Emperor Vs. Sailani - Court Judgment

Excerpt:
criminal procedure code, sections 403, 433, 439 - previous acquittal on charge of causing simple hurt--subsequent death of person injured commitment of the persons acquitted of the minor offence under section 304 of the indian penal code--revision. - 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]. pramada charan banerji and ryves, jj.1. sailani and ram ghulam were originally put on their trial for causing simple hurt to one kesri. that case was compounded, and in consequence both the accused persons wore acquitted. subsequently kesri died, and a post mortem examination revealed the fact that his death was due to an injury which he received in the course of the assault made on him by sailani and ram ghulam. the police challaned both these persons under section 304 of the indian penal code for causing the death of kesri. the magistrate committed ram ghulam to take his trial under section 304, but held that the injury which was caused by sailani to the back of the head of kesri did not in any way contribute to his death, and that at the utmost sailani could only be convicted of causing simple hurt under section 323 of the indian penal code. as he had already been acquitted on that charge the learned magistrate refused to commit him. the learned sessions judge on perusal of the record directed that sailani also should he committed to the sessions for trial under section 304 of the indian penal code. from that order this application for revision has been presented before us. it appears to us that there is no legal bar to the trial of sailani on a charge under section 304. whether he can be convicted under that section will depend on the evidence in the case and if it is proved by that evidence that he is as much responsible for the death of kesri as ram ghulam, that is to say, if the evidence enables the court to apply either section 34 or section 114 of the indian penal code to the case. that is purely a question of fact to be determined by the court at the trial. a commitment can be set aside only on a point of law. as no such point arises in this case, we are unable to set aside the order of commitment. the application is, accordingly, rejected.