Madhukar Bhausaheb Mhaske Vs. State of Maharashtra - Court Judgment

Excerpt:
- section 10: [swatanter kumar, c.j., a.p. deshpande & smt. nishita mhatre, jj] admission to professional colleges - technical courses - publication of brochure on basis of which candidates seek admission to various institution keeping in mind their merit and preference of colleges held, for ensuring adherence to proper appreciation of an academic course, it is essential that the method of admission is just, fair and transparent. the first step in this direction would be publication of a brochure on the basis of which the applicants are supposed to aspire for admission to various institution keeping in mind their merit and preference of college. brochure, firstly has to be in conformity with law and the statutory scheme notified by the competent authority. it is a complete and composite document as it deals with the scheme for conducting their entrance examinations, declaration of results, general instructions and method of admission, etc. this brochure is binding on the applicants as well as the authorities. this brochure or admission notification issued by the state or other competent authority cannot be altered at a subsequent stage particularly once the process of admission has begun. there is hardly any exception to this accepted rule of law. section 10: [swatanter kumar, c.j., a.p. deshpande & smt. nishita mhatre,jj] admission to professional colleges - technical courses - approval to additional seats or to start new course - cut off dates held, the settled principle of law is that merit of the applicant is the primary criteria which would determine his rank as well as the college where he would be entitled to admission. this rule should not be frustrated as it will tantamount to entirely upsetting the object of admissions based on merit oriented method and would cast cloud on the fairness and transparency of the method of admission. one of the ways in which merit can be defeated is allowing increase in the intake strength or commencement if new colleges beyond cut-off date and admissions beyond the last date specified in the notification/calendar issued by the concerned authorities. this can be illustrated by giving an example. college a which is running a professional course like engineering or mba etc. has an intake capacity of 60 seats which has duly been notified in the information brochure. however, after the cut-off date, approval is granted by the aicte and thereafter, the process is taken up by the state and the intake capacity of the college is increased by 30 more seats. these seats would obviously, not be notified in the information brochure and the candidate who are meritorious and for whom college a; be the college of reference could not get seats or give preference as the seats were limited. none had the proper knowledge about the increase in intake of seats though at a much subsequent stage and may be even after the last date of admission is over either by themselves or under the order of the court even it is put on the internet or given in the newspaper, the candidates of higher rank or meritorious candidates would not be able to avail of that benefit because they have already submitted the testimonial, have paid their fees and the courses have commenced. in that situation, for variety of reasons, they may not be able to take admission in the institution of their higher preference while the candidates of much lower merit will be admitted to that course. besides defeating the merit, it has been commonly noticed that the late admissions made by the colleges directly effect notified candidates who have questioned it more than often as their admission process is not so just, fair and transparent which has given rise to the litigation. it is also a kind of back door entry method. another serious consequence that result from such admissions is shortening of the academic courses in an undesirable manner. it is expected of other candidate selected to a professional course that he or she would complete the course in its entirety and not by missing more than a month or so in joining the said course. this results in lowering the excellence of education as well as harms the academic standard of professional education. admission to professional colleges: [swatanter kumar, c.j., a.p. deshpande & smt. nishita mhatre, jj] technical courses - held, in process of admission to professional colleges relating to technical courses, primarily three institutional bodies are involved. (i) all india technical council for technical education, (ii) state of maharashtra through director of technical education and (iii) university to which such institution is affiliated the role of all these institutions in distinct and different but for a common object. primary of the rule of all india council for technical education (aicte) is now well settled but that certainly does not mean that role of the state government and for that matter the university is without any purpose or of no importance. the council is the authority constituted under the central act with the responsibility of maintaining education standards and judging upon the infra-structure and facilities available for imparting such professional education. its opinion is of utmost importance and shall take precedence over views of the state as well as that of the university. the concerned department of the state and the affiliating university has a role to pay but it is limited in its application. they cannot lay down any guidelines or policies which would be in conflict with the central statute or the students laid down a by the central body. state can frame its policy for admission to such professional courses but such policy again has to be in conformity with the directives issued by the central body. while the state grants its approval and university its affiliation for increased intake of seats or commencement for a new course/college, its directions should not offend and be repugnant to what has been laid down in the condition of approval granted by the central authority or council. what is most important is that all these authorities have to work ad idem as they all have a common object to achieve i.e. of proper imparting of education an ensuring maintenance of proper standards of education, examination and ensuring proper infrastructure for betterment of educational system. only if all these authorities work in a co-ordinated manner and with co-operation they would be able to achieve the very object for which all these entities exist admission to professional courses: [swatanter kumar, c.j.,a.p. deshpande & smt. nishita mhatre, jj] admission schedule - interference by courts held, all the expert bodies viz. aicte as well as directorate of education in consultation with the departments of the state regulating the process of admission and maintenance of standards of education had notified a legal binding document specifying dates and schedule for various matters in relation to admission of students and commencement of courses. there has to be so compelling circumstances and grounds before the court to interfere with the prescribed schedule. it is neither so arbitrary nor so perverse, keeping in view the essential features relating to imparting education to professional courses that it should invite judicial chastisement to the extent of laying down entirely new schedule. merely because there has been some delay on the part of either of these authorities to timely grant of either of these authorities to timely grant or decline approval and permission to commence a course per se would not be sufficient ground for disturbing the notified schedule and timely commencement of courses. - has rightly submitted that having regard to the reasoning, the findings cannot be condemned as perverse. the petition, therefore, must fail.orders.p. kukday, j.1. petitioner came to be convicted by chief judicial magistrate, ahmednagar of the offence punishable under sections 279, 337 and 304-a of the indian penal code. the petitioner is sentenced to suffer simple imprisonment for one month and to pay fine of rs. 500/-, in default, to suffer simple imprisonment for fifteen days for commission of offence punishable under sections 279 and 337 of the indian penal code and he is further sentenced to suffer s.i. for three months and is directed to pay a fine of rs. 1,000/-, in default, to suffer s.i. for one month for commission of offence punishable under section 304-a of the indian penal code.2. the matter was carried in appeal. criminal appeal no. 116/1992 came to be dismissed by order dated 22-7-1998 by learned sessions judge, upholding the order of conviction and sentence passed-by the trial court. these two orders are impugned in the present petition.3. the facts, in nutshell, are that : aasaram ghodke (p.w. 1) was serving with khandelwal family. on 30-11 -1987, at about 8 o'clock in the morning, as usual, aasaram was taking sumit, son of shri khandelwal, to sports meet organised by the school. after reaching the school, aasaram came to know that the venue is shifted to the church school. he, therefore, turned back and had descended the bridge near collector's office on the station road. while he was going by the left side, a truck bearing registration no. mtd-4581, driven by the petitioner in a high speed, gave a dash to his cycle. as a result, aasaram and sumit fell down. wheel of the truck passed over the legs of sumit. the truck had to travel for a considerable distance before coming to halt. the injuries were then taken to the hospital. after eight days, sumit succumbed to the injuries. a complaint in respect of the occurrence came to be lodged by (p.w. 5) devid baburao chavan. the matter was investigated and the petitioner came to be charge-sheeted.4. at the conclusion of the trial, learned trial judge found that rash and negligent driving of the truck by the petitioner had resulted in causing death of sumit and injuries to aasaram. in this view of the matter, learned trial judge convicted the petitioner of the offences punishable under sections 279, 337 and 304-a of the i.p.c. and sentenced him as stated earlier.5. the appellate judge found that the evidence on record is properly appreciated and the findings are based on sound reasoning. he, therefore, confirmed order of conviction and sentence passed by the trial court and dismissed the appeal. these orders are impugned by the petitioner in the present petition.6. according to the learned counsel for the petitioner,' the vehicle was not driven at a high speed. therefore, the conclusions reached by the lower courts that the death of sumit is caused on account of rash and negligent driving by the petitioner, cannot be sustained.7. per contra, learned a.p.p. smt. ranjana reddy has referred to the evidence of witnesses to show that the incident is caused on account of rash and negligent driving by the petitioner. according to learned a.p.p., the findings recorded by the trial court are based on the evidence placed on record. therefore, no interference with the order passed by the lower courts is called for.8. facts of the present case are not disputed. the occurrence took place on 30th november, 1987, near railway station. aasaram (p.w. 1) was returning with son of his master namely sumit. both were riding the bicycle. a dash was given to the bicycle from back side by the truck driven by the petitioner. on account of the impact, aasaram and sumit fell down and the boy came under front wheel of the truck. both his legs were crushed. right leg was amputated and the left leg was in bandage. in spite of the efforts. sumit succumed to the injuries after eight days.9. what is required to be ascertained is whether the death of sumit is caused on account of rash or negligent driving of the truck by the petitioner. according to learned counsel, the petitioner was driving the truck at a slow speed. therefore, it cannot be said that the petitioner was driving the truck rashly and negligently. this contention is fallacious. rashness or negligence are not dependent on the speed of the vehicle. the speed of the vehicle is only one of the several other factors which determine whether the act is rash or negligent. negligence is the absence of due care and caution, whereas culpable rashness results from lack of circumspection. similar view is taken by the madras high court in the matter of in re, j.c. may, reported in air 1960 mad 50. referring to the concept of negligence and rashness, it is observed by the learned judge that the negligence connotes want of proper care and rashness conveys the idea of recklessness or the doing of an act without due consideration. culpable rashness consists in acting with consciousness that mischievous and illegal consequences may follow but with the belief that the actor has not taken sufficient precaution to prevent that happening. on the contrary, culpable negligence consists in acting without consciousness that illegal and mischievous effects will follow. both the circumstances would show that the actor has not exercised the caution incumbent upon him. whether the act of the petitioner is rash or negligent will have to be decided in conformity with this concept.10. in the present case, panchanama of scene of occurrence shows that there were brake-marks for about 8 ft. it is also not in dispute that the truck was heavily loaded with sand. evidence of the labourers, who were riding in the rear side of the truck shows that the truck suddenly veered from the left to the right at the, time of the occurrence. the evidence of labourers and injured aasaram shows that the area near the railway station is always congested. there is always heavy traffic on this road. the evidence of witnesses and the panchnama of the scene of occurrence shows that the truck descended the bridge at a high speed. for avoiding the collision, the petitioner suddenly turned towards right, but could not control the vehicle. the vehicle thus knocked down the bicycle riders and when they fell down, passed over legs of sumit. the brake-marks indicate that the truck was driven at a high speed. when the truck stopped, it was not parallel to the left edge of the road, but had stopped diagonally in the middle of the road. it is, therefore, apparent that the petitioner was driving the truck at high speed and could not control the speed at the time of occurrence, as a result, dash was given to the cycle. the impact resulted in the fall of aasaram and sumit and passing of the front wheel over both legs of the boy. having regard to these facts, contention of learned counsel for the petitioner that the petitioner is not guilty of rashness or negligent, as the truck was in slow speed, cannot be sustained. having regard to the evidence on record, no fault can be found with the finding recorded by the lower courts.11. revisional jurisdiction is to be exercised only in the rare cases to prevent miscarriage of justice. in the present case, the findings recorded by both the courts below are based on proper appreciation of the evidence on record. learned a.p.p. has rightly submitted that having regard to the reasoning, the findings cannot be condemned as perverse. no other illegality or impropriety has been pointed out or noticed. thus, no case has been made out to warrant interference by this court in the exercise of its revisional jurisdiction. the petition, therefore, must fail.12. at this juncture, learned counsel for the petitioner has submitted that leniency be shown to the petitioner. according to learned counsel, the incident had taken place long back on 30-11-1987. the petitioner is the sole earning member of the family, therefore, he deserves leniency. oh the other hand, learned a.p.p. smt. reddy contends that the petitioner is responsible for causing death of a young boy. therefore, this is not a fit case where leniency can be shown.13. in the present case, both the courts below have applied deterrent theory of punishment. the wrong-doer is punished to ensure that other similarly situated are deterred from committing similar lapse. protected litigation can be said to be one of the mitigating circumstances. however, in the present case, it can be seen that the prosecution is not responsible for causing the delay. the time is consumed for contesting the cause as the petitioner has availed all the remedies available to him. in these circumstances, protracted litigation cannot be a ground for showing leniency to the petitioner. having regard to the nature of the offence, application of deterrent theory of punishment is indicated. reformative theory cannot be applied to such cases. therefore, the prayer for leniency, at this stage, cannot be granted. as no case for interference is made out, the petition is dismissed. rule is discharged. the petitioner shall surrender himself to the bail before the lower court on or before 8th of may, 2006 for serving remaining portion of the sentence.

Judgment:
ORDER

S.P. Kukday, J.

1. Petitioner came to be convicted by Chief Judicial Magistrate, Ahmednagar of the offence punishable under Sections 279, 337 and 304-A of the Indian Penal Code. The petitioner is sentenced to suffer simple imprisonment for one month and to pay fine of Rs. 500/-, in default, to suffer simple imprisonment for fifteen days for commission of offence punishable under Sections 279 and 337 of the Indian Penal Code and he is further sentenced to suffer S.I. for three months and is directed to pay a fine of Rs. 1,000/-, in default, to suffer S.I. for one month for commission of offence punishable under Section 304-A of the Indian Penal Code.

2. The matter was carried in appeal. Criminal Appeal No. 116/1992 came to be dismissed by order dated 22-7-1998 by learned Sessions Judge, upholding the order of conviction and sentence passed-by the trial Court. These two orders are impugned in the present petition.

3. The facts, in nutshell, are that : Aasaram Ghodke (P.W. 1) was serving with Khandelwal family. On 30-11 -1987, at about 8 O'clock in the morning, as usual, Aasaram was taking Sumit, son of Shri Khandelwal, to Sports Meet organised by the school. After reaching the school, Aasaram came to know that the venue is shifted to the church school. He, therefore, turned back and had descended the bridge near Collector's office on the station road. While he was going by the left side, a truck bearing registration No. MTD-4581, driven by the petitioner in a high speed, gave a dash to his cycle. As a result, Aasaram and Sumit fell down. Wheel of the truck passed over the legs of Sumit. The truck had to travel for a considerable distance before coming to halt. The injuries were then taken to the hospital. After eight days, Sumit succumbed to the injuries. A complaint in respect of the occurrence came to be lodged by (P.W. 5) Devid Baburao Chavan. The matter was investigated and the petitioner came to be charge-sheeted.

4. At the conclusion of the trial, learned trial Judge found that rash and negligent driving of the truck by the petitioner had resulted in causing death of Sumit and injuries to Aasaram. In this view of the matter, learned trial Judge convicted the petitioner of the offences punishable under Sections 279, 337 and 304-A of the I.P.C. and sentenced him as stated earlier.

5. The Appellate Judge found that the evidence on record is properly appreciated and the findings are based on sound reasoning. He, therefore, confirmed order of conviction and sentence passed by the trial Court and dismissed the appeal. These orders are impugned by the petitioner in the present petition.

6. According to the learned Counsel for the petitioner,' the vehicle was not driven at a high speed. Therefore, the conclusions reached by the lower Courts that the death of Sumit is caused on account of rash and negligent driving by the petitioner, cannot be sustained.

7. Per contra, learned A.P.P. Smt. Ranjana Reddy has referred to the evidence of witnesses to show that the incident is caused on account of rash and negligent driving by the petitioner. According to learned A.P.P., the findings recorded by the trial Court are based on the evidence placed on record. Therefore, no interference with the order passed by the lower Courts is called for.

8. Facts of the present case are not disputed. The occurrence took place on 30th November, 1987, near railway station. Aasaram (P.W. 1) was returning with son of his master namely Sumit. Both were riding the bicycle. A dash was given to the bicycle from back side by the truck driven by the petitioner. On account of the impact, Aasaram and Sumit fell down and the boy came under front wheel of the truck. Both his legs were crushed. Right leg was amputated and the left leg was in bandage. In spite of the efforts. Sumit succumed to the injuries after eight days.

9. What is required to be ascertained is whether the death of Sumit is caused on account of rash or negligent driving of the truck by the petitioner. According to learned Counsel, the petitioner was driving the truck at a slow speed. Therefore, it cannot be said that the petitioner was driving the truck rashly and negligently. This contention is fallacious. Rashness or negligence are not dependent on the speed of the vehicle. The speed of the vehicle is only one of the several other factors which determine whether the act is rash or negligent. Negligence is the absence of due care and caution, whereas culpable rashness results from lack of circumspection. Similar view is taken by the Madras High Court in the matter of In Re, J.C. May, reported in AIR 1960 Mad 50. Referring to the concept of negligence and rashness, it is observed by the learned Judge that the negligence connotes want of proper care and rashness conveys the idea of recklessness or the doing of an act without due consideration. Culpable rashness consists in acting with consciousness that mischievous and illegal consequences may follow but with the belief that the actor has not taken sufficient precaution to prevent that happening. On the contrary, culpable negligence consists in acting without consciousness that illegal and mischievous effects will follow. Both the circumstances would show that the actor has not exercised the caution incumbent upon him. Whether the act of the petitioner is rash or negligent will have to be decided in conformity with this concept.

10. In the present case, panchanama of scene of occurrence shows that there were brake-marks for about 8 ft. It is also not in dispute that the truck was heavily loaded with sand. Evidence of the labourers, who were riding in the rear side of the truck shows that the truck suddenly veered from the left to the right at the, time of the occurrence. The evidence of labourers and injured Aasaram shows that the area near the railway station is always congested. There is always heavy traffic on this road. The evidence of witnesses and the panchnama of the scene of occurrence shows that the truck descended the bridge at a high speed. For avoiding the collision, the petitioner suddenly turned towards right, but could not control the vehicle. The vehicle thus knocked down the bicycle riders and when they fell down, passed over legs of Sumit. The brake-marks indicate that the truck was driven at a high speed. When the truck stopped, it was not parallel to the left edge of the road, but had stopped diagonally in the middle of the road. It is, therefore, apparent that the petitioner was driving the truck at high speed and could not control the speed at the time of occurrence, as a result, dash was given to the cycle. The impact resulted in the fall of Aasaram and Sumit and passing of the front wheel over both legs of the boy. Having regard to these facts, contention of learned Counsel for the petitioner that the petitioner is not guilty of rashness or negligent, as the truck was in slow speed, cannot be sustained. Having regard to the evidence on record, no fault can be found with the finding recorded by the lower Courts.

11. Revisional jurisdiction is to be exercised only in the rare cases to prevent miscarriage of justice. In the present case, the findings recorded by both the Courts below are based on proper appreciation of the evidence on record. Learned A.P.P. has rightly submitted that having regard to the reasoning, the findings cannot be condemned as perverse. No other illegality or impropriety has been pointed out or noticed. Thus, no case has been made out to warrant interference by this Court in the exercise of its revisional jurisdiction. The petition, therefore, must fail.

12. At this juncture, learned Counsel for the petitioner has submitted that leniency be shown to the petitioner. According to learned Counsel, the incident had taken place long back on 30-11-1987. The petitioner is the sole earning member of the family, therefore, he deserves leniency. Oh the other hand, learned A.P.P. Smt. Reddy contends that the petitioner is responsible for causing death of a young boy. Therefore, this is not a fit case where leniency can be shown.

13. In the present case, both the Courts below have applied deterrent theory of punishment. The wrong-doer is punished to ensure that other similarly situated are deterred from committing similar lapse. Protected litigation can be said to be one of the mitigating circumstances. However, in the present case, it can be seen that the prosecution is not responsible for causing the delay. The time is consumed for contesting the cause as the petitioner has availed all the remedies available to him. In these circumstances, protracted litigation cannot be a ground for showing leniency to the petitioner. Having regard to the nature of the offence, application of deterrent theory of punishment is indicated. Reformative theory cannot be applied to such cases. Therefore, the prayer for leniency, at this stage, cannot be granted. As no case for interference is made out, the petition is dismissed. Rule is discharged. The petitioner shall surrender himself to the bail before the lower Court on or before 8th of May, 2006 for serving remaining portion of the sentence.