Judgment · High Court · 2025

IN THE HIGH COURT OF JUDICATURE AT BOMBAYBENCH AT AURANGABADCRIMINAL APPLICATION NO.4095 OF 20241.Shibin KrishnanAge: Major, Occu.: Admin Manager, Universal High School, Chhatrapati Sambhajinagar,R/o.B-1/29, Centre Pisadevi Road, Jadhavwadi, Chh. Sambhajinagar.2.Kalpesh Ramesh PhalsamkarAge: Major, Occu.: Management Representative, NationalEducation Society, Mumbai.R/o. Ground Floor, Dilaram Estate,S. V. Road, Goregaon (East),Mumbai.3.Suresh DattaniAge: Major, Occu.: Member, National Education Society, Mumbai.R/o.11, Sudama, 6th Floor, 214,Waleshwar, Malabar Hills Mumbai.4.Smt. Ritu Chirag PatelAge: Major, Occu.: Secretary, National Education Society, Mumbai,R/o. 1st Floor Swati, Opposite Santacruz, Link Road, Sarojani Naidu Road, Mumbai.5.Pinky Jai PujaraAge: Major, Occu.: Member, National Education Society, Mumbai,R/o.Asha Niketan, 3rd Floor, Baptista Road, Vileparle, Mumbai 56.6.Neelam Sudhir Lal, Age: Major, Occu.: Joint Treasurer,R/o. Ganganivas First Floor,[1] appln-4095-2024.odtV. M. Mehta Road, N.M.I.N.S.J.V.P.D. Scheme, Vileparle (W), Mumbai-400056.7.Rupa Suresh Dattani, Age: Major, Occu.: Treasurer, National Education Society, Mumbai,R/o.11, Sudama, 6th Floor, 214.Walkeshwar, Malabar Hills, Mumbai 6.8.Dhvani Jesus LalAge: Major, Occu.: Vice President, National Education Society, Mumbai,R/o. Ganganivas 1st Floor, G.M. Mehta Road,N.M.I.N.S., J.D.P.D. Scheme, Vile Parle (W), Mumbai-400056.9.Jesus Sudhir LalAge: Major, Occu.: President, National Education Society, MumbaiR/o. Ganganiwas 1st Floor, V.M. Mehta Road,N.M.I.N.S., J.V.P.D. Scheme, Vile Parle (W), Mumbai-400056.(GPA for Petitioner Nos.4 to 6 and 8)10.Seema Gupta, Age: Major, Occu.: Principal, Universal High School, Chh. Sambhajinagar,R/o. Universal High School, T-1, Chikalthana, Chh. Sambhajinagar. .. ApplicantsVersus1.The State of MaharashtraThrough Commissioner of Police, Chhatrapati Sambhajinagar.2.The Police Station, MIDC CIDCO,Chhatrapati Sambhajinagar.3.Pravinkumar Anilkumar JaiswalAge: 52 years, Occu.: Business,R/o.678, Sahyadrinagar, N-5, CIDCO,Chhatrapati Sambhajinagar. .. Respondents[2] appln-4095-2024.odt…•Mr. Girish K. Thigle, Advocate for the applicants.•Mrs. P. R. Bharaswadkar, APP for respondent Nos.1 and 2/State.•Mr. Rahul G. Joshi, Advocate for respondent No.3.… CORAM : SMT. VIBHA KANKANWADI & HITEN S. VENEGAVKAR, JJ. RESERVED ON : 11 SEPTEMBER 2025 PRONOUNCED ON : 16 OCTOBER 2025ORDER (Per Smt. Vibha Kankanwadi, J.) :-.The applicants, who have been arrayed as accused seeks quashmentof the complaint bearing Miscellaneous Criminal Application No.1205 of2024 and impugned order passed by learned 5th Judicial Magistrate FirstClass, Chhatrapati Sambhajinagar and the FIR bearing Crime No.491 of2024 lodged with MIDC, CIDCO Police Station, District ChhatrapatiSambhajinagar at the outcome of the order passed by learned JudicialMagistrate First Class for the offences punishable under Sections 341,342, 506 read with Section 34 of Indian Penal Code, under Sections 16,17, 34, 35 of the Right of Children to Free and Compulsory EducationAct, 2009 (hereinafter referred to as the “RTE Act”) and under Section 75of the Juvenile Justice (Protection and Care of Juveniles) Act, 2015(hereinafter referred to as the “Juvenile Justice Act”).[3] appln-4095-2024.odt2.Applicant Nos.2 to 9 are the Directors of school by name UniversalHigh School which is one of the entities of National Education Society, Mumbai. Applicant No.1 is the Administrative Manager of the school. Applicant Nos.2 to 9 are the office bearers of the National EducationSociety, who manage various educational institutes across Maharashtraand other places. The contribution of the society in the field of educationis since long. The present FIR and the criminal proceedings are theoutcome of the pending civil litigation inter se between the parties, whichaccrued on account of dispute raised by certain individuals against theschool. The dispute pertains to the quantum of the fees, the purported nonconsideration of exemption or reduction of the fees. The applicants’ schoolhas not received any grant of whatsoever nature from the StateGovernment. It is self-financed school. The institution/school vide letterdated 20.09.2021 and other letters had repeatedly requested respondentNo.3 to clear the fees of his ward, however, there was resistance on thepart of respondent No.3. Even as per the provisions of Right to EducationAct and other regulations, it is incumbent for the parents to pay the feesand the dispute if any can be entertained by the competent authority. Thereis no question of exempting any parent from paying the fees of the school. Respondent No.3 managed to put pressure on the school from everypossible corner by raising grievances. Even the dispute regarding the fees[4] appln-4095-2024.odthad come before this Court by way of Writ Petition No.13781 of 2021along with Writ Petition No.8829 of 2023 and Writ Petition No.2626 of2022. Various orders passed by this Court would indicate that the disputeof fees has specifically kept open to be determined by the appropriateauthorities. Respondent No.3 and similarly selected few parents have notcleared the fees of their ward, whereas majority of the parents have paidthe fees punctually. The allegations in the FIR are to victimize the school. Under political pressure, the impugned order dated 09.11.2023 came to bepassed by the State Education Department and it is under challenge beforethis Court. This Court by order dated 16.11.2023 has protected theapplicants. Respondent No.3 along with another person had approachedthis Court by filing Contempt Petition No.483 of 2023 wherein anundertaking of petitioner No.1 therein has been recorded through naturalguardian Pravinkumar Anilkumar Jaiswal that he would pay amount ofRs.2,11,799/- under protest. Despite said undertaking, respondent No.3has not paid the said amount and ultimately the undertaking was requestedto be withdrawn. Then this Court has modified the order of recording theundertaking. Under such circumstance, it appears that respondent No.3herein had approached learned Judicial Magistrate First Class by filingCriminal Miscellaneous Application No.1205 of 2024 for directions topolice to carry out the investigation under Section 156(3) of the Code of[5] appln-4095-2024.odtCriminal Procedure. The said application came to be allowed on06.09.2024. Thereafter, the FIR vide Crime No.491 of 2024 has beenregistered. Hence, this petition.3.Heard learned Advocate Mr. Girish K. Thigle for the applicants, learned APP Mrs. P. R. Bharaswadkar for respondent Nos.1 and 2/Stateand learned Advocate Mr. Rahul G. Joshi for respondent No.3.4.Learned Advocate for the applicants reiterating the contents of theapplication submits that the order that was passed by the learned JudicialMagistrate First Class below Exhibit-01 in Criminal MiscellaneousApplication No.1205 of 2024 is cryptic. She has not considered whetherthe ingredients of the offence have been made out or not. Passing an orderunder Section 156(3) of the Code of Criminal Procedure is not an emptyformality. In the entire application before the learned Magistrate there isno mention about the pendency of Writ Petition No.8829 of 2023. There ismention about Writ Petition No.15753 of 2023 and copy of the order hasbeen annexed. Therefore, when a specific statement was made that thesaid writ petition is still pending, the Magistrate ought to have restrainedherself from passing the order of investigation. At no point of time earlierin any petition, the point of mental harassment etc. has been agitated. It isan afterthought allegation and, therefore, when the said order of giving[6] appln-4095-2024.odtdirection under Section 156(3) of the Code of Criminal Procedure itself isillegal, the FIR needs to be quashed and set aside. 5.Respondent No.3 has filed affidavit-in-reply. Apart from reiteratingthe same contentions in his FIR, he states that the FIR is not the outcomeof civil litigation between the parties. It is stated that in view of the letterissued to him and thereafter order passed by this Court on 16.12.2021 andas per that order, group of parents deposited amount of Rs.60,000/- in theschool i.e. for two consecutive educational years subject to the decision ofDistrict Fees Regulatory Committee. He states that the Writ PetitionNo.13781 of 2021 came to be disposed of on 11.07.2023, Writ PetitionNo.2626 of 2022 came to be disposed of on 04.01.2024 and Writ PetitionNo.8829 of 2023 is still pending with this Court. These writ petitions arein respect of different subject matters than the FIR. The specificallegations have been made in the application as well as the FIR againstthe accused persons. Their role has been attributed. Certainly, it appearsthat the petitioners had taken the dispute as personal on the basis of fees. They have unnecessarily troubled his ward. Even after number of oral andwritten warnings, the episode did not stopped, but it was reflected in theharassment and ill treatment and, therefore, the applicants have committedoffence under Section 17 of RTE Act as well as under Section 75 of the[7] appln-4095-2024.odtJuvenile Justice Act.6.Learned Advocate for respondent No.3 relies on the decision in TheState of Tamil Nadu, Rep. by its Principal Secretary to Government andothers vs. All India Private Schools Legal Protection Society No.9,decided by the Hon’ble Division Bench of Madras High Court in W.A.No.3075 of 2021 on 19.07.2024, wherein it has been observed that“Section 15 of RTE Act prohibits denial of admission to a child. ThisCourt on may instances have come across cases whereby children havebeen denied admission on varied grounds. The object of the legislation is aRight to Free and Compulsory Education for Children i.e. the core featureof the legislation and the right of the schools to get their pending arrearfees or the technicalities in the WMIS system is not the centre of attentionfor this Court. It is observed that the arrear of fees can be collected in amanner known to law from the parents and the delay in order uploadingthe WMIS system can be cured through technical alterations but theeducation but the education of the child is and will always be the heart andsoul of the legislation…. This Court can never allow a child to bestigmatised on the ground of non-payment of fees…” He submits thatrespondent No.3 was fighting for the fees structure that was adopted bythe petitioners, but for that purpose, his son ought not to have been dealt[8] appln-4095-2024.odtwith in such a manner. Each and every incident has been quoted, but sonof the petitioner was not allowed to attend the classes. He was stopped atthe gate itself and asked to go home. His facility of school bus was alsounnecessarily denied. The matter was taken till Hon’ble the Minister forEducation and then by the intervention of various authorities, the way outwas found, but still it has not changed the attitude of the petitioners. When prima facie case has been made out for investigation into the matter, the impugned order has been passed. It need not be interfered with. 7.Learned APP supports the argument by respondent No.3. 8.Both the learned Advocates are relying upon various orders of thisCourt as well as communications between the Education Department andpetitioner/school, Government Resolutions etc.9.The first and the foremost fact that is required to be seen is as towhether the order that has been passed in Criminal MiscellaneousApplication No.1204 of 2024 by the learned Judicial Magistrate FirstClass, Court No.5, Aurangabad on 06.09.2024 suffers from legalitiesbecause it is the basis on which FIR has been lodged. If it is found thatthe said principles have not been adhered to by the learned Magistrate, then such FIRs based on the impugned order cannot be allowed to sustain.We would consider the decision in Om Prakash Ambedkar vs. The State of[9] appln-4095-2024.odtMaharashtra and others, [AIR 2025 SC 970], wherein guidelines havebeen given and note has been taken in respect of the earlier decisions. Soalso, comparison has been made between Section 175(3) of BharatiyaNagarik Suraksha Sanhita, 2023 (for short “BNSS”) with Section 156(3)of Code of Criminal Procedure (for short “CR.P.C.”). The first case thatcame to be considered is Priyanka Srivastava vs. State of U.P., [(2015) 6SCC 287], wherein Hon’ble Supreme Court held that prior to making anapplication to the Magistrate under Section 156(3) CR.P.C., the applicantmust necessarily make applications under Sections 154(1) and 154(3). Theapplications made under Section 156(3) CR.P.C. must necessarily besupported by an affidavit sworn by the applicant. Now, if we take the noteof order that has been passed by the learned Magistrate, it does not refer tothe fact that the learned Magistrate has considered whether there wascompliance of Section 154(1) and 154(3) CR.P.C. It has been stated thatin respect of incident dated 14.12.2023 wherein it was alleged that it wasthe case of poisoning of 100 students in the petitioner school in the foodand water that was supplied. Complaint was filed by Education OfficerShri. Bharat Telgote on 16.12.2023. Only non cognizable offence wasregistered under Sections 284, 337 read with Section 34 of Indian PenalCode. Thereafter, even on the basis of complaint given by Deputy Directorof Education, Anil Sable, the MIDC CIDCO Police Station had not[10] appln-4095-2024.odtregistered any offence, but then when he had approached PoliceCommissioner, Chhatrapati Sambhajinagar, it was stated by AssistantPolice Inspector Vishnu Munde by his written communication dated20.01.2024 that the complaint of the complainant i.e. present respondentNo.3 has been included in Crime No.607 of 2023. Even after it waspointed out that those two incidences are different, yet no offence wasregistered and then respondent No.3 in his complaint states that he felt thatnow the complaint will not be taken. Then he made the complaint dated24.01.2024, 09.02.2024 and 22.04.2024. Now, when all these facts havebeen contended, then there ought to have been a clear reason recorded bythe learned Magistrate that when the police authorities are contending thatthe complaint of respondent No.3 has been made part of Crime No.607 of2023, then whether directions to be given under Section 156(3) of Cr.P.C.would amount to having two FIRs on the same count. If the learnedMagistrate was of the opinion that those two facts or incidences orcomplaints could not have been clubbed together and, therefore, case ismade out for taking action under Section 156(3) of Cr.P.C., there ought tohave been then the observations in respect of the same. Further, in OmPrakash Ambedkar (Supra) the incident was of the year 2012, then inparagraph No.29, it has been stated that it is necessary to discuss changesbrought to the scheme of Section 156 of Cr.P.C. and by the enactment of[11] appln-4095-2024.odtBNSS. After taking note of the changes those have been made and thecomparison as well as taking note of the decision in Priyanka Srivastava(Supra) and Babu Venkatesh vs. The State of Karnataka, (2022) 5 SCC639, it has been observed that :-“34.In light of the judicial interpretation and evolution ofSection 156(3) of the Cr.P.C. by various decisions of this Courtas discussed above, it becomes clear that the changes introducedby Section 175(3) of the BNSS to the existing scheme of Section156(3) merely codify the procedural practices and safeguardswhich have been introduced by judicial decisions aimed atcurbing the misuse of invocation of powers of a Magistrate byunscrupulous litigants for achieving ulterior motives.35.Further, by requiring the Magistrate to consider thesubmissions made by the concerned police officer beforeproceeding to issue directions under Section 175(3), BNSS hasaffixed greater accountability on the police officer responsiblefor registering FIRs under Section 173. Mandating theMagistrate to consider the submissions of the concerned policeofficer also ensures that the Magistrate applies his mindjudicially while considering both the complaint and thesubmissions of the police officer thereby ensuring that therequirement of passing reasoned orders is complied with in amore effective and comprehensive manner.”10.Though the incident had taken place in 2012, the Hon’ble SupremeCourt set aside the order passed by the learned Magistrate directing policeinvestigation under Section 156(3) of the Cr.P.C. Here, in this case, the[12] appln-4095-2024.odtlearned Magistrate has passed the order on 06.09.2024. There ought tohave been discussion as to whether the provisions of Section 156(3) ofCr.P.C. would be applicable or it would be under Section 175(3) of BNSS.Section 531 of BNSS deals with repeal and savings, whereby the Code ofCriminal Procedure, 1973 was repealed. Sub section (2)(a) of Section 531of BNSS reads thus :-“Section 531. - Repeal and savings. (1) …………………………………………………………………..(2) Notwithstanding such repeal---(a) if, immediately before the date on which this Sanhita comes intoforce, there is any appeal, application, trial, inquiry or investigationpending, then, such appeal, application, trial, inquiry or investigationshall be disposed of, continued, held or made, as the case may be, inaccordance with the provisions of the Code of Criminal Procedure,1973 (2 of 1974), as in force immediately before such commencement(hereinafter referred to as the said Code), as if this Sanhita had notcome into force;”11.In the present case, the Criminal Miscellaneous Application appearsto have been filed on 04.05.2024 i.e. prior to the BNSS coming intoexistence, yet taking into consideration the fact that the order that waspassed on 06.09.2024, the learned Magistrate ought to have heard thepolice officer and that is the position that has been clarified in Om PrakashAmbedkar (Supra) by the Hon’ble Supreme Court. Therefore, the ordersuffers from application of mind. The learned Magistrate has not taken thefact that the Writ Petition No.8829 of 2023 in which interim stay has been[13] appln-4095-2024.odtgranted is still pending before this Court.12.Now, it appears that in the earlier petitions there was no mentionabout the alleged incidences with the son of the informant in thosepetitions. How in such circumstances, the provisions of Juvenile JusticeAct would come into play would be a question. The possibility ofexaggeration cannot be ruled out and taking into consideration theduration from such incident to the date of the application, there is certainlyinordinate delay and, therefore, case of the petitioner falls within theparameters laid down in State of Haryana vs. Ch. Bhajan Lal and others,[AIR 1992 SC 604]. Therefore, we proceed to pass the following order :-ORDERI)Criminal Application stands allowed.II)The impugned order dated 06.09.2024 passed by 5th JudicialMagistrate First Class, Chhatrapati Sambhajinagar in CriminalMiscellaneous Application No.1205 of 2024 as well as the FIRbearing Crime No.491 of 2024 dated 11.09.2024 registered withCIDCO, MIDC Police Station, District Chhatrapati Sambhajinagarfor the offence punishable under Sections 341, 342, 506 read withSection 34 of Indian Penal Code, under Sections 16, 17, 34, 35 of[14] appln-4095-2024.odtthe RTE Act and under Sections 75 of the Juvenile Justice Act, stand quashed and set aside as against the present applicants.[ HITEN S. VENEGAVKAR ] [ SMT. VIBHA KANKANWADI ] JUDGEJUDGEscm[15]