Jawahar Vs. State - Court Judgment

Excerpt:
criminal - interpretation - sections 4 and 39 and rule 2 of arms act, 1878 - applicant was prosecuted by additional district magistrate without being empowered by the state government - additional district magistrate is not district magistrate under section 39. - 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]. - 3. the contention of the learned counsel for the applicant is that the additional district magistrate was incompetent to accord the sanction this point was raised before the trying magistrate as well, but he took the view that since under rule 2(f) of the arms rules, 1962 a district magistrate includes, in relation to any district or part thereof, an additional district magistrate, the sanction in the present case was valid.ordergangeshwar prasad, j.1. this application in revision raises the question whether an additional district magistrate can sanction a prosecution under section 39 of the arms act without being empowered by the state government to do so.2. the applicant was convicted under section 25 of the arms act by the trying magistrate and his conviction was upheld by the sessions judge. it is not in dispute that the sanction on the basis of which the prosecution started had been given by an additional district magistrate, and the learned assistant government advocate has, after enquiry, state before me that the additional district magistrate, who sanctioned the prosecution, had not been directed or empowered by the state government to act under section 39 of the arms act.3. the contention of the learned counsel for the applicant is that the additional district magistrate was incompetent to accord the sanction this point was raised before the trying magistrate as well, but he took the view that since under rule 2(f) of the arms rules, 1962 a district magistrate includes, in relation to any district or part thereof, an additional district magistrate, the sanction in the present case was valid. the magistrate was evidently wrong in this view.4. the definitions provided by the arms rules govern the rules only and they cannot be applied to expressions used in the act. the requirement of a sanction as an essential condition of a prosecution is contained not in the rules but in section 39 of the act, and the expression 'district magistrate' cannot therefore have in the said provision, that extended meaning which has been assigned to it by the definition given in the rules under section 10(2) of the code of criminal procedure it is certainly open to the state government to direct that a magistrate appointed as an additional district magistrate shall have all or any of the powers of a district magistrate under the code or under any other law for the time being in force. but, as i have already noted. it is conceded on behalf of the state that the state government had not directed the additional district magistrate concerned to sanction prosecution under the arms act. the sanction purporting to have been granted by the additional district magistrate was, therefore, incompetent and the prosecution of the applicant was accordingly barred from cognizance.5. the application is allowed, the conviction and sentence of the applicant are set aside, and he is acquitted. the applicant is on bail; he need not surrender to his bail and his bail bonds are discharged.

Judgment:
ORDER

Gangeshwar Prasad, J.

1. This application in revision raises the question whether an Additional District Magistrate can sanction a prosecution under Section 39 of the Arms Act without being empowered by the State Government to do so.

2. The applicant was convicted under Section 25 of the Arms Act by the trying Magistrate and his conviction was upheld by the Sessions Judge. It is not in dispute that the sanction on the basis of which the prosecution started had been given by an Additional District Magistrate, and the learned Assistant Government Advocate has, after enquiry, state before me that the Additional District Magistrate, who sanctioned the prosecution, had not been directed or empowered by the State Government to Act under Section 39 of the Arms Act.

3. The contention of the learned counsel for the applicant is that the Additional District Magistrate was incompetent to accord the sanction This point was raised before the trying Magistrate as well, but he took the view that since under Rule 2(f) of the Arms Rules, 1962 a District Magistrate includes, in relation to any district or part thereof, an Additional District Magistrate, the sanction in the present case was valid. The Magistrate was evidently wrong in this view.

4. The definitions provided by the Arms Rules govern the Rules only and they cannot be applied to expressions used in the Act. The requirement of a sanction as an essential condition of a prosecution is contained not in the Rules but in Section 39 of the Act, and the expression 'District Magistrate' cannot therefore have in the said provision, that extended meaning which has been assigned to it by the definition given in the Rules Under Section 10(2) of the Code of Criminal Procedure it is certainly open to the State Government to direct that a Magistrate appointed as an Additional District Magistrate shall have all or any of the powers of a District Magistrate under the Code or under any other law for the time being in force. But, as I have already noted. It is conceded on behalf of the State that the State Government had not directed the Additional District Magistrate concerned to sanction prosecution under the Arms Act. The sanction purporting to have been granted by the Additional District Magistrate was, therefore, incompetent and the prosecution of the applicant was accordingly barred from cognizance.

5. The application is allowed, the conviction and sentence of the applicant are set aside, and he is acquitted. The applicant is on bail; he need not surrender to his bail and his bail bonds are discharged.