Sheo Mandil Vs. Emperor - 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]. ordermohammad ismail, j.1. this is an application in revision on behalf of one sheomandil who was convicted and sentenced to a term of nine months rigorous imprisonment and a fine of rs. 500 under section 406, i.p.c., by a magistrate of the first class. the order of the learned magistrate was confirmed on appeal by an order dated 20th august 1938. the applicant now comes to this court in revision. it is admitted by learned counsel that the accused has not surrendered himself and is still at large. the concluding portion of the order of the learned sessions judge is : 'the appeal is rejected. the accused is directed to submit to his bail bonds.' this order has not been complied with. learned counsel for the applicant states that the appellate court had not directed the applicant to be present in court at the time of the delivery of judgment. reference has been made to the proviso to section 424 which lays down that unless the appellate court otherwise directs, the accused shall not be brought up or required to attend to hear the judgment delivered. this section is limited in its operation to the stage when the judgment is pronounced. in the judgment itself the learned sessions judge has directed the accused to surrender himself, as he was bound to do, and it was the duty of the applicant to enter appearance as soon as he was apprised of the order of the court. it is not suggested that the accused is unaware of the order of the court below. the fact that he has come to this court in revision is proof positive of his knowledge of the order that has been passed by the court below.2. the question for consideration is whether it is open to the applicant or his learned counsel to move this application until the applicant has obeyed the order of the judge and has surrendered to his bail bonds. the exercise of powers under section 435 and the sections immediately following it are discretionary. section 440, criminal p.c., provides that no party has any right to be heard either personally or by pleader before any court when exercising its powers of revision. in this instance the applicant has thought fit to remain at large and in my opinion he is in contempt of court. in har narain prasad v. emperor (1923) 10 a.i.r. all. 327, a learned judge of this court declined to entertain the application of an accused person who had absconded after being released on bail. the facts of his case are distinguishable. in khairat ali v. wahid ali : air1928 cal241 it was held that a party who was in contempt of court could not be heard in revision. in that case a warrant was issued for the arrest of the petitioners. the petitioners without appearing before the trial court moved the sessions judge and prayed for an order of stay, of further proceedings. the application was dismissed by the sessions judge and thereupon the petitioners moved the high court for the same order. the court discharged the rule on the ground that the petitioners had not appeared in pursuance of the warrant issued by the magistrate.3. it seems to me that as long as the applicant does not enter appearance in obedience to the order of the court below, this court will not be justified in exercising its discretionary powers in favour of the applicant. further, until the order of the court below is complied with, learned counsel representing the applicant will not have a right of audience. i have fully considered the argument of learned counsel and i am of opinion that this application cannot be entertained at present. it is accordingly rejected. this order will not stand in the way of the applicant if he comes to this court in revision after surrendering to his bail bonds. as copies of the judgments of the courts below have been filed, it will not be necessary for the applicant to file fresh copies of the judgments.

Judgment:
ORDER

Mohammad Ismail, J.

1. This is an application in revision on behalf of one Sheomandil who was convicted and sentenced to a term of nine months rigorous imprisonment and a fine of Rs. 500 under Section 406, I.P.C., by a Magistrate of the First Class. The order of the learned Magistrate was confirmed on appeal by an order dated 20th August 1938. The applicant now comes to this Court in revision. It is admitted by learned Counsel that the accused has not surrendered himself and is still at large. The concluding portion of the order of the learned Sessions Judge is : 'The appeal is rejected. The accused is directed to submit to his bail bonds.' This order has not been complied with. Learned Counsel for the applicant states that the Appellate Court had not directed the applicant to be present in Court at the time of the delivery of judgment. Reference has been made to the Proviso to Section 424 which lays down that unless the Appellate Court otherwise directs, the accused shall not be brought up or required to attend to hear the judgment delivered. This Section is limited in its operation to the stage when the judgment is pronounced. In the judgment itself the learned Sessions Judge has directed the accused to surrender himself, as he was bound to do, and it was the duty of the applicant to enter appearance as soon as he was apprised of the order of the Court. It is not suggested that the accused is unaware of the order of the Court below. The fact that he has come to this Court in revision is proof positive of his knowledge of the order that has been passed by the Court below.

2. The question for consideration is whether it is open to the applicant or his learned Counsel to move this application until the applicant has obeyed the order of the Judge and has surrendered to his bail bonds. The exercise of powers under Section 435 and the Sections immediately following it are discretionary. Section 440, Criminal P.C., provides that no party has any right to be heard either personally or by pleader before any Court when exercising its powers of revision. In this instance the applicant has thought fit to remain at large and in my opinion he is in contempt of Court. In Har Narain Prasad v. Emperor (1923) 10 A.I.R. All. 327, a learned Judge of this Court declined to entertain the application of an accused person who had absconded after being released on bail. The facts of his case are distinguishable. In Khairat Ali v. Wahid Ali : AIR1928 Cal241 it was held that a party who was in contempt of Court could not be heard in revision. In that case a warrant was issued for the arrest of the petitioners. The petitioners without appearing before the trial Court moved the Sessions Judge and prayed for an order of stay, of further proceedings. The application was dismissed by the Sessions Judge and thereupon the petitioners moved the High Court for the same order. The Court discharged the rule on the ground that the petitioners had not appeared in pursuance of the warrant issued by the Magistrate.

3. It seems to me that as long as the applicant does not enter appearance in obedience to the order of the Court below, this Court will not be justified in exercising its discretionary powers in favour of the applicant. Further, until the order of the Court below is complied with, learned Counsel representing the applicant will not have a right of audience. I have fully considered the argument of learned Counsel and I am of opinion that this application cannot be entertained at present. It is accordingly rejected. This order will not stand in the way of the applicant if he comes to this Court in revision after surrendering to his bail bonds. As copies of the judgments of the Courts below have been filed, it will not be necessary for the applicant to file fresh copies of the judgments.