Emperor Vs. Gyan Singh - Court Judgment

Excerpt:
- 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 district magistrate is right in saying that the opinion of two at least of the judges was that failure to give a satisfactory account of himself in suspicious circumstances brings the case of the person proceeded against within the scope of section 109(b). in the present case however the magistrate does not appear to have considered that the circumstances were suspicious, i do not think that i am called upon to decide whether, if he had held that the circumstances were suspicious, he could have relied for support on the decision of the full bench quoted above. the question of whether the circumstances are suspicious is mainly a question of fact, and if a magistrate is satisfied that the circumstances in which a person who is brought before him under section 109, cr. in the present case the magistrate has not dealt at length with clause (b) of section 109, but as he clearly did not consider the circumstances which justified him in demanding security under clause (b) it is quite unnecessary to go into the matter further.orderkendall, j.1. this is a reference made by the district magistrate of cawnpore asking the court to set aside an order passed by a sub-divisional officer of that district by which he discharged certain persons who had been brought before him under section 109, criminal p.c. the circumstances were briefly that the persons who were prosecuted before the magistrate had been discovered by the police travelling together by night in a motor lorry, and certain arms are said to have been in their possession at that time. the first information report was made on 10th may 1932 at midnight under section 399, penal code; but a second report was made on 4th july in which the case under section 399 appears to have been dropped and it was alleged against the persons arrested that they had been hiding themselves inside the lorry and had been in possession of arms in order to commit some offence. the magistrate found that all these persons had given their correct names and addresses to the police and that some of them were in possession of cultivatory holdings or zamindari. he considered that he could not call on them to provide bonds under section 109, cr.p.c. the district magistrate has agreed with him that section 109 clause (a) will not cover the case, but he has made the reference on the ground that the sub-divisional officer should have proceeded under clause (b) of section 109, and he has quoted the full bench ruling of this court reported in emperor v. phuchai a.i.r. 1929 all. 113 to show that clause (b) will cover the circumstances, in that the persons proceeded against did not give a satisfactory account of themselves in the sense in which those words have been interpreted by two at least of the judges who formed the full bench on that occasion.2. the question before the full bench was rather of the interpretation of clause (a) than clause (b) of section 109, cr. p.c. but the district magistrate is right in saying that the opinion of two at least of the judges was that failure to give a satisfactory account of himself in suspicious circumstances brings the case of the person proceeded against within the scope of section 109(b). in the present case however the magistrate does not appear to have considered that the circumstances were suspicious, i do not think that i am called upon to decide whether, if he had held that the circumstances were suspicious, he could have relied for support on the decision of the full bench quoted above. the question of whether the circumstances are suspicious is mainly a question of fact, and if a magistrate is satisfied that the circumstances in which a person who is brought before him under section 109, cr.p.c. was found are not suspicious and that there is no need for him to call upon that person to provide security it is not the part of the high court to reverse his order and to demand security a year later on the ground that the circumstances had been suspicious. section 109, cr.p.c. is one of the preventive sections which are to be employed by magistrate for the prevention of crimes, and it must be rarely, if ever, that a high court will feel called upon to reverse an order of a magistrate refusing to demand security under any of those sections. it sometimes happens that a magistrate demands security when he is not entitled to do so by law, and then no doubt there is occasion for the high court to interfere on the ground that the magistrate has exceeded his power. in the case which was before the full bench the question before the court was one of interpretation of the section, and the court pointed out that the sessions judges had been wrong in law in interfering with the order of the magistrate. in the present case the magistrate has not dealt at length with clause (b) of section 109, but as he clearly did not consider the circumstances which justified him in demanding security under clause (b) it is quite unnecessary to go into the matter further. the result is that the reference must be and is refused, and the papers may be returned.

Judgment:
ORDER

Kendall, J.

1. This is a reference made by the District Magistrate of Cawnpore asking the Court to set aside an order passed by a Sub-Divisional Officer of that district by which he discharged certain persons who had been brought before him under Section 109, Criminal P.C. The circumstances were briefly that the persons who were prosecuted before the Magistrate had been discovered by the Police travelling together by night in a motor lorry, and certain arms are said to have been in their possession at that time. The first information report was made on 10th May 1932 at midnight under Section 399, Penal Code; but a second report was made on 4th July in which the case under Section 399 appears to have been dropped and it was alleged against the persons arrested that they had been hiding themselves inside the lorry and had been in possession of arms in order to commit some offence. The Magistrate found that all these persons had given their correct names and addresses to the police and that some of them were in possession of cultivatory holdings or zamindari. He considered that he could not call on them to provide bonds under Section 109, Cr.P.C. The District Magistrate has agreed with him that Section 109 Clause (a) will not cover the case, but he has made the reference on the ground that the sub-divisional officer should have proceeded under Clause (b) of Section 109, and he has quoted the Full Bench ruling of this Court reported in Emperor v. Phuchai A.I.R. 1929 All. 113 to show that Clause (b) will cover the circumstances, in that the persons proceeded against did not give a satisfactory account of themselves in the sense in which those words have been interpreted by two at least of the Judges who formed the Full Bench on that occasion.

2. The question before the Full Bench was rather of the interpretation of Clause (a) than Clause (b) of Section 109, Cr. P.C. but the District Magistrate is right in saying that the opinion of two at least of the Judges was that failure to give a satisfactory account of himself in suspicious circumstances brings the case of the person proceeded against within the scope of Section 109(b). In the present case however the Magistrate does not appear to have considered that the circumstances were suspicious, I do not think that I am called upon to decide whether, if he had held that the circumstances were suspicious, he could have relied for support on the decision of the Full Bench quoted above. The question of whether the circumstances are suspicious is mainly a question of fact, and if a Magistrate is satisfied that the circumstances in which a person who is brought before him under Section 109, Cr.P.C. was found are not suspicious and that there is no need for him to call upon that person to provide security it is not the part of the High Court to reverse his order and to demand security a year later on the ground that the circumstances had been suspicious. Section 109, Cr.P.C. is one of the preventive sections which are to be employed by Magistrate for the prevention of crimes, and it must be rarely, if ever, that a High Court will feel called upon to reverse an order of a Magistrate refusing to demand security under any of those sections. It sometimes happens that a Magistrate demands security when he is not entitled to do so by law, and then no doubt there is occasion for the High Court to interfere on the ground that the Magistrate has exceeded his power. In the case which was before the Full Bench the question before the Court was one of interpretation of the section, and the Court pointed out that the Sessions Judges had been wrong in law in interfering with the order of the Magistrate. In the present case the Magistrate has not dealt at length with Clause (b) of Section 109, but as he clearly did not consider the circumstances which justified him in demanding security under Clause (b) it is quite unnecessary to go into the matter further. The result is that the reference must be and is refused, and the papers may be returned.