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.
ANTICIPATORY BAIL APPLICATION NO.25 OF 2014
Dr.Krishna Appaya Patil
Vs.
The State of Maharashtra
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPLICATION NO.82 OF 2014
IN
ANTICIPATORY BAIL APPLICATION NO.25 OF 2014
.
DATE: FEBRUARY 6, 2014
CORAM: MRS.MRIDULA BHATKAR, J.
Citation;2014 All MR(cri) 833Bom
The applicant-accused has filed the application for anticipatory bail
1.
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
1987
(for
short,
hereinafter
referred
to
as
'Act').
The
Act,
ig
of The Maharashtra Educational Institutions (Prohibition of Capitation Fee)
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 Kunhiraman vs. 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 Puran vs.
Rambilas & 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.
The two applications are opposed by the applicant/accused. The
3.
learned Counsel appearing for the applicant/accused in support of the
submissions relied on the judgment of this Court in the case of Prem
Kumar 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 Puran vs. Rambilas & 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 Prem
Kumar Sharma (supra), a learned Single Judge of this Court while
referring to the judgment of this Court in the case Vinay Poddar vs. State
of Maharashtra & 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:
“16. 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.”
It is true that in this case, many students of the College were
5.
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.
In view of this, I am not inclined to allow the intervention
6.
may assist the Court if at all any query is put forth to them.
applications. However, the learned Counsel for the applicant/interveners
Learned Counsel for the applicants/accused submitted that the fact
7.
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,
However, till today, no steps were taken or no
going on since 2004.
therefore, the College has collected the fees. Collection of excess fees is
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
8.
should be protected.
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
It is further submitted that the three cases are
Maidan police station.
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.
The applicant/accused is charged for the offence punishable under
9.
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
extend to Rs.5,000/-.
than one year but which may extend to three years with fine which may
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:
10.
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.
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
The demand of
applicant/accused, prima facie, holds substance.
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
11.
applicant as he has challenged her degree certificate.
defamation are filed by one the applicants Chitra Salunkhe against the
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
Yet, it is not an offence, which is so grave or
if a person is convicted.
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
12.
by the prosecution for the custodial interrogation of this accused.
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.
Anticipatory Bail Application is disposed of accordingly.
12. In view of the above, Criminal Application Nos.82 of 2014 and 85 of
11.
2014 are also disposed of.
(MRS.MRIDULA BHATKAR, J.)
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