Emperor Vs. Bansi and ors. - Court Judgment

Excerpt:
act no. xlv of 1860 (indian penal code), section 426 - act no. viii of 1878 [northern india canal and drainage act), sections 7 and 70--cutting walls of canal--mischief--penal provisions of the canal act not exclusive of the indian penal code. - 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]. - but the offence committed is far from trivial, section 7 shows clearly that section 70 does not bar the prosecution under any other law of any offence punishable under the canal act. the offence is a serious one and the act done might have resulted in very great loss, not only to the accused but to other persons as well.tudball, j.1. the applicants have been convicted by the magistrate of an offence under section 430 of the indian penal code. they were sentenced to one year's rigorous imprisonment each. on appeal the sessions judge reduced the sentence to three months' rigorous imprisonment. in revision it is urged on their behalf that the convictions should be really under section 70 of act viii of 1873, in the absence of evidence to show that any diminution of the supply of water for agricultural purposes was caused or likely to be caused by the act done by the applicants. the object of this application is really to secure a reduction of sentence. i have examined the record, and there is nothing in the evidence to show of what class the canal was, the bank of which was cut ; that is, whether it was the bank of a main canal or of a distributary. it is impossible in the absence of evidence on the point to hold that the act done was one which caused or was likely to cause a diminution of the supply of water for agricultural purposes. it appears that the applicants wanted water for the purpose of sowing their field. as they were unable to obtain it in a lawful manner, they proceeded to steal it. as the record stands, it is impossible to uphold the conviction under section 430 of the indian penal code. in any case mischief was committed. it is an act of wilful mischief for any person to make a breach in the wall of a canal. it is an act which causes such a change in property as destroys or diminishes its value or utility or affects it injuriously. there is nothing on the record to show the extent of damage done. the conviction must, therefore, be held under section 426 of the penal code. it is true that the act is also covered by section 70 of the canal and drainage act. but the offence committed is far from trivial, section 7 shows clearly that section 70 does not bar the prosecution under any other law of any offence punishable under the canal act. the maximum sentence under section 426 is three months' rigorous imprisonment. the sentence upheld by the lower appellate court is, therefore, not in excess of the maximum allowed by law. the offence is a serious one and the act done might have resulted in very great loss, not only to the accused but to other persons as well. in the circumstances of the case i see no object in interfering with the sentence as maintained by the lower court. i alter the conviction to one under section 426 of the indian penal code and uphold the sentence. the applicants, if on bail, will surrender.