P.C.:
1. The applicant-accused has filed the application for anticipatory bail under section 438 of the Cr.P.C. The Complainant Dr.Manjusha Subash Mulavane, Joint Director of Higher Education, Mumbai, has filed this complaint against the applicant/accused. Pursuant to the said information, the offence was registered at Special Case No.7 of 2013 under section 7 of The Maharashtra Educational Institutions (Prohibition of Capitation Fee) Act, 1987 (for short, hereinafter referred to as 'Act'). The applicant/accused was working as a Principal of Siddharth College of Commerce and Economics (for short, hereinafter referred to as `College'). It is the case of the prosecution that when the applicant/accused was holding the post of the Principal of the College, he demanded and collected fee for the year 2012-2013 illegally exceeding the scheduled fee under the Act. It is the case of the prosecution that the applicant/accused has collected an excess amount of Rs.2,970/- from each student. Thus, a total amount of Rs.50,40,000/- was collected by the applicant/accused, illegally.
2. Two applications were moved by the aggrieved persons claiming to be the complainants. One application was moved by one Vitthal Chavan and the other was moved by one Chitra Salunkhe. Both the applicants claimed that they are the complainants and they are the first ones who pointed out the commission of the offence to the police by giving written complaint. The learned Counsel for the Complainant Vitthal B. Chavan has submitted that he is a General Secretary of the Students' Union in the College. He has sent the application to the Senior Police Inspector, Azad Maidan Police Station on 10.10.2012 for taking legal action and filing the offence against the Principal of the College that there is an exploitation of the students in violation of the provisions of the Act. It is further submitted that the applicant Vithhal Chavan has pursued the matter before various authorities and also collected information under the RTI. The learned Counsel submitted that he is an aggrieved person as excess fee of Rs.2970/- was collected from him for the year 2012-2013. Thus, he has locus to be heard before this Court in the present application under section 438 of the Cr.P.C. In support of his submissions, the learned Counsel relied on the decision of a learned Single Judge of the Kerala High Court in the case of Kunhiramanvs. State of Kerala, 2005 (2) KLT 685. The learned Counsel has submitted that under section 439(2) of the Cr.P.C., a person who is aggrieved, can move the application for cancellation of bail and, therefore, if at all, there is a person aggrieved, then, he also has locus to argue and the audience is to be given to him while deciding the application under section 438 also. In support of his submission, he also relied on the decision of the Supreme Court in the case of Puranvs. Rambilas and anr., 2001 SCC (Cri.) 1124. The learned Counsel for the applicant/accused Chitra Salunkhe also argued and submitted that the applicant has given the application to Senior P.I. of Azad Maidan Police Station on 30.12.2012 against the applicant/accused that FIR to be registered against the applicant/accused as he has collected excess fee than the scheduled fee under the Act.
3. The two applications are opposed by the applicant/accused. The learned Counsel appearing for the applicant/accused in support of the submissions relied on the judgment of this Court in the case of PremKumar Sharma vs. State of Maharashtra, Criminal Application No.391 of 2011 in Criminal Anticipatory Bail Application No.599 of 2011 decided on 29.3.2012.
4. Perused the applications and the documents annexed with those applications. It is true that both the applicants Vithhal Chavan and Chitra Salunkhe have sent letters to the Sr.Police Inspector, Azad Maidan Police Station and pointed out that excess amount in the nature of capitation fee is demanded and collected by the applicant/accused and thus, the offence is committed under the Act. However, these two persons are not the informants under section 154 nor the Complainants under section 200 of the Cr.P.C. They may be called as whistleblowers or may be aggrieved persons. One lady Dr.Manjusha Mulavane is the first informant on whose information the impugned offence was registered by the Azad Maidan Police Station. There are cases in which many persons get adversely affected because of the commission of crime, however, they all cannot be heard. In the case of Puranvs. Rambilas and anr (supra), wherein the Supreme Court has taken a view that the aggrieved person has locus and is to be heard and, therefore, the application made by the aggrieved person for cancellation of bail which is a regular bail under section 439(2) of the Cr.P.C. is maintainable. However, in the case of anticipatory bail under section 438 of the Cr.P.C. which is a pre-trial / pre-inquiry stage, such provision of locus cannot be made available to all the persons, who are aggrieved or affected by the act of the accused. In the case of PremKumar Sharma (supra), a learned Single Judge of this Court while referring to the judgment of this Court in the case VinayPoddar vs. State of Maharashtra and Ors., Criminal Application No.2862 of 2008, has held that there is no such provision to hear the complainant as an intervener in the case of anticipatory bail. This Court has held thus:
œ16. From the above judgments what emerges is that the learned single Judge of this Court has held that the first informant/Complainant has right to be heard in an application for anticipatory bail application filed by the accused and the position is different when it comes to an application for bail filed by the accused. None of the judgments cited by the Intervener deals with identical situation arising in the present case. Indisputably, none of the applicants is either the Complainant or the first informant. I am in respectful agreement with the view taken by the learned Single Judge in the case of Vinay Poddar (supra). No doubt, the Intervenors being members/account holders and depositors may be ultimately interested in the outcome of the investigation but this fact by itself would not be sufficient to give them locus in an application for anticipatory bail filed by the accused.?
5. It is true that in this case, many students of the College were affected due to the policy of demand and collection of the capitation fee and, therefore, every student from whom the capitation fee or the excess fee are collected is an aggrieved person. Even in the cases registered under the MPID Act, many investors can come before the court as the aggrieved persons when the application for anticipatory bail under section 438 of the Cr.P.C is filed by the applicant/accused. Undoubtedly, all these persons are aggrieved persons, however, if at all, they are heard, or only one such aggrieved person on a representative basis is heard then it may amount to discrimination and such hearing will consume a considerable time of the Court, which is not feasible in view of the time constraints. Moreover, the first informant Mrs.Moravale has not filed application as an intervener. Thus, it is expected that interest of the aggrieved person is to be represented by either the first informant or by the State and aggrieved persons may assist the State to bring out the correct information and true aspects of the commission of the crime.
6. In view of this, I am not inclined to allow the intervention applications. However, the learned Counsel for the applicant/interveners may assist the Court if at all any query is put forth to them.
7. Learned Counsel for the applicants/accused submitted that the fact that excess amount of Rs.2,970/- towards the fees was collected from each student in the College is an admitted position. It is also not disputed that the total amount of Rs.59,40,000/- is collected from 2000 students under different heads of the fees. The learned Counsel pointed out a chart giving details of the heads under which the excess fee was collected. The learned Counsel submitted that the excess amount was collected for English speaking improvement in the class so also towards insurance as the insurance is covered of a more amount by the College and it was also charged for refundable attendance deposit. The learned Counsel submitted that the amount is not misappropriated and is lying in the account of the College. The learned Counsel further submitted that this is as per the first information dated 6.7.2013, the act of collection of fee is not attributed to the applicant as the Principal but the act is attributed to the college i.e., the Siddharth College of Commerce and Economics. The learned Counsel submitted that it is not an act of the applicant-accused Principal alone but the decision of charging excess fee is taken unanimously by the Managing Committee of the society which runs the college. He pointed out that the People's Education Society runs the college. The Society has taken a decision to collect such excess fee and, therefore, the College has collected the fees. Collection of excess fees is going on since 2004. However, till today, no steps were taken or no complaint was lodged by the management against the Principal. He submitted that the learned Counsel further submitted that under the Objects of the Society, raising money with or without security for carrying out any of the purposes, aims and objects of the society is permissible. Therefore, if such excess fee is collected, then, that is in consonance with the object of the society. The learned Counsel further submitted that the offence is committed not by the Principal but if at all the office is committed then it is by the College and it is to be covered under section 8 of the Act. He relied on the definition of the Company which is very wide and also includes the institutes or society or trust or association or body of management of the affairs of the society. Thus, the learned Counsel further submitted that the offence of demand of capitation fee is bailable as per the amended section 7AA. However, even under section 7 of the Act, if at all the collection of fees is a non-bailable offence, the amount is not distributed or spent but it is kept intact. On the point of malafides, the learned Counsel submitted that the information was given to the police on 6.7.2013. However, on the same day i.e., on 6.7.2013, there was an agitation, commotion and assault on the campus of the College and the Commissioner of Police had issued order prohibiting a group of people not to enter the College. The learned Counsel submitted that there are nearly 3 groups fighting for power in the said college and therefore, the police had to intervene and prohibit the entry of some people. He pointed out that after the said order of the Commissioner of Police and immediately on the same day, an information was given to the Azad Maidan police station in respect of the alleged offence. The learned Counsel argued that this reveals that there are two rival groups and since the applicants/accused belong to the other group, is victimised by lodging false cases against him. There are many persons responsible for taking decision to demand and collect excess fee than the prescribed scheduled fee as per the Act, however, the applicant/accused is singled out. He therefore prays that he should be protected.
8. The learned APP opposed the application for anticipatory bail and has been assisted by the learned Counsel for the applicants. It is submitted that the act of demand and collection of the capitation fee is an offence which is non-bailable under the Act. Excess fee was collected from each student since 2004 and as per the Act, it is the Principal only who is responsible for such decisions and the collection of the fees. The applicant/accused is held guilty before the students grievance redressal committee of the university and under the Act and, thereafter, the Management has suspended him on 24.6.2013. It is further submitted that the applicant-accused is having criminal antecedents. Three cases are registered against him by the BKC police station and one by the Azad Maidan police station. It is further submitted that the three cases are lodged against him under section 500 of the Indian Penal Code. It is further submitted that therefore, the applicant/accused is not to be given anticipatory bail.
9. The applicant/accused is charged for the offence punishable under section 7 of the Act, which is a penal section under the Act. If there is any breach of the rules or any act done in contravention of the provisions of the Act or the Rules made thereunder, then, the punishment is not less than one year but which may extend to three years with fine which may extend to Rs.5,000/-. It is to be noted that under this section, the maximum punishment is to be awarded is of three years, the section puts a bar on a minimum punishment i.e., it should not be less than one year. In very few sections, minimum punishment is prescribed. Section 3 of the Act prohibits collection of the capitation fee. Section 3 (1) is as under:
3(1) Notwithstanding anything contained in any law for the time being in force, no capitation fee shall be collected by or on behalf of any educational institution or by any person who is in charge of, or is responsible for, the management of such institution, from or in relation to, any student in consideration of his admission to, and prosecution of, any course of study, or of his promotion to a higher standard or class in, such institution.
10. The submissions of the learned Counsel that in the information, the informant has held responsible the College for demanding and collecting the excess fee for any violation of the provisions of Act. It appears from the record that it may be a decision of the management. No material is placed before the Court disclosing that it is an act of only the applicant/accused. It is incomprehensive that the management had no knowledge of the collection of the capitation fee and account and audit of the college. Hence, a possibility that management, though was aware, had no objection or a consenting party, cannot be overruled. Therefore, the argument of the learned Counsel Mr.Ponda that the information in fact was given against the College and not against the Principal Mr.Patil “ the applicant/accused, prima facie, holds substance. The demand of capitation fee under the amended section 7AA is a bailable offence but the collection of capitation fee is non-bailable. From the record, it is apparent that 2 to 3 groups are fighting for the power and authority in the college. It is true that on 6.7.2013, the Commissioner of Police has issued orders prohibiting entry of some individuals on the campus of College and on the same day, the information is given to the police in respect of charging of excess fee. Earlier, as pointed out by the prosecution, complaints were made by the other two applicants, however, no action was taken by the police on their complaints. On the information given by the present informant on 6.7.2013, the police took action and the offence was registered on the next day i.e., on 7.7.2013. It is submitted by the learned Counsel for the applicants/accused that three criminal cases for defamation are filed by one the applicants Chitra Salunkhe against the applicant as he has challenged her degree certificate.
11. It appears from the record that the management of the People's Education Society runs this college. The amount of Rs.59,40,000/- which is collected by way of excess fees, at present is deposited in the account of the College and it is informed by the learned Counsel for the applicant the amount is intact, and not spent and is available for refund if a decision is taken by the management under section 3(3) of the Act. It is true that large number of students are affected as the practice of taking more fees than the prescribed schedule in the grant-in-aid institutions is freely exercised, yet, the offence is not registered under this Act. Hence it was submitted by the prosecution that if anticipatory bail is given in this case, then it will render the Act ineffective. Undoubtedly, as mentioned earlier, a minimum limit prescribed in section 7 of the Act on the sentence i.e., it should not be less than one year, indicates that the criminal element and rigor of the offence is of a higher degree than the penal sections where the punishment is only upto 3 years. Legislature, for most of the criminal offences, while legislating the penal sections has put the maximum limit of the punishment and exceptionally in very few penalising sections, minimum punishment is stated. Therefore, like sections 376(2) of Indian Penal Code stating punishment of not less than 10 years; section 7 of the Capitation Fee Act puts bar to award punishment of less than one year if a person is convicted. Yet, it is not an offence, which is so grave or serious that the liberty of the accused is to be sacrificed to establish deterrence of the Act. The liberty of an individual is always required to be weighed in one scale and the gravity of the offence and its consequences on the society in the other scale while deciding the application of anticipatory bail. Thus, even though there is an offence of collection of the capitation fee, I do not find any reason to deny protection of anticipatory bail to the applicant/accused and I am not satisfied with the reasons given by the prosecution for the custodial interrogation of this accused.
12. In the circumstances, I am of the view that no custodial interrogation is required. Hence, anticipatory bail application is allowed on the following terms:
i) In the event of arrest, the applicant be enlarged on bail on furnishing P.R. Bond of Rs.15,000/- with one or two sureties in the like amount.
ii) The applicant shall not tamper with the evidence.
iii) The applicant shall cooperate with the investigating agency and shall report to the police station on every Monday and Thursday evening between 5 pm to 6pm.
13. Anticipatory Bail Application is disposed of accordingly.
14. In view of the above, Criminal Application Nos.82 of 2014 and 85 of 2014 are also disposed of.