- 1 - 287 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL APPLICATION NO.287 OF 2011 Mr.Maulali Yusuf Lalkot .. Applicants & anr vs State of Maharashtra .. Respondent Mr.U.P.Warunjikar for Applicant Mr.S.A.Shaikh APP for Respondent-State CORAM: N.D.DESHPANDE, J DATE: 8th April, 2011 PER COURT 1. Heard both sides. Present application is filed under section 438 of the Code of Criminal Procedure, 1973 for seeking anticipatory bail after the applicants failure to appear before the Sessions Court and same order is also filed on record which the applicants impugns for re-consideration and re-apprehension by a prayer made for bail in the event of arrest, in the peculiar facts and circumstances. The facts in short, can be stated thus : - 2 - 287 2. An FIR came to be registered vide C.R.No.35/2011 on 2.3.2011 under section 420 406 read with section 34 IPC on a complaint of Mujawar Shaikh, Dy.Education Officer of Zilla Parishad,Solapur against the Headmistress Smt.Shahia Vajeed Lalkot who is accused no.2 and President Mr. Maulali Yusuf Lalkot who is accused no.1 and there is one Shamin Vadepi, clerk employed in the school named Khaja Bande Nawab Urdu High School, Summayya Nagar, Solapur run by accused nos.1 and 2. The matter is concerned with students who are appearing for SSC (Xth standard) Board examinations of March, 2011. There were some defaults and delay in the submissions of Application form which required the payment of fees of Rs.350/- per student. There were 52 students who suffered because of non payment of fees in time and they could not appear for the first paper - 3 - 287 scheduled on 1st March 2011. The mistake was immediately corrected as told. Learned counsel for the applicants admits that amount of fees due to the Board with penalty had been paid. The total fees due for payment was Rs.18,200/-and with penalty management paid Rs.50,000/-. A copy of the receipt is filed. 3. It is not disputed that job of collection of money was assigned to a clerk by name Sameer Bade accused no.3 which figures as accused no. 1 in the FIR. This application is made only by other two viz.Headmistress of the school and President of the Management of the school. Therefore, for the alleged default of misappropriation if there is any primary liability it goes to the clerk as per accusations made in the complaint. Learned counsel for the applicants further stated that if at all - 4 - 287 there was breach of duty then the management can at the most be held liable to compensate the loss to the aggrieved party- complainant and such a liability if exists would be vicarious liability and can never be penal liability for inquiring into or for any investigation. Merely because their names are figured in the FIR for reference or otherwise they cannot be made accused and their arrest for further investigation would be uncalled for. Such arrest would certainly malign their reputation in public. Suffice to say that after hearing both the sides, these aspects since have not been considered by the learned Sessions Judge and Mr.Shaikh APP also agrees to consider the said facts of the case, in my opinion, although the applicant s names are figured as accused nos.2 and 3, the abovenamed Headmistress and President of the Management both have made out a prima facie case and their Application - 5 - 287 deserves to be considered in their favour on following terms and conditions. It is further made clear that parties and concerned court shall not get influenced by above observations made by this court only for decision in present Anticipatory Bail Application at this stage. Hence, following order would meet the ends of justice : ORDER 1. The Applicant no. 1 Mr.Maulali Yusuf Lalkot and Applicant no.2.Smt Shahia Vajeed Lalkot shown as accused nos. 2 and 3 in impugned C.R.No.35/2001 shall be released on bail in the event of their arrest in the said C.R. in the sum of Rs.10,000/- each with one or two sureties in the like amount. 2. Needless to state that the applicants shall cooperate with the investigation by MIDC police station and report to the said police station as and when required by them. They shall not tamper with prosecution evidence. It is also made clear that this bail order shall be in operation only for a limited period and for the purpose for which it is given and shall not be mistaken as regular bail in the case. Liberty is given to the accused to make separate application - 6 - 287 for bail as and when required and sought by the court dealing with the proceedings. Application is accordingly allowed in above terms and disposed of. (N.D.Deshpande,J)