LALJIBHAI KALABHAI NINAMA Vs. STATE OF GUJARAT

JUDGEMENT

(1.) This petition challenges the proceedings before learned Judicial Magistrate, First Class, Shamlaji in Criminal Case based on C.R. No. 48 of 1988 of Shamlaji Police Station that Asstt. Education Inspector of Office of District Education Officer, Himatnagar, Sabarkantha District seems to have written to the Police Inspector, Shamlaji Police Station that Sarvodaya Yuvak Mandal of which the petitioner is the President, has started imparting education through Sri Saraswati Vidyalaya at Nava Bhavnath, Taluka Bhiloda, without registering the said school under the provisions of the Gujarat Secondary Education Act, 1972 (for short, the Act'). According to the said letter which is dated 22-6-1988 on that day when the said Asstt. Education Inspector visited the school and enquired of one Virjibhai Kamjibhai Nirama, the Incharge of the above school, he was told that the school is functioning. According to the said letter, the police was informed that running a Secondary School without the necessary registration as required under Sec. 31(1) of the Act by the said Yuvak Mandal is in violation of provisions of Sec. 31 of the Act, and therefore, the Managers of the school are required to be prosecuted under Sec. 42 of the Act read with Regulation 2(7) of the Gujarat Secondary Education Regulation by the District Education Officer, Sabarkantha, who had directed the said Asstt. Education Inspector to lodge a complaint, and therefore, in that letter the said Asstt. Education Inspector had stated that he lodges a complaint accordingly. It seems that the police took it to be the First Information Report and started investigation and on 22-7-1988 the petitioner was arrested and on surety being furnished he was released at 5-15 p.m. The papers seems to have been forwarded to the Magistrate and a copy of the charge-sheet dated 5-10-1988 is annexed with the application.

(2.) Mr. M. B. Gandhi, learned Counsel appearing for the petitioner argued that the provisions of Sec. 42 of the Act provided that any person who contravenes the provisions of Sec. 31(1) of the Act, shall, on conviction be punished with fine which shall not be less than rupees one hundred and which may extend to rupees one thousand, and therefore, under the provisions of the Criminal Procedure Code (for short the 'Code') the said offence would be non-cognizable. He argued that, therefore, the enquiry by the police is prohibited under Sec. 155(2) of the Code. Section 155 of the Code reads as under :

(3.) He then argued that looking to the provisions of Sec. 190 of the Code, the police report at the end of investigation can only be taken cognizance of by the learned Magistrate under Sec. 190(l)(b)of the Code, Section 190 reads thus :