A private complaint can be directly instituted before the Magistrate for an offence under the Maharashtra Educational Institutions (Prohibition of Capitation Fees) Act, 1987, without the need for prior approval or permission from the competent authority of the State Government.

Headnote:
MAHARASHTRA EDUCATIONAL INSTITUTIONS (PROHIBITION OF CAPITATION FEES) ACT, 1987 - SECTION 3, 7 - PENAL PROVISIONS - INTERPRETATION - PRIVATE COMPLAINT - MAINTAINABILITY: 1. The Maharashtra Educational Institutions (Prohibition of Capitation Fees) Act, 1987 (hereinafter referred to as the Act) was enacted to effectively curb the evil practice of collection of capitation fee for admission or promotion in educational institutions. 2. Section 3(1) of the Act prohibits the demand or collection of capitation fee by or on behalf of any educational institution. 3. 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. 4. Section 7 of the Act provides for punishment for contravention of the provisions of the Act or the rules made thereunder. 5. A private complaint can be directly instituted before the Magistrate for an offence under the Act, without the need for prior approval or permission from the competent authority of the State Government. 6. The provisions of the Act do not indicate that a person aggrieved could approach the Magistrate only after exhausting the remedies with the Government.
Fact of the Case:

The respondent's daughter studied at the Little Flower High School, run by the Saint Francis De Sales Education Society. The school allegedly collected illegal fees from the respondent on different occasions, issuing receipts from another public trust, R.C. Church Cantonment, Aurangabad, which had no connection with the school or the education society. The respondent filed a private complaint before the Judicial Magistrate First Class at Aurangabad, alleging that the accused had collected illegal fees in contravention of the Maharashtra Educational Institutions (Prohibition of Capitation Fees) Act, 1987. The Magistrate issued process against the accused, who challenged the order in a revision application before the Sessions Judge. The Sessions Judge dismissed the revision application, upholding the Magistrate's order.
Finding of the Court:

The High Court held that: 1. The Act was enacted to effectively curb the evil practice of collection of capitation fee for admission or promotion in educational institutions. 2. Section 3(1) of the Act prohibits the demand or collection of capitation fee by or on behalf of any educational institution. 3. 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. 4. Section 7 of the Act provides for punishment for contravention of the provisions of the Act or the rules made thereunder. 5. A private complaint can be directly instituted before the Magistrate for an offence under the Act, without the need for prior approval or permission from the competent authority of the State Government. 6. The provisions of the Act do not indicate that a person aggrieved could approach the Magistrate only after exhausting the remedies with the Government.
Issues: 1. Whether a private complaint can be directly instituted before the Magistrate for an offence under the Maharashtra Educational Institutions (Prohibition of Capitation Fees) Act, 1987, without the need for prior approval or permission from the competent authority of the State Government? 2. Whether the provisions of the Act indicate that a person aggrieved could approach the Magistrate only after exhausting the remedies with the Government?
Ratio Decidendi: 1. The Court held that the Act does not prohibit the institution of a private complaint before the Magistrate for an offence under the Act. 2. The Court interpreted section 3(3) of the Act to mean that the State Government has the power 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. This does not imply that a private complaint cannot be instituted before the Magistrate. 3. The Court also noted that the Act does not provide for any specific procedure for filing a private complaint, nor does it require prior approval or permission from the competent authority of the State Government. 4. The Court concluded that the provisions of the Act do not indicate that a person aggrieved could approach the Magistrate only after exhausting the remedies with the Government.
Final Decision: The High Court rejected the challenge to the orders passed by the courts below, which had upheld the issuance of process against the accused in the private complaint filed under the Maharashtra Educational Institutions (Prohibition of Capitation Fees) Act, 1987.

JUDGMENT - B.H. MARLAPALLE, J.:---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 members of 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)1, 1981 Bom.C.R. 211 and another judgment of the Supreme Court in the case of (Punjab National Bank and others v. Surendra)2, 1993 Bank.J. 172 (S.C.) 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 is regulatory, restitutive and corrective in nature and its punitive object is secondary and it falls in the sec

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1999 Supreme(Bom) 621

A private complaint can be directly instituted before the Magistrate for an offence under the Maharashtra Educational Institutions (Prohibition of Capitation Fees) Act, 1987, without the need for prior approval or permission from the competent authority of the State Government.

Cases Referred (2)