Queen-empress Vs. Narain - Court Judgment

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maintenance - wife--criminal procedure code, section 488--breach of order for monthly allowance--warrant for levying arrears for several months--imprisonment for allowance remaining unpaid after execution of warrant--act i of 1868 (general clauses act), section 2 (18)--'imprisonment.' - 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]. - it appears to me that the provisions contained in the third paragraph of section 488 of the criminal procedure code, being distinctly of a penal character, ought to be strictly construed, and, as far as possible, construed in favour of the subject.john edge, kt., c.j.1. i am of opinion that the principle enunciated in the ruling reported in the madras high court reports, vol. 6, p. xxiii (appendix), is applicable to a case arising under section 488 of the present criminal procedure code. in my opinion the section contemplates that a separate warrant should issue for each separate monthly default, and where that is done, the maximum punishment can be one month's imprisonment. if a warrant is issued for an accumulation of arrears for several months, the magistrate has no power to pass a greater sentence in such a case than if the warrant in that case only related to one particular breach. to hold otherwise would raise a very great difficulty in regard to the manner in which the amount of punishment would have to be arrived at. for instance, an order is made for the payment of rs. 10 monthly, and default is made for six months, from january to june. on this a warrant is issued for rs. 60 arrears and returned by levy of rs. 30. it would be difficult to say how the magistrate should ascertain for which month's default he was to inflict punishment--whether he was to spread the payment over six months, or whether he was to apply it to three months; and, if so, whether in discharge of the first three months, or the last three months, or the intermediate three months. i am of opinion that the regular proceeding is that only one warrant should issue for each separate monthly breach, and that a magistrate cannot inflict a greater punishment than one month on each such occasion.straight, j.2. i am of the same opinion. it appears to me that the provisions contained in the third paragraph of section 488 of the criminal procedure code, being distinctly of a penal character, ought to be strictly construed, and, as far as possible, construed in favour of the subject. as i interpret that section, a condition precedent to the infliction of a term of imprisonment is the issue of a warrant in respect, of each breach of the order directing maintenance, and where, after distress has been issued, nulla bona is the return. i am borne out in this view by the language of the latter portion of the section, which says that the punishment which is to be inflicted under this section is to be inflicted in respect of the 'whole or any part of each month's allowance remaining unpaid alter the execution of the warrant.' that is to say, a warrant shall be issued in respect of each separate individual breach of the order of maintenance. i am not prepared to say, having regard to the ruling of the madras high court, 6 mad. h. c. rep., appendix, p. xxiii, that if by an informality one warrant may have been issued in respect of several breaches, and it appears that after the issue of that warrant distress has been made and there is still money unpaid by the party against whom the order has been made, it might not be within the competence of the magistrate to inflict a sentence of imprisonment. but that sentence would have to be regarded as applicable for a single breach, and could only extend to one month. but, in my opinion, the section contemplates one warrant, one punishment, and does not contemplate a cumulative warrant and cumulative punishment. i think, therefore, that in the present case the proper course will be to direct that the term of imprisonment ordered by the magistrate be reduced to one month's simple imprisonment. looking to the terms of section 2, clause 18 of the general clauses act, 'imprisonment' in section 488 may be either simple or rigorous.oldfield, j.3. i think that a claim for accumulated arrears of maintenance arising under several breaches of order may be dealt with in one proceeding and arrears be levied under a single warrant. at the same time i quite concur in the opinions expressed that, where this is done, the term of imprisonment inflicted in default must be limited to a term of one month.