Emperor Vs. Ishri - Court Judgment

Excerpt:
act no. xlv of 1860 (indian penal code), section 456 - lurking house-trespass by night--intention--burden of proof. - 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]. - i fully agree with what has been laid down by the judges of the calcutta high court in a precisely similar case--balmakund ram v. and applying this definition and this rule of common sense to this case, we feel bound to say that a guilty intention is proved in this case and that it must have been some one of those mentioned in section 441 of the indian penal code, though it is not easy to say precisely which of those it was.george knox, j.1. the accused, ishri, has been convicted of an offence under section 456 of the indian penal code. i am asked to interfere in revision on the ground that the evidence for the prosecution does not prove that the accused was in the house with a criminal intent. reliance is placed upon the case, brij basi v. the queen empress (1896) i.l.r., 19 all., 74. the present case differs from brij basi v. queen-empress in one very important point. in the case quoted the offence of which the accused was convicted was house-trespass with intent to commit adultery. the husband was not called as a witness and did not appear as a witness, and the nephew who was the complainant and who was living in the house, was also not called as a witness. in the present case the husband was called as a witness and gave evidence at great length. he was cross-examined at considerable length also, and throughout the cross-examination the question was never asked him--'did not ishri come into the house with your consent?' one thing is abundantly clear from his evidence that ishri's presence in his house, namely, the complainant's house at midnight was not with the consent, or at the invitation of or for the pleasure of the complainant. the case is a very simple one. the accused was found inside the house of the complainant at midnight, and his presence was discovered by the wife of the complainant crying out that a thief was taking away her hansli. this may have been conjecture on her part, but whatever the intent was with which the accused entered the house, the knowledge of that intent is specially within his knowledge, and if that intent was an innocent one, it was for him to say what it was, even if i do not go so far as the indian evidence act requires me to go, as the burden of proving it is on him. in his defence the accused set up an alibi. the learned counsel who appears for the accused strenuously contended that inasmuch as the intention was an ingredient of an offence under section 456, it was for the prosecution to prove that the intention was a criminal one. in other words, if the owner of a house wakes up at midnight and finds a person inside the house and if he is not able to prove that he came there with a criminal intent and that man denies that he came to the house, it is still for the owner to prove that that intent was a criminal one. i fully agree with what has been laid down by the judges of the calcutta high court in a precisely similar case--balmakund ram v. ghansamram (1894) i.l.r., 22 calc., 391--and it is not for the first time in this court that i have laid down the same. the learned judges say, vide page 407: 'we were told that this did not prove any intention, though it might raise a suspicion of the intention being guilty. but what is the meaning of proof as defined in the evidence act, which is the law of the land? by section 3 of the act 'a fact is said to be proved, when after considering the matters before it, the court either believes it to exist, or considers its existence so probable that a prudent man ought, under the circumstances of the particular case, to act upon the supposition that it exists.' that is the definition which the legislature has laid down for our guidance as to when a fact is said to be proved. we may add that it is only the embodiment of a sound rule of common sense: and applying this definition and this rule of common sense to this case, we feel bound to say that a guilty intention is proved in this case and that it must have been some one of those mentioned in section 441 of the indian penal code, though it is not easy to say precisely which of those it was.' the petition fails, and i dismiss it.