Emperor Vs. Kali Charan and ors. - Court Judgment

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criminal procedure code, section 188 - offence committed outside british india by a native indian subject of his majesty--certificate of political agent not obtained before making inquiry. - 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]. john stanley, c.j.1. this is a reference by the learned sessions judge of gorakhpur, submitting the record to the high court with a recommendation that the commitment of the accused kali charan arakh, behari arakh, and girdhari arakh, who are british subjects, be quashed under section 215 of act no. v of 1898, on the ground that the name was illegal. the offence with which the accused are charged is alleged to have been committed in nepal. the magistrate inquired into the charge without having the certificate of the political agent of nepal as required by section 188 of the code of criminal procedure. this section provides that no charge as to, among others, an offence committed beyond the limits of british india, or by a british subject in the territories of any native prince or chief in india, shall be enquired into in british india unless the political agent, if there be one, for the territory in which the offence is said to have been committed, certifies that, in his opinion, the charge ought to be enquired into in british india. it is admitted that the certificate of the political agent in nepal was not obtained before the commencement of the inquiry by the committing magistrate, although it was subsequently obtained. it appears to me that under the language of this section the obtaining of such certificate is a preliminary requisite to the holding of an inquiry into such a charge. the alleged offence having been committed without the limits of british india, the section forbids any inquiry until the certificate has been obtained. i think, therefore, that the commitment was illegal, and i declare it to be so and quash the commitment. it will be open, however, to the magistrate to institute criminal proceedings de novo against the accused in accordance with law.2. see in this connection the cases of queen-empress v. ram sundar (1896) i.l.r. 19 all. 109 and queen-empress v. kathaperumal (1889) i.l.r. 13 mad. 423 in which, however, there was no certificate at all in existence at the time of the commitment being made.--ed.