Madras High Court
G.S.Rajendran vs State Rep. By on 24 October, 2019
Equivalent citations: AIRONLINE 2019 MAD 961
Author: G.K.Ilanthiraiyan
Bench: G.K.Ilanthiraiyan
Crl.O.P.(MD) No.2435 of 2019
BEFORE THE MADURAI BENGH OF MADRAS HIGH COURT
Reserved on : 16.10.2019
Pronounced on : 24.10.2019
CORAM
THE HONOURABLE MR. JUSTICE G.K.ILANTHIRAIYAN
CRL.O.P (MD) No.2435 of 2019
and
Crl.M.P.(MD) No.1311 of 2019
1.G.S.Rajendran
2.P.R.Srirengaraja
3.K.Kumaravel
4.M.K.Muhamadhu Mugaideen
5.S.R.Murugaraja ... Petitioner/A1 to 5
Vs
1.State rep. by
The Inspector of Police,
Srivilliputhur Town Police Station,
Virudhunagar District.
2.S.Thirumalaiyappan ... Respondents
PRAYER: Criminal Original Petition filed under Section 482 of Cr.P.C,
praying to call for the records and quash the charge sheet in C.C.No.
49/2018 pending on the file of the Judicial Magistrate- II,
Srivilliputhur.
For Petitioners : Mr.V.Radhakrishjan, senior counsel for
Mr.S.Kadarkarai
For Respondents : Mr.K.K.Ramakrishnan, APP for R1
Mr.Niranjan S.Kumar for
Mr.R.Ragavendran for R2
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Crl.O.P.(MD) No.2435 of 2019
ORDER
This petition has been filed to quash the proceedings quash the charge sheet in C.C.No.49/2018 pending on the file of the Judicial Magistrate- II, Srivilliputhur, having been taken cognizance for the offences under Sections 167, 291, 294(b), 406, 420 and 506(i) of I.P.C.
2.The learned senior counsel appearing for the petitioners submitted that on the complaint lodged by the 2nd respondent, the 1st respondent registered a case in crime No.277 of 2012 for the offences under Sections 167, 291, 294(b), 406, 420 and 506(i) of I.P.C. alleging that the petitioners are collecting excess fees in the name of Smart Classes even without conducting Smart Classes. He further submitted that the allegations contained in the complaint has not at all been attracted any penal provisions under the Indian Penal Code. The only remedy available to the 2nd respondent is to approach the authority under the Tamil Nadu Schools (Regulation of Collection of Fees) Act, 2009 (hereinafter referred to as the 'Act'). There is a special law to deal with the complaint regarding collection of fees and a committee was also constituted under the Act for the said purpose. Therefore, the 1st respondent has no jurisdiction to register any complaint under 2/15 http://www.judis.nic.in Crl.O.P.(MD) No.2435 of 2019 the Indian Penal Code. In fact, this Court held in Crl.O.P.(MD) No. 5558 of 2012 dated 20.08.2014 that the fees determination committee constituted under Section 5 of the Act, alone is empowered to deal with the complaint in respect of the collection of excess fees. Therefore, the 1st respondent has no authority to register any case on the complaint lodged by the 2nd respondent herein.
3.He further submitted that the committee constituted under Section 5 of the Act is for the purpose of determination of school fees as per Section 6 of the Act for each and every school. Accordingly, on 07.04.2010, the said committee passed orders determining the school fees to be collected by the petitioners. Since the fees fixed by the committee was much less compared to the expenses incurred for running the school, the school filed objections under Section 6(3) of the Act. Therefore, the committee passed fresh orders on 27.05.2011 and redetermined the fee structure like Admission fee, Library fees, Maintenance and Amenities fees excluding the fees for imparting education through technology like Smart Class etc.
4.He further submitted that the petitioners school used to conduct Smart Classes to the students even prior to the enactment of 3/15 http://www.judis.nic.in Crl.O.P.(MD) No.2435 of 2019 the said Act. The petitioners school conducted Smart Class for the students during the academic year 2011-12, in which, except very few students, all of them had paid Smart Class fees. At this juncture, some of the parents started giving trouble to the Management and giving complaints as against the school to various authorities. In fact, based on the complaint, the District Collector, Virudhunagar had initiated proceedings under Section 133 Cr.P.C. and the same has been challenged before this Court in Crl.R.C.Nos.100, 980 and 988 of 2011. Therefore, the entire proceedings are vitiated and the entire proceedings cannot be sustained as against the petitioners.
5.He further submitted that in respect of the offences under the Act, the District Committee can enter into the school or premises and find out if any contravention of the provisions of the Act, they can initiate legal proceedings. Further, in respect of the cognizance of offences, no Court shall take cognizance of any offence under this Act without sanction of the Government. The entire proceedings has been initiated on the basis of the complaint lodged by the 2nd respondent and as such, no Court has jurisdiction to initiated any proceedings under this Act.
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6.Per contra, the learned counsel appearing for the 2nd respondent/complainant submitted that the accused persons after having been collected fees for the Smart Classes, they did not even conduct any Smart classes to the students, who were paid smart class fees. Further, all the students, who were not interested for smart classes, are compelled to get Transfer Certificate and hence, all the parents sustained mental agony. When it was questioned by the parents, they were threatened their life with dire consequences and also scolded and abused them with filthy language. Therefore, the petitioners committed offences under Sections 167, 291, 294(b), 406, 420 and 506(i) of I.P.C. and there are specific allegations to attract those offences as against them. In respect of the provision under the Tamil Nadu Schools (Regulation of Collection of Fees) Act, 2009 (hereinafter referred to as the 'Act') is concerned, it is very clear that collection of excess fees beyond the limit fixed by the committee is an offence and for which, the Committee has to initiate appropriate action against the school. Therefore, no provision under the Act is attracted on the averments and the allegations made in the complaint lodged by the 2nd respondent herein. The entire allegation are no way connected to the Act and the petitioners are liable to be prosecuted under the provisions of Indian Penal Code and the present petition has been filed only to drag on the proceedings and it is liable to be dismissed.
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7.The learned Additional Public Prosecutor submitted that on the complaint lodged by the 2nd respondent, the first respondent investigated the same and filed charge sheet as against the accused persons for the offences under Sections 167, 291, 294(b), 406, 420 and 506(i) of I.P.C. The crux of the charges is that in the year 2011, the petitioners have collected a sum of Rs.3,000/- each from the students for Smart Classes and also they compelled the parents to pay the fees for smart classes, who were not interested for the said classes. However, they did not conduct any smart classes for the students. In this regard, the Inspector of Matriculation Schools ordered to return the smart classes fees. Further, all the accused persons have threatened the students that they would not permit the students to write the annual examinations, those, who were not paid the smart class fees. They also sent transfer certificates to the students, who were not opted for smart class and hence, the entire allegations are clearly attracted for the offences under the Indian Penal Code. On the basis of the allegations, the offence under the provision of the Tamil Nadu Schools (Regulation of Collection of Fees) Act, 2009 would not attract at any cost. Therefore, he prayed for the dismissal of the petition.
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8.Heard the learned counsel appearing for the petitioners and the learned Additional Public Prosecutor appearing for the 1st respondent and the learned counsel appearing for the 2 nd respondent and perused the materials available on record.
9.On the basis of the complaint lodged by the 2nd respondent, the 1st respondent registered a case in crime No.277 of 2012 for the offence under Sections 167, 291, 294(B), 406, 420 and 506(1) of I.P.C. and after due investigation, filed charge sheet also and the same was taken cognizance in C.C.No.49 of 2018 on the file of the Judicial Magistrate No.II, Srivilliputhur. The crux on the complaint is that the accused persons have collected smart class fees for the year 2011-12 and thereafter, they failed to conduct any smart classes, and they also compelled the parents to opt for smart classes and compelled them to pay the fees also.
10.According to the learned senior counsel appearing for the petitioners, no offence is attracted under the Indian Penal Code, since, the Tamil Nadu Schools (Regulation of Collection of Fees) Act, 2009 came into force to regulate the collection of fees by the schools 7/15 http://www.judis.nic.in Crl.O.P.(MD) No.2435 of 2019 in the State. Under Section 5 of the Act, a committee has to be constituted for the purpose of determining the school fees. Accordingly, a committee has been formed and determined the school fees. In fact, since the school fees determined by the committee was much less, they have filed application for re-determining the school fees under Section 6(3) of the Act.
11.It is seen from the charges that there are incriminating evidence to attract the offences under the Indian Penal Code. Insofar as the Act is concerned, it pertains to regulate the collection of fees by the school. It is relevant to extract Section 5 of the Act, which reads thus:
5.Constitution of Committee. -
(1) The Government shall constitute a Committee for the purpose of determination of the fee for admission to any Standard or course of study in private schools.
(2)The Committee shall consist of the following members, namely:-
(a)a retired High Court Judge, nominated by the Government - Chair person;
(b)Director of School Education - Ex officio Member;
(c)Director of Matriculation Schools - Ex officio Member;8/15
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(d)Director of Elementary Education - Ex officio Member;
(e)Joint Chief Engineer (Buildings) Public Works Department - Ex officio Member;
(f)Additional Secretary to Government, School Education Department - Ex officio Member-Secretary.
12.On the determination of the school fee, if the school aggrieved by the fixation of fees, they can very well file objection under sub clause 3 of Section 6 of the Act. If any school collected excess fees against the determination of fees by the concerned Committee, the District Committee can initiate proceedings to cancel the recognition of the school and other action as against the said school. In respect of the penalty and cognizance of the offences under the Act are concerned, no Court shall take cognizance under the Act, except with sanction of Government. Admittedly, there is no complaint in respect of the collection of excess fees as determined by the Committee. Here is the case that the petitioners have collected smart class fees and thereafter, they failed to conduct any smart classes. Further, they have threatened the parents, who were not opted for smart classes with dire consequences and they also abused 9/15 http://www.judis.nic.in Crl.O.P.(MD) No.2435 of 2019 them with filthy language. Therefore, the said Act is not at all applicable to the case on hand.
13.In this regard, the learned senior counsel cited the judgment of this Court passed in Crl.O.P.(MD) No.5558 of 2012 dated 20.08.2014, where, this Court held that Section 7(b) of the Act, the complaint with regard to collection of fee in excess of the fee determined by the committee shall be heard by the committee. If the committee found that the school has collected fee in excess of the determined by the Government, it shall recommend to the appropriate competent authority for cancellation of the recognition or approval of the private school. According to the petitioners, without recommending for the said action, the District Educational Officer straightaway lodged the police complaint and as such, the same is in violation of Section3 of the Act. Therefore, this Court quashed the complaint lodged by the District Educational Officer. But, in the case on hand, the 2nd respondent lodged the complaint alleging that after collection of smart class fees, the petitioners did not conduct any smart classes and also with other specific allegations to attract the offences under the Indian Penal Code. Therefore, the above said judgment of this Court is not applicable to the case on hand. 10/15 http://www.judis.nic.in Crl.O.P.(MD) No.2435 of 2019
14.That apart, the grounds raised by the petitioners have to be considered only during the trial before the trial Court. The mixed question of fact cannot be considered under Section 482 of Cr.P.C by this Court.
15.It is relevant to rely upon the judgment of the Hon'ble Supreme Court of India passed in Crl.A.No.579 of 2019 dated 02.04.2019 in the case of Devendra Prasad Singh Vs. State of Bihar & Anr., as follows:-
" 12.So far as the second ground is concerned, we are of the view that the High Court while hearing the application under Section 482 of the Cr.P.C. had no jurisdiction to appreciate the statement of the witnesses and record a finding that there were inconsistencies in their statements and, therefore, there was no prima facie case made out against respondent No.2. In our view, this could be done only in the trial while deciding the issues on the merits or/and by the Appellate Court while deciding the appeal arising out of the final order passed by the Trial Court but not in Section 482 Cr.P.C. proceedings.11/15
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13.In view of the foregoing discussion, we allow the appeal, set aside the impugned order and restore the aforementioned complaint case to its original file for being proceeded with on merits in accordance with law.
Perusal of the above said decision reveals that the said case is squarely applicable to the facts of the present case.
16.Recently, the Hon'ble Supreme Court of India held in respect of the very same issue in Crl.A.No.1572 of 2019 - Central Bureau of Invstigation Vs. Arvind Khanna, wherein, it has been held as follows:
“19.After perusing the impugned order and on hearing the submissions made by the learned senior counsels on both sides, we are of the view that the impugned order passed by the High Court is not sustainable. In a petition filed under Section 482 of Cr.P.C., the High Court has recorded findings on several disputed facts and allowed the petition. Defence of the accused is to be tested after appreciating the evidence during trial. The very fact that the High Court, in this case, went into the most minute details, on the allegations made by the appellant-C.B.I., and the defence put-forth by the 12/15 http://www.judis.nic.in Crl.O.P.(MD) No.2435 of 2019 respondent, led us to a conclusion that the High Court has exceeded its power, while exercising its inherent jurisdiction under Section 482 Cr.P.C.
20.In our view, the assessment made by the High Court at this stage, when the matter has been taken cognizance by the Competent Court, is completely incorrect and uncalled for.” The above judgment is also squarely apply to this case and as such, the points raised by the petitioners cannot be considered by this Court under Section 482 Cr.P.C.
17.Accordingly, this criminal original petition is dismissed.
Consequently, connected miscellaneous petition is also dismissed. The trial Court viz., the Judicial Magistrate No.II, Srivilliputhur is directed to dispose of the case in C.C.No.49 of 2018, within a period of six months from the date of receipt of a copy of this order. However, considering the age of the petitioners, the personal appearance of the petitioners before the trial Court is dispensed with, except the dates on which, the trial Judge insisted the petitioners for their appearance.
24.10.2019 Internet:Yes Index:Yes/no Arul 13/15 http://www.judis.nic.in Crl.O.P.(MD) No.2435 of 2019 To
1. The Inspector of Police, Srivilliputhur Town Police Station, Virudhunagar District.
2.The Additional Public Prosecutor, Madurai Bench of Madras High Court, Madurai.
14/15 http://www.judis.nic.in Crl.O.P.(MD) No.2435 of 2019 G.K.ILANTHIRAIYAN, J.
Arul Order made in CRL.O.P (MD) No.2435 of 2019 24.10.2019 15/15 http://www.judis.nic.in