Disposed

Amrit Corniliyas and Another v. State of U.P. and 2 Others

Allahabad HC29 Apr 2019CRLP/19166/2017

Case brief

AI extract

What is this about?

This court examined whether offences under the Right of Children to Free and Compulsory Education Act, 2009 warrant imprisonment or are cognizable. Finding that the Act prescribes only fines and involves non-cognizable offences, the court held that an FIR under Section 12(c) was impermissible, rendering the writ petition infructuous on that ground.

What did the court decide?

The petition was disposed of to the extent that the FIR under Section 12(c) RTE Act was impermissible due to lack of cognizability and imprisonment provisions.

Amrit Corniliyas and Another Vs State of U.P. and… — Education and Admissions | Allahabad HC (2019)

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Court No. - 33

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Case :- CRIMINAL MISC. WRIT PETITION No. - 19166 of 2017

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Petitioner :- Amrit Corniliyas And Another Respondent :- State Of U.P. And 2 Others Counsel for Petitioner :- Anoop Trivedi Counsel for Respondent :- G.A.

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Hon'ble Manoj Misra,J. Hon'ble Suresh Kumar Gupta,J.

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Heard learned counsel for the petitioners; learned AGA for respondents 1 and 2 and perused the record.

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Notice was issued to the respondent no.3 by order dated 14th September, 2017. From the order-sheet it appears that notice was issued to the respondent no.3 by RPAD fixing 16th July, 2018. The office has submitted a report dated 10th January, 2019 indicating that notice sent to the respondent no.3 by RPAD fixing 16th July, 2018 has not returned un-served.

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As already sufficient time has elapsed since the date of issuance of notice, the service of notice on the respondent no.3 is deemed sufficient.

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The instant petition has been filed seeking quashing of the first information report dated 29th August, 2017 lodged by the respondent no.3 at police station Sikandara, district Agra, which has been registered as Case Crime No.860 of 2017, under Section 12 (c) of The Right of Children to Free and Compulsory Education Act, 2009 (In short RTE Act, 2009).

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The petitioners have challenged the impugned first information report, inter alia, on the ground, firstly, that there is no offence punishable under Section 12 (c) of RTE Act, 2009; and, secondly, offence, if any, punishable under the RTE Act, 2009 are non-cognizable and there can be no prosecution for the offence punishable therein unless they are instituted with previous sanction of an officer authorized in that behalf by the appropriate government by a notification.

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On 14th September, 2017, after considering the submissions of learned counsel for the petitioners, the Court was pleased to pass following order:-

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"It is contended that the first information report has been lodged absolutely on false and frivolous allegations and the allegations cannot constitute any criminal offence inasmuch as the provision of Section 12-C of the Right to Children to Free and Compulsory Education Act, 2009 prescribes no penal consequence. It is submitted that the first informant runs some NGO and report has been lodged only to put undue pressure upon the petitioners.

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Prima facie, the issue requires scrutiny.

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Issue notice to respondent no. 3, who may file counter affidavit.

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Petitioners shall take steps by registered post within a week.

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Office shall issue notice returnable at an early date.

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List after service of notice on the respondent no. 3.

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In the meantime, learned AGA may also file counter affidavit on or before listing of the case.

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Considering the facts, until further orders of the Court, all further proceedings including arrest of the petitioners in pursuance of the impugned FIR dated 29.8.2017, registered as Case Crime No. 860 of 2017, under Section 12-C Right to Education Act, P.S. Sikandara, District Agra, shall remain stayed."

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No counter affidavit is on record. However, Sri Deepak Mishra, learned AGA, has submitted that counter affidavit has been served upon the petitioners' counsel and also filed. Copy of the counter affidavit has been supplied to the Court, which has been taken on record.

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In paragraph 6 of the counter affidavit it has been stated that as there is no provision for lodging of the first information report under Section 12 (c) of the RTE Act, 2009, after due investigation, the police has submitted a final report dated 29th March, 2019.

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Sri Anoop Trivedi, learned counsel for the petitioners, has taken us through the provisions of the RTE Act, 2009.

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Section 36 of the RTE Act, 2009 provides as follows:-

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"36. Previous sanction for prosecution.—No prosecution for offences punishable under sub-section (2) of section 13, subsection (5) of section 18 and sub-section (5) of section 19 shall be instituted except with the previous sanction of an officer authorised in this behalf, by the appropriate Government, by notification."

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Sub-section (2) of Section 13 of the RTE Act, 2009 provides as follows:-

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"(2) Any school or person, if in contravention of the provisions of sub-section (1),—

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(a) receives capitation fee, shall be punishable with fine which may extend to ten times the capitation fee charged;

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(b) subjects a child to screening procedure, shall be punishable with fine which may extend to twenty-five thousand rupees for the first contravention and fifty thousand rupees for each subsequent contraventions."

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Sub-section (5) of Section 18 of RTE Act, 2009 provides as follows:-

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"(5) Any person who establishes or runs a school without obtaining certificate of recognition, or continues to run a school after withdrawal of recognition, shall be liable to fine which may extend to one lakh rupees and in case of continuing contraventions, to a fine of ten thousand rupees for each day during which such contravention continues."

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Sub-section (5) of Section 19 of the RTE Act, 2009 provides as follows:-

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"(5) Any person who continues to run a school after the recognition is withdrawn, shall be liable to fine which may extend to one lakh rupees and in case of continuing contraventions, to a fine of ten thousand rupees for each day during which such contravention continues. "

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A perusal of the above extracted provisions would go to show that none of the provisions provide for punishment of imprisonment.

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No provision in the RTE Act, 2009 has been shown to us which may disclose that any offence under the Act would be cognizable.

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Under the circumstances, the offences punishable under the RTE Act, 2009 are non-cognizable and therefore registration of the first information report is not permissible. In fact, the counter affidavit itself indicates that there is no offence punishable under Section 12 (c) of the RTE Act, 2009 and therefore a final report has been submitted. In view of the above, although this petition has been rendered infructuous but we deem it appropriate to dispose off this petition by observing that in future, the concerned officers should be careful before registering first information report.

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The petition stands disposed off.

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Order Date :- 29.4.2019. Rks.

Amrit Corniliyas and Another v. State of U.P. and 2 Others

Case brief

What is this about?

What did the court decide?

Amrit Corniliyas and Another v. State of U.P. and 2 Others

Case brief

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What did the court decide?

What the court decided

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