Kashi Ram and ors. Vs. State - Court Judgment

Excerpt:
criminal - composite sentence - sections 367( 2 ) and 537 of criminal procedure code, 1898 - punishment for each offence of which an accused is found guilty should be specified separately - composite punishment imposed - composite punishment for the various offences which have been specified and found to be committed by a particular accused - cannot always be said that the sentence vitiates the trial - imposition of composite sentence merely an irregularity. - 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]. - in the present case the learned magistrate clearly specified the sections under which each individual was held guilty. the section clearly requires that the court shall apply its mind to the offence or offences which have been committed by every accused and record its finding thereon, and further, that it will specify the punishment which it proposes to impose upon the accused. although the section is not clearly worded, it implies that the punishment for each offence of which an accused is found guilty should be specified separately. 130 is clearly distinguishable, because in that case even the sections were not specified by the learned magistrate, and, therefore, it was held that the learned magistrate had not applied his mind to the case.orderagarwala, j.1. there is no force in this revision on the merits. the magistrate passed a composite order of sentence of 18 months rigorous imprisonment under sections 452 and 323, penal code read with section 149, penal code and of six months' rigorous imprisonment under section 147, penal code. in appeal the learned judge considered that a composite sentence of punishment should not have been made but took no further steps in the matter. it has been urged that the composite sentence could not he passed, and in support of this argument reliance has been placed upon the ruling of a learned single judge of this court reported in brij nandan v. emperor : air1948 all136 . in that case five accused were tried under sections 147 and 452 and section 328 read with section 149, penal code. the learned magistrate who tried the case passed an order convicting the applicants without specifying the sections of the indian penal code under which he was convicting them and passed combined sentences upon them of six months' rigorous imprisonment and a fine of rs. 50 each. on those facts the learned judge held that the imposing of a composite sentence was not legal. it was observed : 'by nob specifying the different sections of the indian penal code under which each applicant was convicted and by not passing a separate sentence for each offence the trial court was unable to apply its mind to the case of each applicant separately and judging the extent of each applicant's guilt and determining what sentences should be passed upon them for each offence.' the facts of the present case are different. in the present case the learned magistrate clearly specified the sections under which each individual was held guilty. he held them guilty under sections 147 and 452 and section 323 read with section 149, penal code. ho sentenced each of them to undergo rigorous imprisonment for a period of six months under section 147, penal code and sentenced each of them to 18 months' rigorous imprisonment under sections 452 and 323 read with section 149, penal code. 2. under section 367 (2), criminal p. c., every judgment shall specify the offence (if any) of which, and the section of the indian penal code or other law under which, the accused is convicted, and the punishment to which he is sentenced. the section clearly requires that the court shall apply its mind to the offence or offences which have been committed by every accused and record its finding thereon, and further, that it will specify the punishment which it proposes to impose upon the accused. although the section is not clearly worded, it implies that the punishment for each offence of which an accused is found guilty should be specified separately. but where the punishment imposed is a composite punishment for the various offences which have been specified and found to be committed by a particular accused, it cannot always be said that the sentence vitiates the trial, provided that the sentence imposed does not exceed the maximum sentence provided under any one of the sections under which the accused has been found guilty, and provided of course that the magistrate was empowered to impose the sentence passed by him. the imposition of a composite sentence is merely an irregularity in such a case covered by section 537, criminal p. c. the case referred to above brij nandan v. emperor a. i. r. 1948 all. 130 is clearly distinguishable, because in that case even the sections were not specified by the learned magistrate, and, therefore, it was held that the learned magistrate had not applied his mind to the case. this cannot be said of the present case. i am, therefore, unable to hold that the imposition of a composite sentence of is months' rigorous imprisonment imposed by the learned magistrate vitiates the trial. the sentence, however, appears to me to be too severe. 3. while rejecting this application on merits, i reduce the sentence to one year's rigorous imprisonment. with this modification the revision application is rejected.

Judgment:
ORDER

Agarwala, J.

1. There is no force in this revision on the merits. The Magistrate passed a composite order of sentence of 18 months rigorous imprisonment under Sections 452 and 323, Penal Code read with Section 149, Penal Code and of six months' rigorous imprisonment under Section 147, Penal Code. In appeal the learned Judge considered that a composite sentence of punishment should not have been made but took no further steps in the matter. It has been urged that the composite sentence could not he passed, and in support of this argument reliance has been placed upon the ruling of a learned Single Judge of this Court reported in Brij Nandan v. Emperor : AIR1948 All136 . In that case five accused were tried under Sections 147 and 452 and Section 328 read with Section 149, Penal Code. The learned Magistrate who tried the case passed an order convicting the applicants without specifying the sections of the Indian Penal Code under which he was convicting them and passed combined sentences upon them of six months' rigorous imprisonment and a fine of Rs. 50 each. On those facts the learned Judge held that the imposing of a composite sentence was not legal. It was observed :

'By nob specifying the different sections of the Indian Penal Code under which each applicant was convicted and by not passing a separate sentence for each offence the trial Court was unable to apply its mind to the case of each applicant separately and judging the extent of each applicant's guilt and determining what sentences should be passed upon them for each offence.'

The facts of the present case are different. In the present case the learned Magistrate clearly specified the sections under which each individual was held guilty. He held them guilty under Sections 147 and 452 and Section 323 read with Section 149, Penal Code. Ho sentenced each of them to undergo rigorous imprisonment for a period of six months under Section 147, Penal Code and sentenced each of them to 18 months' rigorous imprisonment under Sections 452 and 323 read with Section 149, Penal Code.

2. Under Section 367 (2), Criminal P. C., every judgment shall specify the offence (if any) of which, and the section of the Indian Penal Code or other law under which, the accused is convicted, and the punishment to which he is sentenced. The section clearly requires that the Court shall apply its mind to the offence or offences which have been committed by every accused and record its finding thereon, and further, that it will specify the punishment which it proposes to impose upon the accused. Although the section is not clearly worded, it implies that the punishment for each offence of which an accused is found guilty should be specified separately. But where the punishment imposed is a composite punishment for the various offences which have been specified and found to be committed by a particular accused, it cannot always be said that the sentence vitiates the trial, provided that the sentence imposed does not exceed the maximum sentence provided under any one of the sections under which the accused has been found guilty, and provided of course that the Magistrate was empowered to impose the sentence passed by him. The imposition of a composite sentence is merely an irregularity in such a case covered by Section 537, Criminal P. C. The case referred to above Brij Nandan v. Emperor A. I. R. 1948 ALL. 130 is clearly distinguishable, because in that case even the sections were not specified by the learned Magistrate, and, therefore, it was held that the learned Magistrate had not applied his mind to the case. This cannot be said of the present case. I am, therefore, unable to hold that the imposition of a composite sentence of is months' rigorous imprisonment imposed by the learned Magistrate vitiates the trial. The sentence, however, appears to me to be too severe.

3. While rejecting this application on merits, I reduce the sentence to one year's rigorous imprisonment. With this modification the revision application is rejected.