Emperor Vs. Mathura - 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]. - a woman of loose character, but that five or six men, one of whom, makhan, is an old man of 50 or 60 years, should combine to do away with, her husband in order to enjoy her freely is not-easy to believe. 4. in the case before me i am not satisfied that the confession and the statement made by mathura in the court of the committing magistrate were true and were voluntarily made.orderiqbal ahmad, j.1. the learned second additional sessions judge of cawnpore has made this reference by a letter dated 6th september 1933, asking this court to sanction the prosecution of mathura under section 339(3), criminal p.c. as i have come to the conclusion that the reference ought not to be accepted and the prosecution of mathura should not be ordered, i need not consider the question, whether application for sanction to prosecute mathura should have been made by motion on behalf of the crown in open court and not by a letter of reference which has been submitted by the sessions judge in the present case. one mata din mullah, resident of village keotra, was murdered on 21st may 1933. on the morning of the 22nd may his corpse was found in the khalyan of one chunna. this threshing-floor of chunna is at a distance of about 800 paces from the cucumber field of mata din which is situate on the banks of jamna and which is at a distance of about half a mile from the abadi of village keotra. a report of the incident was made in the police station on 22nd may. pt. inder kuwar, the station officer, reached village keotra the same day at about 6 p. m he recorded the statements of some witnesses and suspected matbura and five other persons, viz., makhan, mata din, babu earn, residents of koatra, sheo prasad, resident of kathri, and kali charan, resident of teonga, as being the persons responsible for the murder of mata din. it is said that the five persons named above could not be found on 22nd may. they were all, however, arrested on 23rd may and their houses were searched. nothing incriminating was found in the house of any persons except kali charan. kali charan handed over to the sub-inspector a gandasa and a dhoti. the chemical examiner found : blood stains on both and the imperial serologist found that the gandasa was stained with human blood.2. mathura is alleged to have been arrested on 10th june. he was produced before a magistrate on 11th june with a view to his statement being recorded under section 164, criminal p.c. the magistrate did not record his statement on that date and sent him to the jail look up. on 12th june mathura's confession was recorded. all the five persons named above and mathura were sent up by the police. mathura was however offered pardon by the committing magistrate and was examined as an approver by him. the magistrate committed the five persons to the court of session. in that court mathura was examined as a witness for the prosecution, and he resiled from his previous statements and stated that he made the confession and the statement in, the court of the committing magistrate at the instance of the police. as mathura admitted that the previous statements made by him were false the learned judge has made the present reference-for sanction to prosecute mathura under section 193, i.p.c. the learned judge acquitted all the five persons named above. he rightly observed that as against four of them there was no evidence worth the name and as against kali charan there was not sufficient legal evidence. the motive for the murder alleged by the prosecution did not appear convincing to the learned judge and i share his view. the case for the prosecution was that all the five accused had illicit intimacy with, the deceased mata din's wife mt. mathuria, and, that mata din was murdered by them in order that they should have free access to her. while dealing with the question of motive, the learned judge made the following observation:no doubt mt. mathuria appears from her own evidence and the evidence of mathura to be. a woman of loose character, but that five or six men, one of whom, makhan, is an old man of 50 or 60 years, should combine to do away with, her husband in order to enjoy her freely is not-easy to believe.3. it is, obvious that if an approver resiles from a previous statement made by him incriminating himself and certain other persons and makes a statement directly contradictory to the one previously made by him, one of his two statements must be false, and, as such he must necessarily be guilty of giving false evidence. but the fact, that the legislature has prohibited the prosecution of an approver for the offence of giving false evidence without the sanction of the high court, demonstrates that the mere fact that the two statements are contradictory cannot in every case be a warrant for directing the prosecution of the approver. the discretion vested in this court by section 339(3), criminal p.c. to sanction the prosecution of an approver for the offence of giving false evidence must, in my judgment, be exercised with extreme caution. it appears, to me that when this court is asked to exercise the powers vested in this court by the enactment referred to above, the cardinal question for consideration is whether the confession and the, incriminating statement made by the approver were or were not true. if the circumstances point to the conclusion that the confession and the incriminating statement were not true, the irresistible inference must be, that those statements were put into the mouth of the approver by some one by inducement or by threat and, in such a case, it would be opposed to public policy to prosecute and to punish an approver for the offence of giving false evidence, when as a matter of fact he did not voluntarily make the incriminating statement. on the other hand, if it appears that the confession and the incriminating statement represented the true state of facts, and the approver in collusion with the accused resiled from the statement previously made by him, his subsequent statement must be false and in such a case it is not only desirable but expedient to order his prosecution for giving false evidence. the exercise of the discretion must depend on the answer to the question whether the confession was or was not voluntary and all the circumstances must be carefully considered in order to arrive at a conclusion on the point. in the consideration of this question the fact that, on the promise of pardon being tendered to him, it is very easy to persuade an illiterate villager to make a confession should not be lost sight of.4. in the case before me i am not satisfied that the confession and the statement made by mathura in the court of the committing magistrate were true and were voluntarily made. on the other hand, i consider that the case for the prosecution was not true and that the evidence for the prosecution was fabricated. the rest of the judgment is not necessary to the report.

Judgment:
ORDER

Iqbal Ahmad, J.

1. The learned Second Additional Sessions Judge of Cawnpore has made this reference by a letter dated 6th September 1933, asking this Court to sanction the prosecution of Mathura under Section 339(3), Criminal P.C. As I have come to the conclusion that the reference ought not to be accepted and the prosecution of Mathura should not be ordered, I need not consider the question, whether application for sanction to prosecute Mathura should have been made by motion on behalf of the Crown in open Court and not by a letter of reference which has been submitted by the Sessions Judge in the present case. One Mata Din Mullah, resident of village Keotra, was murdered on 21st May 1933. On the morning of the 22nd May his corpse was found in the Khalyan of one Chunna. This threshing-floor of Chunna is at a distance of about 800 paces from the cucumber field of Mata Din which is situate on the banks of Jamna and which is at a distance of about half a mile from the abadi of village Keotra. A report of the incident was made in the police station on 22nd May. Pt. Inder Kuwar, the station officer, reached village Keotra the same day at about 6 p. m He recorded the statements of some witnesses and suspected Matbura and five other persons, viz., Makhan, Mata Din, Babu Earn, residents of Koatra, Sheo Prasad, resident of Kathri, and Kali Charan, resident of Teonga, as being the persons responsible for the murder of Mata Din. It is said that the five persons named above could not be found on 22nd May. They were all, however, arrested on 23rd May and their houses were searched. Nothing incriminating was found in the house of any persons except Kali Charan. Kali Charan handed over to the Sub-Inspector a Gandasa and a dhoti. The Chemical Examiner found : blood stains on both and the Imperial Serologist found that the Gandasa was stained with human blood.

2. Mathura is alleged to have been arrested on 10th June. He was produced before a Magistrate on 11th June with a view to his statement being recorded under Section 164, Criminal P.C. The Magistrate did not record his statement on that date and sent him to the jail look up. On 12th June Mathura's confession was recorded. All the five persons named above and Mathura were sent up by the police. Mathura was however offered pardon by the Committing Magistrate and was examined as an approver by him. The Magistrate committed the five persons to the Court of Session. In that Court Mathura was examined as a witness for the prosecution, and he resiled from his previous statements and stated that he made the confession and the statement in, the Court of the Committing Magistrate at the instance of the police. As Mathura admitted that the previous statements made by him were false the learned Judge has made the present reference-for sanction to prosecute Mathura under Section 193, I.P.C. The learned Judge acquitted all the five persons named above. He rightly observed that as against four of them there was no evidence worth the name and as against Kali Charan there was not sufficient legal evidence. The motive for the murder alleged by the prosecution did not appear convincing to the learned Judge and I share his view. The case for the prosecution was that all the five accused had illicit intimacy with, the deceased Mata Din's wife Mt. Mathuria, and, that Mata Din was murdered by them in order that they should have free access to her. While dealing with the question of motive, the learned Judge made the following observation:

No doubt Mt. Mathuria appears from her own evidence and the evidence of Mathura to be. a woman of loose character, but that five or six men, one of whom, Makhan, is an old man of 50 or 60 years, should combine to do away with, her husband in order to enjoy her freely is not-easy to believe.

3. It is, obvious that if an approver resiles from a previous statement made by him incriminating himself and certain other persons and makes a statement directly contradictory to the one previously made by him, one of his two statements must be false, and, as such he must necessarily be guilty of giving false evidence. But the fact, that the legislature has prohibited the prosecution of an approver for the offence of giving false evidence without the sanction of the High Court, demonstrates that the mere fact that the two statements are contradictory cannot in every case be a warrant for directing the prosecution of the approver. The discretion vested in this Court by Section 339(3), Criminal P.C. to sanction the prosecution of an approver for the offence of giving false evidence must, in my judgment, be exercised with extreme caution. It appears, to me that when this Court is asked to exercise the powers vested in this Court by the enactment referred to above, the cardinal question for consideration is whether the confession and the, incriminating statement made by the approver were or were not true. If the circumstances point to the conclusion that the confession and the incriminating statement were not true, the irresistible inference must be, that those statements were put into the mouth of the approver by some one by inducement or by threat and, in such a case, it would be opposed to public policy to prosecute and to punish an approver for the offence of giving false evidence, when as a matter of fact he did not voluntarily make the incriminating statement. On the other hand, if it appears that the confession and the incriminating statement represented the true state of facts, and the approver in collusion with the accused resiled from the statement previously made by him, his subsequent statement must be false and in such a case it is not only desirable but expedient to order his prosecution for giving false evidence. The exercise of the discretion must depend on the answer to the question whether the confession was or was not voluntary and all the circumstances must be carefully considered in order to arrive at a conclusion on the point. In the consideration of this question the fact that, on the promise of pardon being tendered to him, it is very easy to persuade an illiterate villager to make a confession should not be lost sight of.

4. In the case before me I am not satisfied that the confession and the statement made by Mathura in the Court of the Committing Magistrate were true and were voluntarily made. On the other hand, I consider that the case for the prosecution was not true and that the evidence for the prosecution was fabricated. The rest of the judgment is not necessary to the report.