1. The applicant in this case asks this Court to set aside an order of conviction made against him by the Sub-Divisional Magistrate, N.P., Surat, under Section 10(1) of the Bombay Primary Education District Municipalities Act, 1918. The following are the material facts.
2. In compliance with the provisions of Section 3 of the said Act, primary education of girls was made compulsory in the Municipal district of Surat, from January 1, 1920. A School Committee has been duly appointed - its duties being, among others, to enforce the provisions of the Act respecting the attendance of children at school. It is admitted that by Section 7 of the Act the applicant was bound to cause his daughter Bai Parsan to attend a recognized primary school in the absence of a reasonable cause.
3. On January 3, 1923, the School Committee sent a notice (Ex. D ) to the applicant requiring him to appear before them on the 9th idem to show cause why he should not cause Bai Parsan to attend a recognized primary school. The notice was signed by the school attendance officer, on behalf of the Committee. The applicant failed to appear. The Committee thereupon resolved, on January 9 (Ex. E.), that an order should be served on him directing him to cause the child to attend a recognized primary school on or before the 18th of that month. An order to that effect (Ex. F) was served on him on the 13th; but it is said he refused to acknowledge its receipt.
4. On January 17, the applicant wrote to the attendance officer as follows:
I have got your notice.. My daughter Parsan goes to study in the Swaruprani school of the Rashtriya Kelavni Mandal and that is known to you. We are certainly eager to give education to our daughter and our girl is already receiving proper education.. You should note that our daughter is receiving education.
5. No enquiry seems to have been made by the Committee at any time either as regards the truth of the statement made in Ex. G or as to the efficiency of the instruction imparted in the school which the girl was said to have been attending, It is necessary to set out here the following facts which appear in the evidence given by the attendance officer before the Magistrate in this case:
The Swaruprani school is national.... Neither I nor my committee have by writing to the national school ascertained what books are being taught in their schools.. Neither I nor my committee have at any time inspected any of the national schools. We have not asked for the curriculum that has been laid down in the schools. I do not know what are the qualifications of the teachers employed at the national schools. The school committee has not made any enquiry as regards the fitness of the teachers employed in those schools. I do not say that a child that is taught at an unrecognized (? school ) is not in receipt of adequate education. There is no resolution of the school committee to the effect that the education given in national schools is not efficient. I was present when the school committee met on the 9th of January.. The proceeding Ex. E was written-then and there. The order Ex. F was resolved to be issued after the girl's absence had been noticed. No further enquiry had been made about this girl.
6. The applicant did not carry out the attendance order Ex. F. On January 20, the Chairman of the Committee authorized the attendance Officer to make a complaint to the Magistrate under Section 10 This was done, with the result that the applicant was convicted and ordered to pay a fine of one rupee.
7. The question now before us is whether the conviction is valid in law. The two necessary conditions of a valid conviction under Section 10 are : (1) there must be an order passed by the School Committee under Section 9 i.e., an order passed in strict compliance with the procedure laid down in that Section ; (2) the parent must be shown to have failed to comply with the provisions of Section 7 on and after the date specified In such order. In my opinion the prosecution has failed to establish that those conditions were fulfilled in this case.
8. The order, Ex. F, was passed by the Committee without regard to the imperative requirements of Section 9 That section is in these terms:
Where the School Committee is satisfied that the parent of any child who is bound under the provisions of Section 7 to cause such child to attend a recognizcd primary school, has failed to do so, the School Committee, after giving the parent an opportunity of being; heard and after such inquiry as it considers necessary, may pass an order directing the parent to cause such child to attend a recognized primary school on and from a date which shall be specified in the order.
9. The powers conferred under the Act on the School Committee are wide. They are in curtailment of the right of the parent to give efficient instruction to his child according to his own ideas. It is therefore essential that an attendance order passed by the Committee must be shown to have been passed in strict compliance with the procedure therein prescribed, namely, 'after giving the parent an opportunity of being heard and after such enquiry as it considers necessary. 'In this case the committee did give the applicant an opportunity of being heard on January 9, but he did not accept it. The record satisfies me-as it satisfied the learned Magistrate-that his failure to do so was due to a spirit of recalcitrancy and to no worthier motive. But he seems to have soon realized it; for, on January 17, he wrote the letter, Ex. G, stating that it was known to the attendance officer and others that the girl had actually been attending the Swaruprani school. In his evidence the attendance officer admits : 'From the register of absentee children I had come to know that the daughter of Nemchand' (i.e. the applicant) 'was attending national school'. The Committee made no enquiry at any time to enable them to form an opinion as to the efficiency of the education imparted in that school. This is clear on the evidence of the attendance officer which I have set out above. The attendance order required the applicant to send his child to a recognised school on the 18th; he sent the letter Ex. G on the 17th; the complaint to the Magistrate was not made until the 20th. There was nothing to prevent their making the necessary enquiry before making the complaint. They had made none before passing the order Ex. F. In my opinion that order was not made in compliance with the requirements of Section 9 I do not read the words 'and after such enquiry as it considers necessary' as merely permissive. That expression has a compulsory force, regard being had to the object of the enactment, to the wide powers conferred on the committee in derogation of the parent's rights, and to the language of Section 9 itself. In the circumstances, the fact that the committee passed the order, Ex. F, does not by itself lead to the inference that it had made an enquiry in the spirit of the enactment.
10. The second requirement of Section 10 is that it must be shown that the parent has failed to comply with the provisions of Section 7 on or after the date specified in the attendance order passed by the Committee. Section 7 imposes on a parent the duty of causing his child to attend a recognized primary school 'in the absence of a reasonable excuse as hereinafter provided'. I think the effect of Section 10 is the same as that of Section 12 of the Elementary Education Act, 1876 (39 & 40 Vic. Clause 79 ), which is in these terms: 'Where an attendance order is not complied with, without any reasonable excuse within the meaning of this Act, a Court of summary jurisdiction on complaint made by the local authorities' may inflict a penalty on the parent.
11. What, then, is 'reasonable excuse'? This expression is not specifically defined in the definition clause, Section 2 The 8th Section however, gives its meaning in these terms:
8. A parent shall be deemed to have a reasonable excuse for failure to cause a child to attend a recognized primary school in any of the following cases:
(a) Where the child is prevented from attending school by sickness, infirmity or other unavoidable cause;
(b) where the child is receiving, otherwise than in a recognized primary school, instruction which in the opinion of the school committee is efficient, or has already completed his primary education;
(c) where there is no recognized primary school within one mile, measured according to the nearest road, from the residence of the child.
12. For purposes of this case it is unnecessary to decide whether the three cases there set out are meant to be exhaustive, or they are merely three illustrations of reasonable excuse. The language of Section 7 might indicate that they are exhaustive. However that may be, we are here concerned with Section 8, case (b) only for according to the applicant his child had at all material times been receiving education otherwise than in a recognized primary school. It is not shewn that either before or after passing the order, Ex. F, the Committee made any enquiry for the purpose of deciding whether in its opinion the instruction which the child had been receiving elsewhere was or was not efficient; for, the Committee has to form its opinion not capriciously but on sufficient grounds and for substantial reasons. It is not shown that the Committee has formed its opinion on the subject in the spirit of the enactment, or, at all. It appears to me that the learned Magistrate has not rightly appreciated the second requirement of Section 10 I agree with him in holding that the Legislature has cast on the School Committee the duty of deciding whether the instruction received by a child otherwise than in a recognized primary school is efficient or not. I, however, decline to assume that the Committee must be held to have discharged that duty merely because they passed the attendance order. Moreover, it is clearly the function of the Court-when a complaint is made under Section 10-to see whether it is proved that the parent failed to send the child to a recognized school, without reasonable cause, on or after the date spacified in the attendance order. The Act does not inflict penalty on a parent for a mere failure to carry out an attendance order passed under Section 9 For, it is not to be supposed-unless the statute clearly said so, which in this case it does not-that once an attendance order is made by the School Committee under Section 9, the parent is for all time deprived of the right to give efficient instruction to his own child otherwise than in a recognized primary school. The Magistrate concedes that the Court must consider a case falling under Section 8(a); it must, in my opinion, also consider a case coming under Section 8(b) Dealing with this question the learned Magistrate observes:
There is however one thing in this connection that has to be mentioned as pointed out by the learned pleader for the prosecution. He pointed out that in Clause (b) the word used is 'instruction 'i.e., instruction in primary education and nothing else and primary education is defined in the Act, Section 2(5), so that it la not merely the curriculum laid down in any particular school that was necessary to be proved but that the curriculum and the whole of the teaching has to be in conformity with the standards as laid down and fixed and recognized by Government as such. Merely the curriculum did not matter, certain other rules laid down by Government in this respect had to be observed which he said were not being followed by this school in particular as also other schools under this particular 'mandal' as was evident from the replies of the defence witness in this respect. When that was so therefore he made out that it could not at all be said that the primary education given to the girl in question was such as was contemplated by the Act. I think there is a good deal in all that has been urged in this respect.
13. I am unable to accept this narrow interpretation put upon the word 'instruction' occurring in Section 8(b) The expression used in that section is 'instruction', not 'primary education'; it is an expression bearing a much wider import. Its efficiency is to be decided by 'the opinion of the School Committee', not by its compliance with some standard fixed and recognised by Government. The main object of the enactment is to see that a child is not left without the benefit of education. It is sufficient if it is receiving efficient instruction elsewhere than in a recognised primary school. I see no reason for giving to that expression', as used in Section 8, case (b), the narrow meaning which was contended for by the Public Prosecutor before the lower Court, and accepted by the Magistrate. In my opinion the prosecution has failed to satisfy the second requirement of Section 10 also.
14. In this view of the case I consider it unnecessary to express an opinion on the question whether the resolution, Exhibit P, passed by the School Committee on January 11, 1922, and relied on by the applicant, is still in force.
15. I would set aside the conviction and order the fine, if paid, to be refunded.
Lallubhai Shah, Kt., C.J.
16. I entirely agree. I desire to make it clear with reference to the resolution of the School Committee dated January 11, 1922 ( Exhibit P), that we do not accept one of the two grounds upon which the learned Magistrate has held it to be invalid, as it is not essential in our view that the instruction in order to be efficient within the meaning of Section 8(b) should conform to the standards as adopted in the 'recognised primary schools.' The other ground relates to the power of the School Committee at that date to act as such under the Act of 1918. The learned Magistrate has held that in view of the Commissioner's order dated December 17, 1921 (Exh. L ), the School Committee ceased to exist, and the learned Advocate General has urged that that view is correct.
17. In the view we take of the case, it is not necessary to decide this question : so I express no opinion about it. I do not wish to be understood as accepting the view of the learned Magistrate on this point.