D. Vijayalakshmi Vs. D. Sanjeeva Reddy - Court Judgment

Excerpt:
- cantonments act[c.a. no. 41/2006]. section 346 & cantonment fund (servants rules, 1937, rules 13, 14 & 15: [h.l. gokhale, ag. cj, p.v. hardas, naresh h. patil, r.m. borde & r.m. savant, jj] jurisdiction of school tribunal constituted under maharashtra employees of private schools (conditions of service) regulations act, (3 of 1978) held, school run by the cantonment board is a primary school and it is not a school recognised by any such board comparable to the divisional board or the state board. the school tribunal constituted under section 8 of the maharashtra act cannot entertain appeals filed under section 9 by the employees working in schools which are established and administered by the cantonment board. teacher employed in the school run by cantonment board being covered under rule 2 (f) of the cantonment fund servants rules, 1937 can file appeal under rules 13, 14 and 15 to authorities provided therein against any order imposing any penalties etc. [deolali cantonment board v usha devidas dongre, 1993 mah. lj 74; 1993 lab ic 1858 overruled]. -- maharashtra employees of private schools (conditions of service) regulations act, 1978 [act no. 3/1978]. sections 9 & 2(21): jurisdiction of school tribunal whether a school run by cantonment board is not a recognised school within the meaning of section 2(21)? - held, the act is enacted to regulate recruitments and conditions of employees in certain private schools and provisions of the act shall apply to all private schools in the state whether receiving any grant-in-aid from the state government or not. private school is defined in section 2(2) of the act as a recognised school established or administered by a management other than the government or a local authority. recognised means recognised by director, the divisional board or state board. thus as far as the first part of the definition of being recognised is concerned, it includes, as stated above, four directors, the divisional boards and four state boards. the second part of this definition which comes after the comma refers to any officer authorised by director or by any of such boards. the question to be examined is whether school run by the cantonment board could be said to be one run by any such boards. a private school has to be recognised by the state or the divisional board or by any officer authorised in that behalf. when this phrase namely: recognised by any officer authorised by the director or by any such boards, is included in the latter part of section 2(21), such boards will be of the level of the state board or the divisional board. the boards referred to in the definition of the word recognised means the boards which deal with education at levels other than that of the level at which primary schools are operating. thus for being recognised, the school has to be recognised by the board and therefore, it has to be operating at a higher level i.e., secondary level. section 2(21) of the act defines the term recognised. the last clause therein is by any of such boards. the term such is defined in oxford dictionary as of the kind or degree indicated or implied by the context. therefore, the term such board will have to mean a divisional board of or the level of divisional board or the state board. the divisional board holds the examination and issues certificates after 10th and 12th standard examinations. the state board advises the state government on policy matters, ensures uniform pattern of secondary and higher secondary education, lays down principles for determining syllabi, prescribes text books, etc. the cantonment board does not discharge any of such duties nor is there any other board or body under the cantonments act discharging any such duties. the duties of the cantonment board are laid down in section 62 and amongst others, clause (xiv) lays down the duties of establishing and maintaining or assisting primary schools only. the cantonment board is not required to enter into the area of secondary education. therefore, school run by the cantonment board is a primary school and it is not a school recognised by any such board comparable to the divisional board or the state board. that being the position, it is not possible to accept it to be a recognised school for being a private school under the act. for the reasons state above, the school tribunal constituted under section 8 of the act cannot entertain appeals filed under section 9 by the employees working in schools which are established and administered by the cantonment board. [deolali cantonment board v usha devidas dongre, 1993 mah.lj 74; 1993 lab ic 1858 overruled]. - the law is well-settled that to bring home the offence under section 494 of the i. , the first as well as the second marriage alleged should be proved in accordance with the legal requirements under hindu law and under caste, custom of the particular accused.ordert. ch. surya rao, j.1. this revision petition is directed against the acquittal of the 1st respondent herein of the charge under section 498 of the i.p.c, by the learned special judge for trial of cases under essential commodities act-cum-iii addl. metropolitan sessions judge, hyderabad by his judgment dated 30.1.1999 in criminal appeal no. 73/98. the 1st respondent and eleven (11) others were charge-sheeted by the state through the sub-inspector of police, musheerabad police station for the alleged offences under sections 498(a) and 494 read with 109 of the i.p.c. cognizance was taken by the learned xxii metropolitan magistrate-cum-mahila court, hyderabad for the said offences against all the accused in c.c. no. 342/1995. pursuant to the summons issued by the court all the accused appeared before the trial court and faced the eventual trial. at the end of the trial and after examining the witnesses (accused ?) under section 313 of the cr.p.c, the trial court acquitted all the accused under section 498-a of the i.p.c. and convicted a-1 alone under section 494 of the i.p.c. the other accused a-2 to a-12 are acquitted of the charge under section 494 read with section 109, i.p.c. a-1 who is the 1st respondent herein was sentenced to suffer rigorous imprisonment for two years and was further sentenced to pay a fine of rs. 3,000/ - and in default to suffer simple imprisonment for four months. having been aggrieved by the conviction and sentence passed against him, he preferred the criminal appeal no. 73/98. as aforesaid, the learned sessions judge upon considering the evidence on record and after having heard the counsel on either side allowed the criminal appeal and thereby acquitted the appellant of the charge under section 494 of the i.p.c. as against the said acquittal, the de facto complainant, p.w. 1 in the case preferred the present revision.2. this revision petition will not detain me for long since it could be disposed of on twin considerations. firstly, that there has been any amount of paucity of evidence to prove the solemnization of both the marriages of accused no. 1 with the de facto complainant and accused no. 1 with accused no. 12 in the case. after having scrutinized the evidence on record, the learned iii additional metropolitan sessions judge was of the view that absolutely there had been no evidence to prove the solemnization of both the marriage as is required under law so as to bring home the offence under section 494 of the i.p.c. the law is well-settled that to bring home the offence under section 494 of the i.p.c., the first as well as the second marriage alleged should be proved in accordance with the legal requirements under hindu law and under caste, custom of the particular accused. absence of proof of solemnization of marriage of any one of these two marriages would automatically defeat the charge under section 494 of the i.p.c. there are no compelling circumstances for this court to come to a conclusion that the findings arrived at by the learned iii addl. metropolitan sessions judge are either perverse or suffering from the vice of any material irregularity or would otherwise result in miscarriage of justice so as to warrant interference of this court under section 397 of the cr.p.c.3. coming to the second point, the charge-sheet has been filed as aforesaid by the sub-inspector of police, musheerabad for the alleged offences under sections 498(a) and 494 of the i.p.c. section 498-a is cognizable and, therefore, the police can investigate and lay the charge-sheet ultimately if the investigation discloses the case against the accused of trial. what was non-cognizable offence under section 494 was made cognizable in view of the state amendment brought to the first schedule appended to the criminal procedure code. the state amendment having received the assent of the president is valid and would prevail even in the wake of any repugnancy between the state law and central law insofar as the state of andhra pradesh is concerned. the offence under section 498-a of the i.p.c. is cognizable but it is not cognizable elsewhere in the country. in view of the state amendment the investigating agency is entitled to investigate the offence alleged under section 494 of the i.p.c. but that is not the end of the matter. there are certain limitations for the court to take cognizance. as could be seen from chapter xiv of the cr.p.c. one such limitation is enjoined under section 198 of the cr.p.c. section 198 of the cr.p.c. bars the court from taking cognizance of any offence falling under chapter xx of the indian penal code and relating to institution of marriage with the avowed object of preserving the institution of marriage. this bar enjoined under section 198 of cr.p.c. is for the court but not for the investigating agency. although the agency is at liberty to register a case and conduct investigation into the offence under section 494 of the i.p.c., the court is precluded from taking cognizance of the said offence in view of the mandatory provisions of section 198 of the cr.p.c. it may be reiterated here that bar is for the court but not for the investigating agency. there has been no amendment to section 198 so as to bring the same in consonance with the state amendment brought to section 494 of the i.p.c. as has been done in respect of the offence under section 498-a by incorporating section 198-a of i.p.c. section 198 being a legislation of the parliament would prevail in the event of any inconsistency between the state law and the central law since both the subjects pertain to concurrent list. the initial cognizance taken by the court upon the charge-sheet filed by the investigating agency namely, the sub-inspector of police, musheerabad police station, itself is bad- that clearly vitiates the entire trial and the eventual conviction by the trial court of the 1st respondent herein. this point has not been addressed by both the courts below. of course, on appreciation of the evidence available on record, the appellate court has come to a clear conclusion that the offence under section 494 of the i.p.c. has not been made out. in any view of the matter, this revision directed against the acquittal cannot sustain.4. the revision petition is dismissed. no costs.

Judgment:
ORDER

T. Ch. Surya Rao, J.

1. This revision petition is directed against the acquittal of the 1st respondent herein of the charge under Section 498 of the I.P.C, by the learned Special Judge for trial of cases under Essential Commodities Act-cum-III Addl. Metropolitan Sessions Judge, Hyderabad by his judgment dated 30.1.1999 in Criminal Appeal No. 73/98. The 1st respondent and eleven (11) others were charge-sheeted by the State through the Sub-Inspector of Police, Musheerabad Police Station for the alleged offences under Sections 498(A) and 494 read with 109 of the I.P.C. Cognizance was taken by the learned XXII Metropolitan Magistrate-cum-Mahila Court, Hyderabad for the said offences against all the accused in C.C. No. 342/1995. Pursuant to the summons issued by the Court all the accused appeared before the Trial Court and faced the eventual trial. At the end of the trial and after examining the witnesses (accused ?) under Section 313 of the Cr.P.C, the Trial Court acquitted all the accused under Section 498-A of the I.P.C. and convicted A-1 alone under Section 494 of the I.P.C. The other accused A-2 to A-12 are acquitted of the charge under Section 494 read with Section 109, I.P.C. A-1 who is the 1st respondent herein was sentenced to suffer rigorous imprisonment for two years and was further sentenced to pay a fine of Rs. 3,000/ - and in default to suffer simple imprisonment for four months. Having been aggrieved by the conviction and sentence passed against him, he preferred the Criminal Appeal No. 73/98. As aforesaid, the learned Sessions Judge upon considering the evidence on record and after having heard the Counsel on either side allowed the criminal appeal and thereby acquitted the appellant of the charge under Section 494 of the I.P.C. As against the said acquittal, the de facto complainant, P.W. 1 in the case preferred the present revision.

2. This revision petition will not detain me for long since it could be disposed of on twin considerations. Firstly, that there has been any amount of paucity of evidence to prove the solemnization of both the marriages of accused No. 1 with the de facto complainant and accused No. 1 with accused No. 12 in the case. After having scrutinized the evidence on record, the learned III Additional Metropolitan Sessions Judge was of the view that absolutely there had been no evidence to prove the solemnization of both the marriage as is required under law so as to bring home the offence under Section 494 of the I.P.C. The law is well-settled that to bring home the offence under Section 494 of the I.P.C., the first as well as the second marriage alleged should be proved in accordance with the legal requirements under Hindu Law and under caste, custom of the particular accused. Absence of proof of solemnization of marriage of any one of these two marriages would automatically defeat the charge under Section 494 of the I.P.C. There are no compelling circumstances for this Court to come to a conclusion that the findings arrived at by the learned III Addl. Metropolitan Sessions Judge are either perverse or suffering from the vice of any material irregularity or would otherwise result in miscarriage of justice so as to warrant interference of this Court under Section 397 of the Cr.P.C.

3. Coming to the second point, the charge-sheet has been filed as aforesaid by the Sub-Inspector of Police, Musheerabad for the alleged offences under Sections 498(A) and 494 of the I.P.C. Section 498-A is cognizable and, therefore, the police can investigate and lay the charge-sheet ultimately if the investigation discloses the case against the accused of trial. What was non-cognizable offence under Section 494 was made cognizable in view of the State amendment brought to the First Schedule appended to the Criminal Procedure Code. The State amendment having received the assent of the President is valid and would prevail even in the wake of any repugnancy between the State Law and Central Law insofar as the State of Andhra Pradesh is concerned. The offence under Section 498-A of the I.P.C. is cognizable but it is not cognizable elsewhere in the country. In view of the State amendment the Investigating Agency is entitled to investigate the offence alleged under Section 494 of the I.P.C. But that is not the end of the matter. There are certain limitations for the Court to take cognizance. As could be seen from Chapter XIV of the Cr.P.C. one such limitation is enjoined under Section 198 of the Cr.P.C. Section 198 of the Cr.P.C. bars the Court from taking cognizance of any offence falling under Chapter XX of the Indian Penal Code and relating to institution of marriage with the avowed object of preserving the institution of marriage. This bar enjoined under Section 198 of Cr.P.C. is for the Court but not for the Investigating Agency. Although the agency is at liberty to register a case and conduct investigation into the offence under Section 494 of the I.P.C., the Court is precluded from taking cognizance of the said offence in view of the mandatory provisions of Section 198 of the Cr.P.C. It may be reiterated here that bar is for the Court but not for the Investigating Agency. There has been no amendment to Section 198 so as to bring the same in consonance with the State amendment brought to Section 494 of the I.P.C. as has been done in respect of the offence under Section 498-A by incorporating Section 198-A of I.P.C. Section 198 being a legislation of the Parliament would prevail in the event of any inconsistency between the State Law and the Central Law since both the subjects pertain to concurrent list. The initial cognizance taken by the Court upon the charge-sheet filed by the Investigating Agency namely, the Sub-Inspector of Police, Musheerabad Police Station, itself is bad- That clearly vitiates the entire trial and the eventual conviction by the Trial Court of the 1st respondent herein. This point has not been addressed by both the Courts below. Of course, on appreciation of the evidence available on record, the Appellate Court has come to a clear conclusion that the offence under Section 494 of the I.P.C. has not been made out. In any view of the matter, this revision directed against the acquittal cannot sustain.

4. The revision petition is dismissed. No costs.