the Education Officer and the Honourable Apex Court by
charging excessive amount of fees. In absence of any other
offences being alleged against petitioners or any specific averments
.....8/-
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in relation to commission of offences under the provisions of the
Indian Penal Code are against petitioners, Respondent No.6 was
not justified in issuing notice under Section 91 of the Criminal
Procedure Code. Ultimately, in reply filed on 1.10.2021,
respondent No.6 stated that on enquiry, no offence under the
provisions of the Indian Penal Code has been made out against
petitioners. However, while making the said statement,
respondent No.6 stated that he has forwarded all documents
including the complaint to the Deputy Director of Education,
Nagpur for forwarding it to the Divisional Fees Committee for
taking necessary action. We fail to understand under which power
Investigating Officer can send such application to the Divisional
Fees Committee. Investigating Officer, is entrusted with only those
powers which are specifically conferred on him by the Code of
Criminal Procedure. Learned Additional Public Prosecutor is
unable to point out any power under the Code of Criminal
Procedure under which Investigating Officer can send complaint to
the Divisional Fees Committee for taking necessary action.
12. In this view of the matter, we are satisfied that
.....9/-
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endeavour of respondent No.6 to send all documents including the
complaint to the Deputy Director of Education, Nagpur for
forwarding it to the Divisional Fees Committee for taking necessary
action is wholly ultra vires of his powers conferred under code of
criminal procedure. We are, therefore, satisfied that impugned
communication dated 17.6.2021 issued by respondent No.5 to
respondent No.6 for registration of offence against petitioners and
also consequent impugned order dated 18.6.2021 by respondent
No.6 under Section 91 of the Code of Criminal Procedure deserve
to be quashed and set aside.
13. In view of the above, we pass following order:
ORDER
(1) The criminal writ petition is allowed.
(2) The communication dated 17.6.2021 issued by respondent
No.5 to respondent No.6 for registration of offence against
petitioners and also impugned order dated 18.6.2021 by
respondent No.6 under Section 91 of the Code of Criminal
Procedure are quashed and set aside.
.....10/-
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(3) It is clarified that respondent No.6 has no power to send all
documents including the complaint received by him to the Deputy
Director of Education, Nagpur for forwarding it to the Divisional
Fees Committee for taking necessary action.
Rule is made absolute in above terms.
JUDGE JUDGE
!! BRW !!
...../-
