Judgment:
ORDER
B. H. Marlapalle, J.
1. Heard the Counsel for respective parties. Rule. Taken up for final hearing forthwith.
2. The applicant No. 1 is the Principal of the Little Flower High School at Aurangabad and the applicant No. 2 is the President of the Saint Francis De Sales Education Society, Aurangabad and he is also the Bishop of Aurangabad Diocese, whereas, the applicant Nos. 3 and 4 are the membersof the Saint Francis De Sales Education Society, Aurangabad. The daughter of the respondent No. 2 - Deelip Balrang Bedekar was studying in the Little Flower High School which is run by Saint Francis De Sales Education Society (Hereinafter referred to as the education society for short) which is a public trust, registered under the Bombay Public Trusts Act.
3. It is alleged that on 11-10-1993, the applicant No. 2 recovered from the respondent No. 2 an amount of Rs. 180/- towards the School Maintenance Fees vide receipt No. 0018156 and this receipt was issued by R.C. Church, Cantonment, Aurangabad, which is another public trust and has no concern with the Little Flower School or the education society. It is further alleged that subsequently on four different occasions, different amounts were demanded and recovered from the respondent No. 2 by the applicant No. 2 and similar receipts of R.C. Church Cantonment, Aurangabad, were issued.
4. The respondent No. 2, therefore, approached the Court of Judicial Magistrate First Class at Aurangabad and filed RCC No. 35/1994, contending that by demanding and recovering the above said amounts from time to time, the accused collected illegal amount and therefore, they were guilty of committing the offence under section 3 r/w section 7 of the Maharashtra Educational Institutions (Prohibition of Capitation Fees) Act, 1987 (Hereinafter referred to as the said Act for short). He further alleged that the school was not entitled to recover the amount from him under different heads for other trusts when the school was being run by the education society and even otherwise the act of charging the amount from time to time was in contravention of the rules prescribed and the provisions of section 3 of the said Act.
5. On verification, the learned Magistrate issued process against the accused (present applicant Nos. 1 to 4), respondent Nos. 3 & 4 as well as Cashier. Some of the accused appeared before the learned Magistrate and filed their reply. By a separate application at Exh. 49, they prayed for recalling the order of process and this was rejected by the learned Magistrate vide his order dt. 15-1-1996. A judgment of this Court in the case of Kishan & another v. Meghraj and another, 1981 Bom.C.R. 211 and another judgment of the Supreme Court in the case of Punjab National Bank and others v. Surendra, : 1992CriLJ2916 , were relied upon by the accused. The learned Magistrate held that the law laid down in both these cases was scrupulously followed by his learned predecessor while issuing the Order of Process for the offence alleged and there was no error warranting the recall of the process.
6. This order of process came to be challenged in Criminal Revision Application No. 51/96 and by his judgment and order, dt. 15-6-98, the learned Sessions Judge, Aurangabad, was pleased to dismiss the revision. Both these orders have been brought in question in the instant criminal revision.
7. In addition to the averments made in the application, the learned Counsel for the applicants has filed written submissions and relied upon a number of judgments. The contentions of the applicants accused, in short, are that the complaint filed before the learned Magistrate was not tenable as it is not intended in the provisions of the said Act to file the complaint directly before the Magistrate, especially when the primary object of the Act is to regulate the charging of fee at an exorbitant rate. As the Act isregulatory, recitative and corrective in nature and its punitive object is secondary and it falls in the second category of law, felony is consequential, subsidiary and servient to the main object of the regulation and restitution. Unless an enquiry, contemplated under section 5 of the Act is conducted by the competent authority, no prosecution by way of a private complaint can be launched. Reliance has been placed on the judgment of the Supreme Court in the case of J. P. Unnikrishnan v. State of A.P., : [1993]1SCR594 and it was contended that the Apex Court has judicially recognized the payment of fee at exorbitant rate by those who afford and this may have to be read as a judicial expression de hors and not per incurium or bare obiter and the aim & object of this Act is required to be visualized through this angle rather than as the kaleidoscopic of a criminal law interpreted with the rule of beneficial construction. The private complainant, aggrieved on the alleged ground of demand and recovery of illegal fee or fee in excess, is free to approach the Government and invoke the Government's power of initiating enquiry and if the Govt. concludes that the given amount of fee is not consistent with the semblance of capitation it may order suitably, including the refund of amount or its appropriation suitably. As an extension to this argument, it is further contended that the domain of State in the matters of prosecution cannot be diminished and destroyed by permitting a private complaint to be entertained when the law with all its sharp teeth does not provide in an expressed manner for filing of a private complaint and for putting the process of criminal law into motion. The rule of beneficial construction cannot be extended to enlarge or escalate the scope of provision of a penal law and general rule of interpretation of criminal law i.e. rule of strict interpretation will govern the field and whenever there is a special enactment regulating investigation, enquiry or trial into an offence created by a special statute, procedure prescribed therein must be followed to the exclusion of the procedure laid down in the general law like the Code of Criminal Procedure. In support of this argument, reliance has been placed on the provisions of section 4(2) of the said Code. It is settled principle in the course of administration of justice that while construing a penal Act and the provisions therein, if there is an ambiguity or reasonable doubt, that whether the act committed by the person proceeded against is sufficient to invite penal action, such an act must be construed and resolved in favour of the person who would be liable to the penalty and when the special statute has contemplated such a penal action to be imposed by the authority of the State Government in expressed terms, it may not be legitimate for the judiciary to invoke its jurisdiction on the basis of a private complaint, unless such a complainant had approached the competent authority of the State Government and provided an opportunity to such authority to investigate and take corrective measures, urged the learned Counsel for the applicants - accused. In support of his submissions, the learned Counsel for the applicants has referred to the following judgments :
(1) Dr. P. Nalla Thampy Thera v. B.L. Shankar and others, A.I.R. 1984 S.C. 135.
(2) The State of Haryana v. Bhajan Lal, : 1992CriLJ527 .
(3) Air India Statutory Corp. v. United Labour Union & others, A.I.R. 1997 S.C.W. 430.
(4) Forum for Fairness in Education, Bombay & others v. The State of Maharashtra & others, W.P. No. 614/99, dt. 28-6-99, reported in : AIR1999Bom310 .
8. One of the main objects in enacting the Act was to prohibit the collection of capitation fee for admission of students in private educational institutions in the State and to curb such undesirable practice, as this practice was contributing to a large scale commercialization of education which was not conducive to the maintenance of the educational standards. The Act thus sought to effectively curb this evil practice. The term 'capitation fee' as defined under the law means any amount by whatever name it is called, whether in cash or kind, in excess of the prescribed fee or as the case may be approved rates of fee, regulated under section 4, under section 2(a), Kindergarten, Pre-primary, Balwadi or Nursery Schools are also included in the definition of the term 'educational institutions'. Section 3(1) of the Act, inter alia, stipulates that notwithstanding anything contained in any law for the time being in force, no capitation fee shall be demanded or collected by or on behalf of any educational institution in consideration of admission to any course of study. Section 3(2) provides that notwithstanding anything contained in sub-section (1), the management may, in good faith, demand or collect or accept donations in cash or kind in the prescribed manner from the benevolent persons etc., for development or expansion of educational facilities in the existing educational institutions, but while collecting or accepting such donations, the management shall not reserve any seat in any educational institutions run by it, in consideration of such donations. Proviso to this sub-section stipulates that where in consideration of accepting such donations, any seat is reserved for admission to any student in such institution, such acceptance of donation shall be deemed to be collection of capitation fee. Section 3(3) empowers the State Government to take steps on receipt of a complaint or otherwise about the contravention of the provisions of the Act, in addition to any prosecution that may be instituted under the Act and the capitation fee collected in contravention of the provisions of the Act, shall be refunded to the persons concerned together with interest thereon. Section 3(4) states that the management of any educational institution or any person who is incharge of or responsible for the management of such institution collected or accepted the donations in consideration of admission or promotion, shall be deemed to have contravened the provisions of section 3(1) and shall be liable to be proceeded against and punished accordingly. Section 4 empowers the State to regulate the tuition fee or any other fee that may be received or collected by any educational institution and such rate or fee prescribed by the State Government shall ordinarily remain in force for a period of three years and the Government has the power to review the fee structure, as per the procedure prescribed in section 4(4). Section 5 of the Act empowers the State to hold or direct an enquiry into the affair of such educational societies or the management thereof which are alleged to have contravened the provisions of the Act or the rules made thereunder. Section 5(4) stipulates that on receipt of the report of the Enquiry Officer, it shall be competent for the State Government to invoke the provisions of section 3(3) of the Act. Section 6(2) of the Act states that the provisions of the Code of Criminal Procedure 1973 relating to searches and seizures shall apply, so far as may be to searches and seizures under sub-section (1). Section 7 relates to the penalty and reads thus :
'Whoever contravenes any provision of this Act or the rules made thereunder, shall, on conviction be punished, with imprisonment for a term which shall not be less than one year but which may extend to three years and with fine which may extend to five thousand rupees.'
9. The respondent No. 2 had issued a notice to the Principal of the School on 10-12-1993 and copies of the same were forwarded to the Education Department, Mantralaya, Mumbai : the Education Officer, Zilla Parishad, Aurangabad : the Joint Charity Commissioner, Aurangabad and the Assistant Charity Commissioner at Aurangabad and as no action was forthcoming from any of these authorities, the complainant approached the Court of Judicial Magistrate First Class at Aurangabad on 21-3-1994. On the challenge to the process issued by the learned Magistrate in the revision application, the learned Sessions Judge, after considering the reliance placed on the judgment of the Supreme Court in the case of State of Haryana v. Bhajan Lal (supra), rejected the plea that the process was erroneously issued or there was no case made out to issue the process. On the point of maintainability of the complaint directly before the' learned Magistrate, the revision Court negatived the same plea, inter alia, by relying upon a judgment of the Supreme Court in the case of Nilratan Sirkar v. Laxminarayan, : 1965CriLJ100 and held that there can be no doubt that whenever a special enactment prescribes a special procedure, different from the one prescribed in the Code, it wilt have to be followed in relation to the offence dealt with by such special enactment and the procedure prescribed in the Special Act will prevail over the procedure laid down in the Code. : 1991CriLJ654 .
10. Section 9 of the said Act reads,
'Where in a trial of an-offence under this Act, the Magistrate is of opinion that there was no reasonable ground for making the accusation, he may proceed to take action against the complainant or the informant under section 250 of the Code of Criminal Procedure, 1973.'
This section has used two different words viz., 'complainant and 'informant' and therefore, it envisages two sources for trial of an offence under the provisions of this Act i.e. by way of a complaint or by way of an information. When it comes to the second source of information, it ought to be presumed that such an information could be received by the competent authority who would in turn investigate and if found desirable or fit, proceed to file a complaint of criminal offence before the Magistrate. But when it comes to the first source of trial by a complaint, it would have to be inferred that such a complainant may approach the Court directly rather than approaching the competent authority under the Act and pray for taking a cognizance.
11. Section 3(3) will have to be read in three parts so far as the powers of the Government are concerned. First part would be where the Government on receipt of a complaint or otherwise is satisfied that the management of any institution or any person who is incharge or responsible for the management of such institution has contravened the provisions of the Act or the rules made thereunder, may after giving a reasonable opportunity of being heard, direct such institution or person responsible to refund the capitation fee collected in contravention of the Act and on its failure or his failure to do so, direct refund of such amount, together with interestthereon in the modes prescribed. Whereas, the second part would be where the Government on receipt of any complaint or otherwise is satisfied that the management of any institution or any person who is incharge or is responsible for the management of such institution, has contravened the provisions of this Act or the rules made thereunder, may, institute prosecution under the Act. The words 'in addition to any prosecution that may be instituted under this Act' as contained in section 3(3) of the Act, does not imply that there is a bar for a private complaint to be instituted before the Magistrate and it cannot be inferred that such a complaint has to be instituted only by the State. If the statute had intended to so mean, the Legislature would have made its intention clear in no unambiguous words and provided for a complete bar on instituting a private complaint before a Magistrate. If the Legislature had so desired it would have specifically provided that no Court shall take cognizance of an offence punishable under the Act except upon a complaint in writing by an officer or authority of the State Government or it could have also provided that no Court shall take cognizance of an offence under this Act without prior sanction or certificate or consent or such an authority or officer. In short, such provisions akin to the provisions of sections 195, 196 and 197 of the Criminal Procedure Code and this remedy of direct complaint to the Magistrate is the third part of section 3(3) of the Act.
12. In the preamble of the Act it is, inter alia, stated :
'and whereas with a view to effectively curb this evil practice it is expedient in the public interest to prohibit the collection of capitation fee for admission to students or promotion to a higher standard or class in the educational institutions in the State of Maharashtra and to provide for matters connected therewith.'
This would clear the intentions of the Legislature to provide for effective measures to curb the evil practice of collection of capitation fee for admission or promotion in educational institutions and therefore, the Legislature has made collection of such unauthorized fee an offence punishable under section 7 of the Act. It cannot be expected that the Legislature intended while enacting the Act that the private complainants would not be entertained directly by the Magistrate unless such complaints are routed through the competent authority of the State Government or the complaints are instituted by such authority itself or with the permission or consent of such authority. Even though the Act does not prohibit collection of fee as per the rates prescribed by the Government, that itself would not lead to a conclusion that it is a beneficial legislation intended only to avoid for an increase in educational fee. Considering the inadequate resources at the disposal of the State Government, the private bodies/ institutions have been authorized to be the agencies of the State for providing education and more so, primary and secondary education and to achieve this objective, the private bodies/institutions have been permitted to start educational institutions. When the Government realized that in the process or under the pretext of providing educational formalities, the private bodies/institutions were likely to resort to actions leading to the exploitation of the students and their parents by charging exorbitant fee and such instances, in fact, were glaringly noticed and when it became a social evil, the Government stepped in and enacted the Act and provided for penal provisions.
13. In the case of Kanvarsing v. Delhi Administration, : [1965]1SCR7 the Supreme Court observed thus :
'It is the duty of the Court in construing a statute to give effect to the intention of the Legislature. If, therefore, giving a literal meaning to a word used by the draftsman, particularly in a penal statute, would defeat the object of the Legislature, which is to suppress a mischief, the Court can depart from the dictionary meaning or even the popular meaning of the word and instead give it a meaning which will advance the remedy and suppress the mischief.'
If the interpretation, as is being advanced by the learned Counsel for the applicants is accepted, the penal provisions in the Act may be rendered ineffective in as much as it would be left to the sweet will of the authority either to file or not to file a criminal complaint before the Magistrate. In addition, if the Act had intended that such a complaint is necessarily required to be filed by or under the permission of the competent authority/officer, it would have provided for a prescribed period within which such permission would be granted or such a complaint would be filed within a stipulated period, after the investigation and if the permission was not granted within a fixed period, it would be deemed to have granted the permission. In the absence of such a deeming provision, the interpretations as advanced would defeat the purpose of curbing the social evil of collecting exorbitant capitation fee or illegal collection of fee. If the statute had made a penal provision, such provision must be allowed to flow its natural course of giving justice in public interest so that the aim behind providing such penalty is fully achieved without any impediments or obstacles.
14. The Supreme Court in the case of Swantraj v. State of Maharashtra, : 1974CriLJ472 , held that legislation is a social document and judicial construction seeks to decipher the statutory mission and what must tilt the balance is the purpose of the statute, its potential frustration and judicial avoidance of the mischief by a construction whereby the means of licensing meet the ends of ensuring pure and potent remedies for the people. The Apex Court also quoted the rule for construction from the age old (Heydon's) case 1976 ER 637, which resolved.
'... That for the sure and true interpretation of all statutes in general [be they penal or beneficial, recitative or enlarging of the common law), four things are to be discerned and considered;
1st. What was the common law before the making of the Act.
2nd. What was the mischief and defect for which the common law did not provide.
3rd. What remedy Parliament hath resolved and appointed to cure the disease of the commonwealth.
and 4th. The true reason of the remedy; and then the office of all the Judges is always to make such construction as shall suppress the mischief, and advance the remedy, and to suppress subtle inventions and evasions for continuance of the mischief and, proprivato commodo, and to add force and life to the cure and remedy, according to the true intent of the makers of the Act, pro bono publico.'
15. In the case of Unnikrishnan (supra), the Apex Court held that the right to free education upto the age of fourteen years is a fundamental right, the educational institutions discharge a public duty and have, there-fore, a duty to act fairly and would be subjected to Article 14 of the Constitution of India, the absence of receipt by educational institutions of any aid from the Government would not detract such institutions from discharge of their public duty and one should not tolerate the private institutions which are run as financial adventures without morals or with the sole aim of making money. It was further held that the Government's controls have to be continued and strengthened if commercialization of education and racketeering have to be prevented and therefore, the State should strive its utmost to ensure that the private institutions maintain minimum standards and facilities, admissions should be based only on merit and norms of admission should be predetermined and should be transparent. The Apex Court also accepted the right of the unaided private institutions to collect fee higher than the fee charged by Government institutions as they have to meet the cost of imparting education from their resources and thus, developed concept of self-financing of the educational institutions. This Court in the case of Forum for Fairness in Education, Mumbai, (supra), observed thus:
'.... But one thing is clear that commercialization of education cannot and should not be permitted, which intention has been clearly expressed by the Parliament as well as State Legislatures in unmistakable terms. Further, both in the light of our traditions and from the stand point of interest of general public, commercialization is positively harmful, it is opposed to public policy which is one of the reasons for the conclusions that imparting of education cannot be trade, business or profession. The education has never been commerce in this country. Making it one, is opposed to ethos, traditions and sensibilities of this nation. Imparting education has always been treated as religious duty, it is treated as a charitable activity and never as trade or business. In its true aspect, it is more a mission than a vocation.'
In the said case, this Court further noted that the demand or collection of capitation fee is not only prohibited but also it is a cognizable offence with imprisonment upto a term of three years as per the scheme of the Act.
If the above quoted aims have to be achieved by the State viz. the educational institutions be run as a mission and it be run as a charitable activity and not a commercial venture, the law enacted by the Legislature to curb the social evil of illegal collection of fee must not only have its teeth but the teeth must be strong enough to bite. If regards be had to these intentions, to make the Act more effective, it must be concluded that a private complainant has the remedy to directly approach the Magistrate, complaining that the institution or the person responsible for the management of the institution has demanded or collected illegal fee and hence, must be penalized by involving the powers under section 7 of the Act and it is not necessary for him to first approach the competent authority of the Government, requesting for investigation or in alternate seeking permission of such competent authority to file a complaint before the Magistrate. It is also not known as to whether as on today the Govt., has exercised its powers under section 12 of the Act and framed rules for carrying out the purpose of the said Act. It would be for the State Govt. to clarify the methodology for investigation and filing complaints before the Magistrate by framing such rules. As at present, it must, therefore, be reiterated that there is nothing in the provisions of the Act to indicate that a person aggrieved could approach the Magistrate only after exhausting the remedies with the Govt.
16. The orders passed by courts below and which are impugned in this application do not suffer from any infirmities in law or on facts and hence, the challenge to the said orders is devoid of merits. The application is, therefore, rejected. Rule is discharged. No costs.
Rule discharged.