Ganga Bux Singh and anr. Vs. the State - Court Judgment

Excerpt:
criminal - power to discharge - sub-section (2) of section 253 of criminal procedure code, 1898 - magistrate is not entitled to discharge an accused at any stage of an inquiry arbitrarily - has to give reasons for the order of discharge. - 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 has been argued on behalf of the applicants in this court that the magistrate was perfectly within his rights to pass an order of discharge in respect of any of the accused at any stage of the trial and that it was not incumbent upon him to record the entire evidence to be produced by the complainant before the order of discharge could be passed. taking into consideration all these circumstances i do not see any good reason for setting aside the order passed by the sessions judge.orderrandhir singh, j.1. this is an application in revision against the order of the sessions judge setting aside the order of discharge passed by a magistrate.2. it appears that one thakurain kailash kuar widow of thakur narendra bikramjit singh, taluqdar of parsandi, died on 22-6-1949, leaving movable and immovable property. there was dispute in the mutation court regarding immovable property and about a year and a half alter the death of the lady a complaint was filed by ram nath bakhsh singh, brother of thakurain kailash kuar's husband, against ganga bakhsh singh and others, alleging that the accused had misappropriated property belonging to the widow. process was issued against the accused and the case came up for hearing on 15-10-1951. an application was made by ganga bakhsh singh accused asking the court that he should be discharged as there was no case against him. another application was made by the deputy commissioner, acting as president of a trust created by narendra bikramjit singh, to the court in which it was mentioned that no property belonging to thakurain kailash kuar had been misappropriated by ganga bakhsh singh or the other accused and that the complaint filed by ram nath bakhsh singh was false and baseless. the learned magistrate then discharged ganga bakhsh singh and the complainant went in revision to the sessions judge who set aside the order of discharge. ganga bakhsh singh has now come up in revision to this court.3. a perusal of the order passed by the learned sessions judge shows that the magistrate discharged the accused after perusing the applications made by him and by the deputy commissioner as also some registered documents produced by the accused ganga bakhsh singh. no opportunity, it appears, had been given to the complainant to have his say about the matters mentioned in the applications or about the contents or the execution of the deed relied upon by the accused ganga bakhsh singh.it has been argued on behalf of the applicants in this court that the magistrate was perfectly within his rights to pass an order of discharge in respect of any of the accused at any stage of the trial and that it was not incumbent upon him to record the entire evidence to be produced by the complainant before the order of discharge could be passed. he relied on section 253 (2) criminal p. c. there can be no doubt that a magistrate is entitled to discharge an accused at any stage of an inquiry or trial if it appears to the magistrate that the charge brought against the accused was groundless. the magistrate, however, has to give reasons for the order of discharge. this provision, however, does not clothe the magistrate with an arbitrary power of discharge. the magistrate is entitled to take advantage of the provisions of section 253(2) if there are grounds and material on the record to come to a definite conclusion that the charge was baseless.in the present case the trust deed executed by narendra bikramjit singh would not be of much avail inasmuch as narendra bikramjit singh died in the year 1931 and was succeeded by his widow thakurain kailash kuar who died in 1949. the widow was entitled to appropriate the profits of the estate during her life time and it is possible that she might have acquired some moveable property out of the profits or the income of the property and this property would go to the heirs of kailash kuar and would not be governed by the trust deed which was only in respect of the property belonging to narendra bikramjit singh. it would have been difficult, therefore, for the magistrate to come to the conclusion that the charge was baseless without making an inquiry as to whether the property in respect of which the charge of criminal misappropriation or breach of trust had been brought against the accused did or did not belong to thakurain kailash kuar and was or was not misappropriated or taken away by the accused. the magistrate, therefore, acted with undue haste in passing the order of discharge without making proper inquiry or without waiting for the full facts of the case being brought on the record.in view of these circumstances it is difficult to say that the order passed by the sessions judge setting aside the order of discharge was not a proper order. the application made by the deputy commissioner as president of the trust committee was to say the least, ill-advised. the matter was before a magistrate, and if anybody, howsoever high or disinterested he may be, brings to the notice of the court that, the matter pending before the court was false it would be a most indiscreet act and may even amount to a contempt of court. the learned magistrate should not therefore have taken into consideration any facts with regard to the merits of the complaint mentioned in the application. the facts mentioned by the accused in his application could have been taken into consideration if substantiated or if admitted by the complainant. no opportunity was, however, given to the complainant to admit or rebut the facts mentioned in the application. taking into consideration all these circumstances i do not see any good reason for setting aside the order passed by the sessions judge. the application in revision is, therefore, dismissed.it may, however, be noted that it would he open to the magistrate to proceed under section 253 (2) if the magistrate finds, after all the material has come up before him, to lead to the conclusion that the charge against any of the accused was groundless.

Judgment:
ORDER

Randhir Singh, J.

1. This is an application in revision against the order of the Sessions Judge setting aside the order of discharge passed by a Magistrate.

2. It appears that one Thakurain Kailash Kuar widow of Thakur Narendra Bikramjit Singh, taluqdar of Parsandi, died on 22-6-1949, leaving movable and immovable property. There was dispute in the mutation Court regarding immovable property and about a year and a half alter the death of the lady a complaint was filed by Ram Nath Bakhsh Singh, brother of Thakurain Kailash Kuar's husband, against Ganga Bakhsh Singh and others, alleging that the accused had misappropriated property belonging to the widow. Process was issued against the accused and the case came up for hearing on 15-10-1951. An application was made by Ganga Bakhsh Singh accused asking the Court that he should be discharged as there was no case against him. Another application was made by the Deputy Commissioner, acting as President of a trust created by Narendra Bikramjit Singh, to the Court in which it was mentioned that no property belonging to Thakurain Kailash Kuar had been misappropriated by Ganga Bakhsh Singh or the other accused and that the complaint filed by Ram Nath Bakhsh Singh was false and baseless. The learned Magistrate then discharged Ganga Bakhsh Singh and the complainant went in revision to the Sessions Judge who set aside the order of discharge. Ganga Bakhsh Singh has now come up in revision to this Court.

3. A perusal of the order passed by the learned Sessions Judge shows that the Magistrate discharged the accused after perusing the applications made by him and by the Deputy Commissioner as also some registered documents produced by the accused Ganga Bakhsh Singh. No opportunity, it appears, had been given to the complainant to have his say about the matters mentioned in the applications or about the contents or the execution of the deed relied upon by the accused Ganga Bakhsh Singh.

It has been argued on behalf of the applicants in this court that the Magistrate was perfectly within his rights to pass an order of discharge in respect of any of the accused at any stage of the trial and that it was not incumbent upon him to record the entire evidence to be produced by the complainant before the order of discharge could be passed. He relied on Section 253 (2) Criminal P. C. There can be no doubt that a Magistrate is entitled to discharge an accused at any stage of an inquiry or trial if it appears to the Magistrate that the charge brought against the accused was groundless. The Magistrate, however, has to give reasons for the order of discharge. This provision, however, does not clothe the Magistrate with an arbitrary power of discharge. The magistrate is entitled to take advantage of the provisions of Section 253(2) if there are grounds and material on the record to come to a definite conclusion that the charge was baseless.

In the present case the trust deed executed by Narendra Bikramjit Singh would not be of much avail inasmuch as Narendra Bikramjit Singh died in the year 1931 and was succeeded by his widow Thakurain Kailash Kuar who died in 1949. The widow was entitled to appropriate the profits of the estate during her life time and it is possible that she might have acquired some moveable property out of the profits or the income of the property and this property would go to the heirs of Kailash Kuar and would not be governed by the trust deed which was only in respect of the property belonging to Narendra Bikramjit Singh. It would have been difficult, therefore, for the Magistrate to come to the conclusion that the charge was baseless without making an inquiry as to whether the property in respect of which the charge of criminal misappropriation or breach of trust had been brought against the accused did or did not belong to Thakurain Kailash Kuar and was or was not misappropriated or taken away by the accused. The Magistrate, therefore, acted with undue haste in passing the order of discharge without making proper inquiry or without waiting for the full facts of the case being brought on the record.

In view of these circumstances it is difficult to say that the order passed by the Sessions Judge setting aside the order of discharge was not a proper order. The application made by the Deputy Commissioner as President of the Trust Committee was to say the least, ill-advised. The matter was before a Magistrate, and if anybody, howsoever high or disinterested he may be, brings to the notice of the Court that, the matter pending before the Court was false it would be a most indiscreet act and may even amount to a contempt of Court. The learned Magistrate should not therefore have taken into consideration any facts with regard to the merits of the complaint mentioned in the application. The facts mentioned by the accused in his application could have been taken into consideration if substantiated or if admitted by the complainant. No opportunity was, however, given to the complainant to admit or rebut the facts mentioned in the application. Taking into consideration all these circumstances I do not see any good reason for setting aside the order passed by the Sessions Judge. The application in revision is, therefore, dismissed.

It may, however, be noted that it would he open to the Magistrate to proceed under Section 253 (2) if the Magistrate finds, after all the material has come up before him, to lead to the conclusion that the charge against any of the accused was groundless.